1
LEASE OF REAL PROPERTY
AT
CROSSROADS OFFICE PARK
BY
XXXXX X. XXXXXXXX, LANDLORD
To
CONNECTIVITY PRODUCTS, INC., TENANT
FROM THE OFFICE OF:
NIRES COMPANY
00 XXXXXX XXX, XXX 0
XXXXXXXXXX, XX 00000-0000
(000) 000-0000
FAX (000)000-0000
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CROSSROADS OFFICE PARK
LEASE ABSTRACT
PARTIES TO LEASE AGREEMENT
XXXXX X. ZICHEILE, 000 XXXXXXXXX XXXXXX, XXXXXXXXXX, XX 00000, LANDLORD.
&
CONNECTIVITY PRODUCTS, INC., X/X XXXXX XXXXXXXXXX, XXXXXXXXX, 000 XXXXXXXX
XXXXXX, XXXXXXXXXX, XX 00000, TENANT.
ARTICLE 1, PREMISES - Approximately 9,152 Leaseable Square Feet in Landlord's
building at 000 Xxxxxxxx Xxxxxx.
ARTICLE 2, TI - Relocate common area doors back beyond the entrance to the
common restrooms. The parties warrant that no other construction work is
required of Landlord.
ARTICLE 3, TERM & OCCUPANCY - 8 Year Original Term with one renewal option for a
minimum term of 2 years. Tenant must notify Landlord of its election to exercise
such renewal not less than 18 months prior to expiration of the Original Term.
The Tenant shall take occupancy of the Premises on December 1, 1996.
ARTICLE 4, SECURITY DEPOSIT - Landlord warrants that Tenant has paid a security
deposit of $ 7,527. Such security deposit shall be non-interest bearing and
shall not be held in escrow.
ARTICLE 5, RENT - Upon the execution hereof the Tenant shall pay the 1st month's
rent of $7,627. The rent for the 1st year of the Original Term shall be $91,520.
The rent for each subsequent year of the Original Term and the two years
of the renewal option shall be the rent of the previous plus the Greater of 3%
or the percentage change in the CPI, Boston as provided by the US Bureau of
Labor Statistics for the appropriate time period. The rent shall increase on
January 1 of each year of the Original Term and the 2 years of the renewal
option.
ARTICLE 6, OPERATING EXPENSES & UTILITIES - All operating expenses and gas
service for heat are included in the rent. The Tenant shall pay for its own
electrical service separately to the utility company.
ARTICLE 7, SIGNS - As agreed by the Parties and the provisions of this Article.
ARTICLE 8, REPAIRS, ALTERATIONS & MAINTENANCE - The Landlord shall maintain the
common areas at its own cost. Landlord shall maintain the Premises and every
part thereof for Tenant at Tenant's sole cost. Tenant shall always be
responsible for the Tenant's own janitorial services. Tenant responsible to
shampoo carpet once per year and repaint the demised premises as necessary.
ARTICLE 9, FIRE & OTHER CASUALTY - Standard Lease Provision.
ARTICLE 10, EMINENT DOMAIN - Standard Lease Provision.
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ARTICLE 11, INDEMNITY & INSURANCE - Standard Lease Provision.
ARTICLE 12, ACCESS TO THE PREMISES - Standard Lease Provision.
ARTICLE 13, DEFAULTS - Standard Lease Provision.
ARTICLE 14, MORTGAGES - Standard Lease Provision.
ARTICLE 15, SUBROGATION - Standard Lease Provision.
ARTICLE 16, FAILURE OF PERFORMANCE - Standard Lease Provision.
ARTICLE 17, BROKERS - Standard Lease Provision.
ARTICLE 18, HOLDING OVER - Standard Lease Provision.
ARTICLE 19, QUIET ENJOYMENT - Standard Lease Provision.
ARTICLE 20, USE - Office Only.
ARTICLE 21, ASSIGNMENT - Standard Lease Provision.
ARTICLE 22, DELAYS - Standard Lease Provision.
ARTICLE 23, NOTICES - As stated on Page 4 of the Lease.
ARTICLE 24, DEFINITIONS & INTERPRETATIONS - Standard Lease Provision.
ARTICLE 25, TENANT COVENANTS - Standard Lease Provision.
ARTICLE 26, PARKING - The Tenant shall have 6 reserved parking spaces, such
spaces shall be located at the back side of the building closest to an entrance
door of 000 Xxxxxxxx Xxxxxx, all other parking shall be in common with all other
tenants of the Entire Premises.
ARTICLE 27, OTHER PROVISIONS - See Lease provision.
ARTICLE 28, SIGNATURE PAGE - Standard Lease Provision.
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TABLE OF CONTENTS
Article Description Page
Cover Page 1
Lease Abstract 2
Table of Contents 4
Preamble, Parties to Lease Agreement 5
1 Premises 5
2 Construction 6
3 Term & Occupancy 7
4 Security Deposit 7
5 Rent 8
6 Operating Expenses 9
7 Signs 11
8 Repairs, Alterations & Maintenance 11
9 Fire & Other Casualty 12
10 Eminent Domain 13
11 Indemnity & Insurance 14
12 Access to the Premises 15
13 Defaults 16
14 Mortgages 18
15 Subrogation 19
16 Failure of Performance 19
17 Brokers 20
18 Holding Over 20
19 Quiet Enjoyment 20
20 Use 20
21 Assignment 20
22 Delays 22
23 Notices 22
24 Definitions & Interpretations 22
25 Tenant Covenants 24
26 Parking 25
27 Other Provisions 25
28 Signature Page 26
Exhibit A Floor Plan & Expansion Space Plan 27
Exhibit B Connectivity Technologies, Inc's Guarantee 28
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CROSSROADS OFFICE PARK LEASE AGREEMENT
Lease made this 20th day of December, 1996 by and between Xxxxx X. Xxxxxxxx,
Owner of Crossroads Office Park, 680 & 000 Xxxxxxxx Xxxxxx whose notice address
shall be Crossroads Office Park X/X Xxxxx X. Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx, 00000 its heirs or assigns as landlord (hereinafter
referred to as "Landlord")
AND
Connectivity Products, Inc., a Delaware corporation, whose notice address shall
be Connectivity Products, Inc., X/X Xxxxx Xxxxxxxxxx, Xxxxxxxxx, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000 (hereinafter together with any corporation
succeeding thereto by consolidation, merger or acquisition of its assets
substantially as an entity), as tenant (hereinafter referred to as "Tenant").
The parties hereto hereby agree to the following terms and conditions of this
lease agreement (hereinafter referred to as the "Lease") for a portion of the
office space of at Crossroads Office Park. As used herein the term "Entire
Premises" shall be defined as the whole of the buildings located at 680 and 000
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx, 00000, together with all other
related improvements.
ARTICLE ONE, PREMISES
1.1 In consideration of the rents, agreements and conditions herein
reserved and contained on the part of Tenant to be paid, performed and observed,
Landlord does hereby demise and lease to Tenant, for the term hereinafter set
forth, a portion of the Entire Premises, (hereinafter be described as the
"Premises"). The Premises are located at 000 Xxxxxxxx Xxxxxx, Xxxxx X000,
Xxxxxxxxxx, Xxxxxxxxxxxxx, 00000. The tenant shall have the right to use, in
common with all others now or hereafter entitled thereto, subject to exclusive
parking rights granted by Landlord for specific spaces, the common hallways,
elevators, stairways, restrooms, entrances and service doors of the Entire
Premises of which the Premises are a part, and the parking areas and driveways
of the Entire Premises. The Premises consist of a portion of the Second (2nd)
Floor of the 000 Xxxxxxxx Xxxxxx as shown upon a plan attached hereto and hereby
incorporated herein as Exhibit A. The Premises consists of approximately 9,l52
square feet of leasable floor area. It is understood and agreed that the
calculation of the leasable floor area includes a proportionate share of the
common areas of the Entire Premises.
1.2 Provided Tenant is in full compliance with all of the terms and
conditions contained herein, the Landlord hereby grants Tenant an option at any
time during the Original Term hereof to lease additional space adjacent to the
Premises as indicated on Exhibit A. Hereinafter such space shall be referred to
as the Expansion Space. In the event Landlord procures a different tenant for a
part or all of the Expansion Space the Landlord must notify Tenant in writing of
such event. Upon receipt of such notice from Landlord, Tenant must notify
Landlord in writing of its election to exercise such option within 30 days of
receipt of Landlord's notice. In the event Tenant fails to so notify Landlord
within such 30 day time period Tenant's option right relative to that portion of
the Expansion Space being rented to another tenant shall forever be void. In any
event of which Tenant exercises its option due to the existence of a different
tenant for a part or all of the Expansion Space, Tenant must lease at least the
same portion of the Expansion Space as the other tenant is considering.
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In the event Tenant exercises its option hereunder of its own volition and it is
the 1st event of such exercise than the amount of space the Tenant must option
shall be at least 2,392 usable square feet. In the event Tenant exercises its
option hereunder of its own volition and it is the 2nd event of such exercise
than the amount of space the Tenant must option shall be at least 4,853 usable
square feet. Whether Tenant exercises such option due the existence of another
Tenant for a part or all of the Expansion Space or due to its own volition the
rent per leaseable square foot that shall be payable thereon shall be the same
rent per leasable square foot as Tenant is then paying as provided herein for
the Premises. Tenant shall commence the payment of rent relative to the space
optioned upon the first to occur of: (1) the substantial completion of the
construction improvements relative thereto or (2) 90 days form Tenant's notice
of its election to exercise any such option. In the event the construction
improvements for the Expansion Space are not substantially completed within 90
days of the Tenant's notice to exercise such option and such event is no fault
of Tenant then the Tenant's obligation to commence the payment of rent thereon
shall commence upon the substantial completion of such construction
improvements. The Tenant shall be responsible for all costs associated with any
and all plans and construction required to prepare such Expansion Space for
Tenant's use. Landlord and Tenant agree that no construction work relative
thereto shall commence until both parties have agreed to a budget for such
construction work and the subcontractors performing all such work. Tenant
acknowledges that Landlord shall act as the Construction Manager relative to all
such construction work and shall be entitled to a Fee as agreed by the parties
hereto. In the event the Tenant elects to exercise any such option after the 5th
year of the original term or any extension hereof Tenant and Landlord agreement
to extend the term hereof for a period of not less than 3 years.
1.3 In the event the portion of the Expansion Space which houses the
Tenant's electrical panels is actually rented to a different tenant, Tenant
acknowledges that approximately 57 square feet of such area shall not be
rentable to the other tenant due to the location of said electrical panels. In
such event 57 leasable square feet shall be added to the Tenant's leasable area
and the Tenant's rent shall be adjusted accordingly.
ARTICLE TWO, CONSTRUCTION
2.1 Landlord and Tenant agree that the construction of the Entire
Premises including all common areas, all parking areas, driveways and other
improvements of the Entire Premises are complete. Landlord warrants to Tenant
that the construction improvements (hereinafter referred to as the Tenant
Improvements) shall be completed by Landlord in accordance with Article 2.2 and
except as specifically provided therein the Landlord shall not be obligated to
complete any other tenant improvements.
2.2 Landlord shall relocate the existing entrance doors to the Premises
as indicated on Exhibit A and complete all other miscellaneous work relative
thereto prior to Tenant taking occupancy.
2.3 Tenant shall be responsible for all costs associated with the
installation of it's telephone, computer and fax system, including all
equipment, wiring and final terminations relative thereto. Such work maybe
completed by a vendor of Tenant's choice. Landlord agrees to give such vendor at
least Seven (7) Days prior written notice as of the date upon which such vendor
shall have access to the Premises to complete such work.
2.4 Any items customary to office use and any other incidental uses of
the Premises which are considered personal property shall specifically not be
included in such Tenant Improvements. The
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Landlord shall specifically not be responsible for providing the Tenant with;
shelving, reception or other counters, cabinets, assemblies and/or office
systems furnishings.
2.5 Any Tenant Improvements requested by Tenant during the term hereof
shall require the express written consent of Landlord and shall be completed by
Landlord at the sole cost and expense of Tenant. Landlord shall not withhold
such consent unreasonably and Landlord shall act in a timely manner relative to
such request. Landlord and Tenant agree that no construction work relative
thereto shall commence until both parties have agreed to a budget for such
construction work and the subcontractors performing all such work. Tenant
acknowledges that Landlord shall act as the Construction Manager relative to all
such construction work and shall be entitled to a Fee as agreed by the parties
hereto.
2.6 Tenant may make decorations to the Premises costing less than
$10,000 without the Landlord's consent, but Tenant shall still be obligated to
notify Landlord relative thereto.
ARTICLE THREE, OCCUPANCY & TERM
3.1 The Tenant shall take occupancy of the Premises on January 1, 1996.
However as of 12/23/1996 Landlord shall make the Premises available to Tenant so
Tenant may prepare the Premises for its use.
3.2 The Original Term of this Lease shall be for a period of 8 years
commencing upon January 1, 1996 and expiring on December 31, 2004. As used
herein the term "Original Term shall be defined as the 1st 8 years of the Lease.
3.3 Provided Tenant shall not then be in default, under any of the
agreements and conditions hereof beyond the applicable grace period, nor have
sublet or assigned any portion of the Premises, Tenant shall have the right, at
its election, to renew the Original Term hereof for a minimum period of 2 years,
commencing upon the expiration of the Original Term, provided, further, that
Tenant must give Landlord notice of its election hereunder on or before July 1,
2003. The expression "the Original Term" means the period of 8 Years referred to
in Section 3.2. Prior to the exercise by Tenant of said election to extend the
Original Term, the expression "the term of this lease" shall mean the Original
Term; after the exercise by Tenant of the aforesaid election, the expression
"the term of this lease" shall mean the Original Term as extended. Landlord and
Tenant agree that all terms and conditions pertaining to the Lease as it may be
extended from the Original Term of the lease to the extended term shall be the
same as provided for herein.
ARTICLE FOUR, SECURITY DEPOSIT
4.1 Landlord acknowledges that Landlord has received from Tenant the sum
of $ 7,527 Dollars as security for the payment of rents and the performance and
observance of the agreements and conditions hereof on the part of Tenant to be
performed and observed. In the event of any default or defaults in such payment,
performance or observance Landlord may apply said sum or any part thereof
towards the curing of any such default or defaults and/or towards compensating
Landlord for any loss arising from any such default or defaults. Upon the
yielding up of the Premises at the expiration or other termination of the term
of this Lease, if Tenant shall not then be in default or otherwise liable to
Landlord, said sum or the unapplied balance thereof shall be returned to Tenant
within Thirty (30) Days of the such termination. It is understood and agreed
that Landlord shall always have the right to apply said sum, or any part
thereof, as aforesaid, in the event of any such
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default or defaults, without prejudice to any other remedy or remedies which
Landlord may have, or Landlord may pursue any such remedy or remedies in lieu of
applying said sum or any part thereof. No interest shall be payable on said sum
or any part thereof. If Landlord shall apply said sum or any part thereof as
aforesaid, Tenant shall upon demand pay to Landlord the amount so applied by
Landlord, to restore the security deposit to its original amount. Whenever the
holder of Landlord's interest in this lease, whether it be the Landlord named in
this lease or any transferee of said Landlord, immediate or remote, shall
transfer its interest in this lease, said holder shall turn over to its
transferee said sum or the unapplied balance thereof, and thereafter such holder
shall be released from any and all liability to Tenant with respect to said sum
or its application or return; it being understood that Tenant shall thereafter
look only to such transferee with respect to said sum, its application and
return. The holder of any mortgage on the Entire Premises which includes the
Premises shall never be responsible to Tenant for said sum unless such sum shall
actually have been received in hand by such holder.
ARTICLE FIVE, RENT
5.1 The Tenant's obligation to pay Rent shall commence on January 1, 1997.
Tenant shall pay to Landlord, on account of all Fixed Base Rent for the Original
Term, at Landlord's address set forth above, or at such other address or to such
other person as Landlord from time to time may designate, the minimum sum of
$813,827 in 96 monthly installments, in accordance with the terms hereof until
the full $803,191 shall have been paid.
5.2 During the 1st year of the Original Term Tenant agrees to pay to
Landlord Fixed Base Rent at a rate per year of $ 91,520. Landlord acknowledges
that Tenant has paid the rent for January, 1997 simultaneously with the
execution hereof.
5.3 During the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th year of the Original
Term and the 1st and 2nd of the term as it may be extended in accordance with
Article 3.3 hereof, Tenant agrees to pay Fixed Base Rent to Landlord at a rate
per year of the Fixed Base Rent of the previous year plus the greater of:
5.3.1. 3%; or
5.3.2 the percentage change in the Consumer Price Index, Boston as
provided by the US Bureau of Labor Statistics. The calculation of such
percentage change shall use the annual time period of November 1st to October 31
of each year of the Original Term and term as it may be extended.
5.3.3 The annual increase of the Fixed Base Rent shall be effective
as of January 1, of each year of Original Term and the extended term hereof.
5.4 All such Fixed Base Rent shall be payable in equal monthly
installments due on the first day of each month for the succeeding month
commencing upon January 1, 1996. All such rent shall be made payable to Xxxxx X.
Xxxxxxxx, D/B/A Crossroads Office Park, and hand delivered or mailed to
Crossroads Office Park, C/O Xxxxx X. Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, 00000, unless Landlord shall direct otherwise by written notice
to Tenant. If any installment of rent or additional rent payable under this
Lease shall not be paid within seven (7) days after the due date thereof, Tenant
shall pay to Landlord together with such late rent payment, as a late charge, an
amount equal to Four (4) Percent of the amount not paid within such seven (7)
day period.
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5.6 All amounts which Tenant is required to pay pursuant to this Lease
(other than Fixed Base Rent and amounts payable as liquidated damages pursuant
to Article 25), together with all interest and late penalties which may be added
for non-payment or late payments, shall constitute additional rental
obligations. If Tenant shall fail to pay any additional rental obligations,
Landlord shall have the right to pay the same and shall have the rights, powers
and remedies with respect thereto as are provided herein or by law in the case
of non-payment of Fixed Base Rent.
5.7 Tenant shall perform all its obligations under this Lease at its sole
cost and expense, and shall pay all Fixed Base Rent when due, without notice or
demand.
ARTICLE SIX, OPERATING EXPENSES & UTILITIES
6.1 The Fixed Base Rent provided for herein shall include all normal costs
for maintaining and operating the Entire Premises. Hereinafter such costs shall
be referred to as "Operating Expenses". Such Operating Expenses shall include:
real estate taxes, building insurance, common area and Entire Premises
maintenance, common area utilities and capital repairs required of Landlord.
6.2 Tenant shall pay all charges for the electrical consumption of the
Premises. The Tenant shall procure in its name an account with Massachusetts
Electric for its electrical service. Landlord warrants to Tenant that only the
lights, plugs and heat pump units serving the Premises exclusively, are tied
into the electrical service of the Premises. Tenant acknowledges and agrees that
the electric service to be provided to the Premises will be for normal office
use by Tenant and that if (1) any equipment installed in the Premises by Tenant
or any person claiming under Tenant, including, but without limitation, computer
equipment or (2) the use to which any portion of the Premises may be put other
than the use contemplated hereunder shall result in additional air conditioning,
water service or electricity service being required for the Premises, Tenant
shall pay for such service and, in the case of air conditioning, the cost of
operating, installing and maintaining the same.
6.3 Tenant shall provide and pay for such cleaning and janitorial services
as are customary in similar buildings in Leominster for the Premises. Such
services shall include normal cleaning, vacuuming, emptying of waste baskets,
carpet shampooing (1 per year in the spring), washing the inside of all exterior
windows as required, replacing and or cleaning light lenses, switches and
ballast for all lights in the Premises, in each case at the same extent as is
commonly provided in similar buildings in Leominster. Tenant agrees to provide
and maintain proper waste receptacles within the Premises, employ sound
housekeeping and sanitary practices. In the event Tenant desires to have an
independent vendor provide such janitorial service the Landlord shall have the
option to provide such janitorial service either by an employee of Landlord or
by Landlord's janitorial vendor. And in such event such services shall be
provided to Tenant at the Tenant's sole cost on competitive bid basis. Landlord
agrees to use reasonable efforts relative to such service being provided to
Tenant in a satisfactory manner. Landlord shall provide and pay for a common
trash receptacle for all of the tenants of the Entire Premises. Tenant shall
have the right with all others entitled thereto to use such trash receptacle for
normal trash generated by Tenant.
6.4 The common areas of the Entire Premises shall be the common restrooms,
elevators and shafts, entrances, exits, service doors, hallways and stairways of
the Entire Premises and the parking areas, driveways, drainage facilities,
walkways, entrances, exits and service roads of the Entire Premises. All costs
and expenses incurred by Landlord (including, as expenses, amounts determined as
reasonable and appropriate reserves for the replacement of equipment not real
estate in nature used incident thereto and a reasonable supervisory fee) in
insuring against loss by fire and other casualties
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(including loss of rental income) and public liability claims, operating,
heating, air conditioning, lighting, repairing and maintaining the Building and
the remainder of the Entire Premises, including but without limitation, costs
and expenses for municipal water and sewer use fees, maintenance charges,
sprinkler standby charges, snow and rubbish removal, gardening of landscaped
areas and common area janitorial services, shall be paid for and provided by
Landlord during the Original Term hereof and the extended term.
6.5 Landlord shall, at the Landlord's cost and expense, furnish the,
elevator, electrical and HVAC service to reasonably heat or air condition the
common areas of the Entire Premises during normal business hours, on normal
business days. All such services shall be subject to interruption due to any
accident, to the making of repairs, alterations or improvement, to labor
difficulties, to trouble in obtaining fuel, electricity, service or supplies
from the source for which they are usually obtained for the said Entire
Premises, or to any other cause beyond the Landlord's control. In the event any
such service is interrupted Landlord agrees to use its reasonable efforts to
restore the services interrupted promptly. As used herein the term normal
business hours shall mean from 8:00 AM to 6:00 PM weekdays. As used herein the
term normal business days shall mean Monday to Friday of each week. In the event
any such service is interrupted due to Landlord's willful misconduct and such
event lasts more than 3 business days, and such interruption materially
interferes with the Tenant's useful occupation of the Premises, Tenant shall be
entitled to an appropriate abatement of the rent payable hereunder for as long
as such interruption exists. In the event any such service is interrupted due to
Landlord's willful misconduct and such event lasts more than 30 business days
and such interruption materially interferes with the Tenant's useful occupation
of the Premises, Tenant may at its sole election terminate the term hereof by
giving Landlord written notice thereof unless Landlord restores said services
within 30 days of Tenant's notice to terminate.
6.6 Landlord shall pay for and furnish the gas service required to
reasonably heat the Premises at the Landlord's cost and expense during normal
business hours, on regular business days. Landlord reserves the right to use
locking covers for the Tenant's thermostats and the right to use an energy
management system to control the thermostat set points during unoccupied
periods. During normal business hours of normal business days the thermostats of
the Premises shall be set at 70 degrees Fahrenheit during the winter and 74
degrees Fahrenheit during the summer. All such services shall be subject to
interruption due to any accident, to the making of repairs, alterations or
improvement, to labor difiiculties, to trouble in obtaining fuel, electricity,
service or supplies from the source for which they are usually obtained for the
said Entire Premises and the Premises, or to any other cause beyond the
Landlord's control. Tenant shall have reasonable access to the thermostats that
control the HVAC service of the Premises. If any equipment installed in the
Premises or any person claiming under Tenant, including, but without limitation,
computer equipment, or if the use to which the Tenant may put a portion or the
whole of the Premises shall result in additional gas service being required for
the Premises, Tenant shall pay for such service and, the cost of installing,
operating, and maintaining the same.
ARTICLE SEVEN, SIGNS
7.1 No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the Premises, the Entire
Premises or the Building so as to be visible from outside the Premises without
Landlord's prior written approval, of which Landlord shall not unreasonably
withhold or delay. In the event of the violation of this Article, Landlord may
charge the expense incurred in such removal to Tenant, as additional rent. No
awnings, curtains, blinds, shades, screens or other projections shall be
attached to or hung in, or used in connection with, any
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window of the Premises on any outside wall of the Building without the prior
written consent of Landlord.
ARTICLE EIGHT, REPAIRS, ALTERATIONS & MAINTENANCE
8.1 Landlord agrees to make repairs and maintain the elements of the
property which Landlord is required to maintain, as herein set forth. The
property which Landlord is required to maintain is the foundation, the roof, the
exterior side of the exterior walls and the structural columns, members and
beams of the Building, the heating, air conditioning, plumbing and electrical
systems of the Entire Premises, the exterior side of the demising walls of the
Premises and the common areas of the Entire Premise in at least the same
condition as of the commencement date. Notwithstanding the foregoing, if (1) any
of said repairs or maintenance shall be made necessary by damage, negligence,
waste, failure to act or an act of Tenant or for reason of repairs,
installations, alterations, additions or improvements made by Tenant or by
reason of the fault or negligence of Tenant by reason of default in the
performance or observance of any agreements, conditions or other provisions on
the part of Tenant to be performed or observed, or (2) by reason of any special
use to which the Premises may be put, other than the use contemplated hereunder,
Tenant shall reimburse Landlord for the cost of making all such repairs or
alterations within 30 days of receipt of a xxxx for the same. Landlord shall not
be deemed to have committed a breach of any obligation to make repairs or
alterations or perform any other act unless (1) it shall have made such repairs
or alterations or performed such other act negligently, or (2) it shall have
received notice from Tenant designating the particular repairs or alterations
needed or another of which there has been failure of performance and shall have
failed to make such repairs or alterations or performed such other act within a
reasonable time after the receipt of such notice; and in the latter event
Landlord's liability shall be limited to the cost of making such repairs or
alterations or performing such other act subject only to the provisions of
Article 9 and 10;
8.2 Landlord shall maintain the Premises for the benefit of Tenant and
every part thereof including, but without limitation, the HVAC (including a
proportionate share of the Preventive Maintenance Contract), plumbing and
electrical systems within the Premises only, the interior surface of all
exterior and demising walls, all interior walls, all floors and ceilings, all
glass, windows, carpeting, shelving, doors, window sashes, window frames, door
frames and window treatments. Notwithstanding the foregoing, Tenant shall not be
under any obligation to make any repairs or alterations to the property which
Landlord is required to maintain as provided for in Article 8.1 hereof. It is
understood and agreed that the Landlord shall perform all such maintenance work.
8.3 Tenant specifically agrees to replace all glass damaged with glass of
the same kind and quality. Tenant also agrees to paint and otherwise redecorate
the Premises when required to keep the Premises in good repair.
8.4 Tenant agrees that neither it nor anyone claiming under it will make
any installations, alterations, additions or improvements to or upon the
Premises except only the installation of fixtures and/or equipment necessary for
the conduct of Tenant's business, without the prior written approval of
Landlord, of which Landlord agrees not to withhold or delay unreasonably. And in
such event any and all approved installations, alterations, additions or
improvements other than the installation of fixtures and/or equipment necessary
for the conduct of Tenant's business shall be completed by Landlord. However
prior to commencement of any work relative thereto Landlord and Tenant shall
agree to the cost thereof and the vendors that shall complete work relative
thereto. All installations, alterations, additions and improvements made to or
upon the Premises whether made by Landlord or Tenant or any other person (except
only signs and movable trade fixtures and equipment installed in
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the Premises prior to or during the term of this lease at the cost of Tenant or
any person claiming under Tenant), shall be deemed part of the Premises and upon
the expiration or other termination of the term of this lease shall be
surrendered with the Premises as a part thereof without disturbance, molestation
or injury unless Landlord shall give notice to Tenant within Thirty (30) days
prior to termination of the term of this Lease that Landlord elects to have
Tenant remove any of the same. And in such event Tenant shall remove all such
installations, alterations, additions and improvements so designed no later than
30 days after the termination hereof. Said signs, movable trade fixtures and
equipment shall not be deemed part of the Premises and may be removed by Tenant
at any time or times during the term of this Lease or upon the termination of
the term of this Lease, if, and only if, Tenant shall not then be in default in
the performance or observance of any of the agreements or conditions in this
Lease contained on the part of Tenant to be performed or observed. Movable trade
fixtures and equipment shall include trade fixtures, equipment and other
installments not affixed to the reality and trade fixtures, equipment and other
installations affixed only by nails, screws or other similar means.
8.5 Tenant agrees that it will procure any necessary permits, if any are
required for installing equipment and/or fixtures required in the conduct of
Tenant's business. Landlord and Tenant agree that all installations,
alterations, improvements and removals done by it or anyone claiming under it
shall be done in a good and workmanlike manner, that the same shall be done in
conformity with all laws, ordinances and regulations of all public authorities
and all insurance inspection or rating bureaus having jurisdiction, that the
structure of the Building will not be endangered or impaired and that such party
will pay for the cost to repair any and all damage caused by or resulting from
any such, installations, alterations, additions, improvements or removals,
including, but without limitation. Tenant agrees to pay promptly when due all
charges for labor and materials in connection with any work done by Tenant or
anyone claiming under Tenant upon the Premises so that the Premises shall at all
times be free of liens. Tenant agrees to save Landlord harmless from, and
indemnify Landlord against, any claims for injury, loss or damage to person or
property caused by or resulting from the doing of any such work.
ARTICLE NINE, FIRE OR OTHER CASUALTY
9.1 If the Premises or the Entire Premises, or any part thereof,
(excluding equipment, trade fixtures and furniture of Tenant) shall be damaged
or destroyed by fire or other casualty, then Tenant shall promptly thereafter
give Landlord written notice thereof and Landlord shall within 120 days after
its receipt of such notice from Tenant, repair or restore the Premises to
substantially the same condition they were in immediately prior to the casualty.
In the event Landlord fails to expeditiously commence and diligently complete
such repairs or restoration within said 120 days, Tenant may at its sole
election terminate the term hereof by giving Landlord written notice thereof,
unless Landlord completes such repairs or restoration work within 30 days of
Tenant's notice to terminate. Landlord shall not be obligated to expend an
amount in excess of the insurance proceeds or damages payable on account of such
damage or destruction in making such repair or restoration. A just proportion of
the rent according to the nature and extent of the injury to the Premises shall
be suspended or abated until the Premises shall be repaired or restored by
Landlord as aforesaid and the same are delivered to Tenant in a tenantable
condition.
9.2 Landlord agrees that it will maintain at all times during the term of
this Lease with respect to the Premises and the Entire Premises insurance
against loss or damage by fire, the so-called extended coverage casualties and
such other casualties as shall be required by the holder of any mortgage upon
the Entire Premises. Said insurance shall be in an amount equal to the full
insurable
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value of the building and said insurance may be written with a so-called eighty
(80%) percent or ninety (90%) co-insurance clause, and in such event sufficient
insurance shall be carried so that the insured shall not be a co-insurer.
Insurance against any or all of such risks may be maintained under a blanket
policy covering the Entire Premises and other real estate of Landlord and/or its
affiliated business organizations. The policies of such insurance shall be
payable in case of loss to the holders of any mortgages upon the property of
which the building is a part, as their interests may appear. Said insurance
shall be written by responsible insurance companies satisfactory to the holder
of any first mortgage upon the Entire Premises authorized to do business in the
Commonwealth of Massachusetts. Nothing in this Lease contained shall be deemed
to create in Tenant any interest in said insurance policies or the proceeds
thereof.
9.3 Notwithstanding anything in this Article to the contrary, it is agreed
and understood that if at any time preceding the expiration of the term of this
Lease the Premises shall be damaged or destroyed by fire or other casualty to
the extent that twenty five percent (25%) or more of its insurable value,
Landlord at its sole election may elect to terminate this Lease by giving Tenant
notice thereof within thirty (30) days after such damage or destruction. It is
further agreed that if at any time during the term of this Lease the Entire
Premises or that part of the Entire Premises which provides access to and from
the Premises shall be damaged or destroyed as aforesaid to such an extent that
continued operation thereof would be uneconomical, Landlord at its election, may
terminate this Lease by notice to Tenant given no later than thirty (30) days
after such damage or destruction. In the event of any termination of this Lease
pursuant to the provisions of this Article 9, the termination shall become
effective on the twentieth (20) day after the giving of the notice of
termination, rent shall be apportioned on a per day basis and adjusted as of the
time of loss and Landlord shall not be obligated to repair or restore any damage
or destruction caused by fire or other casualty.
ARTICLE TEN, EMINENT DOMAIN
10.1 If after the execution of this Lease and prior to the expiration of
the term of this Lease the whole of the Premises or the whole or a part of the
Entire Premises shall be taken by under the power of eminent domain, then the
term of this Lease shall cease as of the time when Landlord shall be divested of
its title in the Entire Premises and/or Premises, and rent shall be apportioned
on a per day basis and adjusted as of the time of termination.
l0.2 If only a part of the Premises or that part of that part of the
Entire Premises that provides access to the Premises shall be taken under the
power of eminent domain and if as a result thereof the floor area of the
Premises shall be reduced by more than twenty percent or the part remaining
shall not be reasonably adequate for the operation of the business conducted in
the Premises prior to the taking, Tenant may at its election, terminate this
Lease by giving Landlord notice of the exercise of its election within twenty
days after it shall receive notice of such taking; the termination shall be
effective as of the time that possession of the part so taken shall be required
for public use; and rent shall be apportioned and adjusted as of the time of
termination. If at any time during the term of this Lease such portion of the
Building shall be taken by eminent domain that Landlord shall determine that
operation thereof as an office building would be uneconomical, Landlord at its
election, may terminate this Lease by a notice to Tenant given within thirty
(30) days after physical possession of the portion so taken shall be required
for public use. If only part of the Premises shall be taken under the power of
eminent domain and if this Lease shall not be terminated as aforesaid, then the
term of this Lease shall continue in full force and effect and Landlord shall,
within a reasonable time after possession is required for public use, repair and
rebuild what may remain of the Premises and the remainder of the Building so as
to put the same into condition for use and occupancy by Tenant,
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and a just proportion of the minimum rent according to the nature and extent of
the injury to the Premises shall be suspended or abated until what may remain of
the Premises shall be put into such condition by Landlord and delivered to
Tenant in a tenantable condition, and thereafter ajust proportion of the part so
taken shall be abated for the balance of the term of this Lease
10.3 Landlord reserves to itself, and Tenant assigns to Landlord, all
rights to damages accruing on account of any taking under the power of eminent
domain or by reason of any act of any public or quasi-public authority for which
damages are payable. Tenant agrees to execute such instruments of assignment as
may be reasonably required by Landlord in any proceeding for the recovery of
such damages if requested by Landlord, and to turn over to Landlord any damages
that may be recovered in such proceedings. It is agreed and understood, however,
that Landlord does not reserve to itself, and Tenant does not assign to
Landlord, any damages payable for movable trade fixtures installed by Tenant or
anybody claiming under Tenant at its own cost and expense or for moving expenses
incurred by Tenant.
ARTICLE ELEVEN, INDEMNITY AND INSURANCE
11.1 Except in the event of negligence on the part of Landlord or
Landlord's willful misconduct, Tenant agrees to save Landlord harmless from, and
indemnify Landlord against, to the extent permitted by law, any and all injury,
loss or damage and any and all claims for injury, loss or damage and any and all
claims for injury, loss of whatever nature (1) caused by or resulting from or,
claimed to have been caused by or to have resulted from, any act, omission or
negligence of Tenant or anyone claiming under Tenant (including, but without
limitation, subtenants and concessionaires of Tenant and employees and
contractors of Tenant or its subtenants or concessionaires), no matter where
occurring, or (2) occurring upon or about the Premises, no matter how caused.
This indemnity and hold harmless agreement shall include indemnity against all
costs, expenses and liabilities, incurred in connection with any such injury,
loss or damage or any such claim, or any proceeding brought thereon or the
defense thereof. To the maximum extent that this Lease may be made effective
according to law, Tenant agrees to use and occupy the Premises at its sole risk.
Without limiting the generality of the immediately preceding sentence, if Tenant
or anyone claiming under Tenant or the whole or any part of the property of
Tenant or anyone claiming under Tenant shall be injured, lost or damaged by
theft, fire, water or steam or in any other way or manner, whether similar or
dissimilar to the foregoing, no part of said injury, loss or damage is to be
borne by Landlord or its agents. Tenant agrees that Landlord shall not be liable
to Tenant or anyone claiming under Tenant for any injury, loss or damage that
may be caused by or result from the fault or negligence of any persons occupying
adjoining premises or any other part ot the Entire Premises.
11.2 Tenant will maintain general comprehensive public liability
insurance, with respect to the Premises and its appurtenances, issued by
insurance companies authorized to do business in the Commonwealth of
Massachusetts, naming Landlord and Tenant as the insureds, in amounts not less
than $ 2,000,0000 with respect to injuries to any one person and not less than $
3,000,000 with respect to injuries suffered in any one accident, and not less
than $500,000 with respect to property. Such policies shall provide that
Landlord is a named additional insured under such policy and each and every
certificate of insurance as required to be provided by Tenant to Landlord shall
name OWNER as the certificate holder and the so called descriptions or special
conditions section of certificate shall state that the Landlord as herein
defined is a named additional insured. Such policies of insurance or
certificates thereof shall be delivered to Landlord, at least fifteen (15) days
prior to the commencement of the term of this Lease, and each renewal policy or
certificate thereof, at least fifteen (15) days prior to the expiration of the
policy it renews. In the event the Tenant fails to
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provide Landlord with such Certificates of Insurance in the form as described
above at the time of renewal or at the time of a change by Tenant regarding the
Tenants general comprehensive public liability insurance within Fifteen (15)
Days of such renewal or change the Landlord may charge the Tenant a processing
fee of One Hundred ($100) Dollars. Tenant may maintain such insurance under a
blanket policy affecting other premises of Tenant and/or its affiliated business
organizations. Each such policy of insurance shall contain a provision
prohibiting cancellation or amendment thereof without Landlord's receiving at
least thirty (30) days prior written notice from the insurance carrier of such
cancellation or amendment.
ARTICLE TWELVE, ACCESS TO PREMISES
12.1 Landlord shall have the right to enter upon the Premises or any part
thereof without charge at all reasonable times, with reasonable prior notice and
in case of emergency, at any time, to inspect the same, to show the Premises to
prospective purchasers or lenders, to make or facilitate any repairs,
alterations, additions or improvements to the Premises and other portions of the
Entire Premises. But nothing in this Article 12 contained shall obligate
Landlord to make any repairs, alterations, additions or improvements not
required to be made by Landlord. Tenant shall not be entitled to any abatement
or reduction of rent or damages by reason of any of the foregoing, but Landlord
agrees to use reasonable efforts to minimize any disruption to the tenant's
useful occupation of the Premises. No forcible entry shall be made by Landlord
unless such entry shall be reasonably necessary to prevent serious injury, loss
or damage to persons or property. Landlord shall repair any damage to property
of Tenant or anyone claiming under Tenant caused by or resulting from Landlord's
forcible entry, the making of any such repairs, alterations, additions or
improvements, except only such damage as shall result from the making of such
repairs, alterations, additions, improvements or forcible entry which Landlord
shall make as a result of default, fault or negligence of Tenant or anyone
claiming under Tenant. Provided Tenant does not exercise its election to renew
the term of the Lease in accordance with the provisions of Article 3.3, then for
the period commencing 6 months prior to the expiration of the term of this
Lease, Landlord may maintain "For Rent" signs on the Premises and Landlord or
Landlord agents may show the Premises to prospective tenants, provided Landlord
and/or its agents gives Tenant reasonable oral notice thereof.
ARTICLE THIRTEEN, DEFAULTS
13.1 Any of the following occurrences or acts shall constitute an event
of default under this Lease: if Tenant shall:
(1) fail to pay any fixed base rent, additional rental obligations hereof or
other sum required to be paid by Tenant hereunder and such failure shall
continue for thirty (30) days after written notice as specified herein to Tenant
of such failure; or
(2) fail to observe or perforrn any other provision hereof and such failure
shall continue for thirty (30) days after written notice as specified herein
Tenant of such failure (provided, that, in the case of any such default which
cannot be cured by the payment of money and cannot with diligence be cured
within such 30 day period, if Tenant shall commence promptly to cure the same
and thereafter prosecute the curing thereof with diligence, the time within
which such default may be cured shall be extended for such period as is
necessary to complete the curing thereof with diligence); or
(3) abandon the Premises: or
Page 15 of 26
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(4) shall file a petition commencing a voluntary case under any federal
bankruptcy or similar law, federal or state, or for reorganization or an
arrangement pursuant to any bankruptcy law, insolvency or any similar law,
federal or state, or shall be adjudicated a debtor or bankrupt under any
bankruptcy, insolvency or any similar law, federal or state, or become
insolvent, or shall make assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts generally as they become due, or if a
petition commencing an involuntary case against tenant or answer proposing the
adjudication of Tenant as a debtor or bankrupt or its reorganization pursuant to
any federal or state bankruptcy law or any similar law shall be tiled in any
court and Tenant shall consent to or acquiesce in the filing thereof or such
petition or answer shall not be dismissed, discharged or denied within ninety
(90) days after the filing thereof; or
(5) if a custodian, receiver, trustee, United States trustee or liquidator of
Tenant or of all substantially all of the assets of Tenant or of the Premises or
Tenant's estate therein shall be appointed in any proceeding brought by Tenant,
or if any such custodian, receiver, trustee, United States trustee or liquidator
shall be appointed in any proceeding brought against Tenant and shall not be
discharged within ninety (90) days after such appointment, or if Tenant shall
consent to or acquiesce in such appoint; or
(6) if any material representation or warranty of Tenant contained in this
Lease, any assignment or reassignment of this Lease or consent thereto executed
by Tenant or in any notice, demand, certificate, request or instrument delivered
pursuant to or in connection with this Lease, any such assignment or
reassignment or consent shall prove to be incorrect in any material respect as
of the time when the same shall have been made, to the detriment of any person
to whom or for whose benefit the representation or warranty was made.
13.2 If an event of default shall have happened and be continuing,
Landlord shall have the right to give Tenant written notice as specified herein
of Landlord's intention to terminate the term of this Lease on a date not less
than 30 days after the date of such notice, hereinafter referred to as the
termination date. Upon the giving of such notice, the term of this Lease shall
expire and terminate on the termination date such as fully and completely and
with the same effect as if such date were the date herein fixed for the
expiration of the term of this Lease, and all rights of Tenant hereunder shall
expire and terminate, but Tenant shall remain liable for of its obligations as
hereinafter provided.
13.3 If an event of default shall have happened and be continuing,
Landlord shall have the immediate right, whether or not the term of this Lease
shall have been terminated pursuant to Article 13.2 hereof, to re-enter and
repossess the Premises by summary proceedings, ejectment or in any manner
Landlord determines to be necessary or desirable and the right to remove all
persons and property therefrom. Landlord shall be under no liability by reason
of any such re-entry, repossession or removal. No such re-entry or repossession
of the Premises shall be construed as an election by Landlord to terminate the
term of this Lease unless a notice of such intention is given to Tenant pursuant
to Article 13.2 hereof, or unless such termination is decreed by a court of
competent jurisdiction.
13.4 after the re-entry of repossession of the Premises pursuant to
Article 13.3 hereof, whether or not the term of this Lease shall have been
terminated pursuant to Article 13.2 hereof, Landlord shall make reasonable
effort to relet the Premises for the account of Tenant in the name of Tenant or
Landlord or otherwise, with or without notice to Tenant, for such term or terms
and on such reasonable conditions and for such uses as Landlord, in its absolute
discretion, may determine, however such rent shall be commercially reasonable.
Landlord may collect and receive any rents
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payable by reason of such reletting. Landlord shall not be liable for any
failure to relet the Premises (after making reasonable efforts to relet) or for
any failure to collect (after making reasonable efforts to collect) any rent due
upon any such reletting.
13.5 No such termination of the term of this Lease pursuant to this
Article, by operation of law or otherwise, and no re-entry or repossession of
the Premises pursuant to Article 13.3 hereof or otherwise, and no reletting of
the Premises pursuant to Article 13.4 hereof or otherwise, shall relieve Tenant
of its liabilities and obligations hereunder, all of which shall survive such
expiration, termination, re-entry, repossession or reletting.
13.6 In the event of any such termination or rentry or repossession of the
Premises by reason of the occurrence of any event on default, Tenant will pay to
Landlord all Fixed Base Rent, additional rental obligations and other sums
required to be paid by Tenant to and including the date of such expiration,
termination, re-entry or repossession, including any reasonable attorneys' fees
and expenses incurred in connection with such expiration, termination, re-entry
or repossession; and, thereafter, Tenant shall, until the end of what would have
been the term of this Lease in the absence of such expiration, termination,
re-entry, or repossession, and whether or not the Premises shall have been
relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and
agreed current damages:
13.6.1 all fixed base rent, additional rental obligations, monies
expensed or which shall be required to be expensed by Landlord for the Tenant
Improvements, as well as any monies for brokerage and legal fees for
consummating this Lease and any other sums which would be payable under this
Lease by Tenant in the absence of such expiration, termination, re-entry, or
repossession, including any reasonable attorneys' fees and expenses incurred in
connection with such expiration, termination, re-entry, or repossession; LESS:
13.6.2 the net proceeds, if any, of any reletting effected for the
account of Tenant pursuant to Article 13.4 hereof, after deducting from such
proceeds all Landlord's reasonable expenses in connection with such reletting
(including all repossession costs, brokerage commissions, reasonable attorneys'
fees and expenses, reasonable employees' expenses, alteration costs and expenses
of preparation for such reletting). Tenant will pay such current damages on the
days on which fixed base rent would be payable under this Lease in the absence
of such expiration, termination, re-entry, or repossession, and Landlord shall
be entitled to recover the same from Tenant on each such day.
13.7 Notwithstanding any other relevant provisions contained herein any
monies expensed or which shall be required to be expensed by Owner for the
Tenant Improvements completed hereunder by Landlord or the unamortized portion
thereof; as well as any monies for brokerage and legal fees for consummating
this Lease and any other sums which would be payable under this Lease by Tenant
in the absence of such expiration, termination, re-entry, or repossession shall
be due and payable from Tenant immediately upon termination of this Lease.
ARTICLE FOURTEEN, MORTGAGES
14.1 Tenant agrees that upon the request of Landlord it will subordinate
this Lease and the lien hereof to the lien of any present or future mortgage or
mortgages upon the Premises or any property of which the Premises are a part,
irrespective of the time of execution or time of recording
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of any such mortgage or mortgages; provided that the holder of any such mortgage
shall agree with Tenant that this Lease and the rights of Tenant hereunder shall
not be disturbed in the event of a foreclosure or other transfer of title to the
property except in accordance with the terms of this Lease. Tenant agrees that
it will upon the reasonable request of Landlord execute, acknowledge and deliver
any and all instruments deemed by Landlord necessary or desirable to give effect
to or notice of such subordination. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments and modifications,
consolidations, extensions, renewals, replacements and substitutes thereof,
whether the lien of any mortgage upon the Premises or any property of which the
Premises are a part shall be superior or subordinate to this Lease and the lien
hereof. Tenant agrees that it will, upon request, attorn to the holder of such
mortgage or any one claiming under such holder and their respective successors
and assigns in the event of foreclosure of or similar action taken under such
mortgage.
14.2 After the commencement of the term of this Lease and witbin twenty
(20) days after written request therefor by Landlord, Tenant agrees to deliver
to Landlord or to any mortgagee a certificate stating that Tenant has entered
into occupancy of the Premises in accordance with the provisions of this Lease,
that this Lease is in full force and effect, that Landlord has performed
Landlord's construction work and any other information reasonably requested.
14.3 After receiving notice from Landlord or from any person, firm or
other entity that such person, firm or other entity holds a mortgage, as herein
defined, which includes the Premises as part of the mortgaged premises, no
notice from Tenant to Landlord shall be effective unless and until a copy of the
same is given by certified or registered mail to such holder, and the curing of
any of Landlord's defaults by such holder shall be treated as performance by
Landlord, it being understood and agreed that such holder shall be afforded a
reasonable period of time after the receipt of such notice in which to effect
such cure.
ARTICLE FIFTEEN, WAIVER OF SUBROGATION
15.1 Each of Landlord and Tenant hereby releases the other, to the extent
of its insurance coverage, from any and all liability for any loss or damage
caused by fire or any of the extended coverage casualties or any other casualty
insured against, even if such fire or other casualty shall be brought about by
the fault or negligence of the other party or its agents, provided, however,
this release shall be in force and effect only with respect to loss or damage
occurring during such time as releasor's policies covering such loss or damage
shall contain a clause to the effect that this release shall not affect said
policies or the right of releasor to recover thereunder. Each of Landlord and
Tenant agrees that their respective fire and other casualty insurance policies
will include such a clause so long as the same is includable without extra cost,
or if extra cost is chargeable therefor, so long as the other party pays such
extra cost. If an extra cost is chargeable therefor, each party will advise the
other of the amount thereof. The other party at its election, may pay the same,
but shall not be obligated to do so.
ARTICLE SIXTEEN, FAILURE OF PERFORMANCE AND WAIVER
16.1 If Tenant shall default in the performance of any agreement or
condition in this Lease contained on its part to be performed or observed other
than an obligation to pay money, and shall not have begun to cure and diligently
complete the curing of such default within thirty (30) days after written notice
from Landlord specifying the default or shall not within said period commence to
cure such default and thereafter prosecute the curing of such default to
completion with due diligence,
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Landlord may, at its option, without waiving any claim for damages for breach of
agreement, at any time thereafter cure such default for the account of Tenant,
and any amount paid or any contractual liability incurred by Landlord in so
doing shall be deemed paid or incurred for the account of Tenant and Tenant
agrees to reimburse Landlord therefor or save Landlord harmless therefrom;
provided that Landlord may cure any such default as aforesaid prior to the
expiration of said waiting period but after notice to Tenant, if the curing of
such default prior to the expiration of said waiting period is reasonably
necessary to protect the real estate or Landlord's interest therein, or to
prevent injury or damage to persons or property. If Tenant shall fail to
reimburse Landlord upon demand for any amount paid for the account of Tenant
hereunder, said amount shall be added to and become due as a part of the next
payment of rent due hereunder.
16.2 Failure of either party to complain of any act or omission on the
part of the other party, no matter how long the same may continue, shall not be
deemed to be a waiver by said party of any of its rights hereunder. No waiver by
either party at any time, express or implied, of any breach of any provision of
this Lease shall be deemed a waiver of a breach of any other provision of this
Lease or a consent to any subsequent breach of the same or any other provision.
If any action by either party shall require the consent or approval of the other
party, the other party's consent to or approval of such action on any one
occasion shall not be deemed a consent to or approval of said action on any
subsequent occasion or a consent to or approval of any other action on the same
or any subsequent occasion. Any and all rights and remedies which either party
may have under this Lease or by operation of law, either at law or in equity,
upon any breach, shall be distinct, separate and cumulative and shall not be
deemed inconsistent with each other; and no one of them, whether exercised by
said party or not, shall be deemed to be in exclusion of any other; and any two
or more or all of such rights and remedies may be exercised at the same time.
ARTICLE SEVENTEEN, BROKERS
17.1 Tenant hereby represents and warrants to Landlord that, except to the
extent, if any, hereinafter set forth, it has dealt with no broker in connection
with this Lease and there are no brokerage commissions or other finders' fees
due in connection herewith. Tenant hereby agrees to hold Landlord harmless from,
and indemnified against, all loss or damage (including, without limitation, the
cost of defending same) arising from any claim by any broker claiming to have
dealt with Tenant other then NIRES COMPANY. Landlord acknowledges that NIRES
COMPANY is due a commission relative to this Lease in accordance with the
Agreement between said Broker and Landlord, of which Landlord shall be solely
obligated to pay.
ARTICLE EIGHTEEN, HOLDING OVER
18.1 If Tenant or anyone claiming under Tenant shall remain in possession
of the Premises or any part thereof after the expiration of the term of this
Lease without any agreement in writing between Landlord and Tenant with respect
thereto, the person remaining in possession shall be deemed a tenant at
sufferance and after acceptance of rent by Landlord the person remaining in
possession shall be deemed a tenant at will, subject to the provisions of this
Lease insofar as the same may be made applicable to a tenancy at will. The Fixed
Base Rent payable by such person shall be twice the amount of the Fixed Base
Rent payable at the expiration of the term of this Lease as long as such person
remains in possession of the Premises.
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ARTICLE NINETEEN, QUIET ENJOYMENT
19.1 Landlord agrees that upon Tenant's paying the rent and performing and
observing the agreements, conditions and other provisions on its part to be
performed and observed, Tenant shall and may peaceably and quietly have, hold
and enjoy the Premises during the term of this Lease without any manner of
hindrance or molestation from Landlord or anyone claiming under Landlord,
subject, however, to the terms of this Lease and any instruments having prior
lien.
ARTICLE TWENTY, USE
20.1 Tenant agrees that during the term of this lease and any extension
thereof the Premises will be used and occupied for the normal administrative and
management business operations of Tenant, but not for any research and
development, assembly or manufacturing purposes nor for any other purpose
without the written consent of Landlord: The Tenant shall not use the Premises
for any use which materially interferes with the lawful use of other parts of
the Entire Premises by the other tenants of the Entire Premises nor shall the
Tenant use the Premises or any part thereof for any use or activity which is
contrary to any law, rule, bylaw or regulation of any governmental agency having
jurisdiction thereof. Landlord represents that use of the Premises for office
purposes is permitted under applicable zoning laws.
ARTICLE TWENTY ONE, ASSIGNMENT
21.1 Tenant agrees that it will not assign, mortgage, pledge or otherwise
encumber this Lease or any interest therein, or sublet the whole or any part of
the Premises without obtaining on each occasion the written consent of the
Landlord, said consent not to be unreasonably withheld or delayed. If and
whenever Tenant shall not be a so-called "publicly held" company, it is
understood and agreed that the transfer of fifty percent (50%) or more of the
stock in Tenant of any class to any single entity (whether at one time or at
intervals) shall constitute an "assignment" of Tenant's interest in this Lease
only if such event in the reasonable judgment of mutually agreeable competent
third party materially adversely effects the credit worthiness of this Lease or
the Tenant. Provided the Tenant is so called publicly held company the sale of
any portion of its stock shall not be considered an assignment hereunder.
21.2 If Tenant shall request permission to assign this Lease or sublet all
or any part of the Premises to any person other than a business organization
affiliated with Tenant, Tenant shall, together with its request for consent
thereto, inform Landlord of the rental to be paid by such assignee or subtenant
and Landlord shall have the right to terminate this Lease rather than consent to
such assignment or subletting; provided that Landlord shall exercise such right
within thirty (30) days of its receipt of Tenant's request for such consent and
provided, further, that Tenant shall have the right to withdraw its request for
such consent within thirty (30) days after its receipt of such notice from
Landlord, in which event such notice of termination shall become null and void.
If this Lease shall be terminated pursuant to the provisions of the immediately
preceding sentence, such termination shall become effective upon the last day of
the calendar month next following Landlord's giving of notice of termination.
21.3 Tenant shall reimburse Landlord promptly upon demand for reasonable
legal and other expenses incurred by Landlord in connection with any request by
Tenant for consent of assignment or subletting. Without intending to limit
Landlord's discretion in granting or withholding such consent, if Landlord shall
consent to any assignment of this Lease by Tenant or a subletting of the whole
of
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the Premises or any part thereof by Tenant at a rent in excess of the subleased
portion's pro rata share of the rent payable hereunder by Tenant, then Tenant
shall pay to Landlord, as additional rent forthwith upon Tenant's receipt of
each installment of any such excess rent, one half of any such excess rent.
However in the event such sublet or assignment is to Tenant's parent company,
another subsidiary thereof or any other company affiliated with Tenant, then
Landlord shall be entitled to the full amount of any such excess rent. All costs
associated with the procurement of any such approved sublet or assignment shall
borne entirely by the Tenant and no deduction relative thereto shall be made
from the portion of excess rent due Landlord. Each request by Tenant for
permission to assign this Lease or to sublet the whole or any part of the
Premises shall be accompanied by a warranty by Tenant as to the amount of rent
to be paid to Tenant by the proposed assignee or subtenant. For purposes of this
Section, the term "rent" shall mean all fixed rent, additional rent or other
payments and/or consideration payable by one party to another for the use and
occupancy of the whole or any part of the Premises. Tenant agrees, however, that
neither it nor anyone claiming under it shall enter into any sublease, license,
concession or other agreement for use, occupancy or utilization of the whole or
any part of the Premises which provides for rental or other payment for such
use, occupancy or utilization based, in whole or in part, on the net income or
profits derived by any person or entity from the space leased, used, occupied or
utilized (other than an amount based on a fixed percentage or percentage of
receipts or sales), and Tenant agrees that any such purported sublease, license,
concession or other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises. Tenant further agrees that any
sublease, license, concession or agreement for use, occupancy or utilization of
space in the Premises entered into by it or by anyone claiming under it shall
contain the provisions set forth in the immediately preceding sentence. Tenant
further agrees that if a sublease is entered into, neither the rent payable
thereunder nor the amount thereof passed on to any person or entity shall have
deducted therefrom any expenses or costs related in any way to the subleasing of
such space.
21.4 In any event of assignment or sublease the Tenant shall always remain
principally liable to the Landlord for the performance of all agreements,
conditions, terms and obligations herein reserved and contained on the part of
Tenant to be observed by Tenant for the term and any extension herein set forth.
ARTICLE TWENTY TWO, DELAYS
22.1 In any case where either party hereto is required to do any act,
delays caused by or resulting from Act of God, war, civil commotion, fire or
other casualty, labor difficulties, shortages of labor, materials or equipment,
government regulations or other causes beyond such party's reasonable control
such delay shall not be counted in determining the time during which such work
shall be completed, whether such time be designated by a fixed date, a fixed
time or "a reasonable time." In any case where work is to be paid for out of
insurance proceeds or condemnation awards, due allowance shall be made, both to
the party required to perform such work and to the party required to make such
payment, for delays in the collection of such proceeds and awards.
ARTICLE TWENTY THREE, NOTICES
23.1 All notices and/or other communications authorized or required
hereunder shall be in writing and shall be given by mailing the same by
certified or registered mail, return receipt requested, postage prepaid. If
given to Tenant the same shall be mailed to Tenant at the address provided on
Page 5 hereof or to such other person at such other address as Tenant may
hereafter
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designate by notice to Landlord; and if given to Landlord the same shall be
mailed to Landlord at the address provided on Page 5 hereof, with a copy to
NIRES COMPANY, 00 Xxxxxx Xxx, XXX 0, Xxxxxxxxxx Xxxxxxxxxxxxx, 00000-0000 or to
such other person or at such other address as Landlord may hereafter designate
by notice to Tenant. In the event the notice mailed with sufficient postage as
above provided shall not be received upon attempted delivery thereof to the
proper address and shall be returned by the Postal Service to the sender because
of a refusal of receipt, the absence of a person to receive, or otherwise, the
time of the giving of such notice shall be the time of the first such attempted
delivery.
ARTICLE TWENTY FOUR, DEFINITIONS AND INTERPRETATIONS
24.1 The words "Landlord" and "Tenant" and the pronouns referring thereto,
as used in this Lease, shall mean, where the context requires or admits, the
persons named herein as Landlord and as Tenant, respectively, and their
respective heirs, legal representative, successors and assigns, irrespective of
whether singular or plural, masculine, feminine or neuter. Except as hereinafter
provided otherwise, the agreements and conditions in this Lease contained on the
part of the Landlord to be performed and observed shall be binding upon Landlord
and its heirs, legal representatives, successors and assigns and shall inure to
the benefit of Tenant and its heirs, legal representatives, successors and
assigns; and the agreements and conditions on the part of Tenant to be performed
and observed shall be binding upon Tenant and its heirs, legal representatives,
successors and assigns and shall inure to the benefit of Landlord and its heirs,
legal representatives, successors and assigns. The word "Landlord", as used
herein, means only the owner for the time being of Landlord's interest in this
Lease, that is, in the event of any transfer of Landlord's interest in this
Lease the transferor shall cease to be liable, and shall be released from all
liability for the performance or observance of any agreements or conditions on
the part of Landlord to be performed or observed subsequent to the time of said
transfer, it being understood and agreed that from and after said transfer and
transferee shall be liable for the performance and observance of said agreements
and conditions. As used herein the term "Landlord" shall include the Landlord's
lawful agents, fiduciaries, subcontractors and vendors. As used herein the term
Tenant shall include the entity named herein as Tenant, its guarantors, agents,
invitees, employees, as well as any other persons lawfully claiming under Tenant
including sub tenants.
24.2 It is agreed that if any provisions of this Lease shall be determined
to be void by any court of competent jurisdiction then such determination shall
not affect any other provision of this Lease, all of which shall remain in full
force and effect; and it is the intention of the parties hereto that if any
provision of this Lease is capable of two constructions, one of which would
render the provision void and the other which would render the provision valid,
then the provision shall have the meaning which renders it valid.
24.3 This instrument contains the entire and only agreement between the
parties, and no oral statements or representations or prior written matter not
contained in this instrument shall have any force or effect. This Lease shall
not be modified in any way except by a writing subscribed by both parties.
24.4 Wherever in this Lease provision is made for the doing of any act by
any person it is understood and agreed that said act shall be done by such
person at its own cost and expense unless a contrary intent is expressed.
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24.5 If all or any part of Landlord's interest in this Lease shall be held
by a trust, no trustee, shareholder or beneficiary of said trust shall be
personally liable for any of the covenants, or agreements, express or implied,
hereunder. Landlord's covenants and agreements shall be binding upon the
trustees of said trust as trustees as aforesaid and not individually and upon
the trust estate. Without limiting the generality of the foregoing, and whether
or not all or any part of Landlord's interest in this Lease shall be held by a
trust. Tenant specifically agrees to look solely to Landlord's interest in the
Entire Premises for recovery of any judgment from Landlord; it being
specifically agreed that Landlord shall never otherwise be personally liable for
any such judgment.
24.6 Wherever in this Lease provision is made that either party shall have
the right to terminate this Lease, then, unless in said provision it is
expressly provided otherwise, neither party hereto shall thereafter have any
claim against the other under this Lease or on account of the termination
thereof unless provided otherwise.
24.7 The marginal notes used as headings for the various articles, the
title page and the lease abstract of this Lease are used only as a matter of
convenience for reference, and are not to be considered a part of this Lease or
to be used in determining the intent of the parties of this Lease. Whenever in
this Lease any portion, or part thereof, has been stricken out, whether or not
any provision has been substituted therefor, this Lease shall be read and
construed as if the words so stricken out were never included herein and no
implication shall be drawn from the words so stricken out.
24.8 Landlord reserves the right at any time during the term of this Lease
to use the exterior and demising walls of the Premises in connection with
additional construction; provided that Landlord shall not close any windows of
or entrances to the Premises without the prior consent of Tenant. Landlord
further reserves the right to install, maintain, repair and/or replace any and
all utility lines, conduits and equipment located within the Premises and
serving other premises in the Building; provided, however, that none of the same
shall be installed below the suspended ceiling, above the finished floor or
outside of the demising walls of the Premises and provided, further, that any
entry by Landlord to perform such installation, maintenance, repair or
replacement work shall not unreasonably interfere with Tenant's use and
occupation of the Premises.
24.9 For the purposes of this Lease, a business organization shall be
deemed to be affiliated with Tenant (1) if such business organization controls
Tenant either directly by ownership of a majority of its voting stock or of such
minority thereof as to give it substantial control of Tenant, or indirectly by
ownership of such a majority or minority of the voting stock of another business
organization so controlling Tenant or (2) if said business organization is so
controlled by another business organization so controlling Tenant.
24.10 Connectivity Technologies, Inc. (a Delaware Corporation) the parent
company of Connectivity Products, Inc. shall be jointly and severally liable
with Tenant hereunder and the term "Tenant" as in used in all and every part of
this Lease shall refer to such guarantor and to any other persons, corporations
or other entities constituting Tenant now or in the future by merger, sale
and/or consolidation. Connectivity Technologies, Inc.'s guarantee is fully
described on Exhibit B hereof.
ARTICLE TWENTY FIVE, TENANT COVENANTS
25.1 Tenant agrees that during the term of this Lease and any extension
thereof: no nuisance will be permitted on or about the Premises; nothing will be
done upon or about the Premises which
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shall be unlawful, improper, noisy or offensive or contrary to any law,
ordinance, regulation or requirement of any public authority or insurance
inspection or rating bureau or similar organization having jurisdiction, or
which may be injurious to or adversely affect the quality or tone of the Entire
Premises, any part thereof or any abutting or adjacent property of the Landlord;
the Premises will not be overloaded, damaged or defaced; Tenant will not drill
or make holes in the stone or brickwork; Tenant will not permit the emission of
any objectionable noise or odor from the Premises; Tenant will procure all
licenses and permits which may be required for any use made of the Premises,
except for the certificate of occupancy for office use which shall be procured
by Landlord, if such certificate is required; no load shall be placed upon any
part of the floor of the Premises exceeding fifty (50) pounds per square foot
live load; no safe, vault or other heavy equipment shall be moved in, about or
out of the Premises except in such manner and at such times as Landlord shall
approve in writing in each instance; Tenant's business machines and mechanical
equipment which cause vibration or noise that may be transmitted to the Building
structure or to any other space in the Building shall be placed and maintained
by Tenant in settings of cork, rubber, spring or other types of vibration
eliminators sufficient to confine such vibration or noise to the Premises; and
all waste and refuse will be stored upon and removed from the Premises in
accordance with all applicable governmental codes and regulations. Tenant shall
comply with all reasonable rules and regulations, provided such do not conflict
with the terms and conditions of this Lease, hereafter made by Landlord, but
only after copies thereof have been delivered to Tenant for the care and use of
the Building and the Entire Premises and their facilities and approaches, it
being expressly understood, however, that Landlord shall not be liable to Tenant
for the failure of other tenants of the Building to conform to such rules and
regulations. Tenant will not do, or suffer to be done, or keep, or suffer to be
kept, or omit to do anything in, upon or about the Premises which may prevent
the obtaining of any insurance on the Entire Premises or on any property
therein, including, but without limitation, fire, extended coverage and public
liability insurance, or which may make void or voidable any such insurance, or
which may create any extra premiums for, or increase the rate of, any such
insurance. If anything shall be done or kept or permitted to be done in, upon or
about the Premises which shall create any extra premiums for, or increase the
rate of, any such insurance, Tenant will pay the increased cost of the same to
Landlord upon demand.
ARTICLE TWENTY SIX, PARKING
26.1 The Tenant shall be entitled to the use all of the parking spaces of
the Entire Premises in common with all tenants subject to exclusive rights of
others. Landlord agrees to provide adequate visitor only parking. The Tenant
shall have 6 reserved parking spaces, such spaces shall be located at the back
side of the building closest to an entrance door of 000 Xxxxxxxx Xxxxxx.
ARTICLE TWENTY SEVEN, OTHER PROVISIONS
27.1 Upon the execution hereof by the TENANT this Lease shall for all
purpose and intent of law be considered fully executed by TENANT. In the event a
lapse of less than 14 business days occurs between the time TENANT executes this
Lease and the execution of this Lease by OWNER this event shall have no force or
effect relative to TENANT'S obligations hereunder in part or in whole. In the
event Landlord fails to execute this Lease and return a fully executed copy to
Tenant within 14 days of Landlord receiving this Lease from Tenant fully
executed, this Lease shall be null and void and Tenant shall be entitled to a
full refund of any and all monies paid hereunder and in such event neither party
shall have any other recourse to the other.
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27.2 This Lease shall be governed by and in accordance with the Laws of
the Commonwealth of Massachusetts.
27.3 Prior to the execution hereof the TENANT shall deliver to OWNER a
certificate of corporate vote or other acceptable assurance from TENANT
indicating that Xxxxx Xxxxxxxxxx has the authority to enter into and bind
Connectivity Products, Inc. relative to the terms, obligations and conditions of
this Lease.
27.4 During the term hereof and any extension thereto the Tenant agrees to
provide Landlord with financial statements as reasonably requested within 30
days of such request. Landlord agrees to keep all information not of a public
nature confidential.
27.5 Any and all Exhibits attached hereto are hereby incorporated herein
as if such were part of the text of this Lease.
27.6 To the best of Landlord's knowledge at the time of the inception of
this Lease no asbestos or asbestos containing materials are present in the
Premises, no hazardous or toxic materials exist in or under the Premises, nor
are any such materials used in any construction that would require reporting or
remediation under applicable law and all parts of the Entire Premises and
Premises comply with all laws relating to the accessibility thereof to the
handicapped and other disabled persons. Tenant acknowledges that in the event
any of the above representations is untrue such event shall not be considered a
material breach of the Lease by Landlord, unless such event materially
interferes with Tenant useful occupation of the Premises or its access thereof.
Landlord warrants that in the event any of the above representations is untrue
Landlord shall use reasonable efforts to remedy such situation.
27.7 Tenant shall to the best of its ability prevent its employees,
invitees and guests from smoking at the front entrance of the building. Tenant
shall with respect to its own employees, invitees and guests enforce a no
smoking policy within the building and the Premises and shall enforce all
smoking policies of the Whole Premises.
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IN WITNESS WHEREOF, Landlord and Tenant have each caused this Lease to be
duly executed and delivered, on this 20th day of December, 1996.
OWNER DATE 12-20-96 /s/ Xxxxx X. Xxxxxxxx
-------- --------------------------
XXXXX X. XXXXXXXX, D/B/A
CROSSROADS OFFICE PARK
TENANT DATE 12-20-96 /s/ Xxxxx Xxxxxxxxxx
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CONNECTIVITY PRODUCTS, INC.
BY XXXXX XXXXXXXXXX
ITS PRESIDENT
WITNESS DATE 12/20/96 /s/
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WITNESS DATE 12/20/96 /s/
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