Exhibit 10.43
The ▇▇▇▇▇▇▇▇ Company
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
COMMERCIAL/INDUSTRIAL STANDARD LEASE
This Indenture of Lease made this 16th day of February, 2000
---- --------------
by Foxford Business Center, LLC
-------- --------------------
(Norfolk County, Massachusetts,(hereinafter called "Lessor")
and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
----------------------
(hereinafter called "Lessee".)
Witnesseth that
In consideration of the rent and covenants herein set forth and contained, on
the part of Lessee to be paid, performed and observed, Lessor does hereby demise
and lease unto Lessee approximately 25,000 square feet of floor area which shall
include 12,932 square feet of office area within the Building (the "Building",
which term shall be construed to mean the Building as originally constructed and
expanded) on ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ which Lot and Building are
shown on Exhibit A attached hereto and made a part hereof, and which floor area
is shown on Exhibit A, said premises being crosshatched in Red on Exhibit A
hereinafter called the "Premises", together with the right to use in common with
Lessor and others from time to time entitled, the appurtenances to the Building
and Lot, including the right to use the driveways and parking area adjacent to
the Building.
To have and to hold the Premises for a term of 5 year(s) beginning on October 1,
2000 and terminating on September 30, 2005, unless sooner terminated as herein
provided.
ARTICLE I
Payment of Rent
---------------
Lessee covenants and agrees with Lessor to pay as rent during the term hereof
and so long thereafter as Lessee or anyone claiming under Lessee occupies the
Premises;
1.1 A fixed rental at the annual rate of $ 250,000.00 during the term hereof,
said rental to be payable in equal installments of $20,833.00 in advance on the
first day of each month of the term, and at that rate for any fraction of a
month beginning of any term, any fraction payable with respect to a portion of a
month at the beginning of the term to be paid on the Commencement Date. Rental
installments not received by the fifth day of the respective month(s) are
subject to the highest interest rate allowed by law.
1.2 Lessee shall pay all utility charges directly to the entity charged with
the collection thereof. Lessee shall pay its proportionate share of taxes,
betterment assessments, insurance costs and maintenance costs with respect to
the Demised Premises as provided in this Section 1.2 as follows:
1.2.1 Lessee shall pay, as additional rent to Lessor, Lessee's proportionate
share of taxes levied or assessed or becoming payable for or in respect to the
Lot on which the Building of which the Premises are a part is located, and the
Building and other improvements located on the Lot, for each tax period included
in the term at the beginning and end thereof, Lessee's proportionate share of
the fraction of such taxes which is allocable to such included period.
If at any time during the term, under the Laws of the United States or any State
or political subdivision thereof in which the Premises are situated, there shall
be adopted some other method of taxation on real estate as a substitute in whole
or in part for taxes on real estate as now constituted, such as tax on the fixed
rent, additional rent or the other charges payable by Lessee hereunder by
whatever name called, which is levied, assessed or imposed against Lessor or the
rent or other charges payable hereunder to Lessor, (which substitute tax on the
fixed rent, additional rent, or other charges or other substitute method of
taxation are hereinafter collectively referred to as "Substitute Taxes"),
Lessee, to the extent that such Substitute Taxes are means of raising revenue
1
from or with respect to the Premises, shall pay Substitute Taxes as soon as the
same shall become due and payable. In the event that any such Substitute Taxes
shall be based upon the income of Lessor, then Lessee's obligation with respect
to the aforesaid Substitute Taxes shall be limited to the amount thereof as
computed at the rates that would be payable if the same were the sole taxable
net Income of Lessor but without deduction or provision for any deductions,
exemptions or credits to which Lessor may be entitled in computing the tax,
Lessor would so bear on account of the fixed rent, additional rent or other
charges then due or thereafter becoming due from Lessee for the taxable period
under the terms of this Lease, all as if Lessor were not entitled to any such
deductions, exemptions or credits. Provided, however, that the taxation of
Lessor's income by the United States and the Commonwealth of Massachusetts,
presently referred to as the "Federal Income Tax" and "State Income Tax" or
similar methods of taxation are not intended to be herewith applicable and are
specifically excluded.
1.2.2 Lessee shall pay to Lessor Lessee's proportionate share of each
installment of any public, special or betterment assessment levied or assessed
or becoming payable for or in respect of the Lot or Building, or both for each
installment period wholly included in the term, and for any fraction of an
installment period included in the term at the beginning or end thereof,
Lessee's proportionate share of the fraction of such installment allocable to
such included period; provided only in the case of each respective assessment
that Lessor shall have elected to pay such assessment in installments over the
longest period permitted by law and not otherwise.
1.2.2.1. If Lessee deems itself aggrieved by any tax or assessment as to which
Lessee is required to pay LESSEE'S proportionate share under Section 1.2.1 or
1.2.2 hereof, Lessee may at Lessee's expense, without delaying the payment of
such proportionate share, seek an abatement thereof, and Lessor shall cooperate
with Lessee to the extent reasonably necessary to enable Lessee to do so. If
such abatement is granted, Lessee's proportionate share of such taxes and
assessments shall be adjusted accordingly.
All taxes levied on the personal property of Lessee, including but not limited
to pallets or skids, fork lift trucks or other hoisting equipment, etc., shall
be the obligation and be paid by Lessee whether the same is assessed to Lessee
or Lessor and whether the same shall be considered part of the realty or
personalty and further that Lessee agrees to indemnify and hold harmless the
Lessor from any loss, damage, debt or claim resulting therefrom.
1.2.3 Lessee shall as additional rent, on the first day of each month of the
term, make tax fund payments to Lessor. "Tax Fund payments" refer to such
payments, as Lessor shall reasonably determine to be sufficient to provide in
the aggregate a fund adequate to pay Lessee's proportionate share of all tax and
assessments referred to in subsection 1.2 when they become due and payable.
Lessor shall on or before the last day on which the same may be paid without
interest or penalty, pay to the proper authority charge with the collection
thereof all taxes and assessments referred to in said subsection 1.2.1 and
1.2.2, provided that Lessee shall have made the aforesaid tax fund payments. If
the aggregate of said tax refund payments is not adequate to pay Lessee's
proportionate share of all said taxes and assessments, Lessee shall pay to
Lessor the amount by which such aggregate is less than the amount equal to
lessee's proportionate share of all said taxes and assessments, such payment to
be made on or before the later of (a) 10 days after receipt by Lessee of written
notice from Lessor of such amount, or (b) the 30th day prior to the last day on
which such taxes and assessments may be paid without interest or penalty. Any
balance remaining after such payment by Lessor shall be accounted for to Lessee
annually. The amount of the monthly tax payments shall equal 1/12 of lessee's
proportionate share of the prior year's tax plus, 10% of said 1/2 of prior
year's payment.
1.2.4 Lessee shall pay to Lessor in advance on the first day of each month, in
equal monthly installments, Lessee's proportionate share of the cost to Lessor
of taking out and maintaining throughout the term of this Lease the following
insurance protecting Lessor:
1.2.4.1 Fire Insurance and extended perils on an All Risk Basis in an amount at
least equal to the replacement cost of the Building, and insurance for Loss of
rents, protecting the Lessor against abatement or loss of rent in an amount
equal to at least all rent and additional rent payable for one year under this
Article 1.
1.2.4.2 Comprehensive liability insurance indemnifying Lessor and Lessee
against all claims and demands for any injury to person or property which may be
claimed to have occurred on the Premises or on the sidewalks or ways adjoining
the Premises, in amounts which shall, at the beginning, of the term, be not less
than $1,500,000 for property damage, $1,500,000 for injury or death of one
person, and $1,500,000 for injury or death of more than one person in any single
accident, and, from time to time during the term, shall be, in such higher
amounts, if any, as are customarily carried in the metropolitan Boston area on
property similar to the Premises and used for similar purposes.
1.2.4.2a Lessee shall obtain, at Lessee's own expense, similar Comprehensive
Liability Insurance, protecting Lessee from all claims and demands for any
injury to person or property which may be claimed to have occurred on the Leased
Premises, as well as any sidewalks or ways adjoining the Premises, such
insurance to indemnify the Lessor as well as the Lessee.
2
1.2.4.3 Lessee shall obtain insurance against loss or damage from sprinklers,
and if applicable, from leakage or explosion or cracking of boilers, pipes
carrying steam) or water, or both, pressure vessels or similar apparatus, in the
so-called "broad form", and in such amounts as Lessor may reasonably require.
Also insurance against such other hazards as may from time to time be required
by any bank, insurance company or other lending institution holding a first
mortgage on the Premises, provided that such insurance is customarily carried in
the Metropolitan Boston area on property similar to the Premises and used for
similar purposes.
1.2.4.3a Lessor and Lessee should maintain Business Interruption Insurance in
amounts adequate to protect their individual interest.
1.2.4.4 Policies for insurance required under the provisions of Section 1.2.4.1
and 1.2.4.3 shall, in case of loss, be first payable to the holders of any
mortgages on the Premises and shall be deposited with the holder of any mortgage
or with Lessor, as Lessor may elect.
1.2.4.5 All insurance which is carried by either party with respect to the
Premises, whether or not required; if either party so requests and it can be so
written, and if it does not result in additional premium, or if the requesting
party agrees to pay any additional premium, shall include provisions which
either designate the requesting party as one of the insured or deny to the
insurer acquisition by subrogation of rights of recovery against the requesting
party to the extent such rights have been waived by the insured party prior to
occurrences of loss or injury. The requesting party shall be entitled to have
duplicates or certificates of any policies containing such provisions. Each
party hereby waives all rights of recovery against the other for loss or injury
against which the waiving party is protected by insurance containing said
provision, reserving, however, any rights with respect to any excess of loss or
injury over the amount recovered by such insurance. Lessee shall not acquire as
insured under any insurance carried on the Building any right to participate in
the adjustment of loss or to receive insurance proceeds and agrees upon request
promptly to endorse and deliver to Lessor any checks or other instrument in
payment of loss in which Lessee is named payee.
1.2.5 Lessee shall pay to Lessor in advance on the first day of each month, in
equal monthly installments, Lessee's proportionate share for maintenance costs
incurred with respect to the Building, the common facilities therein, and the
Lot. Such costs shall include, without limitation, the cost of keeping all
surface driveways, parking and loading areas within the Lot in good repair and
reasonably free of ice and snow,(snow plowing is billed separately, and in
addition to the monthly charge) of maintaining in good condition all lawns and
planted areas within the Lot and of keeping the exterior Building reasonably
neat and clean. Under no circumstances will Lessee store, keep, or temporarily
place any pallets, equipment (with the exception of approved dumpster in
approved location), fixtures, or other objects outside Lessee's demised
premises. In the event Lessee does not immediately remove same, Lessor may, at
Lessor's discretion remove same and such removal will be charged by Lessor to
Lessee, and will be due immediately from Lessee upon receipt of Lessor invoice.
No dormant vehicles shall be left on the property.
1.2.6 Lessor has or will cause to be installed separate gas and electric meters
to serve the Premises exclusively. Lessee shall pay directly to the proper
authorities charged with the collection thereof of all charges for the
consumption of utilities and other services on the Premises, whether called
charge, tax, assessment, fee or otherwise, including, without limitation, water
and sewer use and charges and taxes, if any, all such charges to be paid as the
same from time to time become due.
1.2.7 The term Lessee's "Proportionate Share" as used herein shall mean that
proportion which 25,000 square feet bears to the total ground floor area of the
Building.
ARTICLE II
Additional Covenants of Lessee
------------------------------
Lessee further covenants and agrees:
2.1 To keep the Premises, including without limitation, both the inside and
outside of all doors and windows therein, in the same order and repair as they
are in on the Commencement Date, reasonable wear and damage by fire or casualty
only excepted; and to keep all fixtures and equipment on the Premises,
including, without limitation, all heating, plumbing, electrical, air
conditioning, mechanical fixtures, and equipment serving only the Premises in
the same order and repair as they in on the Commencement Date, damage by fire or
3
casualty only excepted; and to make all repairs and replacements and to do all
other work necessary for the foregoing purposes. It is further agreed that the
exception of reasonable use and wear shall not apply so as permit Lessee to keep
the Premises in anything less than suitable, tenant-like and efficient and
usable condition considering the nature of the Premises and the use reasonably
made thereof, or in less than good and tenant-like repair, and that except in
case of fire there is no exception to the rule that all glass must be kept good
by Lessee. Lessee shall also make all repairs to the Building, (including,
without limitation, the structure and roof thereon and common areas therein) and
the Lot; if the same are occasioned by Lessee's improper or untenantlike use
thereof. Lessee's interior repairs should not include the outer walls, roof, or
structural repairs. However, the Lessee shall be obligated to compensate Lessor
for repairs to the exterior walls, roof or structural repairs only if such
repairs are necessitated by the intentional acts or negligence of Lessee, its
agents, invitees or employees and if such repairs are not reimbursable by
insurance carriers. Lessee shall in no way permit any roof penetrations,
additions or work of any type to the exterior, roof membrane, or structural
components of building without express written consent of Lessor. Lessor shall
maintain and repair the exterior, roof, common areas and structural elements of
the Building, as well as the Building systems, in good condition, and Lessee
shall pay its proportionate share of the cost of such maintenance and repairs
(except that Lessor shall not be obligated to make repairs which are
necessitated by Lessee's improper or untenantlike use thereof).
2.2 To assume exclusive control of the Premises, and the adjacent sidewalks
serving exclusively the Premises, if any, and all tort liabilities incident to
the control or leasing thereof, and to save the Lessor harmless from all claims
or damage arising on account of any injury or damage to any person or property
on Premises or sidewalks, or ways adjacent thereto, or otherwise resulting from
the use and maintenance and occupancy of the Premises or any thing or facility
kept or used thereon. Lessor shall be saved harmless by Lessee from any
liability on account of any accident or injury to Lessee, or to any of Lessee's
servants, employees, agents, visitors or licensees, or to any person or persons
in or about the Premises or said adjacent sidewalks or ways adjacent thereto.
All merchandise, furniture, fixtures, effects and Property of every kind, nature
and description of Lessee and of all persons claiming through or under Lessee,
except as herein otherwise provided, which may be on the Premises during the
continuance of this Lease or any occupancy by Lessee thereof, shall be at the
sole risk and hazard of Lessee, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage or bursting
of water pipes, steam pipes or other pipes, by theft or from any other cause, no
part of said loss or damage is to be charged to or be borne by Lessor.
Notwithstanding any provision of this Lease, Lessor shall in no event be
indemnified or held harmless or exonerated from any liability to Lessee, or to
any person, for any injury, loss, damage or liability arising from any omission,
fault, negligence or other misconduct of Lessor or its agents or employees on or
about the Premises or on or about any stairways, hallways or other
appurtenances, including sidewalks, used in connection with the Premises and not
within the exclusive control of Lessee.
2.3 Not to assign or sublet this Lease without first obtaining on each occasion
the consent in writing of Lessor and to reimburse Lessor promptly for reasonable
legal expenses incurred by Lessor in connection with any request by Lessee for
such consent.
Lessee may, without Lessor's consent, assign this Lease to a corporation owning
a, controlling interest in the voting capital stock of Lessee, to a corporation
into which Lessee is merged provided such corporation assumes in writing all of
Lessee's obligations hereunder, or sublet to a subsidiary corporation of which
Lessee owns a majority of the voting stock. No assignments or subletting shall
in any way impair the continuing primary liability of Lessee hereunder, and no
consent to any assigning or subletting in a particular instance shall be deemed
to be a waiver of the obligation to obtain the Lessor's approval in the case of
any other assignment or subletting.
2.4 To conform to and comply with all state and municipal laws and with all
requirements of any public body or officers having jurisdiction of the Premises
and with the requirements or regulations of any Board of Fire Underwriters or
Insurance company insuring the Premises at the time with respect to the care,
maintenance, manner of use and non-structural alteration of the Premises, all at
Lessee's own expense without reimbursement from Lessor.
2.5 To permit Lessor and Lessor's representatives to enter into and examine
the Premises and show them to prospective purchasers and mortgagees, and during
the six months prior to the expiration of the term to show them also to
prospective tenants and to keep affixed in suitable places notices for letting
and selling.
2.6 If Lessee shall at any time default in the performance of any Lessee
obligation under this Lease, Lessor, shall have the right, after first giving
Lessee ten (10) days written notice of such default (unless such default
endangers the Premises or Lessor's interest therein, in which case no such
notice shall be required), to perform such obligation notwithstanding the fact
that no provision for such substituted performance by Lessor is made in this
Lease with respect to such default. In performing such Lessee obligation,
Lessor may make any reasonable payment of money or perform any other reasonable
act. All sums so paid by Lessor and all necessary incidental costs and expenses
in connection with the performance of any such act by Lessor shall be deemed to
be additional rent under this Lease and shall be payable to Lessor immediately
on demand. Lessor may exercise the foregoing rights without waiving or
releasing Lessee from any of its obligations under this Lease.
4
2.7 Upon the expiration or other termination of the term of this Lease, Lessee
shall quit and surrender to Lessor the Demised Premises, broom clean, in good
order and condition, ordinary wear expected, and Lessee shall remove all of its
property, including at Lessor's request, any alterations or additions made by
Lessee. Lessee's obligations to observe or perform this covenant shall survive
the expiration or other termination of the term of this Lease. If the last day
of the term of this Lease or any renewal thereof falls on Sunday, this Lease
shall expire on the business day immediately proceeding. If Lessor elects to
treat Lessee as a holdover for a further term of one year, any concession of
rent or agreement in respect of decorations or the like in the initial term
shall not apply to such holdover term. Rent during such holdover term shall be
twice the amount paid during the last preceding term.
2.8 Lessee further covenants and agrees:
(a) To use the Premises for:
Office and warehouse functions as they relate to the wine
distribution industry not involving the emission of objectionable
odors, fumes, noise or vibration, and for no other use, and from
time to time to procure all licenses and permits necessary
therefore.
(b) Not to make or permit any alterations or additions to the Premises
without prior written consent of Lessor which shall not be
unreasonably withheld.
(c) To use reasonable diligence to prevent Lessee's employees and
customers and other persons visiting the Premises from using any
street abutting the Lot for parking.
(d) Not to permit the use of the Lot for trucking of the character and
volume greater than that customarily employed by other occupants
of or any use permitted under clause (a) of this Section 2.8 for
which trucking of such character and volume is customary. So far
as possible, truck loading and unloading shall be carried on at
parts of the Building not facing on any abutting street.
(e) Not to place on the Premises any placard or sign of advertising
that the Premises or any part thereof may be sublet. Not to place
any other sign or placard on the Premises which is visible from
the exterior of the Premises without the written consent of
Lessor.
(f) Not to place on the Premises any draperies, venetian blinds,
curtains or similar furnishings visible from the exterior of the
Premises without the written consent of Lessor.
(g) Not to injure, overload, deface or permit to be injured,
overloaded or defaced, the Building, and not to permit any holes
to be made in the outside stone or brickwork, of any awnings to be
placed on or suspended from the Building except such and in such
places as Lessor shall in writing first approve; and not to make,
allow or suffer any waste or any unlawful, improper or offensive
use of the Premises or any occupation or unoccupied space thereof
that shall be injurious to any person or property or invalidate
any insurance on the building or increase the premium thereof.
2.9 Lessee agrees from time to time, upon not less than fifteen (15) days prior
written request by Lessor, to execute, acknowledge and deliver to Lessor a
statement in writing certifying that this Lease is unmodified and in full force
and effect and that Lessee has no defenses, offsets or counterclaims against its
obligations to pay the fixed and additional rent and any other charges and to
perform its other covenants under this Lease (or, if there have been any
modifications that the same is in full force and effect as modified and stating
the modifications and, if there are any defenses, offsets, or counterclaims,
setting them forth in reasonable detail), and the dates to which the fixed and
additional rent and other charges have been laid. Any such statement delivered
pursuant to this Section 2.9 may be relied upon by any prospective purchaser or
mortgagee of the Premises, Building and Lot or one or more of them, or any
prospective assignee of any such mortgage.
5
ARTICLE III
Damage or Destruction by Eminent Domain, Fire or Casualty
---------------------------------------------------------
3.1 In the event that the Premises, or any material part thereof, shall be
taken by any public authority or for any public use, or shall be destroyed or
damaged by fire or unavoidable casualty, or by the action of any public
authority, then this Lease may be terminated at the election of Lessor. Such
election shall be made by the giving of written notice by Lessor to Lessee
within thirty (30) days after the right of election accrues. If by such taken
Lessee is deprived of the use of more than thirty percent (30%) of the floor
area of the Premises, or if by such fire or other casualty more than fifty
percent (50%) of the floor area shall be rendered untenantable, or if the
Premises are so damaged as to create a material risk that Lessee's property will
be subject to loss, and if Lessor does not within a reasonable time after notice
from Lessee commence and diligently pursue repairs sufficient to protect
Lessee's property, Lessee may at its option terminate this Lease by notice in
writing to Lessor within thirty (30) days after the date of such damage or
destruction, or within thirty (30) days after it has received notice of such
taking, as the case may be. If Lessee exercises such option, this Lease shall
terminate, in the case of a taking, when the Lessee is required to vacate such
portion of the Premises, and in the case of such damage or destruction, on that
date designated in its notice of termination, which shall be not less than
fifteen (15) nor more than thirty (30) days after the date of such notice.
3.2 If this Lease is not terminated pursuant to the provisions of Section 3.1,
this Lease shall continue in force and a just proportion of the rent reserved,
according to the nature and extent of the damages, sustained by the Premises,
shall be suspended or abated until the Premises, or what may remain thereof,
shall be put by Lessor in proper condition for use, which Lessor covenants to do
with reasonable diligence and subject to zoning and building laws then in
existence. Notwithstanding the foregoing sentence, if Lessor shall not have
restored the Premises in proper condition for use and in the same condition the
Premises were in immediately before such fire, or taking (subject to alterations
required by such a taking and which are reasonably acceptable to Lessee) within
such 150 day period, then Lessee on not less than 5 days' prior notice to Lessor
may terminate this Lease, in which event the date of termination set forth in
such notice shall be deemed to be the expiration date of the term hereof. In
the case of a taking, which permanently reduces the floor area of the Premises,
the rent shall be abated for the remainder of the term in proportion to the
amount by which the floor area has been reduced.
3.3 Irrespective of the form in which recovery may be had by law, all rights to
damages or compensation shall belong to Lessor in all cases, except for damages
to Lessee's fixtures, property or equipment, provided that the same shall not
reduce the damages or compensation which Lessor would otherwise recover. Lessee
hereby grants to Lessor all of Lessee's rights to such damages and covenants to
deliver such further assignments thereof as Lessor may from time to time
request.
ARTICLE IV
Default
-------
4.1 (a) If Lessee shall default in the performance of any of its obligations
set forth in Article I hereof, and if such default shall continue for ten (10)
days after written notice from Lessor to Lessee specifying any other default or
defaults, Lessee has not commenced diligently to correct the default or defaults
so specified or has not thereafter diligently pursued such correction to
completion, or (b) if any assignment shall be made by Lessee for the benefit of
creditors, or (c) If the Lessee's leasehold interest shall be taken on
execution, or (d) a petition is filed by Lessee for adjudication as a bankrupt,
or for reorganization or an arrangement under any provision of the Bankruptcy
Act as then in force and effect, or (e) any involuntary petition under any of
the provisions of the said Bankruptcy Act is filed against Lessee and such
involuntary petition is not dismissed within thirty (30) days thereafter, then
and in any of such cases Lessor may lawfully, immediately or at any time
thereafter, and without further notice or demand, and without prejudice to any
other remedies either enter into and upon the Premises or any part thereof, in
the name of the whole, or mail a notice of termination addressed to Lessee at
the Premises, and upon such entry or mailing, this Lease shall terminate, cease
and be at an end. In the event that this Lease is terminated under any of the
foregoing provisions contained in this Article IV, or otherwise for breach of
Lessee's obligations hereunder, Lessee covenants to pay forthwith to Lessor as
compensation the excess of the total rent reserved for the residue of the term
over the fair rental value of the Premises for said residue. This covenant shall
run with the land and in calculating the rent reserved there shall be included
the value of all other considerations agreed to be paid or performed by Lessee
for such residue of the term, and Lessee further covenants as an additional and
cumulative obligation after any such ending to pay punctually to Lessor all the
sums and perform all the obligations which Lessee covenants in this Lease to pay
and to perform in the same manner and to the same extent and at the same times
as if this Lease had not been terminated. In calculating the amounts to be paid
by Lessee under the foregoing covenant, Lessee shall be credited with any amount
actually paid to Lessor as compensation as hereinbefore provided and also with
any additional rent actually obtained by Lessor by reletting the Premises, after
deducting the expenses of collecting the same.
6
Nothing therein contained shall, however, limit or prejudice the right of Lessor
to prove for and obtain in proceedings for bankruptcy or insolvency or
arrangement with creditors as liquidated damages by reason of such determination
an amount equal to the maximum allowed by any statute or rule of law in effect
at the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the
amounts referred to above. The term "Lessee" as used in this Article IV shall be
deemed to include the Guarantor, if any, of Lessee's obligations hereunder.
ARTICLE V
Miscellaneous
-------------
5.1 Any consent or permission by Lessor to any act or omission which otherwise
would be a breach of any covenant or condition herein, or any waiver by Lessor
of the breach of any covenant or condition herein, shall not in any way be held
or construed (unless expressly so declared) to operate so as to impair the
continuing obligation of any covenant or condition herein, or otherwise, except
as to the specific instance, operate to permit similar acts or omissions.
5.2 Lessee agrees at the request of Lessor to subordinate this Lease to any
mortgage placed upon the Premises, the Building and the Lot or any one or more
of them by Lessor, provided that the holder of such mortgage enters into an
agreement with Lessee binding upon the successors and assigns of the parties
thereto by the terms of which such holder agrees not to disturb the possession
and other rights of Lessee under this Lease so long as Lessee continues to
perform its obligations hereunder and in the event of acquisition of title by
said holder through foreclosure proceedings or otherwise, to accept Lessee as
Lessee of the Premises under the terms and conditions of this Lease and to
perform the Lessor's obligations hereunder (but only while owner of the
Premises), and Lessee agrees to recognize such holder or any other person
acquiring title to the Premises as Lessor.
Lessee and Lessor agree to execute and deliver any appropriate instruments
necessary to carry out the agreements in this section 5.2 contained. Any such
mortgage to which this Lease shall be subordinated may contain such terms,
provisions and conditions, as the mortgagor deems usual or customary.
5.3 It is agreed that the agreements and conditions in this Lease contained on
the part of Lessee to be performed and observed shall be binding upon Lessee and
its successors and assigns and shall inure to the benefit of Lessor and its
successors and assigns, and the agreements and conditions in this Lease
contained on the part of Lessor to be performed and observed shall be binding
upon Lessor and its successors and assigns and shall inure to the benefit of
Lessee and its successors and assigns. If at any time or times during the term
Lessor shall be the trustee of a trust, Lessee agrees that only the trust estate
of Lessor shall be liable for the performance of Lessor's obligations hereunder,
and that in no event shall any trustee or beneficiary of such trust be
individually liable hereunder, and Lessee further agrees that the Lessor named
herein and subsequent Lessor shall be liable hereunder only for obligations
accruing while owner of the Premises. No holder of a mortgage of the Lessor's
interest shall be deemed to be the owner, of the Premises until such holder
shall have acquired indefeasible title to the Premises, Lessor warrants that it
is lawfully in possession of the Premises and that it has full right and lawful
authority to execute this Lease for the term, in the manner and upon the
conditions and provisions herein contained.
5.4 Brokerage Lessee warrants that it has had no dealings with broker or agent
in connection with the Lease and covenants to defend with counsel approved by
Lessor, hold harmless and indemnify Lessor from and against any and all cost,
expense or liability for any compensation, commission and charges claimed by any
broker or agent with respect to Lessee's dealings in connection with this Lease
or the negotiation thereof.
5.5 Lease not to be Recorded Lessee agrees that it will not record this Lease.
Both parties shall, upon the request of either, execute and deliver a notice or
short form of this Lease in such form, if any, as may be permitted by applicable
statute. If this Lease is terminated before the term expires, the parties shall
execute, deliver and record an instrument acknowledging such fact and the actual
date of termination of this Lease, and Lessee hereby appoints Lessor its
attorney-in-fact in its name and behalf to execute such instrument.
5.6 Acts of God In any case where either party hereto is required to do any
act, delays caused by or resulting from Acts 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 shall not be counted in determining the time during which work shall be
completed, whether such time, be designated by a fixed date, a fixed time or "a
reasonable time".
7
5.7 Severability It is agreed that if any provision 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
other provisions shall remain in full force and effect; and it is the intention
of the parties hereto that if any provision of this Lease are capable of two
constructions, one of which would render the provision void and the other of
which would render the provision valid, then the provision shall have the
meaning which renders it valid.
5.8 Submission Not an Option The submission of this Lease or a summary of some
or all of its provisions for examination does not constitute a reservation of or
option for the Premises, or an offer to lease, it being understood and agreed
that this Lease shall not bind Lessor in any manner whatsoever until it has been
approved and executed by Lessor and delivered to Lessee.
5.9 Security Lessee has deposited with Lessor the sum of 20,833.00 as
security for the faithful performance and observance by Lessee of the terms,
provisions and conditions of this Lease; it is agreed that in the event Lessee
defaults in respect of any of the terms, provisions and conditions of this
Lease, including but not limited to, the payment of rent and additional rent,
Lessor may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional rent
or any other sum as to which Lessee is in default or for any sum which Lessor
may expend or may be required to expend by reason of Lessee's default in respect
of any of the terms, covenants, and conditions of this Lease, including but not
limited to, any damages or deficiency accrued before or after summary
proceedings or other reentry by Lessor. In the event that Lessee shall fully
and faithfully comply with all of the terms, provisions, covenants, and
conditions of this Lease, the security shall be returned to the Lessee after the
date fixed as the end of the Lease and after delivery of entire possession of
the Demised Premises to Lessor. In the event of a sale of the land and building
or leasing of the building, of which the Demised Premises form a part, Lessor
shall have the right to transfer the security to the vendee or Lessee and Lessor
shall thereupon be released by Lessee from all liability for the return of such
security; and Lessee agrees to look to the new Lessor solely for the return of
said security; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Lessor. Lessee further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Lessor nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
ARTICLE VI
Quiet Enjoyment
---------------
It is agreed that Lessee paying the rent reserved and performing and observing
the agreements and conditions herein on its part to be performed and observed,
shall and may peaceably and quietly have, hold and enjoy the Premises during the
term hereof without any manner of hindrance or molestation from Lessor.
ARTICLE VII
Notices
-------
All notices for Lessor shall be addressed to Lessor at ▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ or to such other place as may be designated by written notice to Lessee;
and all notices for Lessee shall be addressed to Lessee at: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or to such other places as may be designated by written notice
to Lessor. Any notice shall be deemed duly served if addressed to the
respective party as aforesaid and mailed postage prepaid registered or certified
mail, recognized overnight carrier, or delivered by hand. Unless otherwise
directed in writing all rents shall be payable to Lessor at the Lessor's address
above stated.
ARTICLE VIII
Status
------
8.1.1 Lessor represents that plumbing, heat, air-conditioning, and the electric
system are in good repair and working order at the commencement of the Lease,
and that the Premises are zoned for limited industrial use and may be used for
the use described in Section 2.8 hereof.
8.1.2 Lessor or, Lessor's agents have made no other representations or promises
with respect to the said Building, the land upon which it is erected or Demised
Premises except herein expressly set forth in the provisions of this Lease. The
taking of possession of the Demised Premises by Lessee shall be conclusive
evidence, as against Lessee, that Lessee accepts the Premises "as is" and that
said Premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken.
8
8.13 Lessor represents and warrants to Lessee that, to the best of Lessor's
knowledge, no part of the Building or the Lot are contaminated by a Hazardous
Substance (hereinafter defined). If, during the term hereof, Lessor knows that
there has been a spill or release of a Hazardous Substance, in, on or under any
part of the Building and/or the Lot, Lessor will give Lessee prompt written
notice thereof, which notice will provide Lessee with such information as Lessor
possesses concerning the nature and extent of such spill or release.
If, during the term hereof, Lessee knows that there has been a spill or release
of a Hazardous Substance in, on or under any part of the Building and/or the Lot
Lessee will give Lessor prompt written notice thereof, which notice will provide
Lessor with such information as Lessee possesses concerning the nature and
extent of such spill or release. As used herein, "Hazardous Substance" means
any product, substance, chemical, material or waste whose presence, nature,
quantity and/or intensity of existence, use, manufacture, disposal,
transportation, spill, release or effect, either by itself or combination with
other materials expected to be in the vicinity, is either: (a) potentially
injurious to the public health, safety or welfare, the environment or the
Premises; (b) regulated or monitored by any governmental authority having
jurisdiction over the Premises; or (c) a basis for potential liability of Lessor
to any governmental agency or third party under any applicable statute or common
law theory.
9
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this 13th day
of March 2000.
Foxford Business Center, LLC
---------------------------------- ---------------------------------
(LESSOR) WITNESS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------- ---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ WITNESS
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
----------------------------------- ---------------------------------
(LESSEE) WITNESS
By: /s/ ▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------- ---------------------------------
WITNESS
Its: President
Duly Authorized
10
COMMONWEALTH OF MASSACHUSETTS
ss.
COUNTY OF PLYMOUTH
March 13, 2000
Then personally appeared ▇▇▇▇ ▇▇▇▇▇▇▇▇ to me known to be the individual who
acknowledged (her/him) self to be the Manager of The ▇▇▇▇▇▇▇▇ Company, LESSOR
and that (she/he), as such, being authorized to do so, executed and foregoing
instrument and acknowledge the execution thereof to be (her/his) free act and
deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Plymouth
County, __________ , Massachusetts, this 13th day of March, 2000.
Notary Public
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
My commission expires September 8, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
ss.
COUNTY OF BRISTOL
March 8, 2000
Then personally appeared ▇▇▇ ▇▇▇▇ to me known to be the individual who
acknowledged (her/him) self to be the President of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.,
LESSEE and that (she/he), as such, being authorized to do so, executed and
foregoing instrument and acknowledge the execution thereof to be (her/his) free
act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Norfolk
County, __________ , Massachusetts, this 8th day of March, 2000.
Notary Public
/s/ ▇▇▇▇▇▇ ▇. Read
----------------------------------------
My commission expires December 1, 2000
11