EXHIBIT 10.34
XXXXXXXX PROPERTIES MANAGEMENT, INC.
STANDARD FORM
COMMERCIAL LEASE
In consideration of the covenants herein contained, Xxxxxxxx Properties
Management, Inc., hereinafter called LESSOR, does hereby lease to Focus
Enhancements, Inc. (a DE corp.) hereinafter called LESSEE, the following
described premises, hereinafter called the leased premises: approximately 31,861
square feet (including 3.95% common area) at 000-X Xxxxx Xxxx, Xxxxxxx, XX 00000
TO HAVE AND HOLD the leased premises for a term of five (5) years commencing at
noon on August 1, 1996 and ending at noon on July 30, 2001 unless sooner
terminated as herein provided. LESSOR and LESSEE now covenant and agree that the
following terms and conditions shall govern this lease during the term hereof
and for such further time as LESSEE shall have the leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent at the rate of two
hundred seven thousand ninety-six (207,096.00) U.S. dollars per year, drawn on a
U.S. bank, payable in advance in monthly installments of $17,258.00 on the first
day in each calendar month in advance, the first monthly payment to be made upon
LESSEE's execution of this lease, including payment in advance of appropriate
fractions of a monthly payment for any portion of a month at the commencement or
end of said lease term. All payments shall be made to LESSOR or agent at 000
Xxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other place as
LESSOR shall from time to time in writing designate. If the "Cost of Living" has
increased as shown by the Consumer Price Index (Boston, Massachusetts, all
times, all urban consumers), U.S. Bureau of Labor Statistics, the amount of base
rent due during each calendar year of this lease and any extensions thereof
shall be annually adjusted in proportion to any increase in the Index. All such
adjustments shall take place with the rent due on January 1 of each year during
the lease term. The base month from which to determine the amount of each
increase in the Index shall be January 1996, which figure shall be compared with
the figure for November 1996, and each November thereafter to determine the
percentage increase (if any) in the base rent to be paid during the following
calendar year. In the event that the Consumer Price Index as presently computed
is discontinued as a measure of "Cost of Living" changes, any adjustment shall
then be made on the basis of a comparable index then in general use.
2. DELETED
3. USE OF PREMISES. LESSEE shall use the leased premises only for the
purpose of any of the following: executive and administrative offices,
engineering, research and development, purchasing, light packaging and sales of
computer peripherals.
4. ADDITIONAL RENT. LESSEE shall pay to LESSOR as additional rent a
proportionate share (based on square footage leased by LESSEE as compared with
the total leasable square footage of the building of which the leased premises
are a part) of any increase in the real estate taxes levied against the land and
building of which the leased premises are a part,
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whether such increase is caused by an increase in the tax rate, or the
assessment on the property, or a change in the method of determining real estate
taxes. LESSEE shall make payment within thirty (30) days of written notice from
LESSOR that such increased taxes are payable, and any additional rent shall be
prorated should the lease terminate before the end of any tax year. In the event
that said building was not assessed as a completed building as of the
aforementioned date, then the base assessment shall be as of the first date when
the building is assessed as a completed structure.
5. UTILITIES. LESSOR shall provide and maintain pursuant to Section 8
below equipment per LESSOR's building standard specifications to heat the leased
premises in season and to cool all areas between May 1 and November 1. LESSEE
shall pay all charges for heat and electricity used on the leased premises as
determined by separate meter(s) serving the leased premises; LESSEE shall also
pay its proportionate share of the cost of any central boiler, chiller, and/or
cooling tower serving the building of which the leased premises are a part.
LESSEE shall pay LESSOR for its proportionate share of all routine maintenance
(which consists of pumping, inspections, and routine service calls but not
repairs) to the on-site septic system and for all water use as determined by
LESSOR by a separate water meter serving the leased premises, and LESSEE shall
pay LESSOR a proportionate share of any other fees and charges relating in any
way to water use at the building. No plumbing, construction or electrical work
of any type shall be done without LESSOR's prior written approval and the
appropriate municipal permit.
6. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade, occupation,
activity or work shall be conducted in the leased premises or use made thereof
which may be unlawful, improper, noisy, offensive, or contrary to any applicable
statute, regulation, ordinance or bylaws. LESSEE shall keep all employees
working in the leased premises covered with Worker's Compensation Insurance and
shall obtain any licenses and permits necessary for LESSEE's occupancy. LESSEE
shall be responsible for causing the leased premises and any alterations by
LESSEE which are allowed hereunder to be in full compliance with any applicable
statute, regulation, ordinance or bylaw.
7. FIRE, CASUALTY, EMINENT DOMAIN. Should a substantial portion of the
leased 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, LESSOR may
elect to terminate this lease. When such fire, casualty, or taking renders the
leased premises substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and LESSEE may elect to terminate
this lease if: (a) LESSOR fails to give written notice within thirty (30) days
of intention to restore the leased premises, or (b) LESSOR fails to restore the
leased premises to a condition substantially suitable for their intended use
within ninety (90) days of said fire, casualty or taking. LESSOR reserves all
rights for damages or injury to the leased premises for any taking by eminent
domain, except for damage to LESSEE's property or equipment.
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8. MAINTENANCE OF PREMISES. Lessor will be responsible for all
structural maintenance of the leased premises and for the normal daytime
maintenance of all space heating and cooling equipment, sprinklers, doors,
locks, plumbing, and electrical wiring, but specifically excluding damage caused
by the careless, malicious, willful, or negligent acts of LESSEE or others,
under the control of LESSEE, chemical, water or corrosion damage from any
source, and maintenance of any non "building standard" leasehold improvements.
LESSEE agrees to maintain at its expense all other aspects of the leased
premises in the same condition as they are at the commencement of the term or as
they may be put in during the term of this lease, normal wear and tear and
damage by fire or other casualty only excepted, and whenever necessary, to
replace light bulbs, plate glass and other glass therein, acknowledging that the
leased premises are now in good order and the light bulbs and glass whole.
LESSEE will property control or vent all solvents, degreasers, smoke, odors,
etc. and shall not cause the area surrounding the leased premises to be in
anything other than a neat and clean condition, depositing all waste in
appropriate receptacles. LESSEE shall be solely responsible for any damage to
plumbing equipment, sanitary lines, or any other portion of the building which
results from the discharge or use of any acid or corrosive substance by LESSEE.
LESSEE shall not permit the leased premises to be overloaded, damaged, stripped
or defaced, nor suffer any waste, and will not keep animals within the leased
premises. If the leased premises include any wooden mezzanine type space, the
floor capacity of such space is suitable only for office use, light storage or
assembly work. If the leased premises are carpeted or partially carpeted, LESSEE
will protect carpet with plastic or masonite chair pads under any rolling
chairs. Unless heat is provided at LESSOR's expense, LESSEE shall maintain
sufficient heat to prevent freezing of pipes or other damage. Any increase in
air conditioning equipment or electrical capacity, or any installation and/or
maintenance of equipment which is necessitated by some specific aspect of
LESSEE's use of the leased premises shall be at LESSEE's expense. All
maintenance provided by LESSOR shall be during LESSOR's normal business hours.
9. ALTERATIONS. LESSEE shall not make structural alterations or
additions of any kind to the leased premises, but may make nonstructural
alterations provided LESSOR consents thereto in writing. All such allowed
alterations shall be at LESSEE's expense and shall conform with LESSOR's
construction specifications. If LESSOR provides any services or maintenance for
LESSEE in connection with such alterations or otherwise under this lease, any
just invoice will be promptly paid. LESSEE shall not permit any mechanics'
liens, or similar liens, to remain upon the leased premises in connection with
work of any character performed or claimed to have been perfomed at the
direction of LESSEE and shall cause any such lien to be released or removed
forthwith without cost to LESSOR. Any alterations or additions shall become part
of the leased premises and the property of LESSOR. Any alterations completed by
LESSOR shall be LESSOR's "building standard" unless noted otherwise. LESSOR
shall have the right at any time to change the arrangement of parking areas,
stairs, walkway or other common areas of the building of which the leased
premises are a part, provided such changes do not materially or adversely impact
LESSEE.
10. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign this lease or
sublet or allow any other firm or individual to occupy the whole or any part of
the leased premises
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without LESSOR's prior written consent. Notwithstanding such assignment or
subleasing, LESSEE and GUARANTOR shall remain liable to LESSOR for the payment
of all rent and for the full performance of the covenants and conditions of this
lease. LESSEE shall pay LESSOR promptly for legal and administrative expenses
incurred by LESSOR in connection with any consent requested hereunder by LESSEE.
11. SUBORDINATION. This lease shall be subject and subordinate to any
and all mortgages and other instruments in the nature of a mortgage, now or at
any time hereafter, and LESSEE shall, when requested, promptly execute and
deliver such written instruments as shall be necessary to show the subordination
of this lease to said mortgages or other such instruments in the nature of a
mortgage.
12. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at any reasonable
time neter to view the leased premises, to make repairs and alterations as
LESSOR should elect to do for the leased premises, the common areas or any other
portions of the building of which the leased premises are a part, to make
repairs which LESSEE is required but has failed to do, and to show the leased
premsies to others.
13. SNOW REMOVAL. The plowing of snow from all roadways, accessways and
unobstructed parking and loading areas shall be at the sole expense of LESSOR.
The control of snow and ice on all steps serving the lease dpremises and all
other areas not readily accessible to plows shall be the sole responsibility of
LESSEE. Notwithstanding the foregoing, however, LESSEE shall hold LESSOR and
OWNER harmless from any and all claims by LESSEE's agents, representatives,
employees, callers or invites for damage or personal injury resulting in any way
from snow or ice on any area serving the leased premises.
14. ACCESS AND PARKING. LESSEE shall have the right without additional
charge to use parking facilities provided for the leased premises in common with
other entitled to the use thereof. Said parking areas plus any stairs, walkways,
elevators or other common areas shall in all cases be considered a part of the
leased premises to the extent that they are utilized by LESSEE, or LESSSEE's
employees, agents, callers or invitees. LESSEE will not obstruct in any manner
any portion of the building ro the walkways or approaches to said building, and
will conform to all rules and regulations now or hereafter made by LESSOR for
parking, and for the care, use, or alteration of the building, its facilities
and approaches. LESSEE further warrants that LESSE will not permit any employee
or visitor to violate this or any other covenant or obligation of LESSEE. No
unattended parking will be permitted between 7:00 PM and 7:00 AM without
LESSOR's prior written approval, and from December 1 through March 31 annually,
such parking shall be permitted only in those areas specifically designated for
assigned overnight parking. Unregistered or disabled vehicles, or storage
trailers of any type, may not be parking at any time, LESSOR may tow, at
LESSEE's sole risk and expense, any misparked vehicle belonging to LESSEE or
LESSEE's agents, employees, invitees or callers, at any time. LESSOR shall not
be responsible for providing any security services for the leased premises.
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15. LESSEE'S LIABILITY AND INSURANCE. LESSEE shall be solely
responsible as between LESSOR and LESSEE for deaths or personal inquiries to all
persons whomsoever occurring in or on the leased premises (including any
extension thereof) from whatever cause arising, and damage to property to
whomsoever belonging arising out of the use, control, condition or occupation of
the leased premises by LESSEE; and LESSEE agrees to inemnify and save harmless
LESSOR and OWNER from any and all liability, including but not limited to
expenses, damage, causes of action, suits, claims or judgments caused by or in
any way growing out of any matters aforesaid, except for death, personal
injuries or property damage directly resulting from the sole negligence of
LESSOR. LESSEE will secure and carry at its own expense a comprehensive general
liability policy insuring LESSEE, LESSOR and OWNER against any claims based on
bodily injury (including death) or property damage arising out of the condition
of the leased premises or their use by LESSEE, such policy to insure LESSEE,
LESSOR and OWNER against any claim up to One Million (1,000,000) Dollars in the
case of any one accident involving bodily injury (including death), and up to
One Million (1,000,000) Dollars against any claim for damage to property. LESSOR
and OWNER shall be included in each such policy as additional insureds. LESSEE
will file with LESSOR prior to occuapancy certificates and any applicable riders
or endorsements showing that wuch insurance is in force, and thereafter will
file renewal certificates prior to the expiration of any such policies. All such
insurance certificates shall provide that such policies shll not be cancelled
without at least ten (10) days prior written notice to each insured. In the
event LESSEE shall fail to provide or maintain such insurance at any time during
the term of this lease, then LESSOR may elect to contract for such insurance at
LESSEE's expense.
16. FIRE INSURANCE. LESSEE shall not permit any use of the leased
premises which will adversely affect or make voidable any insurance on the
property of which the leased 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 Insurance Services Office (or successor), local Fire
Deparment, LESSOR's insurer, or any similar body. LESSEE shall on demand
reimburse LESSOR, and all other tenants, all extra insurance premiums caused by
LESSEE's use of the leased premises. LESSEE shall not vacate the leased premises
or permit same to be unoccupied other than during LESSEE"s customary
non-business days or hours.
17. BROKERAGE. LESSEE warrants and represents to LESSOR that LESSEE has
dealt with no broker or third person with respect to this lease and LESSEE
agrees to indemnify LESSOR against any brokerage claims arising by virtue of
this lease. LESSOR warrants and represents to LESSEE that LESSOR has employed no
exclusive broker or agent in connection with the letting of the leased premises.
18. SIGNS. LESSOR authorizes, and at LESSEE'S expense agrees to erect a
prominent exterior building sign and a prominent exterior panel sign with the
required set-back from North Road at the leased premises in accordance with
LESSOR's building standards for style, location, etc. and in accordance with
local zoning bylaws. LESSEE shall obtain the prior written consent of LESSOR
before erecting any sign on the leased premises, which consent shall not be
unreasonably withheld but which shall include approval as to size, wording,
design and location.
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LESSOR may remove and dispose of any sign not approved, erected or displayed in
conformance with this lease. LESSEE shall be responsible for obtaining any
necessary municipal permits and approvals.
19. DEFAULT AND ACCELERATION OF RENT. In the event that: (a) LESSEE
shall default in the observance or performance of any of LESSEE's covenants,
agreements, or obligations hereunder, other than substantial monetary payments
as provided below, and such default shall not be corrected within thirty (30)
days after written notice thereof; then LESSOR shall have the right thereafter,
while such default continues and without demand or further notice, to re-enter
and take possession of the lead premises, to declare the term of this lease
ended, and to remove LESSEE's effects, without being guilty of any manner of
trespass, and without prejudice to any remedies which might be otherwise used
for arrears of rent or other default or breach of the lease. If LESSEE shall
default in the payment of the security deposit, rent, taxes, or any substantial
invoice for goods and/or services or other sum herein specified, and such
default shall continue for ten (10) days after written notice thereof, and,
because both parties agree that nonpayment of said sums when due is a
substantial breach of the lease, and, because the payment of rent in monthly
installments is for the sole benefit and convenience of LESSEE, then in addition
to the foregoing remedies the entire balance of rent which is due hereunder
shall become immediately due and payable as liquidated damages. LESSOR, without
being under any obligation to do so and without thereby waiving any default, may
remedy same for the account and at the expense of LESSEE. If LESSOR pays or
incurs any obligations for the payment of money in connection therewith, such
sums paid or obligations incurred plus interest and costs, shall be paid to
LESSOR by LESSEE as additional rent. Any sums received by LESSOR from or on
behalf of LESSEE at any time shall be applied first to any unamortized
improvements completed for LESSEE's occupancy, then to offset any outstanding
invoice or other payment due to LESSOR, with the balance applied to outstanding
rent. LESSEE agrees to pay reasonable attorney's fees and/or administrative
costs incurred by LESSOR in enforcing any or all obligations of LESSEE under
this lease at any time. LESSEE shall pay LESSOR interest at the rate of twelve
(12) percent per annum on any payment from LESSEE to LESSOR which is past due.
20. NOTICE. Any notice from LESSOR to LESSEE relating to the leased
premises or to the occupancy thereof shall be deemed duly served when served by
constable, or sent to the leased premises by certified mail, return receipt
requested, postage prepaid, addressed to LESSEE. Any notice form LESSEE to
LESSOR relating to the leased premises or to the occupancy thereof shall be
deemed duly served when served by constable, or delivered to LESSOR by certified
mail, return receipt requested, postage prepaid, addressed to LESSOR at 000 Xxxx
Xxxxxxxx Xxxx, Xxxxxx, XX 00000 or at LESSOR's last designated address. No oral
notice or representation shall have any force or effect. Time is of the essence
in service of any notice.
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21. OCCUPANCY. In the event LESSEE takes possession of said leased
premises prior to the start of said term LESSEE will perform and observe all of
LESSEE's covenants from the date upon which LESSEE takes possession except the
obligation for the payment of extra rent beyond rent specified herein. In the
event that LESSOR continues to occupy or control all or any part of the leased
premises after the agreed termination of the lease without the written
permission of LESSOR, then LESSEE shall be liable to LESSOR, for any and all
loss, damages or expenses incurred by LESSOR and all other terms of this lease
shall continue to apply except that rent shall be due in full monthly
installments at a rate of one hundred fifty (150) percent of that which would
otherwise be due under this lease, it being understood between the parties that
such extended occupancy is as a tenant at sufferance and is solely for the
benefit and convenience of LESSEE and as such has greater rental value. LESSEE's
control or occupancy of all or any part of the leased premises beyond noon on
the last day of any monthly rental period shall constitute LESSEE's occupancy
for an entire additional month, and increased rent as provided in this section
shall be due and payable immediately in advance. LESSOR's acceptance of any
payments from LESSEE during such extended occupancy shall not alter LESSEE's
status as a tenant at sufferance.
22. FIRE PREVENTION. LESSEE agrees to use every reasonable precaution
against fire and agrees to provide and maintain approved, labeled fire
extinguishers, emergency lighting equipment, and exit signs and complete any
other modifications within the leased premises as required or recommended by the
Insurance Services Office (or successor organization), OSHA, the local Fire
Department, or any similar body.
23. OUTSIDE AREA. No goods, equipment, or things of any type of
description shall be held or stored outside the leased premises at any time
without prior written consent from LESSOR. Any goods, equipment or things left
outside the leased premises without LESSOR's prior written consent shall be
deemed abandoned and may be removed at LESSEE's expense without notice by
LESSOR. A single two-yard capacity dumpster is hereby authorized for the
disposal of trash, provided that the location of said receptacle is approved by
LESSOR. LESSEE agrees to have said container provided and serviced at its
expense by whichever disposal firm may from time to time be designated by
LESSOR. If a dumpster is provided on a shared cost basis, LESSEE shall pay its
proportionate share of the costs associated with said dumpster.
24. ENVIRONMENT. LESSEE will so conduct and operate the leased premises
as not to interfere in any way with the use and enjoyment of other portions of
the same or neighboring buildings by others by reason of odors, smoke, smells,
noise, pets, accumulation of garbage or trash, vermin or other pests, or
otherwise, and will at its expense employ a professional pest control service if
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from solvents, degreasers, cutting oils,
propellants, etc. which may be present at the leased premises. No hazardous
materials or wastes shall be stored, disposed of, or allowed to remain at the
leased premises at any time, and LESSEE shall be solely responsible for any and
all corrosion or other damage associate with the use, storage and/or disposal of
same by LESSEE.
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25. RESPONSIBILITY. Neither LESSOR nor OWNER shall be held liable to
anyone for loss or damage caused in any way by the use, leakage, seeping or
escape of water from any source, or for the cessation of any service rendered
customarily to said premises or buildings, or agreed to by the terms of this
lease, due to any accident, the making of repairs, alterations or improvements,
labor difficulties, weather conditions, mechanical breakdowns, trouble or
scarcity in obtaining fuel, electricity, service or supplies from the sources
from which they are usually obtained for said building, or any cause beyond
LESSOR's immediate control.
26. SURRENDER. LESSEE shall at the termination of this lease remove all
of LESSEE's goods and effects from the leased premises. LESSEE shall deliver to
LESSOR the leased premises and all keys and locks thereto, all fixtures and
equipment connected therewith, and all alterations, additions and improvements
made to or upon the leased premises, whether completed by LESSEE, LESSOR or
others, including but not limited to any offices, partitions, window blinds,
floor coverings (including computer floors), plumbing and plumbing fixtures, air
conditioning equipment and ductwork of any type, exhaust fans or heaters, water
coolers, telephone wiring, air or gas distribution piping, compressors, overhead
cranes, hoists, trolleys or conveyors, counters, shelving or signs attached to
walls or floors, all electrical work, including but not limited to lighting
fixtures of any type, wiring, conduit, EMT, transformers, distribution panels,
bus ducts, raceways, outlets and disconnects, and furnishings or equipment which
have been bolted, welded, nailed, screwed, glued or otherwise attached to any
wall, floor or ceiling, or which have been directly wired to any portion of the
electrical system or which have been plumbed to the water supply or venting
systems servicing the leased premises. LESSEE shall deliver the leased premises
sanitized from any chemicals or other contaminants, and broom clean and in the
same condition as they were at the commencement of this lease or any prior lease
between the parties for the leased premises, or as they were modified during
said term with LESSOR's written consent, reasonable wear and tear and damage by
fire or other casualty only excepted. In the event of LESSEE's failure to remove
any of LESSEE's property from the leased premises upon termination of the lease,
LESSOR is hereby authorized, without lability to LESSEE for loss or damage
thereto, and at the sole risk of LESSEE, to remove and store any such property
at LESSEE's expense, or to retain same under LESSOR's control, or to sell at
public or private sale (without notice), any or all of the property not so
removed and to apply the net proceeds of such sale to the payment of any sum due
hereunder, or to destroy such abandoned property. In no case shall the leased
premises be deemed surrendered to LESSOR until the termination date provided
herein or such other dates as may be specified in a written agreement between
the parties, notwithstanding the delivery of any keys to LESSOR. LESSEE shall be
responsible for the repair and restoration of any and all damage caused by the
removal of burglar alarms.
27. GENERAL (a) The invalidity or unenforceability of any provision of
this lease shall not affect or render invalid or unenforceable any other
provision hereof. (b) The obligations of this lease shall run with the land, and
this lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that LESSOR and OWNER
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shall be liable only for obligations occurring while lessor, owner, or master
lessee of the premises. (c) Any action or proceeding arising out of the subject
matter of this lease shall be brought by LESSEE within one year after the cause
of action has occurred and only in a court of the Commonwealth of Massachusetts.
(d) If LESSOR is acting under or as agent for any trust or corporation, the
obligations of LESSOR shall be binding upon the trust or corporation, but not
upon any trustee, officer, director, shareholder, or beneficiary of the trust or
corporation individually. (e) If LESSOR is not the owner (OWNER) of the leased
premises, LESSOR represents that said OWNER has agreed to be bound by the terms
of this lease unless LESSEE is in default hereof. (f) This lease is made and
delivered in the Commonwealth of Massachusetts, and shall be interpreted,
construed, and enforced in accordance with the laws thereof. (g) This lease was
the result of negotiations between parties of equal bargaining strength, and
when executed by both parties shall constitute the entire agreement between said
parties. No other oral or written representation shall have any effect hereon,
and this agreement may not be altered, extended or amended except by written
agreement attached hereto or as otherwise provided herein. (h) Notwithstanding
any other statements herein, LESSOR makes no warranty, express or implied,
concerning the suitability of the leased premises for LESSEE's intended use. (i)
LESSEE agrees that if LESSOR does not deliver possession of the leased premises
as herein provided for any reason, LESSOR shall not be liable for any damages to
LESSEE for such failure, but LESSOR agrees to use reasonable efforts to deliver
possession to LESSEE at the earliest possible date, and a proportionate
abatement of rent for such time as LESSEE may be deprived of possession of said
leased premises shall be LESSEE's sole remedy. (j) Neither the submission of
this lease form, nor the prospective acceptance of the security deposit and/or
rent shall constitute a reservation of or option for the leased premises, or an
offer to lease, it being expressly understood and agreed that this lease shall
not bind either party in any manner whatsoever until it has been executed by
both parties. (k) LESSEE shall not be entitled to exercise any option contained
herein if LESSEE is in default of any terms or conditions hereof. (l) The
headings in this lease are for convenience only and shall not be considered part
of the terms hereof. (m) No endorsement by LESSEE on any check shall bind LESSOR
in any way.
28. DELETED
29. WAIVERS, ETC. No consent or waiver, express or implied, by LESSOR,
to or of any breach of any covenant, condition or duty of LESSEE shall be
construed as a consent or waiver to or of any other breach of the same or any
other covenant, condition or duty. If LESSEE is several persons, several
corporations or a partnership, LESSEE's obligations are joint or partnership and
also several. Unless repugnant to the context, "LESSOR" and "LESSEE" mean the
person or persons, natural or corporate, named above as LESSOR and as LESSEE
respectively, and their respective heirs, executors, administrators, successors
and assigns.
30. AUTOMATIC FIVE-YEAR EXTENSIONS. This lease, including all terms,
conditions, escalations, etc. shall be automatically extended for additional
successive periods of five (5) years each unless LESSOR or LESSEE shall serve
written notice, either party to the other, of either party's desire not to so
extend the lease. The time for serving such written notice
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shall be not more than twelve (12) months or less than three (3) months prior to
the expiration of the current lease period. Time is of the essence.
31. ADDITIONAL PROVISIONS. (Continued on attached rider if necessary.)
See Attached Rider
IN WITNESS WHEREOF, LESSOR AND LESSEE have hereunto set their hands and
common seals and intend to be legally bound hereby this 25th day of April, 1996
LESSOR: XXXXXXXX PROPERTIES MANAGEMENT, INC. LESSEE: FOCUS ENHANCEMENTS, INC.
By: /s/ Xxxxx X. XxXxxxx By: /s/ Xxxxxx X. Xxxxxx
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XXXXXXXX PROPERTIES MANAGEMENT, INC.
STANDARD FORM
RIDER TO LEASE
The following additional provisions are incorporated into and made a part of the
attached lease:
A. LESSOR and LESSEE agree that this lease is subject to execution of a
mutually agreed upon space plan ("the Plan") and building rendering on
or before April 30, 1996. In the event no agreement is reached for any
reason, either party shall have the right to terminate the lease by
serving the other party with written notice to that effect, to be
effective immediately, on or after April 30, 1996, but no later than
May 6, 1996.
B. DELETED
X. XXXXXX, also at an expense incorporated entirely into the base rent and
at no further cost to LESSEE, further agrees to modify the exterior of
the building of which the leased premises are a part ("the building"),
including installation of a new roof and new energy efficient exterior
windows, repaint and reseal or resurface the parking lot and driveway
as needed, installation of new lighting and a basketball backboard in
the parking lot, and landscaping around the perimeter of the building.
LESSEE acknowledges and agrees that, except for installation of windows
that directly open into the leased premises and the new windows and
other modifications to the building's main entrance, (only) these
exterior modifications may not be completed before or about the time
LESSEE takes possession of the leased premises, and that payment of
monthly rent shall nonetheless begin as of the commencement date of
this lease. LESSOR agrees that the exterior building modifications
will, however, be substantially complete by December 31, 1996.
D. *On or before August 7, 1996, LESSEE shall vacate 000 Xxxx Xxxxxxxx
Xxxx, suites 2050, 2450, 2475, 2550, 2850, 4400, 4500, 4650 and 4800
and, as of the commencement date of this lease and the vacation of the
earlier facility, the prior lease between the parties for said earlier
facility shall terminate, except as otherwise provided in this lease.
Provided LESSEE vacates said earlier facility on or before August 7,
1996, rent for said earlier facility (only) shall be waived for the
period August 1 through August 7, 1996. Time is of the essence.
E. Notwithstanding the commencement date herein, in the event that LESSOR
completes the modifications set forth in Paragraph B above prior to
August 1, 1996, LESSEE may occupy the leased premises upon completion
of said modifications without obligation for the payment of rent at the
leased premises prior to August 1, 1996. LESSEE's obligations under its
prior lease, including its obligation to pay rent thereunder, shall not
be affected by any early occupancy of the leased premises pursuant to
this paragraph.
F. During the initial term of the lease, LESSEE shall have the one-time
right of first lease of approximately 7,449 square feet of additional
space at 000-X Xxxxx Xxxx ("Suite H"), as
shown by cross hatching on the attached plan, at LESSOR's then current
published rental rate for Suite H, after it is next leased and then
becomes available for lease directly from LESSOR, subject to the right
of the next lessee to extend or otherwise renegotiate its lease. LESSEE
shall have forty-eight (48) hours from receipt of notice from LESSOR of
said availability to execute LESSOR's then current standard from lease
or amendment to lease for Suite H. If LESSOR fails to notify LESSEE of
the availability of Suite H and leases it to others, and if LESSEE
notifies LESSOR of its desire to lease Suite H and immediately executes
LESSOR's then current standard form lease for it, LESSOR shall
thereafter have sixty (60) days to relocate the other party. If LESSOR
fails to relocate the other party within said sixty days and execute
the new lease with LESSEE, then LESSEE may elect, by serving LESSOR
written notice within thirty (30) days after expiration of the
relocation period, either (1) to cancel this lease without penalty or
(2) to occupy a similar amount of additional space elsewhere on a
no-charge basis until such time as LESSOR delivers possession of Suite
H. This election of remedies shall be LESSEE's exclusive remedy for any
failure by LESSOR to deliver possession of Suite H or any breach by
LESSOR of the provisions of this paragraph. Time is of the essence.
G. Subject to availability, in the event that the parties execute a
mutually agreeable lease or amendment to this lease for additional
space at the building on or before October 31, 1996, the base rent for
said additional space shall be $6.95 per leasable square foot.
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X. XXXXXX shall post signage designating three parking spaces in the
vicinity of the main entrance to the leased premises for the use of
LESSEE's visitors. LESSOR shall have no responsibility, however, to
enforce said parking restriction.
I. LESSOR's responsibilities for landscaping and snow removal as provided
for in Section 13 above shall be completed in a good and workmanlike
manner, which shall include maintaining parking areas and the driveway
serving the building in reasonable condition for vehicles and
pedestrians during snow conditions.
J. LESSEE shall have the right to increase the size of the exterior
building and panel signs that are permitted under Section 18 in the
event that any such sign is exceeded in size by a similar sign for
another tenant at the building. Any such sign changes by LESSEE will be
at LESSEE's sole expense, subject to LESSOR's prior written approval as
provided in section 18, and in accordance with local zoning bylaws.
LESSEE shall be responsible for obtaining any necessary municipal
permits and approvals.
K. In the event that the parties are unable to obtain a building permit
for the modifications at the leased premises for the purposes set forth
in Section 3 hereinabove, or the Town of Sudbury issues a citation to
LESSEE prohibiting such use, then LESSEE shall exhaust all applicable
appeals in connection therewith, and if the building permit denial or
the citation is finally upheld, then LESSEE may cancel this lease by
serving LESSOR with thirty (30)
days prior written notice to that effect, and neither party shall
thereafter have any further obligation to the other. Cancellation of
the lease as provided hereinabove shall be LESSEE's exclusive remedy
for any failure to obtain a building permit, issuance of any such
citation or breach by LESSOR of the provisions of this paragraph.
L. *LESSEE shall have access to the leased premises seven (7) days per
week, twenty-four (24) hours per day. LESSEE acknowledges and agrees
that LESSOR has no responsibility for providing any security services
for the leased premises, and LESSEE assumes any and all risks arising
out of this unlimited access provision.
M. *LESSEE shall reasonably and quietly have, hold and enjoy the premises
for the term hereof without hindrance or molestation from LESSOR,
provided LESSEE is not in arrears of any rent or invoice payment and is
in full compliance with all terms, conditions and obligations provided
herein.
N. * Whenever LESSOR's or LESSEE's consent, agreement or approval is
required under this lease, said consent, agreement or approval shall
not be unreasonably withheld or delayed.
O. Delays by either party in the performance of the terms hereof (other
than the payment of money) which result from causes beyond such party's
reasonable control shall not be counted in determining the time when
such performance must be completed, so long as such party shall,
promptly after the commencement of any such delay, give the other party
written notice specifying such delay and estimating the duration
thereof.
X. XXXXXX, if requested to do so by LESSEE, shall execute and deliver (i)
a notice of this lease in recordable form and (ii) if this lease is
terminated other than at the end of the initial term or any extension
thereof, as shown in such notice, an instrument in recordable form,
acknowledging such termination. Said documents shall be prepared and
recorded by LESSEE at LESSEE's expense.
Q. In the event LESSOR requires LESSEE's subordination under the terms of
Paragraph 11 of the lease, LESSOR will deliver to LESSEE agreements by
the holders of all restrictions, liens, encumbrances, rights title and
interest of others in, on or to all or any portion of the premises
consenting to this lease and all amendments thereto and agreeing that,
notwithstanding any such restriction, lien, encumbrance, right, title
or interest, or any default, expiration, termination, foreclosure,
sale, entry or other act or omission under, pursuant to or affecting
any of the foregoing, LESSEE shall not be disturbed in peaceful
enjoyment of the premises or this lease terminated or cancelled at any
time, except in the event LESSOR shall have the right to terminate this
lease under the terms and provisions expressly set forth herein.
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R. The maximum cumulative increase in LESSEE's rent shall not exceed an
average of 10% per calendar year. "Cumulative Increase" shall include
any increase in the "Cost of Living" pursuant to Section 1 and any
increase in the real estate taxes pursuant to Section 4.
LESSOR: XXXXXXXX PROPERTIES MANAGEMENT, Inc. LESSEE: FOCUS ENHANCEMENTS, INC.
By: /s/ Xxxxx X. XxXxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------- ------------------------
President
Date: 4/25/96
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