Exhibit 10.30
LEASE AMENDMENT
This Lease Amendment is entered into as of February 1, 1998,by and between
Xxxxxxxxx & Xxxx Inc., a Massachusetts Corp. ("Lessee"), and 47th Avenue South
Properties, LLC, a Delaware limited liability company ("Lessor"), with reference
to the following facts:
A. Lessor and Lessee are the current parties to that certain Lease, dated
as of October 6, 1994, for the Lease by Lessee of space in a building located at
0000 X. 00xx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, as more particularly
described in the Lease (the "Leased Premises"). All capitalized terms referred
to in this Amendment shall have the same meaning defined in the Lease, except
where expressly defined to the contrary in this Amendment. It is expressly
understood that the terms of this agreement shall take precedence over the terms
and conditions of the option provisions in Section 47 of the Addendum.
B. Lessee and Lessor desire to amend the Lease to extend the Term of the
Lease and increase the rent, and to make certain other changes to the Lease,
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.0 Confirmation. Lessee acknowledges and agrees that: (a) Lessee is
in sole possession of the Leased Premises demised under the Lease; (b) all work,
improvements and furnishings required by Lessor under the Lease have been
completed and accepted by Lessee; (c) all free rent and any other concession
required under the Lease have been granted, used and otherwise satisfied; and
(d) it has no offset, claim, recoupment or defense against the payment of rent
and other sums and the performance of all obligations of Lessee under the Lease.
2.0 Rent. Beginning on April 1, 1998, the monthly base rent identified in
Article 1.5 of the Lease is as follows:
Months 1-24 $2,975/month
Months 25-36 $3,117/month
3.0 Term. The Term as identified in Section 1.4 of the Lease is extended
until March 31, 2001.
4.0 Lessee's Liability Insurance. Notwithstanding anything to the contrary
contained in the Lease, Lessee shall, at Lessee's expense, obtain and keep in
force during the term of this Lease, a commercial general liability insurance
policy insuring Lessee against the risks of bodily injury and property damage,
personal injury, contractual
liability, completed operations, products liability, host liquor liability,
owned and non-owned automobile liability arising out of the ownership, use,
occupancy or maintenance of the Leased Premises and the common area adjacent to
the leased premises. Such insurance shall be a combined single limit policy in
an amount not less than ONE MILLION DOLLARS ($ 1,000,000.00) per occurrence with
TWO MILLION DOLLAR ($2,000,000.00) annual aggregate and an umbrella policy of
ONE MILLION DOLLARS ($ 1,000,000.00) any one occurrence. Lessor and any lender
and any other party in interest designated by Lessor shall be named as
additional insured(s). The policy shall contain cross liability endorsements and
shall insure performance by Lessee of the indemnity provisions of this Lease;
shall cover contractual liability, and products liability; shall be primary, not
contributing with, and not in excess of coverage which Lessor may carry; shall
state that Lessor is entitled to recovery for the negligence of Lessee even
though Lessor is named as an additional insured; shall provide for severability
of interest; shall provide that an act or omission of one of the insured or
additional insureds which would void or otherwise reduce coverage shall not void
or reduce coverages as to the other insured or additional insureds; and shall
afford coverage after the term of this Lease (by separate policy or extension if
necessary) for all claims based on acts, omissions, injury or damage which
occurred or arose (or the onset of which occurred or arose) in whole or in part
during the term of this Lease. The limits of said insurance shall not limit any
liability of Lessee hereunder. Not more frequently than every three (3) years,
if, in the reasonable opinion of Lessor, the amount of liability insurance
required hereunder is not adequate, Lessee shall promptly increase said
insurance coverage as required by Lessor.
5.0 Rights of Lessor. Notwithstanding anything to the contrary contained in
the Lease, Lessee shall permit Lessor and Lessor's agents and any mortgagee
under a mortgage or beneficiary under a deed of trust encumbering the Building
containing the Leased Premises and such party's agents to enter the Leased
Premises at all reasonable times after reasonable notice except in case of
emergency, for the purpose of inspecting the same or for the purpose of
maintaining the Building, or for the purpose of making repairs, alterations or
additions to any portion of the Building, including the erection and maintenance
of such scaffolding, canopies, fences and props as may be required, or for the
purpose of placing upon the Building any usual or ordinary "for sale" signs, and
shall permit Lessor, at any time within ninety (90) days prior to the expiration
of this Lease, to place upon the Leased Premises any usual or ordinary "to let"
or "to lease" signs. This Section in no way affects the maintenance obligations
of the parties hereto.
6.0 Priority of Encumbrances. Notwithstanding anything to the contrary
contained in the Lease, this Lease shall be subordinate to any ground lease,
mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the real property of which the Leased Premises are a part
and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's
right to quiet possession of the Leased Premises shall not be disturbed if
Lessee is not in default and so long as Lessee shall pay the rent and observe
and perform all the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms, if any mortgagee, trustee or ground lessor
shall elect to have this Lease prior to the lien of its mortgage, deed of trust
or ground lease, and shall give written notice thereof to Lessee, this Lease
shall be deemed prior to such mortgage, deed of trust or ground lease, whether
this Lease is dated prior or subsequent to the date of said mortgage, deed of
trust or ground lease or the date of recording thereof.
6.1 Execution of Documents. Lessee agrees to execute any documents that a
re required to effectuate such subordination or to make this Lease prior to the
lien of any mortgage, deed of trust or ground lease, as the case may be, and the
failure to do so within ten (10) days after written demand shall be a material
default under the terms of this Lease for which no additional notice of cure
period shall be required. It is understood by all parties that Lessee's failure
to execute the subordination documents referred to above may cause Lessor
serious financial damage by causing the failure of a financing or sale
transaction.
6.2 Attornment. If the holder of any ground lease, mortgage, deed of trust
or security described above (or its successor in interest), enforces its
remedies provided by law or under the pertinent mortgage, deed of trust or
security instrument and succeeds to Lessor's interest in the Leased Premises,
Lessee shall, upon request of any person succeeding to the interest of such
lender as result of such enforcement, automatically become the lessee of said
successor in interest without change in the terms or other provisions of this
Lease, provided, however, that said successor in interest shall not be (i) bound
by any payment of rent for more than thirty (30) days in advance, except
prepayment in the nature of security for the performance by Lessee of its
obligations under this Lease, (ii) bound by any modification or amendment of
this Lease to shorten the term or decrease the monthly rent without the consent
of such lender or such successor in interest, (iii) liable for any act or
omission of any previous landlord (including Lessor), (iv) subject to any
offset, defense, recoupment or counterclaim that Lessee may have given to any
previous landlord (including Lessor), or (v) liable for any deposit that Lessee
may have given to any previous landlord (including Lessor) that has not, as
such, been transferred to said successor in interest. Within ten (10) days after
receipt of request by said successor in interest, Lessee shall execute and
deliver an instrument or instruments confirming such attornment, including a
non-disturbance, attornment and subordination agreement in a form required by
any such successor in interest.
7.0 Execution by Lessee. Notwithstanding anything to the contrary contained
in the Lease, within ten (10) days after the receipt of written request by
Lessor, Lessee shall execute and deliver to Lessor an estoppel certificate
acknowledging such facts regarding this Lease as Lessor may reasonably require,
including without limitation, that (i) this Lease is in full force and effect,
binding and enforceable in accordance with its terms and unmodified (or if
modified, specifying the written modification documents); (ii) no
default exists on the part of Lessor or Lessee under this Lease; (iii) there are
no events which with the passage of time, or the giving of notice, or both,
would create a default under this Lease; (iv) no rent in excess of one month's
rent has been paid in advance; (v) Lessee has not received any written notice of
any other sale, assignment, transfer, mortgage or pledge of this Lease or the
rent due hereunder, and (vi) Lessee has no defense, set off, recoupment or
counterclaim against Lessor. Any such estoppel certificate maybe relied upon by
Lessor, any lender and any prospective purchaser of the Building or Complex or
any interest therein. Failure to comply with this Article shall be a material
breach of this Lease by Lessee giving Lessor all rights and remedies under
Article 25 hereof, as well as a right to damages caused by the loss of a loan or
sale which may result from such failure by Lessee.
8.0 General Provisions.
8.1 Further Assurances. Lessor and Lessee each agree to execute any and all
documents and agreements reasonably requested by the other party to further
evidence or effectuate this Amendment.
8.2 Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns.
8.3 Reaffirmation. As amended hereby, the Lease shall remain in full force
and effect.
8.4 Conflicts. In case of any conflict between any term or provision of
this Amendment and the Lease, the term or provision of this Amendment shall
govern.
8.5 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one agreement.
9.0 Effectiveness. The parties agree that the submission of a draft or copy
of this Amendment for review or signature by a party is not intended, nor shall
it constitute or be deemed, by either party, to be an offer to enter into a
legally binding agreement with respect to the subject matter hereof and may not
be relied on for any legal or equitable rights or obligations. Any draft or
document submitted by Landlord or its agents to Tenant shall not constitute a
reservation of or option or offer in favor of Tenant. The parties shall be
legally bound with respect to the subject matter hereof pursuant to the terms of
this Amendment only if, as and when all the parties have executed and delivered
this Amendment to each other. Prior to the complete execution and delivery of
this Amendment by all parties, each party shall be free to negotiate the form
and terms of this Amendment in a manner acceptable to each party in its sole and
absolute discretion. The parties acknowledge and agree that the execution and
delivery by one party prior to the execution and delivery of this Amendment by
the other party shall be of no force and
effect and shall in no way prejudice the party so executing this Amendment or
the party that has not executed this Amendment.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first set
forth above.
LESSOR:
47'h Avenue South Properties, LLC, a
Delaware limited liability company
By: Divco West Group, LLC, a
Delaware limited liability
Company, Its Agent
By /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, President
Date 2/18/98
LESSEE:
Xxxxxxxxx & Xxxx, Inc., a Massachusetts
corporation
By: Xxxxx X. Xxxxxx
Title Vice President
Date 2/4/98
