EXHIBIT 10.35
FIRST LEASE AMENDMENT
Agreement made this 7th day of August, 1996 by and between ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Realty Trust, with a mailing address of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereafter referred to as "Landlord") and
Cuplex, Inc. with a principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇, (hereinafter referred to as "Tenant").
WHEREAS, Landlord and Tenant have entered into a certain lease dated July 1,
1996, (hereinafter referred to as the "Lease") relating to a certain space at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
WHEREAS, Landlord and Tenant have agreed to modify and amend the Lease by
modifying the Term and to make such other modifications and amendments to the
Lease as may be necessary, all as more fully set forth hereinbelow, which
modifications and amendments shall be effective upon Execution of this document.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, Landlord and Tenant hereby agree as follows:
Section 1 of said term is hereby further modified and amended by deleting
therefrom the dates "July 1, 1996 to June 30, 2006" set forth in the subsection
thereof entitled "Term" and by substituting therefor the dates "July 22, 1996 to
July 21, 2006".
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this First Lease
Amendment under seal as of the 7th day of August, 1996.
LANDLORD: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Realty Trust
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Trustee
TENANT: Cuplex, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇
Its: President
LEASE
-----
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and
the Tenant are the parties hereinafter named, and which relates to space in the
building known as and numbered as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇")
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ which Building is situated on a certain parcel of
land containing approximately 3.4 acres (the "Land").
The parties to this instrument hereby agree with each other as
follows:
ARTICLE I
BASIC LEASE PROVISIONS
----------------------
1.1 INTRODUCTION. The following sets forth basic data and, where
appropriate, constitutes definitions of the term hereinafter listed.
1.2 BASIC DATA.
LANDLORD'S REPRESENTATIVE: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Rosewood Development Corporation
LANDLORD'S ADDRESS
(FOR PAYMENT OF RENT): ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Trust
c/o Rosewood Companies
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LANDLORD'S ADDRESS
(FOR NOTICE AND BILLING): Same as Above
TENANT: Cuplex, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
TENANT'S REPRESENTATIVE: ▇▇▇▇▇▇▇ ▇▇▇▇
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TENANT'S PHONE NUMBER: (214) 276-0333 (Texas)
(▇▇▇) ▇▇▇-▇▇▇▇ (Marlborough)
PREMISES: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RENTABLE AREA OF PREMISES: 32,500 Square Feet.
RENTABLE AREA OF THE BUILDING: 32,500 Square Feet.
RENT COMMENCEMENT DATE: July 1, 1996 or upon completion
of Landlord's work required under 13.24
and 13.27 whichever is later.
TERM COMMENCEMENT DATE: July 1, 1996 or upon completion
of Landlord's work required under 13.24
and 13.27 whichever is later
LEASE TERMINATION DATE: Ten (10) years from the Term
Commencement Date.
TERM: Ten (10) years.
BASE RENT: SEE SCHEDULE BELOW:
YEARS NET. NET. NET NET. NET. NET NET. NET. NET
----- RATE PER SQ. FT. ANNUAL RENT MONTHLY RENT
---------------- ----------- ------------
1 $5.00 $162,500.00 S13,541.66
2 $5.50 $178,750.00 $14,895.83
3 $6.00 $195,000.00 $16,250.00
4 $6.50 $211,250.00 $17,604.17
5-10 $7.00 $227,500.00 $18,958.34
Use: Office, sales office, distribution, warehouse space and
mechanical and electronic assembly operations.
Description: The building containing the aggregate 32,500 +/- rentable
square feet of floor area as located and depicted on Exhibit
"A" attached hereto and made a part hereof.
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ARTICLE II
DESCRIPTION OF PREMISES
-----------------------
2.1 LEASE OF PREMISES. Landlord hereby demises and Leases to Tenant,
and Tenant hereby agrees to rent from Landlord, the Premises suitably identified
in the foregoing portions of this Lease.
Excepted and excluded from the Premises are the roof or ceiling, floor and all
perimeter walls of the Premises, except the inner surfaces thereof, but the
entry doors to the Premises are not excluded from the Premises; and further
reserving the right to replace, maintain, repair, install and use ducts, utility
lines, pipes and the like, to serve the Building and to replace maintain, and
repair such utility lines, pipes and like in, over and upon the Premises.
2.2 APPURTENANT RIGHTS. Tenant shall have, as appurtenant to the
Premises, the exclusive right to use and permit its invitees to use the parking
spaces and such internal roadways that service the Building, but such rights
always shall be subject to reasonable rules and regulations from time to time
established by Landlord by suitable notice.
ARTICLE III
TERM OF LEASE
-------------
3.1 COMMENCEMENT DATE. The term of this Lease shall be the period
specified in Section 1.2 hereof as the "Lease Term". The term of this Lease
shall commence on the Term Commencement Date. Landlord shall proceed with due
diligence to complete construction work described in Exhibit "A" annexed hereto
and hereby made a part hereof.
3.2 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Except to the extent
to which Tenant shall have given Landlord written notice (latent defects
excluded), not later than the end of the first full calendar month next
beginning after the date upon which Tenant first takes possession of the
Premises, of respects in which Landlord has not performed Landlord's obligations
under 13.26 and 13.27, Tenant shall have no claim that Landlord has failed to
perform any of Landlord's obligations under 13.26 and 13.27. AS to any latent
defects, unless Tenant has given written notice to Landlord no later than the
end of the sixth full (6th calendar month next after the date upon which tenant
first takes possession of the Premises specifying such latent defects, Tenant
shall have no claim against Landlord therefor.
3.3 OPTION TO TERMINATE. Tenant has the right to terminate this
Lease at the end of year seven (7) only with twelve (12) months prior written
notice to Landlord. A penalty of $100,000.00 will be due by Tenant to Landlord
upon termination, if option is exercised.
ARTICLE IV
RENT, TAXES, OPERATING COSTS AND OTHER EXPENSES
-----------------------------------------------
4.1 RENT. Tenant agrees to pay base rent to Landlord or as directed
by Landlord, in equal monthly installments as described in Article 1.2 in
advance, on the first day of each and every calendar month of the Lease Term at
Landlord's mailing address, or at such other place as Landlord shall from time
to time designate, until notice of some other designation is given, rent and all
other charges for which
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provision is herein made shall be paid by remittance to or to the order of ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Trust.
Rent for any partial month shall be paid by Tenant to Landlord at such rate on a
pro rata basis, and, if the term of this Lease commences on a day other than the
first day of the month, the first payment which Tenant shall make to Landlord
shall be a payment equal to a proportionate part of such monthly rent for the
partial month from the then commencement date to the first day of the succeeding
month, and the rent for such succeeding calendar month.
Other charges payable by Tenant on a monthly basis, as hereinafter provided,
likewise shall be prorated, and the first payment on account thereof shall be
determined in similar fashion; and other provisions of this Lease calling for
monthly payments shall be read as incorporating this undertaking by Tenant.
4.2 TAXES. In addition to the base monthly rent to be paid by
Tenant, and as part of the total rent due hereunder, Tenant shall pay to
Landlord 100% of all taxes assessed against the Building and Land on which the
same are located for any tax period during the Lease Term.
The term "taxes" means the real estate taxes, levies, betterment's, general
assessments, water and sewer use, and other governmental charges and impositions
of a regular, common, ordinary or recurring nature, which are or shall be
imposed, become due and payable with respect to, the Building and the land on
which same are located.
The term "tax period" means the period during which taxes are required to be
paid, under applicable law. Thus, under the law presently in Marlborough,
Massachusetts, the tax period means the period from July 1 of a calendar year to
June 30 of the subsequent calendar year with one quarter of the taxes due and
payable on August 1, the second quarter of taxes due on November 1, the third
quarter due on February 1, and the last quarter on May 1.
Suitable adjustment in the determination of Tenant's obligation under this
provision shall be made in the computation for any tax period which is greater
than or less than twelve (12) full calendar months.
When the applicable tax ▇▇▇▇ is not available, then a tentative computation
shall be made or the basis of the taxes for the next prior tax period, with a
final adjustment to be made between Landlord and Tenant promptly after Landlord
shall have received the applicable tax ▇▇▇▇.
Payments by Tenant on account of taxes shall be made monthly and at the time and
in the fashion herein provided for the payment of rent. The monthly amount so to
be paid to the Landlord, in the aggregate, shall equal each payment by the
Landlord on account of such taxes, at least ten (10) days before the day on
which such payments by the Landlord would become delinquent.
Promptly, after receipt by the Landlord of bills for such taxes the Landlord
shall advise the Tenant of the amount thereof, and furnish Tenant with a
photocopy of such tax bills, and the computation of the Tenant's share on
account thereof for the tax period included within the term of this Lease
covered by such ▇▇▇▇. If payments theretofore made for such period by the
Tenant exceed such share, the Landlord shall credit the amount of overpayment
against subsequent obligations of the Tenant; but if such share is greater than
payments theretofore made on account for
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such period, the Tenant shall make suitable payment to the Landlord within
twenty (20) days after being so advised by the Landlord. Further, if such taxes
are abated, reduced or refunded, an equitable adjustment shall be made to
reflect the Tenant's pro-rata share of the amount of such reduction less all
costs incurred by the Landlord in securing the same; but the pendancy of any
application or other proceeding relating to any such abatement, reduction or
refund shall not delay the computation and payment by the Tenant to be made
hereunder. (In no event, however, will the base rent hereunder be reduced as a
result of any abatement or decrease in taxes.)
The Tenant's share of such taxes shall be adjusted equitably for and with
respect to any portion of the Lease Term hereof which does not include an entire
tax period.
Landlord shall have the same rights and remedies of the nonpayment by the Tenant
of any amounts due on account of such taxes as the Landlord has hereunder for
the failure of the Tenant to pay the rent.
If some method or type of taxation shall replace the current method of
assessment of real estate taxes, or the type thereof, the Tenant agrees that the
Tenant shall a an equitable share of the same computed in a fashion consistent
with the method of computation herein provided, to the end that the Tenant's
share thereof shall be, to the maximum extent practicable, comparable to that
which the Tenant would bear under the foregoing provisions.
4.3 SECURITY DEPOSIT. Upon the execution of this Lease, the Tenant
shall pay to the Landlord the amount of $13,000.00 which shall be held as
security for the Tenant's performance as herein provided and refunded to the
Tenant at the end of this Lease subject to the Tenant's satisfactory compliance
with the conditions hereof. Landlord hereby acknowledges receipt of security
deposit. The Tenant agrees it shall not be entitled any interest from Landlord
for said security deposit. The parties agree that said security deposit shall be
deposited in a money market, or equivalent account of the Landlord's choice. The
Tenant agrees the Landlord shall not be obligated to segregate said security
deposit, but rather may deposit same in account together with other funds owned
by the Landlord.
In the event Tenant defaults in respect of any term or provision of this Lease,
including without limitation, payment of rent, Landlord may use, apply or retain
the whole or any part of such security deposit for the payment of any rent in
default or for any sums which Landlord may spend or be required to spend by
reason of Tenant's default, whereupon Tenant shall promptly restore such
security deposit to its original amount.
4.4 OPERATING COSTS. In addition to the rent to be paid by Tenant
and as a part of the total rent due hereunder, Tenant shall pay to Landlord an
annual management fee of three percent (3%) of base rents, as well as the amount
of all reasonable Operating Costs of every type and nature (except as provided
below) attributable to the Building.
Without limitation, the term "Operating Costs" shall include, (1) all costs to
the Landlord for supplying snow removal and landscaping services to the land on
which the Building is located; (2) all costs and expenses to the Landlord
(including reasonable and appropriate reserves) for services, materials and
supplies furnished or used in the operation, replacement, repair, maintenance,
cleaning and protection of the Building and the Land on which same is located,
such costs and expenses to be reasonable and customary for similar buildings in
the areas in which the subject Premises are located; (3) all premiums for
insurance against damage or loss to the
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Building from such hazards as shall from time to time be generally required by
institutional lenders in the Boston area for similar properties, including, but
not limited to, insurance covering loss of rent attributable to any such hazards
and public liability insurance; 4 cost for the City of Marlborough water/sewer
connection.
Operating costs do not include the following; expenses for repairs, restoration
or other work occasioned by fire, wind, the elements or other casualty that are
paid by insurance; income and franchise taxes of Landlord; expenses incurred in
leasing or to procuring tenants, leasing commissions, advertising expenses and
expenses for the renovating of space for new tenants; interest or principal
payments on any mortgage encumbering the Land or the Building; compensation paid
to any employee of Landlord above the grade of property manager; or operating
costs which are the responsibility of Tenants.
Payments by Tenant on account of Operating Costs shall be made monthly, in
advance, and at a time and in fashion herein provided for the payment of Rent.
The amounts so to be paid to Landlord shall be an amount sufficient to cover, in
the aggregate, a sum equal to Operating costs for each calendar year during the
Lease Term.
Promptly after the end of each calendar year during the term of this Lease,
Landlord shall submit to Tenant a reasonably detailed accounting, in accordance
with accepted accounting practices, of Operating Costs for such calendar year,
and Landlord shall certify to the accuracy thereof. If payments theretofore made
for such calendar year by Tenant exceed actual operating costs, according to
such statement, Landlord shall refund the amount of overpayment within thirty
(30) days after submitting the accounting of Operating Costs; but, if actual
operating costs is greater than payments theretofore made on account for such
period, Tenant shall make suitable payment to Landlord within thirty (30) days
after being so advised by Landlord. Upon written request by Tenant made within
fifteen (15) days of the date of submission of said account Landlord shall
provide to Tenant for its review copies of any ▇▇▇▇ supporting the figures
contained in said account.
4.5 UTILITIES. Tenant shall pay prior to delinquency, directly to
the company furnishing same, all charges for all water, gas, heat, cooling,
light, power, telephone service, janitorial service, trash removal, lawn and
replacement of glass broken and all other services supplied to the Premises at
the request of Tenant during the Term, and for so long as Tenant occupies any
portion of the Premises.
Tenant covenants and agrees that at all times its use of any of the utility
services shall never exceed the capacity of the mains, ducts and conduits
bringing utility services to the Building or the Premises.
Tenant shall pay for any necessary maintenance charges for utility services
provided to the Premises and shall furnish all electrical lighting bulbs and
tubes.
Landlord shall not be liable for any interruption or failure of utility services
on the Premises not caused by Landlord.
4.6 TRIPLE NET LEASE. This Lease shall be deemed and construed to be
a "Net/Net/Net Lease," and the Landlord shall receive all rents provided for
herein, free from any charges, assessments, impositions, expenses or deductions
of any and every kind or nature whatsoever.
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ARTICLE V
USE OF PREMISES
---------------
5.1 PERMITTED USE. Tenant agrees that the Leased Premises shall be
used and occupied for the purpose specified as the Use thereof, in Section 1.2
of this Lease, and for no other purpose or purposes.
Tenant further agrees to conform to the following provisions during the entire
Lease Term:
(a) No auction, fire, distress, bankruptcy or other type sales may
be conducted within or without the Premises without the prior written consent of
Landlord;
(b) Tenant shall cause all freight to be delivered or removed, and
all garbage or refuse to be removed from the building and the Premises in
accordance with reasonable rules and regulations therefore established by
Landlord; and until removal is effected, Tenant shall keep all garbage or refuse
in the Premises suitably covered and deodorized.
(c) Tenant shall take any and all steps required reasonably to
prevent insect and vermin infestation of the Premises, and shall maintain such
practices as Landlord may require reasonably to that end;
(d) Tenant shall not place on the exterior or exterior walls
(including both interior and exterior surfaces of windows and doors), or on the
roof of the Building or in any other part of the Building or the Premises, any
signs or any symbol, advertisement, neon light, other light or other object or
thing visible to public view outside of the Premises without the prior consent
of Landlord, except the Building Standard of 10" black metal letters and signs
or lettering on the entry doors to the Premises of the type commonly and
customarily used for purpose of identifying and locating the Premises. Said
permitted signage is at the sole cost and expense of the Tenant. Where Landlord
establishes reasonable standards for such signs, Tenant agrees to conform to the
same and to submit for Landlord's prior approval, such approval not to be
withheld unreasonably, a plan or sketch of the sign to be placed on such entry
doors. Without limitation, lettering on windows is expressly prohibited; except
that Tenant may install on building the sign approved in the letter dated May 3,
1996.
(e) Tenant shall not perform any. acts or carry on any practice
which may injure the Premises or any part of the Building, or Overload the
floors or walls beyond design loads, or cause any offensive odors or loud noise,
nor shall Tenant permit or commit any waste;
(f) Tenant shall not alter or add to the Leased Premises except, on
each occasion, in accordance with written consent from Landlord, which consent
Landlord agrees not to withhold unreasonably. All allowed alterations or
additions shall be at the Tenant's expense and shall be in quality at least
equal to the present construction and made in accordance with all applicable
laws. All permanent Leasehold alterations or improvements made by the Tenant
shall become the property of the Landlord at the termination of occupancy as
provided herein except trade fixtures, equipment, machinery personal property,
appliances, environmental fans, electrical equipment, and other equipment
required for permitted use. However, at the expiration of this Lease, the Tenant
shall remove all of the Tenants goods, including without limitation, trade
fixtures, equipment, machinery appliances, wastewater treatment equipment,
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effects and property as are in the Leased Premises; as well as such of the
alterations and additions made by Tenant, if any, as Landlord may request; and
the Tenant shall repair any damage caused by such removal and restore the
Premises to the condition they were on the Commencement Date or as permitted or
required hereunder.
(g) Tenant will always conduct its operations in the Premises and
make any permitted alterations or improvements in compliance with all applicable
laws, rules, regulations and ordinances affecting the Premises or the specific
conduct of its business in the Premises; and if any governmental license or
permit shall be required for the proper and lawful conduct of the Tenant's
business in the Premises, Tenant, at its expense, shall duly procure and
thereafter maintain such license or permit and submit the same to inspection by
Landlord. Tenant shall at all times comply with the terms and conditions of each
such license or permit. Tenant shall make all repairs, alterations, additions or
replacements to the Leased Premises required by any order, ordinance, law, rule
or regulation of any public authority required solely because of Tenants
particular use of the Leased Premises.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
-------------------------
6.1 LANDLORD'S CONSENT. Tenant shall not, without first obtaining on
each occasion the written consent of the Landlord which consent shall not be
unreasonably withheld, (i) assign this Lease, (ii) sublet the whole or any part
of the Leased Premises, (iii) license any person or entity to use or occupy all
or any part of the Leased Premises, (iv) grant any person or entity the use,
benefit, enjoyment or right to occupy the whole or any part of the Leased
Premises, including without limitation any such arrangement pursuant to a
"management contract," so-called, or v) transfer the whole or any part of the
Tenant's interest hereunder, whether by absolute transfer or transfer by way of
security. No consent by the Landlord pursuant to this paragraph shall be deemed
a waiver of the obligation to obtain the Landlord's consent on any subsequent
occasion; no waiver of the foregoing restrictions or any portion thereof shall
constitute a waiver or consent in any other instance; and the Tenant shall
remain at all items responsible for the performance of all of the terms,
condition, covenants or agreements contained in this Lease.
In the event the Tenant intends to assign, sublet or part with the possession of
the Leased Premises or any part thereof, it shall deliver to the Landlord notice
in writing of such intention and the Landlord shall have thirty (30) days from
the date of the receipt of such notice within which to elect to terminate the
within Lease by notice in writing delivered to Tenant whereupon the within Lease
shall be terminated as of the expiration of such thirty (30) day period, then
the Tenant may with the consent of the Landlord in writing first had and
obtained, such consent not to unreasonably or arbitrarily withheld, assign or
sublet the Premises, provided further, however, and it is made a condition of
the giving of such consent that:
(a) The proposed assignee, sublessee or transferee of this Lease
shall agree in writing to assume and perform all of the terms, covenants,
conditions and agreements by this Lease imposed upon the Tenant herein in the
form to be approved by the Landlord;
(b) No assignment, sublease or transfer shall in any manner release
the Tenant and guarantor, if any, from its covenants and obligations hereunder.
If Tenant is a corporation, partnership or other legal entity and if all or
substantially all of the assets of Tenant shall be sold, assigned or transferred
with or without a
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specific assignment of this Lease or, if Tenant shall merge or consolidate with
any firm, corporation or other legal entity, and Tenant is not the survivor in
any such combination, Landlord at its option may, by giving ten (10) days prior
written notice to Tenant, declare such change a breach of this Lease subject to
the remedies provided for breach in Article XI hereof.
If tenant is a sole proprietorship, Landlord shall have the option to terminate
this Lease in the event of Tenant's incapacity or death upon ten (10) days'
prior written notice to Tenant or its legal representative.
In lieu of granting permission to assign or sublet as indicated above, Landlord
reserves the right to terminate this tease and enter into a new lease with a new
tenant.
ARTICLE VII
CONDITION OF THE PREMISES
-------------------------
7.1 LANDLORD'S AGREEMENT. Except as otherwise provided in this
Lease, Landlord agrees at its cost and expense to keep in good order, condition
and repair the roof, load-bearing walls, (excluding finish and coverings),
foundations and all other structural (i.e., load-bearing or otherwise essential
to the integrity of the Premises) portions of the Premises and the Building,
insofar as they affect the Premises, except that Landlord shall in no event be
responsible to Tenant for the condition of glass in and about the Premises or
for the doors leading to the Premises or for any condition in the Premises or
the Building caused by any act or neglect of Tenant or any contractor, agent,
invitee, licensee, servant or employee of Tenant.
7.2 MAINTENANCE. In addition to its obligation under Section 7.1,
Landlord agrees, (with reimbursement by Tenant), to otherwise keep, manage,
maintain and operate the common areas of the Building (including snow removal),
in good conditions and repair, provided that Landlord shall not be responsible
for any condition caused by the act or neglect of Tenant or any contractor,
agent, invitee, licensee, servant or employee of Tenant. Landlord shall not be
responsible for Tenant or those claiming through Tenant for any interruption in
any services to be provided by Landlord due to forces beyond Landlord's control.
7.3 LANDLORD'S LIABILITY. Landlord shall not be responsible to make
any improvements or repairs to the Building or the Premises other than as
expressly provided in this Article, unless expressly provided otherwise in this
Lease.
Further, Landlord shall never be liable for any failure to make repairs which,
under the provisions of this Article or elsewhere in this Lease, Landlord has
undertaken to make unless:
(a) Tenant has given notice to Landlord of the need to make such
repairs, or of a condition in the Building or in the Premises requiring any
repair for which Landlord is responsible; and
(b) Landlord has failed to commence to make such repairs within ten
(10) days after receipt of such notice, or fails to proceed with reasonable
diligence to complete such repairs.
Pending such repair by Landlord, Tenant shall take all reasonably prudent
temporary measures and safeguards to prevent any injury or loss or damage to
persons or property.
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7.4 TENANT'S AGREEMENT. Tenant acknowledges that, as of the date
hereof, the Premises are in good order, conditions and repair and as represented
to Tenant. Consistent therewith, Tenant acknowledges to Landlord its agreement
to Lease, in an "as is" condition, the entire Premises without any warranty or
obligation on the part of Landlord except for the work which Landlord has agreed
to undertake pursuant to the provisions of Article III hereof.
From and after the Commencement Date hereof, and for so long as Tenant remains
in occupancy of any part of the Premises, Tenant shall, at its sole cost and
expense, maintain and repair all equipment involved in the operation of the
Premises including, but without limitation all HVAC, electrical and plumbing
systems. If any HVAC, plumbing or electrical equipment or systems, fixture or
appliance requires replacement, Tenant shall notify Landlord in writing thereof
and Landlord shall make such replacement, and Tenant shall immediately pay to
the Landlord all costs incurred by Landlord in making such replacement. Tenant
shall enter into a regularly scheduled preventative maintenance service contract
with a maintenance contractor for servicing all HVAC systems and equipment
within the Premises. The service will include all services suggested by the
equipment manufacturer within the operation/maintenance manual and will become
effective within thirty (30) days of the date Tenant takes possession of the
Premises. Tenant shall, upon Landlord's request provide Landlord with evidence
that all HVAC systems have undergone continual preventative maintenance.
Should any major component of the HVAC equipment require replacement, Tenant
shall notify Landlord and Landlord shall make such replacement. If any
replacement, has been made during the original or extended term of this Lease,
Tenant shall, upon demand by Landlord, pay to Landlord that portion of the cost
of such replacement equipment (including but not limited to installation cost
thereof) as shall equal the product of such cost multiplied by a fraction, the
numerator of which is the number of years (and any portion of a year) remaining
in the original or extended term at the time of replacement and the denominator
of which is the useful life of the replacement equipment (as estimated by the
manufacturer).
Upon vacating the Premises, a "walk-through" will be made by the Tenant and a
representative of the Landlord. At that time the following work must be
scheduled: a) Interior carpets are to be vacuumed and shampooed, b) all holes or
scrapes on wall surfaces are to be repaired, c) concrete slabs in any warehouse
area are to be cleaned with a power scrubber, d) all bathroom fixtures, floors
and walls are to be thoroughly cleaned. Cost of repairs and inspection will be
at the sole expense of the Tenant.
Upon expiration or earlier termination of the Term, the Tenant will remove all
of its property from the Leased Premises. If within ten (10) days after such
expiration or termination, Tenant shall not have removed its property, Landlord
shall give notice to tenant, and said property shall be deemed abandoned if
Tenant has not removed same within ten (10) days of receipt of said notice. If
Landlord shall elect to remove and store Tenant's property, Tenant shall pay to
Landlord upon request for same, the costs and expenses incurred by Landlord in
removing and storing such property. Tenant shall also pay the reasonable cost of
repairing damage caused to the Premises by the removal of such property.
Property so stored by Landlord shall be made available to Tenant upon five (5)
days notice to Landlord and upon payment to Landlord of all sums remaining due
the Landlord under the provisions of the Lease.
In the event of a default under this Lease or in the event Landlord is caused to
expend sums pursuant to the provisions of this Article, Landlord shall have, in
10
addition to any other remedies herein all rights under applicable law. To the
extent permitted by Law, all of Tenant's property which may be on the Premises
at any time or from time to time, during the Term shall be at Tenant's sole
risk. From and after the Commencement Date hereof, and until the end of the
Lease Term, and for so long thereafter as Tenant occupies any part of the
Premises, Tenant will keep neat and maintain in good order, and condition and
repair, the Premises and every part thereof, including glass, windows, and
doors, excepting only those repairs for which Landlord is responsible under the
terms of this Lease and damage by fire or other casualty and as a consequence of
the exercise of the power of eminent domain, and further excepting reasonable
wear and tear; and Tenant shall surrender the Premises, and all appurtenances
and equipment, at the termination of the Lease, in such condition and shall
remove all of Tenant's signs. Further, Tenant shall be responsible for the cost
of repairs, excluding normal wear and tear, damage by the elements and insured
casualty loss, which may be necessary by reason of damage to the Building by
Tenant, Tenant's independent contractors, or Tenant's invitees, agents and
servants, employees and licensees. Tenant shall replace any glass which may be
damaged or broken with glass of the same quality.
If repairs are required to be made by Tenant pursuant to the terms hereof,
Landlord may demand that Tenant make the same within ten (10) days, and if
Tenant refuses or neglects to commence such repairs and complete the same with
reasonable dispatch, after such demand, Landlord may (but shall not be required
to do so) make or cause such repairs to be made and shall not be responsible to
Tenant for any loss or damage that may accrue to Tenant's stock or business by
reason thereof. If Landlord makes or causes such repairs to be made, Tenant
agrees that Tenant will forthwith, on demand, pay to Landlord the cost thereof,
and if Tenant shall default in such payment, Landlord shall have the remedies
provided for the nonpayment of rent or other charges payable hereunder.
ARTICLE VIII
INDEMNITY AND GENERAL LIABILITY INSURANCE
-----------------------------------------
8.1 TENANT'S INDEMNITY. Tenant shall indemnify and hold harmless
Landlord from and against any and all claims of whatever nature arising out of,
directly or indirectly, any accident, injury or damage to person or property
that shall happen in or about the Leased Premises or within the Building or the
land on which the Building is located, where such accident, injury or damage
results from any negligent or intentional acts or omissions of the Tenant, or
Tenant's agents, employees, servants, licensee, or independent contractors.
This indemnity and hold harmless agreement shall include indemnity against all
costs, expenses and liabilities incurred in or in connection with any such claim
or proceeding brought thereon, and the defense thereof.
8.2 GENERAL LIABILITY INSURANCE. Tenant agrees to maintain in full
force from the date upon which Tenant first enters the Premises for any reason,
throughout the term of this Lease, and thereafter so long as Tenant is in
occupancy of any part of the Premises, written on an occurrence basis, a policy
Of general liability and property damage insurance under which Landlord (and
such other persons as are in privity of estate with Landlord as may be set out
in notice from time to time) and Tenant are named as insured, and under which
the insurer agrees to indemnify and hold Landlord and those in privity of estate
with Landlord, harmless from and against all cost, expense and/or liability
arising out of or based upon any and all claims, accidents, injuries and damages
mentioned in Section 8.1 of this Article VIII. Each such policy shall be
non-cancelable and non-amendable with
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respect to Landlord and Landlord's said designees without ten (10) days prior
notice to Landlord, and a duplicate original or certificate thereof shall be
delivered to Landlord. The limits of liability of such insurance shall be ONE
MILLION DOLLARS ($1,000,000.00) for bodily injury (Or death) whether to one or
more persons, and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) with respect to
damage to property, and such higher limits, if procurable, as may from time to
time be reasonably required by Landlord's Lender. Further, Tenant shall maintain
and keep in force employees' compensation insurance prepared under Massachusetts
laws, and such other insurance necessary to protect Landlord against any other
liability to person or property arising hereunder by operation or law now in
effect or subsequently adopted.
8.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to use and occupy the Leased Premises
and to use such other portions of the Building, and the land on which the same
is located, as Tenant is herein given the right to use at Tenant's own risk; and
except for loss or damage arising from the acts, omissions or negligence of
Landlord, its contractors, licensees, agents, servants or employees, Landlord
shall have no responsibility for any loss of or damage to furniture,
merchandise, effects or other personal property of any kind of Tenant,
(excepting Leasehold improvements) or anyone claiming through Tenant. The
provisions of this Section shall be applicable from and after the execution of
this Lease and until the end of the term of this Lease, and during such further
period as Tenant my use or be in occupancy of any part of the Premises or of the
Building.
8.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent that this
agreement may be made effective according to law, Tenant agrees that Landlord
shall not be responsible or liable to Tenant, or to those claiming by, through
or under Tenant, for any loss or damage that may be occasioned by or through the
acts or omission of persons occupying adjoining Premises, or any part of
Premises adjacent to or connected to the Leased Premises or any part of the
Building, or otherwise or for ant loss or damage resulting to Tenant or those
claiming by, through or under Tenant or its or their property, resulting from
fire, explosion, falling plaster, steam, water, gas, sewer, steam pipes,
electricity, electrical disturbance, rain, snow, or leaks from any part of the
Building, or from the pipes, appliances, plumbing works, roof, street, or
subsurface or from any other place, or caused by dampness or by any other cause
or by whatever nature, unless caused by or due to the negligence of Landlord its
agents, servants or employees and then only after (i) notice to Landlord of the
condition claimed to constitute negligence, and (ii the expiration of a
reasonable time after such notice has been received by Landlord without Landlord
having taken all reasonable and practicable means to cure or correct such
condition and pending such cure or correction by Landlord, Tenant shall take all
reasonably prudent temporary measures and safeguards to prevent any injury, loss
or damage to persons or property.
ARTICLE IX
LANDLORD'S RIGHT OF ACCESS
--------------------------
9.1 LANDLORD'S RIGHT OF ACCESS. Landlord and its designees shall
have the right to enter the Premises at all reasonable hours for the purpose of
inspecting or of making repairs upon 24 hours notice (it being understood and
agreed, however, that said notice and hour requirements shall in no event apply
to emergency situations) to the same, or for the purpose of exhibiting the
Leased Premises to prospective or existing mortgagees or purchasers of all or
any part of the Building; and or a period commencing six (6) months prior to the
expiration of the
12
term of this Lease, Landlord may have reasonable access to the Premises upon 24
hour notice, at all reasonable hours for the purpose of exhibiting the same to
prospective tenants.
ARTICLE X
FIRE, EMINENT DOMAIN, ETC.
--------------------------
10.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or
casualty, the rent and the charges payable by Tenant under Section 4.1, Section
4.2 and Section 4.4 hereof shall ▇▇▇▇▇ or be reduced proportionately for the
period in which, by reason Of such damage, there is substantial interference
with the operation of Tenant's use of the Premises, having regard to the extent
to which Tenant may be required to discontinue Tenant's use of the Premises, but
such abatement or reduction shall end as and when Landlord shall have restored
the Premises to such conditions as will allow Tenant to recommence Tenant's use
of the Premises, as hereinafter provided. In the event of termination of this
Lease pursuant to this Article, this Lease shall come to an end and cease as of
the date of such destruction or damage, except Tenant shall be liable for and
pay promptly to Landlord any rent or other charges then in arrears.
If the Premises shall be affected by any exercise of the power of eminent
domain, then the rent and the charges payable by Tenant under Sections 4.1, 4.2
and 4.4 hereof shall be justly and equitably abated and reduced according to the
nature and extent of the loss of use thereof suffered by Tenant.
10.2 LANDLORD'S RIGHT OF TERMINATION. In case during the term hereof
the Leased Premises or the Building shall be partially damaged (as distinguished
from "substantially damaged," as that term is hereinafter defined) by fire or
other casualty, Landlord shall forthwith proceed to repair such damage and
restore the Leased Premises, or so much thereof as was originally constructed by
Landlord, to substantially their condition at the time of such damage, (subject,
however, to zoning laws and building codes then in existence), but Landlord
shall not be responsible for any delay which may result from any cause beyond
Landlord's reasonable control. If the Leased Premises or the Building are
partially damaged, Landlord's repairs must be substantially completed within
sixty (60) days from the date the damage occurred. If the Premises or the
Building are substantially damaged by fire or casualty (the term "substantially
damaged" meaning damaged of such a character that the same cannot, in ordinary
course, reasonably be expected to be repaired within sixty (60) days from the
time that repair work would commence, or any part of the Building is taken by
any exercise of the right of eminent) domain, then Landlord and Tenant shall
have the right to terminate this Lease (even if the Landlord's entire interest
in the Premises may have been divested) by giving notice of election so to do,
whereupon this Lease shall terminate as of the date of such notice with the same
force and effect as if such date were the date originally established as the
expiration date hereof.
If this Lease is not terminated as hereinbefore provided, Landlord shall
commence restoration not later than thirty (30) days after the occurrence of
damage by fire or casualty or condemnation, but if Landlord shall not
substantially complete said restoration within ninety (90) days following the
commencement of restoration, Tenant shall have the right to then terminate this
Lease without liability or penalty for same by giving written notice to Landlord
of its intent to do so, whereupon this Lease shall terminate as of the date of
such notice and be of no further force and effect, except Tenant shall remain
liable and promptly pay to Landlord any rent or other charges then in arrears.
Further, in the event this Lease is not terminated as
13
hereinbefore provided, Landlord shall only be required to repair or restore so
much of the Premises originally constructed by Landlord to substantially their
condition at the time of such damage (subject, however, to zoning and building
laws and codes then in existence); and Landlord shall not be responsible for any
delay which may result from any cause beyond Landlord's reasonable control.
Landlord's obligations hereunder shall in no event include Tenant's fixtures,
furnishings or equipment and Tenant shall at its own expense, proceeding with
all reasonable diligence, repair, or replace such of its fixtures, furnishings
and equipment as may have been damaged or destroyed.
10.3 AWARD. Landlord shall have and hereby reserves and excepts, and
Tenant hereby grants and assigns to Landlord, all rights to recover for damages
to the Building and the land on which the same is located, as aforesaid. With
regard to any eminent domain proceedings affecting the Premises of which
Landlord has noticed, Landlord shall notify Tenant in writing of such
proceedings.
Tenant shall have the right, at its sole cost and expense to prosecute in any
such condemnation proceeding a claim for the value of any of Tenant's Leasehold
interest and usual trade fixtures installed in the Premises by Tenant at
Tenant's expense and for relocation expenses, provided that such action shall
not affect the amount of compensation otherwise recoverable by Landlord from the
taking authority, and provided further, that Tenant shall have no recourse
against Landlord for any compensation for the value of Tenant's leasehold
interest and/or trade fixtures installed in the Premises by Tenant at Tenant's
expense and for relocation expenses, provided that such action shall not affect
the amount of compensation otherwise recoverable by Landlord from the taking
authority.
ARTICLE XI
DEFAULT
-------
11.1 TENANT'S DEFAULT. If - - -
(a) Tenant shall fail to pay the base rent or other charge for which
provision is made herein on or before the date on which the same becomes due and
payable, and the same continues for five (5) days after written notice from
Landlord is delivered to Tenant thereof, or
(b) Landlord having rightfully given the notice specified in
subsection a) above to Tenant twice in any six (6) month period, Tenant shall
thereafter fail to pay the base rent or other charges on or before the date on
which the same becomes due and payable; or
(c) Tenant shall fail to perform or observe some term or condition
of this which because of its character, would immediately jeopardize Landlord's
interest; or
(d) Tenant shall fail to perform or observe any other term or
condition contained in this Lease, and Tenant shall not cure such failure within
thirty (30) days after written notice from Landlord delivered to Tenant; or
(e) The estate hereby created shall be taken on execution or by
other process of law, or if Tenant shall be judicially declared bankrupt or
insolvent according to taw, or if any assignment or trust mortgage arrangement,
so-called, shall be made of the property of Tenant for the benefit of creditors,
of if a receiver, guardian, conservator, trustee in involuntary bankruptcy or
other similar officer shall
14
be appointed to take charge of all or any substantial part of Tenant's property
by a court of competent jurisdiction, which proceeding shall not have been
diligently contested by Tenant within sixty (60) days after their commencement,
or if a petition shall be filed for the reorganization of Tenant under any
provisions of the Bankruptcy Act now or hereafter enacted, of if Tenant shall
file a petition for such reorganization, or for arrangements under provisions of
the Bankruptcy Act now or hereafter enacted and providing a plan for a debtor to
settle, satisfy or extend the time for payment of debts, or if the interest of
the Tenant herein shall be sold under execution or any other legal process.
(f) Tenant fails to comply with the Use of the Premises specified in
paragraph 1.2.
(g) There occurs any interruption for a period of thirty (30) or
more days of Tenant's possession of Premises or cessation of Tenant's business
as conducted at the commencement of the Lease, whether voluntary or involuntary
(unless caused by the actions of Landlord or another tenant occupying the
Building).
Then and in any of such events, and in addition to any rights or remedies of the
Landlord, hereunder and/or provided by law, at the option of the Landlord:
- - - - (i) Upon five (5) days written notice to Tenant, Landlord
may declare the Term ended and re-enter the Premises and take possession thereof
and remove all persons and property therefrom, and the Tenant shall have no
further claim thereon or thereunder and the Landlords shall hold the Premises as
if this Lease had not been made; or
- - - - (ii) Landlord may elect to terminate this Lease and recover,
as damages from Tenant: (a) the worth at the time of award of the unpaid rent
which had been earned through the time of termination; and (b) the work at the
time of award of the amount by which the unpaid rent which would have been
earned after termination until the time of award exceeds the amount of such
rental loss that the Tenant proves could have been reasonably avoided; and (c)
the worth at the time of award of the amount by which the unpaid rent of the
balance of the Term after the time of award exceeds the amount of such rental
loss that the Tenant proves could be reasonably avoided; and (d) any other
amount necessary to compensate the Landlord for all the detriment approximately
caused by the Tenant's failure to perform its obligations under this Lease or
which in the ordinary course would be likely to result therefrom, including but
not limited to those incurred in retaking possession of any Premises in making
repairs that the Tenant was obligated to make in preparing the Premises for
re-letting, in re-letting the Premises in and reasonable attorney's fees and
court costs. The "worth at the time of award" of the amounts referred to in
subparagraph (ii) (a) above in this Article, shall be computed, by allowing
interest at the rate of two percent (2%) in excess of the "Prime Rate" being
charged at the First National Bank of Boston. The "worth at the time of award"
of the amount referred to in subparagraph (ii) (c) above in this Article shall
be computed by discounting such above amount at the "Discount Rate" of the
Federal Reserve Bank of Boston in effect at the time of award plus one percent
(1%). Landlord shall use its best efforts to mitigate damages to the extent
required by Massachusetts law. Efforts by the Landlord to mitigate the damages
caused by the Tenant's breach of this Lease do not constitute a waiver of the
Landlord's right to recover the damages under this subparagraph (h) and nothing
in this subparagraph (h) affects the right of the Landlord to indemnification
for liability arising prior to the termination of this Lease for personal
injuries or property damage as provided in this Lease; or
15
---- (iii) Landlord may elect not to terminate this Lease and for 50
long as the Landlord does not terminate the Tenant's right to possession, this
Lease shall continue in effect and the Landlord shall continue to perform its
obligations under this Lease and may enforce all its rights and remedies under
this Lease, including, but not by the way of limitation, the right to recover
the rent as it becomes due under this Lease. For the purposes of this
subparagraph "(iii)" the following shall not constitute a termination of the
Tenant's right to possession: (a) acts of maintenance or preservation or efforts
to relet the Premises; or (b) the appointment of a receiver upon initiative of
the Landlord to protect the Landlord's interest under this Lease.
Nothing in this Article 11.1 shall affect the rights of the parties under
statutory provisions relating to actions for unlawful detainer, forcible entry
and forcible detainer; provided, however, after the Landlord obtains possession
of the Premises under a judgment for restitution or forfeiture of the Tenant's
interest, the Landlord will no longer be entitled to treat this Lease as
continuing in effect unless the Tenant obtains relief from the forfeiture or
restitution to its former estate under the applicable statutory provisions. The
bringing of any action described in this subparagraph shall not affect the
Landlord's right to bring a separate action for relief on termination, for
liquidated damages, or in equity, but the Landlord shall recover no damages in
the subsequent action for any detriment for which a claim for damages was made
and determined on the merits in the previous action.
In the event of any entry or taking possession of the Premises by Landlord under
this Article 11.1, the Landlord shall have the right, but not the obligation to
remove therefrom all or any part of the personal property located therein and
may place the same in storage at a public warehouse at the expense and risk of
the owner or owners thereof.
For all applicable purposes of this Article 11.1 the rental agreed to be paid by
Tenant or the amount of rent payable by the Tenant shall be deemed to be the sum
total of the following: the rent reserved in Article 4.1 thereof, the taxes and
assessments reserved in Article 4.2 thereof, the sums called for in Articles 4.4
and 8.2 and all other sums and charges which Tenant is obligated to pay under
this Lease.
The remedies given to Landlord in this Article shall be cumulative and in
addition to all other rights or remedies which the Landlord may have under
applicable laws then in force.
11.2 LATE CHARGE. The Tenant shall pay to Landlord a late charge of
10 percent (10%) of any rent or other payment due hereunder not received by
Landlord within ten (10) days after said payment is due. Said late charge shall
continue to accrue each month until said arrearage is paid in full.
11.3 ATTORNEYS FEES. Landlord shall be entitled to collect all
reasonable costs and expenses, including but not limited to, reasonable
attorney's fees, expended by Landlord to collect any rent or other payments due
hereunder or in any manner to enforce the Tenant's obligations hereunder.
11.4 LANDLORD'S DEFAULT. Landlord shall in no event be in default in
the performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within thirty (30) days
(or such shorter period of time as may be specified in this Lease), or such
additional time as is reasonably required to correct any such default, after
notice by Tenant to Landlord properly specifying wherein Landlord has failed to
perform any such obligation.
16
ARTICLE XII
BANKRUPTCY OR INSOLVENCY
------------------------
l2.1 In the event that the Tenant or any general partner of the
Tenant shall become a Debtor under the Bankruptcy Code and the Trustee or the
Tenant shall elect to assume this Lease for the purpose of assigning the same or
otherwise, such election and assignment may only be made if all the terms and
conditions of Article XII, subsections 2 and 4 hereof are satisfied. If such
Trustee shall fail to elect to assume this Lease within sixty (60) days after
the filing of the Petition, this Lease shall be deemed to have been rejected.
The Landlord shall be thereupon immediately entitled to possession of the
demised Premises without further obligation to the Tenant or the Trustee, and
this Lease shall be terminated, but the Landlord's right to be compensated for
damages both at law and as provided in Article XI hereof in such case shall
survive.
12.2 No election by the Trustee or Debtor-In-Possession to assume
this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of
the following conditions, which the Landlord and the Tenant acknowledge and
agree are commercially reasonable in the context of a bankruptcy case of the
Tenant, have been satisfied, and the Landlord has so acknowledged in writing:
1. The trustee or the Debtor-In-Possession has cured, or has
provided the Landlord adequate assurance (as hereinafter defined) that:
(a) Within ten (10) days from the date of such assumption, the
Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such assumption,
the Trustee will cure all non-monetary defaults under this Lease.
2. The Trustee or Debtor-In-Possession has compensated, or has
provided to the Landlord adequate assurance (as hereinafter defined) that within
ten (10) days from the date of assumption, the Landlord will be compensated
for any pecuniary loss incurred by the Landlord arising from the default of the
Tenant, the Trustee, or the Debtor-In-Possession as recited the Landlord's
written statement of pecuniary loss sent to the Trustee or Debtor-In-Possession.
3. The Trustee or the Debtor-In-Possession) has provided the
Landlord with adequate assurance (as hereinafter defined) of the future
performance of each of the Tenant's, the Trustee's or Debtor-In-Possession's
obligation under this Lease, provided, however that:
The obligations imposed upon the Trustee or Debtor-In-Possession under this
Lease shall continue with respect to the Tenant or any assignee of this Lease
after the completion of the bankruptcy case, subject to any further and/or
increased obligations which thereafter are imposed by any provisions of this
Lease.
4. The assumption of this Lease will not:
(a) Breach any provision in this Lease or any other Lease,
mortgage, financing agreement or other agreement by which the Landlord is bound
relating to the Office Building: or
(b) Disrupt, in the Landlord's judgment, the Tenant mix of the
Building or any other attempt by the Landlord to provide a specific variety of
Tenant'
17
uses in the Building which, in the Landlord's judgment, would be most beneficial
and would enhance the image, reputation, and profitability of the Building.
5. The assumption has been ratified and approved by order of such
court or courts as have final jurisdiction over the Bankruptcy Code.
B. For the purposes of this Section 12.2, the Landlord and the
Tenant acknowledge that, in the context of a bankruptcy proceeding of the
Tenant, at a minimum, "adequate assurance" shall mean:
1. The Trustee or Debtor-In-Possession has and will continue to have
sufficient unencumbered assets after the payment of all secured obligations and
administrative expenses to assure the Landlord that the Trustee or
Debtor-in-Possession will have sufficient funds to fulfill the obligations of
the Tenant under this Lease, and to keep the demised Premises operating with
sufficient employees to conduct a fully-operational, actively promoted business
on the demised Premises; and
2. The Bankruptcy Court or such court as is exercising jurisdiction
over the Bankruptcy Code shall have entered an Order segregating sufficient cash
payable to the Landlord and/or the Trustee or Debtor-In-Possession shall have
granted a valid and perfected first lien and security interest and/or mortgage
in property of the Tenant, the Trustee or Debtor-In-Possession, acceptable as to
value and kind to the Landlord, to secure to the Landlord the obligation of the
Trustee or Debtor-In-Possession to cure any monetary and/or nonmonetary defaults
under this Lease within the time periods set forth above.
12.3 In the event that this Lease is assumed by a Trustee appointed
for the Tenant or by the Tenant as Debtor-In-Possession and thereafter the
Tenant is liquidated or files as subsequent Petition for reorganization or
adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in
either such event, the Landlord may, at its option, terminate this Lease and all
rights of the Tenant hereunder, by giving the Tenant written notice of its
election so to terminate, within thirty (30) days after the Landlord shall have
received written notice of the occurrence of either such event, but the
Landlord's right to be compensated for damages both at law and as provided in
Article XI hereof shall survive.
12.4 If the Trustee or Debtor-In-Possession has assumed this Lease
pursuant to the terms and provisions of sections 12.1 and 12.2 hereof, for the
purpose of assigning (or elects to assign) the Tenant's interest under this
Lease, or the estate created thereby to any other person such interest or estate
may be so assigned only if the Landlord shall acknowledge in writing that the
intended assignee has provided adequate assurance of the future performance (as
defined in this Section 12.4) of all of the terms, covenants and conditions of
this Lease to be performed by the Tenant.
For the purposes of this Section 12.4, the Landlord and the Tenant acknowledge
that, in the context of a bankruptcy proceeding of the Tenant, at a minimum,
"adequate assurance of future performance" shall mean that each of the following
conditions have been satisfied, and the Landlord has so acknowledged in writing:
(1) The assignee has submitted a current financial statement audited
by a Certified Public Accountant which shows a net worth and working capital in
amounts (which amounts shall in no event be less that the greater of those of
the Tenant and any guarantor of the Tenant's obligations hereunder at the time
of the
18
execution of this Lease) determined to be sufficient by the Landlord to assure
the future performance by such assignee of then Tenant's obligations under this
Lease;
(2) The assignee, if requested by the Landlord, shall have obtained
guarantees in form and substance satisfactory to the Landlord from one or more
persons who satisfy the Landlord's standards of creditworthiness;
(3) The assignee has submitted in writing evidence, satisfactory to
the Landlord, of substantial experience in the conducting of the type of
business permitted under this Lease;
(4) The Landlord has obtained all consents and waivers from any
third party required under any Lease, mortgage, financing arrangement or other
agreement by which the Landlord is bound to permit the Landlord to consent to
such assignment;
(5) The assignee has supplied such additional information required
to be supplied by Article VI hereof and has complied with any other provisions,
conditions and requirements set forth in said Article VI for an assignment of
the Tenant's interest in this Lease or the estate created thereby; and
(6) The assignee had deposited with the Landlord a security deposit
in such amount as determined by the Landlord to be appropriate based upon the
financial information supplied under this Section 12.4.
12.5 When, pursuant to the Bankruptcy Code, the Trustee or
Debtor-In-Possession shall be obligated to pay reasonable use and occupancy
charges for the use of the demised Premises or any portion thereof, such charges
shall not be less than the average monthly amount paid on account of rent for
the preceding calendar month and any other charges payable by the Tenant
hereunder.
12.6 Neither the Tenant's interest in this Lease, nor any lesser
interest of the Tenant herein, nor any estate of the Tenant created hereby,
shall pass to any trustee, receiver, assignee for the benefit of creditors, or
any other person or entity, or otherwise by operation of law under the laws of
any state having jurisdiction of the person or property of the Tenant unless the
Landlord shall consent to such transfer in writing. No acceptance by the
Landlord of rent or any other payments from any such trustee, receiver,
assignee, person or other entity shall be deemed to have waived, nor shall it
waive the need to obtain the Landlord's consent or the Landlord's right to
terminate this Lease for any transfer of the Tenant's interest under this Lease
without such consent.
12.7 The rights and remedies of the Landlord contained in the
provisions of this Article XII are and shall be deemed to be in addition to, and
not in limitation of, applicable provisions of Article XI and other provisions
hereof, and any other rights which the Landlord may have under applicable
statutory or case law. Whenever any of the terms or provisions of this Lease,
including, without limitation, rental obligations, are modified pursuant to the
provisions of this Article, upon the Landlord's request the parties hereto
promptly shall execute, acknowledge and deliver a written instrument evidencing
and confirming the same. In no event shall this Lease, after the term hereof has
expired or has been terminated in accordance with the provisions hereof, be
revived, and no stay or other proceeding shall nullify, postpone or otherwise
affect the expiration or earlier termination of the term of this Lease pursuant
to the provisions of Article XI hereof or prevent the Landlord from regaining
possession of the demised Premises thereupon.
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12.8 The provisions of the Article XII shall apply to any general
partner of the Tenant with the same force and effect as they shall apply to the
Tenant.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
------------------------
13.1 OIL AND HAZARDOUS WASTE. Tenant agrees that except in
compliance with Environmental Laws, that Tenant shall not introduce on or
transfer to the Premises or Property, any hazardous materials (as hereinafter
defined); nor to dump, flush or otherwise dispose of any hazardous materials
into the drainage, sewage or waste disposal systems serving the Premises or
Property; nor to generate, store, use, release, spill or dispose of any
hazardous materials in or on the Premises or the Property, or to transfer any
hazardous materials from the Premises to any other location; and not to commit
or suffer to be committed in or on the Premises or Property any act which would
require any reporting or filing of any notice with any governmental agency
pursuant to any statutes, laws, codes, ordinances, rules or regulations, present
or future, applicable to the Property or to hazardous materials. The prohibition
on storage and use of hazardous materials shall in no event, however, preclude
Tenant from the lawful storage and use of normal quantities of normal office
products.
Tenant agrees that if it or anyone claiming under it shall generate,
store, release, spill, dispose of or transfer to the Premises or Property any
hazardous materials, it shall forthwith remove the same, at its sole cost and
expense, in the manner provided by all applicable Environmental Laws, regardless
of when such hazardous materials shall be discovered. Furthermore, Tenant shall
pay any fines, penalties or other assessments imposed by any governmental agency
with respect to any such hazardous materials and shall forthwith repair and
restore any portion of the Premises or Property which it shall disturb in so
removing any such hazardous materials to the condition which existed prior to
Tenant's disturbance thereof.
Tenant agrees to deliver promptly to Landlord any notices, orders or
similar documents received from any governmental agency or official concerning
any violation of any Environmental Laws or with respect to any hazardous
materials affecting the Premises or Property. In addition, Tenant shall, within
ten (10) days of receipt, accurately complete any questionnaires from Landlord
or other informational requests relating to Tenant's use of the Premises and, in
particular, to Tenant's use, generation, storage and/or disposal of Hazardous
Materials at, to, or from the Premises.
For purposes of this Lease, the term "hazardous materials" shall
mean and include any oils, petroleum products, asbestos and any other toxic or
hazardous wastes, materials and substances which are defined, determined or
identified as such in any Environmental Laws, or in any judicial or
administrative interpretation of Environmental Laws.
"Environmental Laws" shall mean any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, codes, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges or releases of pollutants, contaminants,
or hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of
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pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the cleanup or other
redemption thereof.
Landlord warrants and represents that: (a) the ownership and
operation of the Premises and the Property and any use, storage, treatment,
disposal, or transportation of hazardous materials that has occurred in or on
the Premises or the Property prior to the date of this Lease have been in
compliance with Environmental Laws; (b) no release, leak, discharge, spill,
disposal, or emission of hazardous materials has occurred in, on, or under the
Premises or the Property in a quantity or manner that violates or requires
further investigation or remediation under Environmental Laws; (c) the Premises
and Property are free of Hazardous Materials as of the date of this Lease.
Landlord represents and warrants that there is no pending or threatened
litigation or administrative investigation or proceeding concerning the Property
of the Premises involving Hazardous Materials. Landlord warrants and represents
that there are no asbestos-containing materials within the Premises or the
Property, whether friable or non-friable. Landlord agrees to indemnify and hold
harmless the Tenant from any and all claims, damages, fines, judgments,
penalties, costs, liabilities, or losses (including, without limitation, any and
all sums paid for settlement of claims, attorneys' fees, consultant, and expert
fees) arising during or after the term of this Lease from or in connection with
(i) the presence or suspected presence of asbestos-containing materials and any
other hazardous materials introduced by the Tenant during its occupancy; or (ii)
any violation of Environmental Laws by Landlord or any other tenant of the
Property. The scope of this indemnity shall not include any liabilities arising
from a violation of Environmental Laws by Tenant. This indemnity shall
specifically survive the termination of: (i) the term of this Lease; (ii) the
occupancy of the Premises by Tenant; or (iii) this Lease.
13.2 NON-SUBROGATION. Insofar as, and to the extent that, the
following provisions may be effective without invalidating or making it
impossible to secure insurance coverage obtainable from responsible insurance
companies doing business in the Commonwealth of Massachusetts (even though extra
premium may result therefrom), Landlord and Tenant mutually agree that, with
respect to any hazard which is covered by insurance then being carried by them,
respectively, the one carrying such insurance and suffering such loss releases
the other of and from any and all claims with respect to such loss; and they
further mutually agree that their respective insurance companies shall have no
right of subrogation against the other on account thereof.
In the event that extra premium is payable to either party as a result of this
provision, the other party shall reimburse the party paying such premium the
amount of such extra premium. If, at the request of one party, this release and
non-subrogation provisions is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be effective, but nothing
contained in this Section shall derogate from or otherwise affect releases
elsewhere here contained of either party for claims.
13.3 WAIVER. Failure on the part of Landlord or Tenant to complain
of any action or non-action on the part of the other, no matter how long the
same may continue, shall never be a waiver by Tenant or Landlord, respectively,
of any of the other's right hereunder. Further, no waiver at any time of any of
the provisions hereof by Landlord or Tenant shall be construed as a waiver of
any of the other provisions hereof, and a waiver at any time of any of the
provisions hereof, shall not be construed as a waiver at any subsequent time of
the same provisions. The consent or approval of Landlord or Tenant to or of any
action by the other requesting such consent or approval shall not be construed
to waive or render
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unnecessary Landlord's or Tenant's consent or approval to or of any subsequent
similar act by the other.
No payment by Tenant, or acceptance by Landlord, of a lesser amount than shall
be due from Tenant to Landlord shall be treated otherwise than as a payment on
account. The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant.
13.4 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease on payment of the rent and observing keeping and
performing all of the terms and provisions of this Lease on Tenant's part to be
observed, kept and performed shall exclusively, lawfully, peaceably and quietly
have, hold, occupy and enjoy the Premises and all appurtenances thereto during
the term hereof, including any extensions thereof, without hindrance or
elections by Landlord or any persons lawfully claiming under Landlord to have
title to the Premises superior to Tenant; the foregoing covenant of quiet
enjoyment is in lieu of any other covenant, expressed or implied; and it is
understood and agreed that this covenant any and all other covenants of Landlord
contained in this Lease shall be binding upon Landlord and landlord's successors
only with respect to breaches occurring during Landlord's and Landlord's
successors', respective ownership of Landlord's interest hereunder.
Further, Tenant specifically agrees that neither any Trustee nor Beneficiary of
Landlord (original or successor, shall ever by personally liable for any
judgment against Landlord or for the payment of any monetary obligation to
Tenant. The provision contained in the foregoing sentence is not intended to,
and shall not, limit any right that Tenant might otherwise have to obtain a
money judgment against Landlord and/or Landlord's assets and/or injunctive
relief against Landlord or Landlord's successors in interest, or any action not
involving the personal liability of Landlord (original or successor) any
successor Trustee to the persons named herein as Landlord, or any beneficiary of
any Trust of which any person holding Landlord's interest is Trustee.
With respect to any obligation of Landlord to repair or replace or restore the
Premises or with respect to services to be furnished by Landlord to Tenant,
Landlord shall in no event be liable for failure to furnish the same when
prevented from doing so by strike, lockout, breakdown, accident, order or
regulations of or by any governmental authority, or failure of supply or
inability by the exercise of reasonable diligence to obtain supplies, parts or
employees necessary to furnish such services, or because of war or other
emergency, or for any cause beyond Landlord's reasonable control, or for any
cause due to any act or neglect of Tenant or Tenant's servants, agents,
employees, licensees or any person claiming by, through or under Tenant.
13.5 ASSIGNMENT OF RENTS. With reference to any assignment by
Landlord of Landlord's interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to the holder of a
mortgage on property which includes the Leased Premises, Tenant agrees:
a) that, execution thereof by Landlord, and acceptance thereof
by the holder of such mortgage shall never by treated as an assumption by such
holder of any of the obligations of Landlord hereunder, unless such holder
shall, by notice sent to Tenant, specifically otherwise elect; and
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(b) that, except as aforesaid, such holder shall be treated as
having assumed Landlord's obligations hereunder only upon foreclosure of such
holder's mortgage and the taking of possession of the Premises by such holder.
With reference to any assignment of rents to a mortgage holder, Landlord shall
assign to said mortgage holder only such rights to collect rents as Landlord
shall have hereunder.
13.6 MECHANICS' LIENS. Tenant agrees within thirty (30) days after
Tenant has notice or within thirty (30) days after Landlord has notified Tenant
thereof (whichever shall first occur) immediately to discharge (either by
payment or by filing the necessary bond, or otherwise) any mechanics',
materialmen's or other lien against the Premises and/or Landlord's interest
therein, which liens may arise out of any payment due for, or purported to be
due for, any labor, services, materials, supplies, or equipment alleged to have
been furnished to or for Tenant in, upon or about the Premises.
13.7 BROKERAGE. Landlord and Tenant respectively warrant and
represent to the other that each has dealt with only Delta Commercial Properties
as broker in connection with the consummation of this Lease and each party
agrees to defend the same and indemnify the other party against any such claim
for a brokerage commission arising by, through or under the other party as the
case may be. Landlord agrees to pay all brokerage commission due.
13.8 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision
of this Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
13.9 PROVISIONS BINDING, ETC. Except as herein otherwise provided
the terms hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant and, if Tenant
shall be an individual, upon and to his heirs, executors, administrators,
successors, and assigns. Each term and each provision of this Lease to be
performed by Tenant shall be construed to be both a covenant and a condition.
The reference contained to successors and assigns of Tenant is not intended to
constitute a consent to assignment by Tenant, but has reference only to those
instances in which Landlord may later give written consent to a particular
assignment or transfer as required by the provisions of Article VI hereof.
13.10 NOTICES. Whenever, by the terms of this Lease, any
communication, request, advice or notice shall or may be given either to
Landlord or to Tenant, same shall be in writing and shall be sent by registered
or certified mail, postage prepaid:
If intended for Landlord, addressed to Landlord at the address set forth in
Section 1.2 of this Lease (or to such other address or addresses as may from
time to time hereafter be designated by Landlord by like notice).
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If intended for Tenant, addressed to Tenant at the address set forth in Section
1.2 of this Lease (or to such other address or addresses as may from time to
time hereafter be designated by Landlord by like notice).
All such notices shall be effective when deposited in the United States mail
within the Continental United States, provided that the same are received in
ordinary course at the address to which the same were sent.
Where provisions is made for the attention of an individual or department, the
notice shall be effective only if notice is addressed to the attention of such
individual or department.
13.11 WHEN LEASE BECOMES BINDING. Employees or agents of Landlord
have no authority to make or agree to make a Lease any other agreement or
undertaking in connection herewith. The submission of this document for
examination and negotiation or option for, does not constitute an Agreement for
the Land or the Premises and this document shall become effective and binding
only upon the execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and may be modified or altered only
upon written agreement between Landlord and Tenant and no act or omission of any
employee or agent of Landlord or Tenant shall alter, change or modify any of the
provisions hereof.
13.12 PARAGRAPH HEADINGS. The paragraph headings throughout this
instrument are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
13.13 RIGHTS OF MORTGAGEE. The Lease shall be subject and
subordinate to any first mortgage on the Building, now in effect, unless the
holder of such mortgage elects by notice to Tenant to have this Lease superior
to its mortgage. In addition, Landlord shall have the option to subordinate this
Lease to any other mortgage or deed of trust which includes the Premises as part
of the mortgaged Premises, provided that the holder thereof enters into an
agreement with Tenant by the terms of which (a) in the event of acquisition of
title by such holder through foreclosure proceedings or otherwise, and provided
Tenant is not in default hereunder, the holder will agree to recognize the
rights of Tenant under this Lease and to accept Tenant as Tenant of the Premises
under the terms and conditions of this Lease and (b) Tenant will agree to
recognize the holder of such mortgage as Landlord in such event. This agreement
shall be made to expressly bind and inure to the benefit of the successors and
assigns of Tenant and of the holder and upon anyone purchasing said Premises at
any foreclosure sale. Any such mortgage to which the Lease shall be subordinated
may contain such terms, provisions and conditions as the holder deems usual or
customary. The Lot or Building, or both, are separately and together hereinafter
in this Section 13.13 referred to as "the mortgaged Premises". The word
"mortgagee" as used in this Lease shall include the holder for the time being
whenever the context permits.
Upon entry and taking possession of the mortgaged Premises for any purpose other
than foreclosure, the holder of a mortgage shall have all rights of Landlord and
during the period of such possession, the duty to perform all Landlord's
obligations under this Lease. No such holder shall be liable to perform any
other of Landlord's covenants and obligations under this Lease.
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Except as otherwise provided in Section 13.13 hereof, no such holder or a
mortgage shall be liable, either as mortgagee or as holder of a collateral
assignment of this Lease, to perform, or be liable in damages for failure to
perform, any of the obligations of Landlord unless and until such holder shall
enter and take possession of the mortgaged Premises for the purpose of
foreclosing a mortgage. Upon entry for the purpose of foreclosing a mortgage,
such holder shall be liable to perform all of the subsequent obligations of
Landlord, subject to the provisions of this Section 13.13 and subject to and
with the benefit of the provisions of Section 13.13, Provided that a
discontinuance of any foreclosure proceeding shall be deemed a conveyance under
said provisions to the owner of the equity of the mortgaged Premises.
No fixed rent, additional rent, or any other charge shall be paid more then ten
(10) days prior to the due dates hereof and payments made in violation of this
provision shall (except to the extent that such payments are actually received
by a mortgagee in possession or in the process of foreclosing its mortgage) be a
nullity as against such mortgagee and Tenant shall be liable for the amount of
such payments to such mortgagee.
No act or failure to act on the part of Landlord which would entitle Tenant
under the terms of this Lease, or by law, to be relieved of Tenant's obligations
hereunder or to terminate this Lease, shall result in a release or termination
of such obligations or a termination of this Lease unless (i) Tenant shall have
first given written notice of Landlord's act or failure to act to Landlord's
mortgagees of record, if any, specifying the act or failure to act on the part
of Landlord which could or would give basis to Tenants rights; and (ii) such
mortgagees, after receipt of such notice, have failed or refused to correct or
cure the condition complained of within a reasonable time thereafter; but
nothing contained in this Section 13.13 shall be deemed to impose any obligation
on any such mortgagee to correct or cure any such condition. "Reasonable Time"
as used above means and includes a reasonable time to obtain possession of the
mortgaged Premises, if the mortgagee elects to do so, and a reasonable time to
correct or cure the condition if such condition is determined to exist.
Notwithstanding any other provision to the contrary contained in this Lease, if
prior to substantial completion of Landlord's obligations under Article III, any
holder of a mortgage on the mortgaged Premises enters and takes possession
thereof for the purpose of foreclosing the mortgage, such holder may elect not
to perform Landlord 5 obligation under Article III and in such event such holder
and all persons claiming under it shall be relieved of all obligations to
perform, and all liability for failure to perform, said Landlord's obligations
under Article III.
No assignment of this Lease and no agreement to make or accept any surrender,
termination or cancellation of this Lease and no agreement to modify so as to
reduce the rent, change the Term, or otherwise materially change the rights of
Landlord under this Lease, or to relieve Tenant of any obligations or liability
under this Lease, shall be valid unless consented to in writing by Landlord's
mortgagees of record, if any.
The covenants and agreements contained in this Lease with respect to the rights,
powers and benefits of a mortgagee (particularly, without limitation thereby,
the covenants and agreement contained in this Article 13.13) constitute a
continuing offer to any person, corporation or other entity, which by accepting
or requiring an assignment of this Lease or by entry or foreclosure assumes the
obligations herein set forth with respect to such mortgagee; such mortgagee is
hereby constituted a party to this Lease as an obligee hereunder to the same
extent as though its name were
25
written hereon as such, and such mortgagee shall be entitled to enforce such
provisions in its own name.
Tenant agrees on request of Landlord to execute and deliver from time to time
any agreement which may reasonably be deemed necessary to implement the
provisions of this Article 13,13. In the event Tenant has not executed and
delivered such subordination agreement to the holder within fifteen (15) days of
its request, then Tenant shall be deemed to be in immediate default of the terms
of this Lease, with out any notice or time to cure.
13.14 STATUS REPORT. Recognizing that both parties may find it
necessary to establish to third parties, such as accountants, banks, mortgagees
or the like, the then current status of performance hereunder, either party, on
the request of the other made from time to time, will promptly furnish to
Landlord, or the holder of any mortgage encumbering the Premises, or to Tenant,
as the case may be, a written statement of the status of any matter pertaining
to this Lease, including, without limitation, acknowledgments that (or the
extent to which) each party is in compliance with its obligations under the
terms of this Lease.
13.15 BUILDING FURTHER DEFINED. Whenever reference in this Lease is
made to the term "Building", the same shall be read so the context appropriately
admits or requires.
13.16 SELF-HELP. Either party shall have the right, but shall not be
required to do so, to pay such sums or, do any act which requires the
expenditure of monies which may be necessary or appropriate by reason of the
failure or neglect of the other to perform any of the provisions of this Lease,
and in the vent of the exercise of such right by the non-defaulting party, the
defaulting party agrees to pay to the non-defaulting party forthwith upon demand
all such sums; and if Tenant shall default in such payment, Landlord shall have
the same rights and remedies as Landlord has hereunder for the failure of Tenant
to pay the minimum rent.
13.17 HOLDING OVER. Any holding over by Tenant after the expiration
of the terms of this Lease shall be treated as a tenancy at sufferance at the
rents and other charges herein (prorated on a daily basis) and shall otherwise
be on the terms and conditions set forth in this Lease, as far as applicable.
13.18 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the law of the Commonwealth of Massachusetts, as the
same may from time to time exist.
13.19 COMPLIANCE WITH REQUIREMENTS OF INSURER. The Tenant agrees to
conform to and comply with all federal, state and municipal laws having
jurisdiction of the Building and Leased Premises and to and with the
requirements of regulations of any Board of Fire Underwriters or insurance
company insuring the Building and the Leased Premises at the time with respect
to care, maintenance, use and any consented-to alteration or addition of the
Leased Premises and all at the Tenant's own expense.
13.20 SALE OF PREMISES BY LANDLORD. In the event of any sale of the
Premises by the Landlord and the assignment of this Lease to the Purchaser, upon
execution and delivery to Tenant of a written agreement to assume and carry out
the duties and obligations of the Landlord under this Lease, the Landlord shall
be entirely freed and relieved of all liability under any and all of its
covenants and obligations
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hereunder arising out of any act or omission occurring after the consummation of
such sale.
13.21 CORPORATE VOTE, TRUSTEE CERTIFICATE, ETC. In the event Tenant
is other than an individual, prior to the execution hereof, Tenant shall furnish
to Landlord such written evidence of its authority to execute this Lease and
perform its covenants herein set forth, as Landlord may require.
13.22 MASSACHUSETTS QUALIFICATION. The Tenant shall promptly qualify
to do business in the Commonwealth of Massachusetts.
13.23 ROOF LEAKS. Prior to the Lease Commencement Date, Landlord
shall repair the existing roof leaks.
13.24 FUTURE EXPANSION NEEDS. Landlord will work with Tenant to the
best Of Landlord's ability to meet Tenant's future expansion needs, either by
constructing an addition to the Building or providing other lease space to
Tenant.
13.25 NON-DISTURBANCE AGREEMENT. Landlord will use its best effort
to obtain a Non-Disturbance Agreement from the Mortgagor.
13.26 TENANT IMPROVEMENTS. Landlord shall supply and install an
additional overhead door at dock level as indicated on attached plan.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed, under seal, as of the date set forth below.
CUPLEX, INC. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ REALTY TRUST
/s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------- ---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇, PRESIDENT ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, TRUSTEE
5/13/96
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