EXHIBIT 10.09
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 VIVID
TECHNOLOGIES, INC. (a Massachusetts corporation), 000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 hereinafter called LESSEE, the following described premises,
hereinafter called the leased premises: approximately 43,200 square feet at 00-
X Xxxxxxxx Xxx, Xxxxxx, Xxxxxxxxxxxxx 00000 as shown on Exhibit A attached
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hereto.
TO HAVE AND HOLD the leased premises for a term of five (5) years commencing at
noon on March 1, 1996 and ending at noon on February 28, 2001 unless sooner
terminated as hereinafter 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 hold the leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent at the rate of three hundred
eighty-eight thousand eight hundred ($388,800.00) U.S. dollars per year, drawn
on a U.S. bank, payable in advance in monthly installments of $32,400.00 on the
first day in each calendar month in advance, the first monthly payment to be
made on or before March 1, 1996, 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
items, 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 annual 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. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in the
amount of sixty-five thousand ($65,000.00) dollars upon the execution of this
lease by LESSEE, which shall be held as security for LESSEE's performance as
herein provided and refunded to LESSEE without interest at the end of this lease
subject to LESSEE's satisfactory compliance with the conditions hereof. LESSEE
may not apply the security deposit first, then to offset any outstanding invoice
or other payment due
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to LESSOR, with the balance applied to outstanding rent. If all or any portion
of the security deposit is applied to cure a default or breach during the term
of the lease, LESSEE shall be responsible for restoring said deposit forthwith
and failure to do so shall be considered a substantial default under the lease.
LESSEE's failure to remit the full security deposit or any portion thereof when
due shall also constitute a substantial lease default.
3. USE OF PREMISES. LESSEE shall use the leased premises only for the
purpose of executive and administrative offices, electronic research and
development, and light manufacturing.
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 leaseable 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, 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. The base from which to
determine the amount of any increase in taxes shall be the rate and the
assessment in effect as of July 1, 1996. 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 equipment per LESSOR's building standard
specifications to heat the leased premises in season and to cool all office
areas between May 1 and November 1. LESSEE shall pay all charges for heat and
electricity used on the leased premises. LESSEE shall pay LESSOR for all water
and sewer use as reasonably 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 excluding tie-in fees and capital expenditures for
which LESSEE is not otherwise responsible hereunder relating in any way to water
or sewer use at the building. No plumbing, construction or electrical work
(excluding data or telephone wiring) 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, or contrary to any applicable statute,
regulation, ordinance or bylaw. 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 any alterations by LESSEE which are allowed hereunder to
be
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in full compliance with any applicable statute, regulation, ordinance or bylaw
and for causing the leased premises to be in such full compliance in connection
with LESSEE's specific use.
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 or
LESSEE may elect to terminate this lease as provided hereinbelow. When such
fire, casualty, or taking renders the leased premises or a portion thereof
reasonably 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 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, equipment, or unamortized improvements installed by LESSEE or
LESSEE's relocation costs.
8. MAINTENANCE OF PREMISES. LESSOR will be responsible for all structural
maintenance of the and for the 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 [C], chemical, water or corroding damage to LESSEE's
property from any source except LESSOR's negligence, chemical, water or
corrosion damage caused by LESSEE, and maintenance of any non "building
standard" leasehold improvements. LESSEE agrees to maintain at its expense all
other interior non-structural 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 or the act or omission of LESSOR or its agents 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 properly 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
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installation and/or maintenance of equipment which is necessitated by some
specific aspects 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, but without LESSOR's consent for
any such alteration costing less than $18,000.00. 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 at LESSEE's
request or as a result of LESSEE's breach of its lease obligations (after
expiration of any applicable grace period) any just invoice will be prompt 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 performed at the direction of LESSEE and shall cause any
such lien to be released or removed or bonded over without cost to LESSOR upon
thirty (30) days' notice. 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,
walkways or other common areas of the building of which the leased premises are
a part provided any changes do not materially impair LESSEE's access to and use
of the leased premises or LESSEE's five exclusive parking spaces.
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 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, upon reasonable prior
notice, at any reasonable time enter to view the leased premises, to make
repairs and alterations as LESSOR is required hereunder to perform,. 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 premises to
others.
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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 leased premises 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 invitees for damage or personal injury resulting in any
way from snow or ice on any area serving the leased premises, except for claims
arising out of LESSOR's negligence to the extent covered by LESSEE's insurance
required to be maintained hereunder.
14. ACCESS AND PARKING. LESSEE shall have the right without additional
charge to use parking facilities provided for the leased premises in common with
others entitled to the use thereof. For purposes of LESSEE's liability and
insurance under Sections 13 and 15. 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
LESSEE's employees, agents, callers or invitees. LESSEE will not obstruct in
any manner any portion of the building or 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, provided the same (i) do not derogate from LESSEE's
rights hereunder and (ii) are applied uniformly to all tenants in the building.
LESSEE further warrants that LESSEE will use reasonable efforts to 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 parked 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.
15. LESSEE'S LIABILITY AND INSURANCE. Except for claims resulting from the
sole negligence, act or omission of LESSOR or its agents, LESSEE shall be solely
responsible as between LESSOR and LESSEE for deaths or personal injuries to all
persons whomsoever occurring in or on the leased premises (including any
extension thereof) as described in Section 1 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 subject to
Paragraph M of the Rider, LESSEE agrees to indemnify and save harmless LESSOR
and OWNER from any and 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
resulting from the sole negligence of LESSOR or its agents. LESSEE will secure
and carry at its own
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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 occupancy
certificates and any applicable riders or endorsements showing that such
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 shall not be canceled 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. Subject to the provisions of Section 6, 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 Department, LESSOR's insurer, or any similar body for a
use not set forth in Section 3 hereinabove, 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 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 LESSEE at LESSEE's expense agrees to
erect, signage for the leased premises in accordance with LESSOR's building
standards for style, size, location, etc. LESSEE shall obtain the prior written
consent of LESSOR before erecting any sign on the leased premises, which consent
shall include approval as to size, wording, design and location. LESSOR may
remove and dispose of any sign not approved, erected or displayed in conformance
with the lease. LESSOR consents to signage as shown on Exhibit B attached.
19. DEFAULT AND ACCELERATION OF RENT. In the event that (a) LESSEE shall
default in the observance or performance of any 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
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written notice thereof, or more if LESSEE is diligently prosecuting a cure but
is unable to complete within said 30 day period, the LESSOR shall have the right
thereafter, while such default continues and without demand or further notice,
to re-enter and take possession of the leased premises, to declare the term of
this lease ended, and to remove LESSEE's effects by process of law, 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 up to a maximum of two years rent, 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 fifteen (15%) 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 left at the leased
premises addressed to LESSEE, or served by constable, or sent to the leased
premises by certified mail, return receipt requested, postage prepaid, addressed
to LESSEE. Any notice from 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 hand, by recognized commercial overnight carrier or 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.
21. OCCUPANCY. In the event that LESSEE takes possession of said 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 rent. In the event that LESSEE continues to occupy or
control all or any part of the leased premises after the agreed termination of
this lease without
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the written permission of LESSOR, the 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. 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 resulting from LESSEE's specific
use 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 or 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, provided such rates are
reasonably competitive. 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 as a result of LESSEE's operations. LESSEE agrees to maintain
efficient and effective devices for preventing damage to heating equipment from
solvents, degreasers, cutting oils, propellant, 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, except in compliance
with any applicable statutes, regulations, ordinances and the like, and LESSEE
shall be solely responsible for any and all corrosion or other damage associated
with the use, storage and/or disposal of same by LESSEE.
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25. RESPONSIBILITY. Subject to the provisions of Sections 8 and 15 and
Paragraphs M and O of the Rider, neither LESSOR nor OWNER shall be held liable
to anyone for loss or damages at the leased premises because in any way by the
use, leakage, seepage or escape of water from any source, or for the cessation
of any service rendered customarily to said premises or buildings, agreed to by
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 reasonable 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
affixed, floor coverings (including computed floors), plumbing fixtures, air
conditioning equipment and ductwork of any type, exhaust fans or heaters, water
coolers, burglar alarms, telephone wiring, air or gas distribution piping,
compressors, overhead cranes, hoists, trolleys or conveyors, counters, 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 welded to
any wall, floor or ceiling or which have been plumbed to the water supply,
drainage or venting systems serving 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 priori 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 or the act or omission of
LESSOR or its agents 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 liability 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 date as may be specified in a written agreement between the
parties, notwithstanding the delivery of any keys to LESSOR.
27. GENERAL. (a) The invalidity or unenforceability or 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 shall be
liable only for obligations occurring or arising while lessor, owner, or master
lessee of the premises. (c) Any action or proceeding arising out of the subject
matter of this
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lease shall be brought by LESSEE 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. (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) Except as
otherwise expressly set forth herein, LESSOR makes no warranty, express or
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implied concerning the suitability of the leased premises for LESSEE's intended
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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 the
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. SECURITY AGREEMENT. THIS PARAGRAPH DOES NOT APPLY
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. FIVE-YEAR EXTENSION. This lease, including all terms, conditions,
escalations, etc. shall be extended for one addition successive period of five
(5) years provided LESSEE shall serve written notice to LESSOR of LESSEE's
desire to so extend the lease. The time for serving such written notice shall
be not more than
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twelve (12) months or less than six (6) months prior to the expiration of the
then 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 ___ day of ________,
19__.
LESSOR: LESSEE:
XXXXXXXX PROPERTIES VIVID TECHNOLOGIES, INC.
MANAGEMENT, INC.
By:_________________________________ By:_____________________________________
, President
GUARANTY
THIS PARAGRAPH DOES NOT APPLY
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RIDER
A. LESSOR, at its sole cost and expense, shall modify the existing primary warm
air heating system by replacing the electric resistance heaters with natural
gas-fired duct heaters. Thereafter, LESSOR shall be responsible for
maintenance of the gas heaters as "building standard" equipment as provided
in Section 8 of the lease. LESSOR agrees that said heating system shall be
adequate for normal office and production use and that said modifications
shall be completed prior to delivery of possession, in a good and
workmanlike manner and in compliance with all applicable building codes.
X. XXXXXX, if requested to do so by LESSEE, and at LESSEE's sole expense as set
forth below, shall make alterations to the leased premises desired by LESSEE
according to a plan to be mutually agreed upon by both parties. At LESSEE's
request, the cost of certain alterations agreed to in advance and completed
by LESSOR or LESSOR's agents may be incorporated into the lease by separate
amendment to be attached hereto, amortized over the lease term without
interest and paid for by LESSEE in the same manner as base rent which shall
otherwise by due. Provided said lease amendment (including final plans) is
fully executed on or before January 1, 1996, LESSOR shall complete said
alterations before or about February 28, 1996.
C. This lease is conditioned upon the full execution of a lease termination
agreement between LESSOR and Information International, Inc. ("Triple I") on
or before January 1, 1996.
D. * 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.
E. LESSEE shall have the right to assign this lease or sublet the leased
premises to an affiliated corporation, namely a corporation in which LESSEE
owns at least a fifty percent interest, which owns at least a fifty percent
interest in LESSEE, with which LESSEE merges, or which is formed as a result
of a merger or consolidation involving LESSEE, without further consent from
LESSOR, provided LESSEE so notifies LESSOR in writing to that effect on a
timely basis. The provisions of Section 10 shall govern said assignment in
all other respects. In addition, LESSOR hereby consents to a sublease by
LESSEE to Triple I of all or a portion of the leased premises commencing on
or about March 1, 1996.
F. LESSEE's agreement to subordinate this lease to any and all institutional
mortgages and/or other instruments in the nature of a mortgage, now or at
any time hereafter, is conditional upon the mortgagee's written agreement
that LESSEE's possession will not thereafter be disturbed so long as LESSEE
is not in default in the payment of rent or other covenants or obligations
hereof.
X. XXXXXX shall erect signage designating five (5) parking spaces in front of
the leased premises for LESSEE's exclusive use. LESSOR shall have no
responsibility for enforcing said parking restriction.
H. Without affecting or modifying in any way the provisions of Section 15
above, LESSOR shall secure and carry at its own expense a comprehensive
general liability policy insuring the building of which the leased premises
are a part ("the Building"), including all common areas, for any claim,
including both bodily injury and property damage, up to at least One Million
($1,000,000.00) Dollars. In addition, LESSOR agrees to maintain 100%
replacement cost, extended "all risk" casualty insurance in a commercially
reasonable amount for the Building.
I. * In the event this lease is terminated and LESSEE pays LESSOR accelerated
rent in accordance with the provisions of Section 19 herein, LESSOR agrees
to make reasonable efforts to re-let the leased premises and otherwise
mitigate its damages resulting from such termination. LESSOR shall credit
LESSEE for any rents actually received by LESSOR over the balance of the
lease term minus any costs incurred by LESSOR in re-letting the premises.
LESSOR's failure to re-let the leased premises despite LESSOR's reasonable
efforts shall not limit LESSEE's liability hereunder.
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J. With respect to any environmental contamination or other condition existing
prior to the commencement of LESSEE's occupancy hereunder, LESSOR shall hold
LESSEE harmless from any and all suits, judgments, or liabilities for any
"release", as defined in Section 101(22) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), of
any "hazardous substance" as defined in Section 101(14) of CERCLA, or with
respect to any other substance or material regulated by any past, present or
future laws or regulations, or any petroleum (including crude oil or any
fraction thereof) as a result of any activity on the property of which the
leased premises are a part occurring prior to LESSEE's occupancy and not
caused by LESSEE.
K. With respect to any contamination or other condition caused by LESSEE or its
agents or otherwise arising by virtue of LESSEE's use or operations
hereunder, LESSEE shall hold LESSOR harmless from any and all suits,
judgments, or liabilities for any "release", as defined in Section 101(22)
of CERCLA, of any "hazardous substance" as defined in Section 101(14) of
CERCLA, or with respect to any other substance or material regulated by any
past, present or future laws or regulations, or any petroleum (including
crude oil or any fraction thereof).
L. Prior to the termination date of this lease, LESSEE may remove the two 50-
cycle generators with motor controls, the 5-ton air conditioning unit
serving LESSEE's clean room and any other trade fixtures and equipment
supplied and installed by LESSEE that have been bolted, 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, if LESSEE is
not in default of this lease beyond any applicable grace period and if
LESSEE repairs any and all damage resulting from such removal prior to the
end of the lease term. Time is of the essence.
X. XXXXXX and LESSEE do hereby mutually release and discharge each other of and
from all liability and responsibility to the other for any loss, damage or
liability to the extent covered by insurance maintained or required to be
maintained hereunder. LESSOR and LESSEE shall obtain waivers of subrogation
with respect to all property damage policies required to be maintained
hereunder.
X. XXXXXX warrants and represents, to the best of its knowledge and belief,
that there are no underground storage tanks at the leased premises other
than any tanks connected to the sanitary sewer system; that there is no
pending litigation affecting the leased premises; that MHP Realty, Inc. has
good and clear marketable title to the leased premises, with no recorded
liens; and that there is no additional municipal assessment pending with
respect to the leased premises or the Building.
O. In the event that LESSOR is in default of its maintenance or repair
responsibilities as required by this lease and, following thirty (30) days
written notice by LESSEE (or a shorter time in the event of an emergency),
fails to cure said default, then LESSEE shall have the right to complete
said maintenance or repairs. LESSOR shall reimburse LESSEE for the
reasonable cost of any such maintenance or repairs upon presentation of a
proper invoice therefor, and in the event that LESSOR fails to do so within
thirty (30) days following receipt of said invoice, LESSEE may deduct said
reasonable cost from its monthly rental payment.
P. With respect to Section 4 hereinabove, LESSOR agrees to pay any increase in
real estate taxes over the longest period allowed by law and agrees that
LESSEE shall not be charged for any late fees or penalties assessed against
LESSOR by the taxing authority. Any real estate tax abatements granted by
the taxing authority shall be taken into account by LESSOR in determining
whether there has been any increase in real estate taxes.
Q. In the event that the utility service to the leased premises is interrupted
as a result of LESSOR's negligent acts or omissions for longer than five (5)
consecutive business days, then LESSEE shall be entitled to an abatement of
rent for any such interruption beyond the initial five (5) business days to
the extent compensation is not available under LESSEE's business
interruption or other insurance.
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R. 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 not in
default of this lease beyond any applicable grace period.
S. With respect to Section 7 hereinabove, 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 provided no more than two
(2) years remains in the lease term. If more than two (2) years remains in
the lease term, LESSOR agrees to restore the leased premises to a condition
reasonably suitable for their intended use by LESSEE, provided LESSEE
relinquishes its right to terminate this lease pursuant to Section 7.
T. * With reference to Section 15 hereinabove, LESSEE shall include LESSOR and
OWNER on LESSEE's comprehensive general liability policy as additional
insureds using standard endorsement IS0 Form CG 20 26 11 85 or another form
approved in advance by LESSOR.
U. In the event that the City of Woburn or any other governmental or state
agency issues a citation to LESSEE prohibiting the use of the leased
premises for the purposes set forth in Section 3 and said citation is
adjudged valid after LESSEE has exhausted all applicable administrative
appeals and appealed to at least one level of the court system (e.g.
Superior Court or Land Court) 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.
V. To the extent it is not LESSEE's responsibility pursuant to Section 6
hereinabove, LESSOR shall be responsible for causing the Building to be in
compliance with any applicable statute, regulation, ordinance or bylaw. In
addition, LESSOR shall comply with any applicable laws in carrying out its
responsibilities under this lease.
W. "Building standard" improvements as used in this lease shall refer to the
existing improvements at the leased premises and any further alterations
other than those alterations that are necessitated by some specific aspect
of LESSEE's use.
X. In the event that delivery of the leased premises, with such alterations as
are agreed upon pursuant to Paragraph B substantially completed except for
punch list items, is delayed beyond April 1, 1996 for any reason except
delay caused by Triple I, then in addition to the abatement of rent that is
provided in Section 27(i) hereinabove, LESSEE shall receive a rent credit
equal to one day's rent for each day beyond April 1, 1996 that the leased
premises are not delivered. Further, in the event that the leased premises
are not delivered on or before April 30, 1996 for any reason except delay
caused by Triple I, then LESSEE may elect to terminate this lease upon
written notice to LESSOR, effective immediately upon receipt, whereupon all
moneys paid hereunder shall be refunded and the parties shall have no
further obligation to one another. The remedies provided in this paragraph,
in addition to those provided in Section 27(i) hereinabove, shall be
LESSEE's sole remedies for any delay by LESSOR in delivering the leased
premises.
Y. With respect to Section 21, LESSOR shall not be entitled to recover indirect
or consequential damages unless (i) LESSOR has given LESSEE forty-five (45)
days prior written notice informing LESSEE that LESSOR intends to seek
indirect or consequential damages, and (ii) LESSEE has failed to vacate the
premises within said 45-day period.
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