Exhibit 10.1
LEASE AGREEMENT
This Lease Agreement ("Lease") between 000 Xxxxxxx Xxxxxx, LLC and ASA
INTERNATIONAL LTD. is made as of the 24th day of October, 2003.
RECITALS
WHEREAS, 000 Xxxxxxx Xxxxxx, XXX, x Xxx Xxxxxxxxx limited liability
company (hereinafter, "615 Amherst Street, LLC" or "LESSOR") and ASA
International Ltd. (hereinafter, "ASA International Ltd." or "LESSEE" as the
context may require) intend to enter into a lease under the terms and conditions
as set forth herein;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
TERMS
1. & 2. PARTIES AND PREMISES.
LESSOR, a New Hampshire limited liability company with an address of 00
Xxxxx Xxxx, Xxxxxxx, XX 00000, does hereby Lease to ASA International Ltd., a
Delaware corporation, with a principal place of business at 00 Xxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, and the LESSEE hereby leases the following described
Premises (the "Premises"):
Approximately 10,191 square feet of rentable first floor space, located
at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000. See Exhibit C: Leased Premises.
together with the right to use in common, with others entitled thereto, the
hallways, stairways, and elevators, necessary for access to said Premises, and
the lavatories nearest thereto. The entire building at 000 Xxxxxxx Xxxxxx,
Xxxxxx, XX of which the Premises is a part shall be referred to herein as the
"Building", and LESSOR hereby represents that the square footage of said
Building is approximately 25,600 square feet.
3. TERM.
The term of this Lease shall commence as of October 24, 2003 (the
"Commencement Date") and end October 31, 2008 (the "Expiration Date"). LESSEE
may terminate the Lease effective after forty-eight (48) months upon payment to
the LESSOR of three months Base Rent (as adjusted pursuant to Section 4 below to
the Base Rent in effect on the forty-eighth month of the Term).
Option to Extend Lease. LESSEE shall have one (1) option (the "Extension
Option") to extend the term of the Lease for one (1) additional five (5) year
period (the "Extension Period") after the expiration of the initial term. The
Extension Option shall be exercisable by written notice given by LESSEE to
LESSOR not later than six (6) months prior to the expiration of the initial
term. The amount of Base Rent charged for the Extension Period shall be as set
forth in paragraph 4 below.
If LESSEE exercises the Extension Option, the LESSOR shall, at its sole
cost and expense and in a good and workmanlike manner, perform the following
work prior to the commencement of the Extension Period: (a) install new
carpeting throughout the Premises of quality equal to the carpeting in the
Premises as of the date hereof and in a style and color of LESSEE'S choice; (b)
repaint all wall surfaces with 2 coats of paint in a color of LESSEE'S choice;
and (c) replace all stained and damaged ceiling tiles.
4. RENT.
The LESSEE shall pay to the LESSOR a base rent ("Base Rent") at the rate
of One Hundred Fifty-two Thousand Eight Hundred Sixty-five ($152,865) Dollars
per year payable in advance on the first of each month in monthly installments
of $12,738.75.
Commencing November 1, 2004, and on the same day of each year thereafter
during the term of this Lease, including the Extension Period if exercised by
LESSEE, (the "Adjustment Date"), the Base Rent shall be adjusted to reflect the
rate of change that occurred during the previous year in the Consumer Price
Index for all urban consumers; U.S. City Average, All Items, (1982 - 1984 = 100)
(the "CPI-U"), published by the Bureau of Labor Statistics of the United States
Department of Labor (the "Index"). The Base Rent in effect on the Commencement
Date shall be adjusted by a fraction, the numerator of which is the most
recently published CPI-U index for the month prior to each Adjustment Date, and
the denominator shall be the CPI-U for October 2003. Such increased rental shall
commence on the Adjustment Date and remain in effect until the next Adjustment
Date and in no event shall the rent be reduced below the Base Rent in effect on
the Commencement Date. Said increased rental shall be due and payable on the
Adjustment Date, or retroactively to the Adjustment Date from the date that
LESSOR notifies LESSEE of said increased rental. If the Index is not published,
then the LESSOR may use any other comparable Index published by an agency of the
United States Government or any other nationally reputable source. In any event,
the base year used by the comparable Index shall be reconciled to 1982 or any
appropriately revised base year.
Any payment of rent or any other monetary sum due hereunder from LESSEE
to LESSOR which is more than ten (10) days late shall bear interest at the rate
of one and one-half (1-1/2%) percent per month.
5. SECURITY DEPOSIT.
Intentionally deleted.
6. RENT ADJUSTMENT.
A. Tax Calculation. If in any tax year during the Term commencing with
January 1, 2004, the real estate taxes on the land and buildings, of which the
Premises are a part, ("Taxes") are in excess of the amount of the real estate
taxes thereon for the 2003 calendar year (hereinafter called the "Base Year"),
LESSEE will pay to LESSOR as additional rent hereunder, within fifteen (15) days
of notice in writing by LESSOR after LESSOR'S payment of such taxes, 39.8%
percent ("LESSEE'S Share") of such excess that may occur in each year of the
term of this lease or any extension or renewal thereof after the Base Year and
proportionately for any part of a fiscal year. If the LESSOR obtains an
2
abatement of any such excess real estate tax, a proportionate share of such
abatement, less the reasonable fees and costs incurred in obtaining the same, if
any, shall be refunded to the LESSEE. For purposes of this Section, Base Year
Taxes are $39,117. If LESSEE exercises the Extension Option, the Base Year Taxes
shall be the Taxes in effect for the 2003 calendar year.
B. Adjusted Rent. See Exhibit A: Operating Expense.
7. UTILITIES.
The LESSEE shall pay, as they become due, all charges and expenses for
telephone service as separately installed by LESSEE through the local utility
and for any and all other utilities that are furnished to the Premises per the
request of LESSEE and separately metered, other than for those utilities
specifically provided by LESSOR as set forth in the next sentence. The LESSOR
agrees to provide gas, electric and sewer service and to furnish reasonably hot
and cold running water and reasonable heat and air conditioning to the Premises,
the hallways, stairways, elevators, and lavatories during normal business hours
on regular business days of the heating and air conditioning seasons of each
year, to furnish elevator service and to light passageway and stairway during
business hours, all subject to interruption only due to any accident, to the
making of emergency repairs, alterations, or improvements, to labor
difficulties, to trouble in obtaining fuel, electricity, service, or supplies
from the sources from which they are usually obtained for said Building, or to
any cause beyond the LESSOR's reasonable control. Regular business days shall be
Monday through Friday, Sundays and legal holidays excepted. Regular business
hours shall be Monday through Friday from 8:00 am to 6:00 pm.
LESSOR shall have no obligation to provide utilities or equipment other
than the utilities and equipment defined in the preceding paragraph, which shall
be installed and functioning within the Premises as of the Commencement Date of
this Lease at a level and rate consistent with general commercial office use of
equal grade in the local community. In the event LESSEE requires additional
utilities or equipment, the installation and maintenance thereof shall be
LESSEE's sole obligation, provided that such installation shall be subject to
the written consent of the LESSOR, which shall not be unreasonably withheld.
8. USE OF LEASED PREMISES.
The LESSEE shall use the Premises only for the purpose of general
commercial office and warehouse purposes, including, without limitation, the
software sales and servicing business of the LESSEE, but for no other purpose,
without the written consent of the Lessor, which shall not be unreasonably
withheld, delayed or conditioned.
9. COMPLIANCE WITH LAWS.
A. The LESSEE acknowledges that no trade or occupation shall be
conducted in the Premises or use made thereof which will be unlawful, improper,
noisy or offensive, or contrary to any law or any municipal by-law or ordinance
in force in the city or town in which the Premises are situated, or which tend
to degrade the economic status of the Building.
3
B. (i) LESSEE shall not introduce on or transfer to the Premises, any
hazardous materials (as herein defined); nor dump, flush, or otherwise dispose
of any hazardous materials into the drainage, sewage, or waste disposal systems
serving the Premises or Building in violation of applicable law; nor generate,
store, use, release, spill, or dispose of any hazardous materials in or on the
Premises or the Building, or transfer any hazardous materials from the Premises
to any other location in violation of applicable law; and not commit or suffer
to be committed in or on the Premises or Building any act which would require
any reporting or filing of any notice with any governmental agency pursuant to
any statues, laws, codes, ordinances, rules or regulations, present or future,
applicable to the Building or to hazardous material (hereinafter collectively
called "Environmental Laws").
(ii) LESSEE agrees that if it or anyone claiming under it shall
generate, store, release, spill, dispose of, or transfer to the Premises or
Building any hazardous materials, it shall forthwith remove the same, at its
sole cost and expense in the manner provided by all applicable Environmental
Laws, regardless of when such hazardous materials shall be discovered.
Furthermore, LESSEE shall pay any fines, penalties, or other assessments imposed
and actually assessed by any governmental agency with respect to the release,
spillage or disposal of any such hazardous materials by LESSEE or anyone
claiming under it and shall forthwith repair and restore any portion of the
Premises or Building which it shall disturb in so removing any such hazardous
materials to the condition which existed prior to LESSEE'S disturbance thereof.
(iii) LESSEE agrees to deliver to LESSOR and any notices, orders, or
similar documents received by LESSEE from any governmental agency or official
concerning any violation of any Environmental Law or with respect to any
hazardous materials affecting the Premises or Building and LESSOR shall deliver
to LESSEE any notices it receives from any governmental agency or officer
relating to the premises.
(iv) For purposes of this Lease, the term "hazardous materials"
shall mean and include any oils, petroleum products, asbestos, and any other
toxic or hazardous wastes, materials, and such substances which are defined,
determined, or identified as such in any Environmental Laws, or in any judicial
or administrative interpretations of Environmental Laws.
(v) LESSOR represents and acknowledges that (1) there are no
current and existing hazardous materials, issues, notices, orders or similar
materials or documents with respect to the Building and the Property; (2) all
other Lessees of the Building are subject to the same or reasonably similar
provisions with respect to their respective Leases; and (3) LESSOR shall
indemnify and hold LESSEE harmless from and against any claim arising due to
actions or inactions of the LESSOR or other Lessees of the Building related to
hazardous materials.
C. During the term of this Lease, in the event of a claim brought under
the Americans with Disabilities Act, LESSEE shall be responsible for ensuring
satisfaction therewith, which may be required as the result of the LESSEE's use
of the Premises and also excepting any structural modifications to the Building
or Premises, in which case would be the LESSOR's responsibility.
4
10. FIRE INSURANCE.
The LESSEE shall not permit any use of the Premises which will make
voidable any insurance on the property of which the Premises are a part, or on
the contents of said property or which shall be contrary to any law or
regulation from time to time established by the New England Fire Insurance
Rating Association, or any similar body succeeding to its powers. The LESSEE
shall on demand reimburse the LESSOR, and all other tenants, all extra insurance
premiums directly caused by the LESSEE's use of the Premises.
11. MAINTENANCE.
A. LESSEE's Obligations. The LESSEE agrees to maintain the
non-structural portions of the Premises in good condition, damage by fire and
other casualty and reasonable wear and tear only excepted and whenever
necessary, to replace plate and other glass therein damaged by the LESSEE. The
LESSEE shall not permit the Premises to be overloaded, damaged, stripped, or
defaced, nor suffer any waste. LESSEE shall obtain written consent of LESSOR
before erecting any sign on the Premises in addition to LESSEE'S signage
currently on the Premises and Building (which signage LESSOR hereby approves)
such consent not to be unreasonably withheld. LESSEE shall be responsible for
the repair, or if required, replacement of all electrical, plumbing, heating,
air conditioning, ventilation, and other mechanical installations located on, or
directly serving the Premises, if and only if due to damage to these systems
resulting from the LESSEE's negligence.
X. XXXXXX'x Obligations. The LESSOR agrees to maintain the structure,
electrical, plumbing and HVAC systems servicing the Building of which the
Premises are a part in the same condition as they are on the Commencement Date
or as they may be put in during the term of this Lease, reasonable wear and
tear, damage by fire and other casualty only excepted, unless such maintenance
is required because of the sole negligence or misconduct of LESSEE or those for
whose conduct the LESSEE is legally responsible.
12. ALTERATIONS - ADDITIONS.
The LESSEE shall not make structural alterations or additions to the
Premises, but may make non-structural alterations provided that the LESSOR
consents thereto in writing, which consent shall not be unreasonably withheld,
delayed or conditioned. All such allowed alterations shall be at LESSEE's
expense and shall be in quality at least equal to the present construction.
LESSEE shall not permit any mechanic's liens, or similar liens, to remain upon
the leased Premises for labor and material furnished to LESSEE or claimed to
have been furnished to LESSEE in connection with work of any character performed
or claimed to have been performed at the direction of LESSEE and shall cause any
such lien to be released of record forthwith without cost to LESSOR. Any
alterations or improvements made by the LESSEE shall become the property of the
LESSOR at the termination of occupancy as provided herein unless and except as
otherwise agreed in writing.
The LESSEE shall at its expense make any alterations or changes in the
Premises which may be necessary to meet the regulations and standards
promulgated and established under the Occupational Safety and Health Act of
1970, which may be required as the result of the LESSEE's use of the Premises
5
and also excepting any structural modifications to the Property or Premises, in
which case would be the LESSOR's responsibility.
During the term of this lease, the LESSEE shall be responsible for any
non-structural repairs or alterations to the Premises deemed necessary by local,
state or federal officials, in order to meet compliance with any changes in
local, state or federal regulations during the term of this lease, which may be
required as the result of the LESSEE's specific use of the Premises and also
excepting any structural modifications to the Property or Premises, in which
case would be the LESSOR's responsibility.
13. ASSIGNMENT - SUBLEASING.
LESSEE shall not assign, sublet, underlet, mortgage, pledge or encumber
(collectively referred to as "Transfer") this Lease without LESSOR'S prior
written consent which consent shall not be unreasonably withheld, delayed or
conditioned. LESSOR's refusal to consent to a Transfer for any use or purpose
other than specifically stated in paragraph 8 herein shall not be deemed to be
unreasonable withholding of consent.
In the event the LESSEE desires to Transfer this Lease to a proposed new
LESSEE to whom LESSOR is required to give its reasonable consent pursuant to the
foregoing paragraph, LESSOR shall have the option of either (1) allowing LESSEE
to Transfer this Lease, in which case LESSEE shall remain primarily liable upon
all the terms, conditions, and covenants hereof, will bind any Transferee to the
terms and provisions of this Lease and splitting on a 50/50 basis between the
LESSOR and LESSEE the amount by which the sum of rent, additional rent due to
taxes, and all other money or consideration it received from a Transferee
exceeds the sum of all monetary obligations which LESSEE owes to LESSOR for the
period of such Transfer after deducting the LESSOR's legal and other costs
directly associated with such transfer; or (2) terminating the Lease and
relieving LESSEE of all of its future obligations thereunder. In the event that
LESSOR decides to terminate the Lease, it shall be free to enter into a new
Lease with the proposed new tenant or anyone else on whatever terms and
conditions it chooses.
Consent by LESSOR, whether express or implied, to any Transfer shall not
constitute a waiver of LESSOR's right to prohibit any subsequent Transfer; nor
shall such consent be deemed a waiver of LESSOR's right to terminate this Lease
upon any subsequent Transfer.
As used herein, the term "assign" or "assignment" shall be deemed to
include, without limitation: (a) any Transfer of the LESSEE's interest in the
Lease by operation of law, the merger or consolidation of the LESSEE with, or
into, any other firm or corporation; or (b) the transfer or sale of a
controlling interest in the LESSEE whether by sale of its capital stock or
otherwise. Notwithstanding the foregoing, if LESSEE merges or consolidates with
any other firm or corporation or if LESSEE sells a controlling or lesser
interest in LESSEE (whether by sale of its capital stock or otherwise) or all or
substantially all of its assets, or if LESSEE "goes public", or if LESSEE
assigns the Lease or sublets to any entity that is controlled by, is under
common control with or controls, LESSEE, LESSOR'S consent to the assignment of
this Lease to the surviving or affiliated entity of LESSEE shall not be
necessary provided that, to the extent legally possible, LESSEE shall remain
fully liable for the obligations hereunder.
6
14. SUBORDINATION.
Intentionally deleted.
15. LESSOR'S ACCESS.
The LESSOR or agents of the LESSOR may, at reasonable times, upon
reasonable advanced notice, enter to view the Premises and remove placards and
signs not approved and affixed as herein provided, and make reasonably required
repairs and alterations as LESSOR should elect to do and may show the Premises
to others provided, however, that showings for reletting will be confined to a
time within the three (3) months before expiration of the term and shall not
interfere with the use of the Premises by LESSEE for the conduct of its
business. At any time within three (3) months before expiration of the terms,
LESSOR may affix to any suitable part of the Premises a notice for letting or
selling the Premises or Building of which the Premises are a part and keep the
same so affixed without hindrance or molestation.
16. INDEMNIFICATION AND LIABILITY.
Except as provided in paragraph 23 below, LESSEE covenants with LESSOR to
pay, protect, indemnify, and save harmless, to the extent permitted by law,
LESSOR and any partner, officer, director, agent, employee, or beneficiary of
LESSOR, holders of mortgages on the Building and any other party having an
interest in the Building from and against any and all liabilities, costs,
expenses, causes of action, injuries, accidents, injunctions, or penalties of
any nature (including court costs and reasonable attorney's fees), resulting
from a claim by or on behalf of any person, party, or governmental authority
whatsoever on account of injury, death, damage, or loss to person or property in
or upon the Premises, or any area adjacent to or in proximity to the Premises,
to the extent arising out of any act, negligence, or omission of LESSEE, or to
the extent arising as a result of any use or occupancy of, or travel over or
upon the Premises, or any area adjacent to or in proximity to the Premises,
specifically by LESSEE or by any person claiming by, through, or under LESSEE
(including, without limitation, all patrons, guests, employees, agents,
contractors, and customers of LESSEE), or to the extent arising out of any
delivery to LESSEE or services requested by LESSEE supplied to the Premises on
account of LESSEE, or to the extent on account of or based upon anything
whatsoever done on the Premises, or any area adjacent to or in proximity to the
Premises, by LESSEE or by any person claiming by, through, or under LESSEE,
except if the same was caused by the negligence or willful misconduct of LESSOR,
its agents, or employees; and, if required by law, to keep all of LESSEE's
employees working in or about the Premises covered by workers, compensation
insurance. In respect to all of the foregoing, LESSEE shall indemnify and hold
harmless LESSOR from and against all costs, expenses (including reasonable
attorneys' fees) and liabilities incurred in or in connection with any such
claim, action, or proceeding brought thereon.
LESSOR covenants with LESSEE to pay, protect, indemnify, and save
harmless, to the extent permitted by law, LESSEE and any partner, officer,
director, agent, employee, or beneficiary of LESSEE and any other party having
an interest in the Premises from and against any and all liabilities, costs,
expenses, causes of action, injuries, accidents, injunctions, or penalties of
any nature (including court costs and reasonable attorney's fees), resulting
7
from a claim by or on behalf of any person, party, or governmental authority
whatsoever on account of injury, death, damage, or loss to person or property in
or upon the Premises, or any area adjacent to or in proximity to the Premises,
arising out of any act, negligence, or omission of LESSOR, or arising as a
result of any use or occupancy of, or travel over or upon the Premises, or any
area adjacent to or in proximity to the Premises, specifically by LESSOR or by
any person claiming by, through, or under LESSOR (including, without limitation,
all patrons, guests, employees, agents, contractors, and customers of LESSOR),
or arising out of any delivery to LESSOR or services requested by LESSOR
supplied to the Premises on account of LESSOR, or on account of or based upon
anything whatsoever done on the Premises, or any area adjacent to or in
proximity to the Premises, by LESSOR or by any person claiming by, through, or
under LESSOR, except if the same was caused by the negligence or willful
misconduct of LESSEE, its agents, or employees; and, if required by law, to keep
all of LESSOR's employees working in or about the Building covered by workers'
compensation insurance. In respect to all of the foregoing, LESSOR shall
indemnify and hold harmless LESSEE from and against all costs, expenses
(including reasonable attorneys' fees) and liabilities incurred in or in
connection with any such claim, action, or proceeding brought thereon.
The removal of snow and ice from the sidewalks bordering upon the
Building shall be LESSOR's responsibility.
17. LESSEE'S LIABILITY INSURANCE.
The LESSEE shall maintain public liability insurance in amounts which
shall, at the beginning of the Term, be at least equal to the limits set forth
below and from time to time during the Term, shall be for such higher limits, if
any, as are customarily carried in the area in which the Premises are located on
property similar to the Premises and used for similar purposes upon written
advanced notice by LESSOR. LESSOR shall be named as an additional insured on
LESSEE's policy. The LESSEE shall deposit with the LESSOR certificates for such
insurance at, or prior to, commencement of the term and thereafter within thirty
(30) days prior to the expiration of any such policies upon LESSOR'S request.
All such insurance certificates shall provide that such policies shall not be
canceled without at least ten (10) days prior written notice to each insured
named therein.
PUBLIC LIABILITY INSURANCE: Bodily Injury and Property Damage
EACH OCCURENCE: $1,000,000
AGGREGATE: $2,000,000
18. FIRE, CASUALTY - EMINENT DOMAIN.
Should a substantial portion of the Premises, or of the property of which
they are a part, be substantially damaged by fire or other casualty, or be taken
by eminent domain, either party may elect to terminate this Lease. When such
fire, casualty, or taking of less than a substantial portion of the Premises
renders the Premises substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and the LESSEE may elect to
terminate this Lease if:
8
(a) The LESSOR fails to give written notice within thirty (30) days of
the casualty of its intention to restore Premises, or
(b) The LESSOR fails to restore the Premises to a condition
substantially suitable for their intended use within seventy-five
(75) days of said fire, casualty, or taking, or
(c) If said fire, casualty, or taking happens within nine (9) months
of the expiration date.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights
which the LESSEE may have for damages or injury to the Premises for any taking
by eminent domain, except for damage to the LESSEE's business interruptions,
fixtures, property, or equipment or tenant improvements only to the extent the
same were funded by LESSEE.
The LESSOR shall have the right voluntarily to elect to demolish the
Building of which the Premises are a part, or any part thereof, provided it
gives LESSEE at least one (1) year prior termination notice, after which this
Lease shall terminate and be of no further recourse to either party hereto.
19. DEFAULT AND BANKRUPTCY.
In the event that:
(a) The LESSEE shall default in the payment of any installment of rent
or other sum herein specified and such default shall continue for seven (7) days
after written notice thereof; or
(b) The LESSEE shall default in the observance or performance of any
other of the LESSEE'S covenants, Leases, or obligations hereunder and such
default shall not be corrected within thirty (30) days after written notice
thereof or, if such default shall reasonably require longer than thirty (30)
days to cure, shall not within said period commence and diligently proceed to
cure such default; or
(c) The LESSEE shall be declared bankrupt or insolvent according to
law, or, if any assignment shall be made of LESSEE's property for the benefit of
creditors, then the LESSOR shall have the right thereafter, while such default
continues to declare the term of this Lease ended. The LESSEE shall indemnify
the LESSOR against all loss of rent and other Payments which the LESSOR may
incur by reason of such termination during the residue of the term. If the
LESSEE shall default, after reasonable written notice thereof, in observance or
performance of any conditions or covenants on LESSEE's part to be observed or
performed under or by virtue of any of the provisions in any article of this
Lease, the LESSOR, without being under any obligation to do so and without
thereby waiving such default, may remedy such default for the account and at the
expense of the LESSEE. If the LESSOR makes any expenditures or incurs any
obligations for the payment of money in connection therewith, including but not
limited to, reasonable attorney's fees in instituting, prosecuting, or defending
any action or proceeding, such sums paid or obligation incurred with interest at
the rate of 18% per annum and costs, shall be paid to the LESSOR by the LESSEE
as additional rent.
9
20. NOTICE.
Any notice from the LESSOR to the LESSEE relating to the Premises or to
the occupancy thereof, shall be deemed duly served if mailed to the LESSEE's at
ASA International Ltd., 00 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention:
Accounting Department, registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSE with a copy to Xxxxxx X. Xxxxx at
Xxxxxxx Xxxxxx and Green, P.C., 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000. Any
notice from the LESSEE to the LESSOR relating to the Premises or to the
occupancy thereof, shall be deemed duly served, if mailed to the LESSOR by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the LESSOR at such address as the LESSOR may from time to time
advise in writing which is presently 00 Xxxxx Xxxx, Xxxxxxx, XX 00000. All rent
notices shall be paid and sent to the LESSOR at such address.
21. SURRENDER.
The LESSEE shall at the expiration or other termination of this Lease
remove all LESSEE's goods and effects from the Premises, (including, without
hereby limiting the generality of the foregoing, all signs and lettering affixed
or painted by the LESSEE, either inside or outside the Premises) but excepting
any tenant improvements authorized by LESSOR to be installed by LESSEE at the
commencement of the Lease or as otherwise agreed to in writing. LESSEE shall
deliver to the LESSOR the Premises and all keys, locks thereto, and other
fixtures connected therewith and all alterations and additions made to or upon
the Premises, in good condition, damage by fire or other casualty only excepted.
If the Lease term terminates by acceleration or expiration of time and LESSEE
does not surrender the Premises and remove his effects from the Premises, and
LESSOR obtains an order of eviction from a court, then LESSOR may enter the
Premises for the purpose of removing LESSEE's goods and effects, without
prejudice to any other remedies, and LESSOR may remove and store such goods and
effects at LESSEE's expense, LESSEE hereby granting LESSOR an irrevocable power
of attorney to accomplish the same.
22. BROKERAGE.
Each of the parties represents and warrants that there are no claims for
brokerage commissions or finder's fees with respect to this Lease or the
negotiation hereof.
23. RELEASES AND WAIVER OF SUBROGATION.
LESSOR and LESSEE hereby release each other from any and all liability or
responsibility to the other or anyone claiming through or under them by way of
subrogation or otherwise for any loss or damage to property caused by fire or
categories of loss covered by any of the extended insurance coverages or
supplementary contract casualties, even if such fire or other casualty shall
have been caused by the fault or negligence of the other party, or anyone for
whom such party may be responsible, provided, however, that this release shall
be applicable and in force and effect only to the extent permitted by law and
only with respect to any insured loss or damage occurring during such time as
the releasor may recover thereunder. LESSOR and LESSEE each agree that it will
request its insurance carriers to include in its policies whether or not such
policies are required hereunder, such a clause or endorsement. In any of
10
LESSEE's insurance policies with respect to the Premises which do not contain a
waiver of subrogation rights, LESSEE shall have LESSOR designated as one of the
insured.
24. HOLDOVER.
If the LESSEE remains on the Premises beyond the expiration Date, such
holding over shall not be deemed to create any Tenancy at will, but the LESSEE
shall be a Tenant at sufferance only, at a daily rate equal to two (2) times the
rent and other charges for the last year under this Lease. However, all other
conditions of this Lease to be performed by LESSEE shall continue in force.
25. LIABILITY.
LESSEE hereby agrees that any judgment, decree, or award obtaining
against the LESSOR which is related to this Lease, the Premises, or the LESSEE's
use or occupancy of the Premises or the Building, whether at law or in equity,
shall be satisfied out of the LESSOR's equity in the land and Building, and
further agrees to look only to such assets and to no other assets of the LESSOR
for satisfaction. LESSOR's liability for maintenance and repair shall always be
limited to the cost of making such repair or accomplishing such maintenance or
repair. In no event shall LESSOR be liable for consequential or any indirect
damages.
26. NON-WAIVER PROVISION.
No acceptance by LESSOR of a lesser sum than the rent, additional rent,
or any other charge then due shall be deemed to be other than on account of the
earliest installment of such rent or charge due, nor shall any endorsement or
statement on any check or any charge be deemed an accord and satisfaction, and
LESSOR may accept such check or payment without prejudice to LESSOR's right to
recover the balance of such installment or pursue any other remedy provided in
this Lease.
No provisions of this Lease shall be deemed to have been waived by LESSOR
or LESSEE unless such waiver is in writing signed by LESSOR or LESSEE. No
assent, express or implied, by either party to any breach of any Lease or
condition herein contained on the part of the other to be performed or observed,
and no waiver, express or implied, of any such agreement or condition, shall be
deemed to be a waiver or an assent to any succeeding breach of the same or any
other agreement or condition. No act or thing done by LESSOR, its agents, or
employees, during the Term shall be deemed an acceptance of a surrender of the
Premises. The delivery of keys to any of LESSOR'S agents or employees shall not
operate as a termination of this Lease or a surrender of the Premises.
27. NO OFFER TO LEASE.
The submission of this document for examination and negotiation does not
constitute an offer to Lease, or a reservation of, or option for, the Premises.
This document shall become effective and binding only upon the execution and
delivery hereof by LESSOR and by LESSEE, and until such execution and delivery,
LESSOR shall not in any way be bound to enter into a Lease with LESSEE for the
Premises.
11
28. PARTIAL INVALIDITY.
The invalidity of one or more phrases, sentences, clauses, or articles
shall not affect the remaining portions of this Lease, and if any part of this
Lease should be declared invalid by the final order, decree, or judgment of a
court of competent jurisdiction, this Lease shall be construed as if such
invalid phrases, sentences, clauses, or articles had not been inserted.
29. NO RECORDING.
This Lease shall not be recorded.
30. PARKING.
LESSEE shall have, in common with other tenants, the right to use,
without additional charge, the parking areas appurtenant to the Building in a
ratio of 3.88 spaces per 1000 square feet of Premises occupied or 40 spaces
based on 10,191 square feet of Premises.
31. ADDENDA.
The riders attached hereto are incorporated herein by reference, the
terms and conditions of which shall be binding upon the parties hereto.
32. RULES.
From time to time, the LESSOR has and will adopt reasonable rules for the
safety, benefit, and convenience of all tenants and other persons in the
Building (attached hereto as Exhibit "B"). LESSEE shall at all times comply
with, and shall cause its employees, agents, licensees, and invitees to comply
with the Rules from time to time in effect.
33. LESSEE ACCESS TO PREMISES.
LESSEE shall have access to the Building and the Premises twenty-four
(24) hours a day, seven (7) days per week.
34. ENTIRE AGREEMENT.
All addenda attached hereto are incorporated herein and made a part of
this Lease. This Lease and addenda contain the entire agreement between the
parties hereto with respect to the subject matter of this Lease. LESSEE
acknowledges and agrees that it has not relied upon any statement,
representation, agreement, or warranty except such as are set out in this Lease.
35. AMENDMENT OR MODIFICATION.
Unless otherwise specifically provided in this Lease, no amendment,
modification, or supplement to this Lease shall be valid or binding unless set
out in writing and executed by the parties hereto in the same manner as the
execution of this Lease.
12
36. WAIVER OF JURY TRIAL.
Except as otherwise provided under this Lease, any controversy or claim
arising out of, or relating to, this Lease or the existence, validity, breach,
or termination thereof will be finally settled by compulsory arbitration in
accordance with the commercial arbitration rules of the American Arbitration
Association, Boston, Massachusetts, and nowhere else. The Arbitration award
shall be the exclusive remedy of the parties for all claims, counter claims, or
issues presented or plead to the arbitrators and each party hereby waives, any
right to jury trial in any forum. LESSOR and LESSEE each shall bear their own
expenses, costs and fees, including legal fees unless otherwise ordered pursuant
to an arbitration award.
37. ESTOPPEL CERTIFICATES.
LESSOR and LESSEE agree that at any time and from time to time, upon not
less than ten (10) days' prior written request by the other, each will execute,
acknowledge, and deliver to the requesting party a statement in writing
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same are in full force and effect as
modified and starting the modifications), that to the knowledge of such party no
uncured defaults exist, and the dates to which the rent and other charges due
hereunder have been paid in advance, if any, it being intended that any such
statement delivered pursuant to this section 37 may be relied upon by any
mortgagee or prospective mortgagee or purchaser of the Property. LESSEE agrees
that if it shall fail at any time to execute, acknowledge, and deliver any such
instrument within fifteen (15) days after request, then LESSOR may execute,
acknowledge, and deliver such instrument as the attorney in fact of LESSEE; and
LESSEE hereby makes, constitutes, and irrevocably appoints LESSOR its attorney
in fact, coupled with an interest, for that purpose.
38. CLEANING.
LESSOR will clean the common areas daily after normal business hours.
Said cleaning to be comparable to that of comparable office buildings in the
area. The cleaning of the interior Premises will be the responsibility of the
LESSEE.
39. MINIMIZING INTERFERENCE
LESSOR covenants and agrees that in exercising any of its rights and
performing its obligations, set forth herein, LESSOR shall use best efforts to
minimize its inconvenience and interference with LESSEE'S business and
operations and use and enjoyment of the common areas and shall (unless required
by applicable governmental order or force majeure events) cause or permit no
obstruction to, or diminution of, LESSEE's signage or the Premises or access or
egress thereto and therefrom. In addition, LESSOR, shall at its own cost and
expense, promptly repair and restore the Premises and Building to the condition
they were in immediately prior to said exercise of rights or performance of
obligations as is practicable.
13
40. COMPLEX OPERATIONS
Throughout the Term, LESSOR agrees that the Building will be managed,
operated and maintained, and services provided in accordance with the current
standards of quality followed in the Building as of the date of this Lease when
LESSEE was the landlord.
41. LESSOR CONSENT
Wherever in this Lease LESSOR'S consent or approval is required, such
consent or approval shall not be unreasonably withheld, delayed or conditioned.
In the event LESSOR fails to consent to or approve of, or not to consent to or
to disapprove of any item requiring consent or approval within twenty (20) days
(or such shorter period as set forth in this Lease) following LESSEE'S written
request, LESSOR shall be deemed to have approved or consented to same.
42. QUIET ENJOYMENT
Lessee shall lawfully and quietly hold, occupy and enjoy the Premises
during the Term of this Lease without hindrance or molestation by LESSOR,
subject to the terms, covenants, and conditions of this Lease.
14
IN WITNESS WHEREOF, the said parties hereto set their hands and seal this 24th
day of October, 2003.
LESSOR:
000 XXXXXXX XXXXXX, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
Hereunto Duly Authorized
LESSEE: ASA INTERNATIONAL LTD.
By: /s/ Xxxxxxxx X. XxXxxxxx
------------------------
Xxxxxxxx X. XxXxxxxx
Vice President & Treasurer
Hereunto Duly Authorized
15
LEASE AGREEMENT BY AND BETWEEN
615 AMHERST STREET, LLC, LESSOR
AND
ASA INTERNATIONAL LTD., LESSEE
DATED AS OF OCTOBER 24, 2003
EXHIBIT A: OPERATING EXPENSES
---------
During the Term, the LESSEE shall pay to the LESSOR as additional rent hereunder
when and as designated by notice in writing by LESSOR, 39.8% percent of any
increase in operating expenses over those incurred during the calendar year
2003. Operating Expenses are defined for the purposes of this agreement as:
Without limitation, Operating Expenses shall include:
1. All expenses incurred by the LESSOR (collectively for the purposes
herein, the "LESSOR") or LESSOR's agents related to common areas of the Building
and property but not related to LESSOR'S occupancy as a tenant of its particular
premises which shall be directly related to employment of personnel, including
amounts incurred for wages, salaries, and other compensation for services,
payroll, social security, unemployment benefits, pensions, hospitalization,
retirement plans and group insurance, uniforms and working clothes and the
cleaning thereof, and expenses imposed on LESSOR or LESSOR's agents pursuant to
any collective bargaining agreement for the services of employees of LESSOR or
LESSOR's agents in connection with the operation, repair, maintenance, common
area cleaning, management and protection of the Building, and its mechanical
systems including, without limitation, day and night supervisors, property
manager, accountants, bookkeepers, janitors, carpenters, engineers, mechanics,
electricians and plumbers and personnel engaged in supervision of any of the
persons mentioned above.
2. The cost of services, materials and supplies furnished or used in
the operation, repair, maintenance, cleaning management and protection of the
Building and Property, including without limitation fees, if any, imposed upon
LESSOR, or charged to the Property, by the state or municipality in which the
Property is located on account of the need of the Property for increased or
augmented public safety services.
3. The cost of replacements for tools and other similar equipment
specifically used in the repair, maintenance, cleaning and protection of the
Property.
4. Where the Property is managed by LESSOR or an affiliate of LESSOR, a
sum equal to the amounts customarily charged by unaffiliated management firms in
the Nashua area for similar properties, but in no event more than five percent
(5%) of gross annual income, whether or not actually paid, or where managed by
other than LESSOR or an affiliate thereof, the amounts accrued for management,
together with, in either case, amounts accrued for legal and other professional
fees relating to the Property, but excluding such fees and commissions paid in
connection with services rendered for securing or renewing leases and for
matters not related to the normal administration and operation of the Building.
16
5. Premiums for any insurance against damage or loss to the Building
for such hazards as shall from time to time be customarily carried by prudent
owners of similar first class office properties, including, but not by way of
limitation, insurance covering loss of rent attributable to any such hazards,
and public liability insurance.
6. Costs for common area electricity, water and sewer use charges, and
other utilities supplied to the Property and not paid for directly by tenants.
7. Betterment assessments provided the same are apportioned equally
over the longest period permitted by law and provided the betterment benefits
all tenants equally.
8. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Building and Property.
Notwithstanding the foregoing Operating Expenses shall exclude: payments
of principal and/or interest related to indebtedness or other costs of financing
the Building, equipment, improvements, replacements or repairs; ground rent;
depreciation or amortization on the Building; costs of enforcement of leases;
advertising, promotional and Building expenses relating to leasing or procuring
tenants or negotiating with prospective tenants; any costs representing an
amount paid for services or materials to a related person, firm or entity to the
extent such amount exceeds the amount that would be paid for such services or
materials at the then-existing market rates for the same quality and/or
timeliness to an unrelated person, firm or corporation; capital improvements;
rentals and other related expenses incurred in leasing air conditioning systems,
elevators or other equipment ordinarily considered to be of a capital nature;
any tenant work performed, or alteration of space leased to, tenants or
occupants of the Building, whether such work or alterations is performed for the
initial occupancy by such tenant or occupant or any cash or other consideration
paid by LESSOR on account of, with respect to, or in lieu of, said tenant work
or alterations; repairs or replacements necessitated by the negligence or
willful misconduct of (a) LESSOR or its employees, agent or contractor or (b)
other tenants; the cost of repairs incurred by reason of fire or other casualty
or condemnation to the extent that either (a) LESSOR is compensated therefore
through proceeds of insurance or condemnation awards; (b) LESSOR is not fully
compensated therefore due to the failure of LESSOR to obtain insurance against
such fire or casualty or the decision of LESSOR to self-insure; or (c) if LESSOR
is not fully compensated by reason of the co-insurance provisions of its
insurance policies due to LESSOR'S failure to obtain and maintain a sufficient
amount of insurance coverage; costs incurred to clean up, contain, xxxxx,
remove, or otherwise remedy hazardous materials; professional dues and lobbying
expenses; acquisition costs for works of art or sculpture located within or
outside the Building; any operating expenses related to any retail spaces in the
Building; interest; penalties; fines; commissions; cost of services or labor not
provided on a regular basis to all tenants in the Building; and wages, salaries
or fees paid to executive personnel of LESSOR not involved in the direct
management of the Building.
17
Any increase shall be prorated should these provisions of the Lease be in
effect with respect to only a portion of any calendar year. Base Year operating
expenses are $ 144,378. Any increase over the Base Year of Operating Expenses
shall be paid by LESSEE within thirty (30) days after receipt of an invoice from
LESSOR following year end. If LESSEE exercises the Extension Option, the Base
Year of Operating Expenses shall be the Operating Expenses for the 2008 calendar
year, "grossed up" to 100% occupancy.
In the event that LESSEE is required hereunder to pay any increase in
Operating Expenses, LESSEE shall be entitled to examine all records of LESSOR
relating to such Operating Expenses and audit same as LESSEE deems prudent. If
the audit reveals a discrepancy of more than ten percent (10%), then LESSOR
shall be required to pay any such audit fees, not to exceed $1,000.00.
18
LEASE AGREEMENT BY AND BETWEEN
ASA INTERNATIONAL LTD., LESSEE
AND
000 XXXXXXX XXXXXX, LLC, LESSOR
DATED AS OF OCTOBER 24, 2003
EXHIBIT B: RULES AND REGULATIONS
---------
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors, or halls shall not be obstructed or encumbered
by any LESSEE or used for any purpose other than for ingress to and egress from
the Premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
LESSOR. There shall not be used in any space, or in the public hall of the
Building, either by a LESSEE or by jobbers or others in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards. If the Premises are situated on the ground floor of the Building,
LESSEE thereof shall further, at LESSEE'S expense, keep the sidewalks and curb
in the front of said Premise clean and free from ice, snow, dirt, and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used
for any purpose other than those for which they were designated or constructed
and no sweepings, rubbish, rags, acids, or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the LESSEE who, or whose clerks,
agents, employees, or visitors, shall have caused it.
3. No LESSEE shall sweep or throw or permit to be swept or thrown from
the Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the Building and
LESSEE shall not use, keep, or permit to be used or kept any foul or noxious gas
or substance in the Premises or permit or suffer the Premises to be occupied or
used in a manner offensive or objectionable to LESSOR or other occupants of the
Building by reason of noise, odors, and/or vibrations, or interfere in any way
with other LESSEES or those having business therein, nor shall any animals or
birds be kept in or about the Building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the Building is prohibited.
4. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of LESSOR.
5. No sign, advertisement, notice, or other lettering shall be
exhibited, inscribed, painted, or affixed by any LESSEE on any part of the
outside of the Premises or the Building or on the inside of the Premises if the
same is visible from the outside of the Premises without the prior written
consent of LESSOR, except that the name of LESSEE may appear on the entrance
door of the Premises.
In the event of the violation of the foregoing by any LESSEE, LESSOR
may remove same without any liability, and may charge the expense incurred by
19
such removal to LESSEE or LESSEES violating this rule. Interior signs on doors
and directory tablet shall be inscribed, painted, or affixed for each LESSEE by
LESSOR at the expense of such LESSEE, and shall be of a size, color, and style
acceptable to LESSOR.
6. Except with prior written consent of LESSOR and as LESSOR may
direct, no LESSEE shall xxxx, paint, drill into, or in any way deface any part
of the Premises or the Building of which they form a part or cut or string
wires, lay linoleum, or other similar floor covering, so that the same shall
come in direct contact with the floor of the Premises, and, if linoleum or other
similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar adhesive material
being expressly prohibited.
7. Except with the prior written consent of LESSOR, no additional locks
or bolts of any kind shall be placed upon any of the doors or windows by any
LESSEE, nor shall any changes be in existing locks or mechanism thereof. If
requested, LESSEE shall provide LESSOR with a copy of a key for all new locks or
bolts. Each LESSEE shall, upon the termination of his Tenancy, restore to LESSOR
all keys either furnished to or otherwise procured by, such LESSEE. In the event
of the loss of any keys furnished to LESSEE, LESSEE shall pay to LESSOR the cost
thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of, any description shall be delivered to and removed from the Premises only on
the freight elevators and through the service entrances and corridors or in an
alternative way approved by LESSOR and only during hours and in a manner
approved by LESSOR.
9. Canvassing, soliciting, and peddling in the Building is prohibited
and each LESSEE shall cooperate to prevent the same.
10. LESSOR shall have the right to prohibit any advertising by any
LESSEE which, in LESSOR'S opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon written notice
from LESSOR, LESSEE shall refrain from or discontinue such advertising.
11. Except for those items necessary for the cleaning and maintenance
of LESSEE'S business, including office supplies, which shall be properly stored
to minimize the risk of fire and explosion, LESSEE shall not bring or permit to
be brought or kept in or on the Premises, any inflammable, combustible, or
explosive fluid, material, chemical or substance, or cause or permit any odors
of cooking or other process, at any unusual or other objectionable odors to
permeate in or emanate from the Premises.
20
EXHIBIT C: LEASED PREMISES
---------
