Massachusetts-Acton-12 Craig Road Lease - Jelric Realty Trust and SeaChange Technology Inc.
LEASE AGREEMENT
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LEASE dated as of the 10th day of March, 1995, between Thomas B. O'Brien,
Trustee of Jelric Realty Trust u/d/t dated 9/18/68 and recorded with Middlesex
South Registry District of the Land Court (hereinafter referred to as
"Landlord"), and SeaChange Technology, Inc., Damonmill Square, 9 Pond Land,
Concord, MA 01742 (hereinafter referred to as "Tenant").
1. PREMISES (A) In consideration of the rents, agreements and conditions
herein reserved and contained on the part of Tenant to be paid,
performed and observed, Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, for the term herein set
forth, certain premises at 12 Craig Road, Acton, Massachusetts
01720 formerly occupied by Infralan Technologies, Inc. containing
approximately 4,800 square feet of floor area and having
dimensions approximately as shown upon Exhibit B (herein referred
to as the "the Demised Premises"), situated in the Williamsburg
Industrial Park (herein referred to as "the Industrial Park").
The Demised Premises are situated upon a certain parcel of
land known as Lot #13A. Said parcel of land is more particularly
described upon Exhibit A attached hereto and made a part hereof
and is herein referred to as "the Entire Parcel." The Demised
Premises are situated within, and are a part of, a certain
building shown upon Exhibit B (hereinafter referred to as "the
Building") and said Demised Premises are shown outlined by a bold
red line upon said Exhibit B. For purposes of this Lease,
dimensions are measured from the outside of exterior walls and
the center of interior walls. It is understood and agreed that
Exhibit B is intended only to show the approximate size and
location of the Demised Premises, the Building and the Entire
Parcel and for no other purpose.
(B) The Demised Premises are demised with the benefit of, and
subject to, the non-exclusive rights of Landlord, Tenant and
other tenants of the Building and the Industrial Park, and all
persons having business with any of them, to use, in common, the
parking areas, traffic lanes and walkways upon the Entire Parcel,
for the purposes of parking and access, on foot and by vehicles
not exceeding the weight for which the same were constructed, and
for no other purpose, except for any exclusive areas Landlord
shall reserve for the parking of trucks specifically designated
by Landlord. Landlord reserves the right, from time to time, to
change the size and configuration of said parking areas, traffic
lanes and walkways, and to temporarily close all or any part
thereof to prevent a dedication thereof or to prevent the accrual
of any rights of any person or the public therein.
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2. TERM. The term of this Lease shall be the period of two years,
commencing on March 13, 1995 (herein referred to as "the
Commencement Date"), and expiring March 12, 1997.
3. MINIMUM RENT Tenant shall pay Landlord rent at the rate of $36,621.24 per
year, in equal monthly installments of $3,051.77 which minimum
rent shall be paid monthly, in advance, on the first day of each
and every calendar month during the term of this Lease. Rent for
any fraction of a month at the commencement or expiration of the
term of this Lease shall be prorated. All payments of rent
(minimum and additional) shall be made payable to landlord and
shall be sent to Landlord to the address hereinafter provided for
the giving of notice to Landlord or to such other person or
address as Landlord shall from time to time designate by notice
to Tenant.
4. REAL ESTATE
TAXES (A) Tenant shall pay, as additional rent, 1/7 of the real
estate taxes upon the Building, land and improvement for each tax
year during the term hereof in excess of $18,094.54 per year and
a pro rata portion thereof for each tax year, in which the term
hereof commences and terminates. Tenant shall pay the amount of
such excess to Landlord, on account, in equal monthly
installments of one-twelfth (1/12th) the amount thereof estimated
by Landlord to be payable by Tenant on the basis of the
immediately preceding tax year, payable monthly, in advance, on
the first day of each and every calendar month during the term of
this Lease and a pro rata portion thereof for any fraction of a
month at the commencement or termination of the term. After the
close of each tax year, Landlord shall submit to Tenant a
computation of the amount actually payable by Tenant under this
Section (A) for such year, and if the amount paid by Tenant for
such year on account as aforesaid shall be less than the amount
actually payable therefore as computed by Landlord, then Tenant
shall pay the amount of the deficiency, if any, to Landlord
within ten (10) days after receipt of such computation and if the
amount paid by Tenant for such year as aforesaid shall exceed the
amount actually payable therefore as computed by Landlord, then
Tenant may recoup the amount of the excess by withholding such
amount from the next succeeding monthly payments due from Tenant
under this Section (A) until thereby repaid in full.
(B) Tenant shall pay all taxes allocable to its leasehold
interest, to its signs and other property in or upon the Demised
Premises, and to the rentals payable under this Lease. Tenant
shall also pay all taxes allocable to any improvements made by
Tenant to the Demised Premises. The expression "real estate
taxes" shall include betterment assessments and all taxes and
assessments levied, assessed or imposed as a substitute
therefore, or in lieu of, the whole or any part of the real
estate taxes upon the Entire Parcel.
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5. ADVANCE RENT (A) Landlord acknowledges that it has received from Tenant
the sum of $3,051.77 as payment of the monthly installments of
the minimum rent for the first full month of the term of this
Lease.
(B) Landlord acknowledges that it has received from Tenant
the sum of $3,051.77 as security for the payment of rents and the
performance and observance of the agreements and conditions in
this Lease contained on the part of Tenant to be performed and
observed. In the event of any default or defaults in such
payment, performance or observance, Landlord may, at its option
and without prejudice to any other remedy which Landlord may have
as a result thereof, apply said sum or any part thereof towards
the curing of any such default or defaults and/or towards
compensating Landlord for any loss or damage arising from any
such default or defaults. Upon the yielding up of the Demised
Premises at the expiration or other termination of the term of
this lease, if Tenant shall not then be in default or otherwise
liable to Landlord, said sum or the unapplied balance thereof
shall be returned to Tenant. It is understood and agreed that
Landlord shall always have the right to apply said sum, or any
part thereof, as aforesaid in the event of any such default or
defaults, without prejudice to any other remedy or remedies which
Landlord may have, or Landlord may pursue any other such remedy
or remedies in lieu of applying said sum or any part thereof. No
interest shall be payable on said sum or any part thereof. If
Landlord shall apply said sum or any part thereof as aforesaid,
Tenant shall, upon demand, pay to Landlord the amount so applied
by landlord, to restore the security to its original amount. Said
sum shall not be mortgaged, assigned or encumbered by Tenant
without the prior consent of Landlord. Whenever the holder of
Landlord's interest in this Lease, whether it be the Landlord
named in this Lease or any transferee of said Landlord, immediate
or remote, shall transfer its interest in this Lease, said holder
may pay to its transferee said sum or the unapplied balance
thereof, and thereafter such holder shall be released from any
and all liability to Tenant with respect to said sum or its
application or return, it being understood and agreed that Tenant
shall thereafter look only to such transferee with respect to
said sum, its application and return.
6. PHYSICAL
CONDITION On or before the Commencement date, Landlord shall deliver
possession of the Demised Premises to Tenant in whatever "as is"
condition the Demised Premises may then be in, except as stated
in Paragraph 33 of this Lease. Tenant acknowledges that the
Demised Premises, Building and Entire Parcel, and all
improvements thereon, have been inspected by Tenant, and are in
condition acceptable to Tenant and suitable for the purposes and
uses intended by Tenant and Landlord has
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made no representations or warranties whatsoever regarding the
condition thereof.
7. UTILITIES (A) Tenant shall pay all charges for heat, air conditioning,
gas, sewer, electricity and other utilities used by the Demised
Premises. Tenant shall pay 1/7 of the cost of all water consumed
in the Building and the Entire Parcel.
(B) Tenant shall, from time to time, reimburse Landlord 1/7
of the cost of servicing, maintaining, testing, operating,
repairing and replacing the sanitary septic sewerage system
serving the Demised Premises and the Building, within ten (10)
days after Landlord shall give Tenant notice of such cost thereof
in each case.
8. REPAIRS (A) Landlord shall during the term of this Lease make all
necessary repairs or alterations to the property which Landlord
is required to maintain, as hereinafter set forth. The property
which Landlord is required to maintain is the foundation, roof,
exterior walls, structural columns and structural beams of the
Demised Premises and the landscaped and parking areas upon the
Entire Parcel. Notwithstanding the foregoing, if any of said
repairs or alterations shall be made necessary by reason of
repairs, installations, alterations, additions or improvements
made by Tenant or anyone claiming under Tenant, by reason of the
fault or negligence of Tenant or anyone claiming under Tenant, by
reason of a default in the performance or observance of any
agreements, conditions or other provisions on the part of Tenant
to be performed or observed hereunder, by reason or any vehicles
damaging the Demised Premises or by reason of any special use to
which the Demised Premises may be put, Tenant shall make all such
repairs or alterations as may be necessary, except as otherwise
required under Article 13(a). Landlord shall not be deemed to
have committed a breach of any obligation to make repairs or
alterations or perform any other act unless (1) Landlord shall
have made such repairs or alterations or performed such other act
negligently, or (2) Landlord shall have received notice from
Tenant describing the particular repairs or alterations needed or
the other act of which there has been failure of performance and
shall have failed to make such repairs or alterations or
performed such other act within a reasonable time after the
receipt of such notice; and, in the event of a breach referred to
in Clause (2) of this sentence, Landlord's liability shall be
limited to the cost of making such repairs or alterations or
performing such other act. As used in this Lease, the expressions
"exterior walls" and "roof" do not include rooftop heating and/or
air conditioning units serving the Demised Premises exclusively
or glass, windows, doors, window sashes or frames, door frames or
sign belt.
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(B) Tenant shall during the term of this lease make all
repairs and alterations to the property which Tenant is required
to maintain, as hereinafter set forth, which may be necessary to
maintain the same in good order, repair and condition, or which
may be required by any laws, ordinances, regulations or
requirements of any public authorities having jurisdiction
subject only to the provisions of Articles 13 and 14; and Tenant
shall upon the expiration of other termination of the term of
this lease remove its property and that of all persons claiming
under it and shall yield up peaceably to Landlord the Demised
Premises and all property therein other than property of Tenant
or persons claiming under Tenant, broom clean, and in good order,
repair and condition, and subject only to the provisions of
Articles 13 and 14, and shall then surrender all keys for the
Demised Premises and shall inform Landlord of all combinations on
locks and safes. The property which Tenant is required to
maintain is the Demised Premises and every part thereof,
including, without limitation, (I) the floor slab, XXXXXXXX , and
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all walls, floors and ceilings, (II) the heating, ventilating,
air conditioning system and all utilities (water, gas,
electricity and sewerage) conduits, fixtures, meters and
equipment to the extent the same serve the Demised Premises
(whether located inside or outside the Building), (III) all
glass, windows, doors, window sashes and frames and door frames,
and (IV) the roof drainage system. Tenant shall at all times keep
in full force and effect a full (all labor and materials
included) service and maintenance contract, approved by Landlord,
for the heating, ventilating, air conditioning system of the
Demised Premises. Landlord may, at its option, reserve the right
to be the contractor providing the above services and maintenance
contracts and charge the tenant for such cost at rates similar to
those prevailing in the industry. Notwithstanding the foregoing,
Tenant shall not be under any obligation to make repairs or
alterations to the foundation, roof, exterior walls, structural
columns or structural beams of the Building, except to the extent
provided in Section (A) of this Article. Tenant specifically
agrees to replace all glass damaged with glass of the same kind
and quality. Tenant also shall pain varnish and otherwise
redecorate the Demised Premises when required to keep the Demised
Premises attractive in appearance. So-called patch-paint jobs by
Tenant shall be unacceptable.
9. OUTDOOR
AREAS (A) Tenant shall, within ten (10) days after delivery to
Tenant of invoices in each case, reimburse Landlord for 1/7 of
the cost to Landlord of owning and maintaining the landscaped and
parking areas of the Entire Parcel and the sidewalks, and traffic
lanes thereof, including, without limitation, insuring, mowing,
raking, fertilizing, pruning, trimming, barking, other various
exterior clean up and repairs, replacement of light bulbs and
photo cells, restriping of parking space, cleaning catch basins
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and drainpipes, testing groundwater and septic effluent,
operating and maintaining lawn sprinklers, removing snow, ice and
refuse from the parking areas, traffic lanes and sidewalks of the
Entire Parcel and the roof of the Building, and, in addition
thereto, a management fee for the foregoing equal to ten percent
(10%) of the cost to Landlord of the foregoing. Tenant shall
immediately remove all snow, ice and refuse from the sidewalks
abutting the Demised Premises, and nothing herein shall require
Landlord to do any hand-shovelling or hand-sweeping or to use a
so-called snowblower.
(B) Tenant shall allow any exterior lights upon the Demised
Premises to remain in operation as determined by the photo cells
or timers attached thereto by Landlord.
(C) Tenant shall not make any use, nor permit its employees
or contractors to make any use, of the outdoor areas of the
Entire Parcel or of the streets and driveways abutting the
Demised Premises which shall damage such streets or driveways,
including, without limitation, the overloading thereof.
10.ALTERATIONS (A) Tenant agrees that neither Tenant nor anyone claiming
under Tenant shall make any installations, alterations, additions
or improvements to or upon the Demised Premises, except only the
installation of fixtures necessary for the conduct of its
business, without the prior written consent of Landlord and
except for non-structural alterations to the interior of the
Building costing, in the aggregate, One Thousand Dollars ($1,000)
or less. Notwithstanding any alteration to which Landlord may
hereafter, in its sole discretion, consent, Tenant shall restore
the Demised Premises to the same condition as the Demised
Premises were in upon commencement of the term unless otherwise
requested in writing by Landlord. Tenant shall not bring any
additional electrical service into the Demised Premises unless it
is brought in underground over a route first approved by Landlord
and unless Tenant restores the surface of the ground and other
disturbed areas to the reasonably same condition that existed
prior to the installation thereof. All installations,
alterations, additions and improvements made to or upon the
Demised Premises, whether made by Landlord or Tenant or any other
person(except only signs and movable trade fixtures installed in
the Demised Premises prior to or during the term of this Lease at
the sole cost of Tenant or any person claiming under Tenant)
shall be deemed part of the Demised Premises and upon the
expiration or other termination of the term of this Lease shall
be at the Landlord's sole discretion either fully restored in
accordance with the above provisions of this paragraph or
surrendered with the Demised Premises as a part thereof without
disturbance, molestation or injury. Movable trade fixtures shall
include trade fixtures and other installations not affixed to the
realty and trade
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fixtures and other installations affixed only by nails, bolts or
screws with the prior permission of Landlord.
(B) Tenant shall procure all necessary permits before making
any repairs, installations, alterations, additions, improvements
or removals. Landlord shall cooperate with Tenant in obtaining
such permits. Tenant agrees that all repairs, installations,
alterations, additions, improvements and removals done by Tenant
or anyone claiming under Tenant shall be done in a good and
workmanlike manner, that the same shall be done in conformity
with all laws, ordinances and regulations of all public
authorities and all insurance inspection or rating bureaus having
jurisdiction, that the structure of the Demised Premises shall
not be endangered or impaired thereby, and that Tenant shall
repair any and all damage caused by or resulting from any such
repairs, installations, alterations, additions, improvements or
removals, including, without limitation, the filling of holes.
Tenant shall pay promptly when due all charges for labor and
materials in connection with any work done by Tenant or anyone
claiming under Tenant to or upon the Demised Premises so that the
Demised Premises shall at all times be free of liens. Tenant
shall save Landlord harmless from, and indemnify Landlord
against, any and all claims for injury, loss or damage to persons
or property caused by or resulting from the doing of any such
repairs, installations, alterations, additions, improvements and
removals.
If any mechanic's lien or other liens, charges or orders
shall be filed against the whole or any part of the Demised
Premises as the result of the acts or omissions of Tenant or
anyone claiming under Tenant or any claim against Tenant, Tenant
shall cause the same to be cancelled and discharged of record, or
fully bonded by a bonding company satisfactory to Landlord,
within ten (10) days after notice of filing thereof.
11.USE Tenant agrees that during the term of this Lease, the Demised
Premises shall be used and occupied only for office, light
manufacturing and for parking incidental thereto, and for no
other purposes, without the prior written consent of Landlord.
Tenant agrees that during the term of this Lease and,
notwithstanding anything in the immediately preceding sentence
contained to the contrary: no use may be made of the Demised
Premises which may reasonably be expected to attract parking,
loading or unleading in excess of the facilities constructed
therefore upon the Entire Parcel; neither tenant nor any person
claiming under Tenant shall impede ingress or egress to, or use
of, the loading areas of the Entire Parcel; no nuisance or waste
shall be permitted in, upon or about the Demised Premises; no use
or business shall be
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permitted or conducted in, upon or about the Demised Premises
which shall be unlawful, improper, noisy or offensive, or
contrary to any law, ordinance, regulation or requirement of any
public authority or insurance inspection or rating bureau or
similar organization having jurisdiction; the Demised Premises
including, without limitation, any of the mechanical systems
thereof, shall not be overloaded, damaged or defaced; Tenant
shall not drill or make any holes in the stone or brickwork or
any of the walls or ceilings of the Demised Premises; the
utilities conduits in the Demised Premises shall not be
overloaded or used for any purposes other than the purposes for
which originally constructed; no foreign objects shall be
deposited in the plumbing facilities of the Demised Premises; no
ladders shall be placed against the flashing upon the perimeter
of the Building; Tenant shall not permit the emission of any
objectionable noise, smoke, fumes, dust or odor from the Demised
Premises; Tenant shall procure all licenses and permits which may
be required for any use made of the Demised Premises; all waste
and refuse shall be stored in and removed from the Demised
Premises in accordance with rules and regulations therefore as
may be prescribed by Landlord; and no sign may be installed upon
the Demised Premises which is visible from the exterior of the
Building, without the consent of Landlord, except that one sign
shall be erected upon the exterior of the Demised Premises which
will be the type utilizing individual letters such as those used
by O'Brien & Company in the same building having letters not to
exceed one foot in height and if Tenant includes an insignia in
such sign, such insignia shall be separate and not over two feet
in height and width at the highest and widest points.
12.INDEMNITY AND
INSURANCE (A) During the term of this Lease, and at any other time
while Tenant or any person claiming under Tenant shall be upon
the Entire Parcel, Tenant shall, to the extent permitted by law,
save Landlord harmless from, and defend and indemnify Landlord
against any and all injury, loss or damage, and any and all
claims for injury, loss or damage, of whatever nature (i) caused
by or resulting from, or claimed to have been caused by or to
have resulted from, any act, omission or negligence of Tenant or
any person claiming under Tenant (including, without limitation,
subtenants of Tenant and employees and contractors of Tenant and
its subtenants) no matter where occurring, and (ii) occurring in,
upon or about the Demised Premises or in connection with the use,
occupancy or control thereof, no matter how caused. This
indemnity and hold harmless agreement shall include indemnity
against all costs, expenses and liabilities incurred in
connection with any and such injury, loss or damage or any such
claim, or any proceeding brought thereon or the defense thereof.
If Tenant or any person claiming under Tenant or the whole or any
part of the property of
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Tenant or any person claiming under Tenant shall be injured, lost
or damaged by theft, fire, water, or steam or in any other way or
manner, whether similar or dissimilar to the foregoing, then, to
the extent permitted by law, no part of said injury, loss or
damage shall be borne by Landlord, employees or its agents.
(B) Tenant shall maintain general comprehensive public
liability insurance, with respect to the Demised Premises and its
appurtenances, issued by an insurance company approved by
Landlord, naming Landlord and Tenant and any designees of
Landlord as insureds, in amounts of not less than One Million
Dollars ($1,000,000) with respect to injuries to any one person
and not less than Three Million Dollars ($3,000,000) with respect
to injuries suffered in any one accident and not less than One
Hundred Thousand Dollars ($100,000) with respect to property, or
such greater amounts as shall be required by the holder of any
mortgage upon the Demised Premises or premises of which the
Demised Premises are a part. Tenant shall deliver to Landlord the
policies of such insurance, or certificates thereof, at least
fifteen (15) days prior to the commencement of the term of this
Lease, and each renewal policy or certificate thereof in form
acceptable to Landlord, at least fifteen (15) days prior to the
expiration of the policy it renews. All such insurance policies
shall provide that such policies shall not be cancelled or
changed without at least fifteen (15) days notice to Landlord.
13.FIRE AND OTHER
CASUALTY (A) If the Demised Premises shall be damages or destroyed
by fire or other casualty, then Tenant shall give notice thereof
to Landlord, and except as hereinafter otherwise provided,
Landlord shall, within a reasonable time thereafter, repair or
restore the Demised Premises to substantially the same condition
the Demised Premises were in prior to such casualty.
Notwithstanding the foregoing, Landlord shall not be obligated to
spend for such repairs and restoration any amount in excess of
such insurance proceeds, if any, as shall be paid to Landlord as
the result of such damage or destruction, and subject to the
prior rights thereof, if any, of any mortgagees. If the damage
to the Demised Premises should be so extensive as to render the
whole or any part thereof untenantable or unsuitable for use and
occupancy by Tenant, a just proportion of the minimum rent,
according to the nature and extent of the injury to the Demised
Premises, shall be suspended or abated until the Demised Premises
shall be repaired or restored as provided in the first sentence
of this Section (A). It is agreed and understood that if during
the term of this Lease either the Demised Premises or the
Building shall be damaged or destroyed as aforesaid to the extent
of twenty five percent
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(25%) or more of their insurable value, Landlord, at its
election, may terminate the term of this Lease by a notice to
Tenant within thirty (30) days after such damaged or destruction.
It is also agreed and understood that if during the last six (6)
months of the term of this Lease the Demised Premises shall be
damaged or destroyed as aforesaid to the extent of twenty five
percent (25%) or more of their insurable value, Tenant at its
election, may terminate the term of this Lease by a notice to
Landlord within thirty (30) days after such damage or
destruction. In the event of any termination of the term of this
Lease pursuant to the provisions of this Article, the termination
shall be effective on the fifteenth (15th) day after the giving
of the notice of termination. A just proportion of the minimum
rent, according to the nature and extent of the injury to the
Demised Premises, shall be suspended or abated until the time of
termination, and minimum rent shall be apportioned as of the time
of termination. If Landlord is required or elects to repair or
restore the Demised Premises as hereinabove provided, then Tenant
shall resume its business therein. If Landlord shall not
substantially complete repair and restoration of the Demised
Premises to the extent required under this Section (A) on or
before the one hundred eightieth (180th) day following the
occurrence of such casualty ("the Deadline"), then the term of
this Lease shall terminate upon the Deadline unless prior to the
Deadline Tenant shall give notice to Landlord that Tenant then
elects to continue the term of this Lease thereafter, and if
Tenant shall so elect then this sentence shall thereafter be void
and of no further force or effect.
(B) Landlord shall maintain such fire and casualty insurance
with respect to the Demised Premises as shall from time to time
be required by the holder of a first mortgage upon the Entire
Parcel. The cost to Landlord of any insurance which Landlord
shall maintain with respect to the Demised Premises, the Building
and/or the Entire Parcel, including, without limitation, fire,
so-called extended coverage, rent insurance, agreed amount,
inflation guard, all risk and/or difference-in-conditions
coverage, and general comprehensive public liability insurance,
is herein referred to as "Landlord's insurance cost."
If Landlord's insurance cost for any calendar year shall
exceed $3,054.00 Tenant shall pay 1/7 of such excess to Landlord
upon demand as additional rent. For the calendar year during
which the term of this Lease shall commence and terminate, Tenant
shall pay a pro rata portion of such excess. The determination of
Landlord's insurance agent with respect to the amount of any such
excess shall be conclusive and finally determinative for purposes
hereof. Nothing in this Section (B) shall be deemed to limit in
any way the obligations of Tenant contained in this Lease with
respect to the maintaining of any type of insurance whatsoever.
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(C) Tenant shall not do, or suffer to be done, or keep, or
suffer to be kept, or omit to do, anything in, upon or about the
Demised Premises, the Building and/or the Entire Parcel which may
prevent the obtaining of any insurance on, or with respect to the
Demised Premises, the Building and/or the Entire Parcel or on any
property therein, including, without limitation, fire, extended
coverage, public liability insurance and any other insurance
referred to in Section (A) hereof, or which may make void or
voidable any such insurance or which may create any extra
premiums for, or increase the rate of, any such insurance. If
anything shall be done or kept or omitted to be done in, upon or
about the Demised Premises which shall create any increased or
extra premiums for, or increase the rate of, any such insurance,
then, in addition to all other rights and remedies which Landlord
may have as a result thereof, Tenant shall pay the increased cost
of the same to Landlord upon demand. In determining whether extra
or increased premiums are the result of Tenant's use of the
Demised Premises a Schedule, issued by the organization making
the rates applicable to the Demised Premises, or a certificate of
Landlord's insurance agent, showing the components of such rates,
shall be conclusive evidence of the items and charges which
comprise the rate of any such insurance and any increase therein
and extra charge therefore.
14.EMINENT
DOMAIN (A) If after the execution of this Lease and prior to the
expiration of the term of this Lease the whole of the Demised
Premises shall be taken under the power of eminent domain, or
acquired for any public or quasi-public use by deed in lieu
thereof, then the term of this Lease shall cease as of the time
when Landlord shall be divested of its title in the Demised
Premises, and minimum rent shall be apportioned and adjusted as
of the time of termination.
(B) If only a part of the Entire Parcel shall be taken under
the power of eminent domain, or acquired for any public or quasi-
public use by deed in lieu thereof, and if as a result thereof
the paved area of the Entire Parcel shall be reduced by more than
twenty percent (20%) or the ground floor area of the Building
shall be reduced by more than ten percent (10%), and the part
remaining shall not be reasonably adequate for the operation of
the business conducted in the Demised Premises prior to the
taking, either Landlord or Tenant may, at its election, terminate
the term of this Lease by giving the other notice of the exercise
of its election within twenty (20) days after it shall receive
notice of such taking, and the termination shall be effective as
of the time that possession of the part so taken shall be
required for public or quasi-public use, and minimum rent shall
be apportioned and adjusted as of the time of termination. If
only a part of the Demised Premises shall be taken under the
power of eminent domain or so acquired and if the term of this
Lease shall not be terminated
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as aforesaid, then the term of this Lease shall continue in full
force and effect and Landlord shall, within a reasonable time
after possession is required for public use, repair and restore
what may remain of the Entire Parcel and the Demised Premises
subject to reduction in area as a result thereof and subject to
then existing building and zoning codes, and a just proportion of
the minimum rent, according to the nature and extent of the
injury to the Demised Premises, shall be suspended or abated
until what may remain of the Demised Premises shall be put into
such condition by Landlord, and thereafter a proportion of the
minimum rent shall be abated for the balance of the term of this
Lease, said proportion to be computed on the basis of the
relationship which the ground floor area of the Demised Premises
rendered unusable bears to the ground floor area of the Demised
Premises immediately prior thereto. Notwithstanding the
foregoing, Landlord shall not be obligated to make any such
repairs and restoration under this Article which shall cost
Landlord any amount in excess of such damages as shall be paid to
Landlord as the result of such taking or deed and not required to
be paid by Landlord to the holders of any mortgages upon the
Entire Parcel.
(C) Landlord reserves to itself, and Tenant assigns to
Landlord, all rights to damages accruing on account of any taking
under the power of eminent domain or by reason of any such act of
any public or quasi-public authority for which damages are
payable. Tenant agrees to execute such instruments of assignment
as may be reasonably required by Landlord in any proceeding for
the recovery of such damages if requested by Landlord, and to pay
over to Landlord any damages that may be recovered in said
proceeding. It is agreed and understood, however, that Landlord
does not reserve to itself, and Tenant does not assign to
Landlord, any damages payable for movable trade fixtures
installed by Tenant or any person claiming under Tenant at the
sole cost of Tenant or any person claiming under Tenant.
15.DEFAULTS (A) All rent (minimum and additional) and other charges and
amounts due and payable under this Lease from Tenant to Landlord
shall be payable and paid without demand and without any
deduction, defense, counterclaim or setoff whatsoever. If
Landlord shall default under this Lease, Tenant's sole remedies
shall be injunctive relief and/or damages, and Tenant shall not
have the right to terminate this Lease or withhold any rent,
charge or amount hereunder as a result thereof.
(B) (1) If Tenant shall default in the payment of any rent or
other payments required of Tenant and such default shall continue
for 5 days, or (2) if Tenant shall default in the performance or
observance of any other agreement or condition on its part to be
performed or observed and if Tenant shall fail to cure said
default within 5 days after receipt of notice of
<PAGE>
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said default from Landlord, or (3) if any person shall levy upon,
or take, this leasehold interest or any part thereof, upon
execution, attachment or other process of law, or (4) if Tenant
shall make an assignment of its property for the benefit of
creditors, or (5) if Tenant shall be declared bankrupt or
insolvent according to law, or (6) if any bankruptcy, insolvency,
reorganization or arrangement proceedings shall be commenced by
Tenant, or (7) if any bankruptcy, insolvency, reorganization or
arrangement proceedings shall be commenced against tenant, or if
a receiver, trustee or assignee shall be appointed for the whole
or any part of Tenant's property, and shall not be dismissed
within thirty (30) days thereafter, or (8) if Tenant shall vacate
or abandon the Demised Premises, then, in any of said events,
Landlord lawfully and immediately or at any time thereafter, and
without any further notice or demand, enter into and upon the
Demised Premises or any part thereof in the name of the whole, by
force or otherwise, and hold the Demised Premises as if this
Lease had not been made, and expel Tenant and those claiming
under it and remove its or their property (forcibly, if
necessary) without being taken or deemed to be guilty of any
manner of trespass (or Landlord may send written notice to Tenant
of the termination of the term of this Lease), and upon entry as
aforesaid (or in the event that Landlord shall send to Tenant
notice of termination as above provided, on the fifth (5th) day
next following the date of the sending of such notice), the term
of this Lease shall terminate.
(C) In case of any such termination, Tenant will indemnify
Landlord each month against all loss of rent and all obligations
which Landlord may incur by reason of any such termination
between the time of termination and the expiration of the term of
this Lease as originally provided in Article 2; or at the
election of Landlord, exercised at the time of the termination or
at any time thereafter, Tenant will indemnify Landlord each month
until the exercise of the election against all loss of rent and
all obligations which Landlord may incur by reason of such
termination during the period between the time of the termination
and the exercise of the election, and upon the exercise of the
election Tenant will pay to Landlord as damages such amount as at
the time of the exercise of the election represents the amount by
which the rental value of .the Demised Premises for the period
from the exercise of the election until the expiration of the
term as originally provided in Article 2 shall be less than the
amount of rent and other payments provided herein to be paid by
Tenant to Landlord during said period. It is understood and
agreed that at the time of the termination or at any time
thereafter, Landlord may rent the Demised Premises upon any terms
and conditions as Landlord may in its sole discretion determine,
and for a term which may expire after the expiration of the term
of this Lease, without releasing Tenant from any liability
whatsoever, that Tenant shall be liable for any expenses incurred
<PAGE>
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by landlord in connection with obtaining possession of the
Demised Premises, with removing from the Demised Premises
property of Tenant and persons claiming under it (including,
without limitation, warehouse charges), with putting the Demised
Premises into good condition for reletting, and with any
reletting, including, without limitation, expenses for
protecting, redecorating, repairing, subdividing and altering the
Demised Premises and for reasonable attorneys' fees and brokers
fees, and that any monies collected from any reletting shall be
applied first to the foregoing expenses and then to the payment
of rent and all other payments then due or which may thereafter
become due from Tenant to Landlord.
16.ASSIGNMENT Tenant shall not assign, mortgage, pledge or otherwise
encumber this Lease or any interest therein, or sublet the whole
or any part of the Demised Premises, without obtaining on each
occasion the written consent of Landlord. The foregoing
prohibition against assignment and subletting shall be construed
to prohibit an assignment or subletting by operation of law. The
foregoing prohibition shall not prohibit the assignment of this
Lease, or subletting of the Demised Premises, to a business
organization affiliated with Tenant, but, notwithstanding such
assignment, Tenant shall remain fully, primarily and
unconditionally liable under this Lease and shall not thereby be
released from the performance and observance of all the
agreements and conditions on the part of Tenant to be performed
or observed hereunder. No assignment under the immediately
preceding sentence and no other assignment or other transfer of
Tenant's interest in this Lease to which Landlord may hereafter
consent shall be effective unless and until the assignee or
transferee thereunder shall deliver to Landlord in recordable
form a copy of the assignment or transfer thereto and the
agreement of such assignee or transferee with Landlord to perform
and observe all of the terms and conditions on the part of Tenant
to be performed or observed under this Lease. A business
organization shall be deemed to be affiliated with any
corporation (a) if such business organization controls such
corporation either directly by ownership or a majority of its
voting stock or, if publicly held, of such minority thereof as to
give it substantial control of such corporation, or indirectly by
ownership of such majority of voting stock of another business
corporation so controlling such corporation, or (b) if such
business organization is so controlled by another business
organization so controlling such corporation, or (c) if such
business organization and such corporation are substantially
controlled by the same stockholders or their families.
17.WAIVER OF
SUBROGATION Each of Landlord and Tenant hereby releases the other, to
the extent of its insurance coverage, from any and all liability
for any loss or damage caused by fire or any of the extended
coverage casualties or any
<PAGE>
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other casualty covered by its insurance, even if such fire or
other casualty shall be brought about by the fault or negligence
of the other party, or any persons claiming under it, however,
this release shall be in force and effect only with respect to
loss or damage occurring during such time as the releasor's
policies of insurance covering such loss or damage shall contain
a clause to the effect that this release shall not affect said
policies or the right of the releasor to recover thereunder. Each
of Landlord and Tenant agrees that its fire and other casualty
insurance policies will include such a clause so long as the same
is obtainable and is includible without extra cost, or if extra
cost is chargeable, therefore, so long as the other part pays
such extra cost. If extra cost is chargeable therefore, each
party will advise the other thereof and the amount thereof, and
the other party, at its election, may pay the same but shall not
be obligated to do so.
18.SUBORDINATION
TO MORTGAGES Tenant agrees that upon the request of Landlord, Tenant shall
subordinate this Lease and the lien hereof to the lien of any
present or future mortgage or mortgages upon the Demised Premises
or any property of which the Demised Premises are a part,
irrespective of the time of execution or time of recording of any
such mortgage or mortgages. Upon the request of Landlord, Tenant
shall execute, acknowledge and deliver any and all instruments
deemed by Landlord necessary or desirable to give effect to or
notice of such subordination and shall agree, in substance, that,
if the holder of any such mortgage or any person claiming
thereunder, including, without limitation, a purchaser at
foreclosure or by deed in lieu of foreclosure, shall succeed to
the interest of Landlord in this Lease, Tenant shall recognize,
and attorn to, such holder or other person as its Landlord under
this Lease, and shall enter into such further agreements with
such mortgagee as such mortgagee shall request. Tenant also
agrees that if it shall fail at any time to execute, acknowledge
or deliver any such instrument requested by Landlord, Landlord
may, in addition to any other remedies available to it, execute,
acknowledge and deliver such instrument as the attorney-in-fact
of Tenant and in Tenant's name; and Tenant hereby makes,
constitutes and .irrevocably appoints Landlord as its attorney
-in-fact for that purpose. The word "mortgage" as used herein
includes mortgages, deeds of trust and other similar instruments
and modifications, consolidations, extensions, renewals,
replacements and substitutes thereof.
19.ACCESS TO
PREMISES Landlord shall have the right to enter upon the Demised
Premises or any part thereof, without charge, at all reasonable
times after notice and in case of emergency, at any time, to
inspect the same, to show the Demised Premises to prospective
purchasers, mortgagees or tenants, to make or facilitate any
repairs, alterations, additions or improvements to the Demised
Premises and/or the Building, including, without limitation, to
install and maintain in, and remove from, any part of the Demised
<PAGE>
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Premises, pipes, wires and other conduits (but nothing in this
Article 19 contained shall obligate Landlord to make any repairs,
alterations, additions, or improvements); and Tenant shall not be
entitled to any abatement or reduction of rent or damages by
reason of any of the foregoing. For the period commencing nine
(9) months prior to the expiration of the term of this Lease,
Landlord may maintain "For Lease" signs on the front or any part
of the exterior of the Demised Premises.
20.HOLDING OVER If Tenant or any person claiming under Tenant shall remain in
possession of the Demised Premises or any part thereof after the
expiration of the term of this Lease without any agreement in
writing between Landlord and Tenant with respect thereto, prior
to the acceptance of rent by Landlord the person remaining in
possession shall be deemed a tenant-at-sufferance, and after
acceptance of rent by Landlord, the person remaining in
possession shall be deemed a tenant from calendar month to
calendar month, subject to the provisions of this Lease insofar
as the same way be made applicable to a tenancy from month to
month; except that during such tenancy from month to month
minimum rent shall be payable at a rate four times the rate in
effect immediately prior to the expiration of the term.
21.WAIVERS Failure of either party to complain of any act or omission on
the part of the other party, no matter how long the same may
continue, shall not be deemed to be a waiver by either party of
any rights hereunder. No waiver by either party at any time,
express or implied, of any breach of any provision of this Lease
shall be deemed a waiver of a breach of any other provision of
this Lease or a consent to any subsequent breach of the same or
any other provision. If any action by Tenant shall require
Landlord's consent or approval, Landlord's consent to or approval
of such action on any one occasion shall not be deemed a consent
to or approval of said action on any subsequent occasion or a
consent to or approval of any other action on the same or any
subsequent occasion. No payment by Tenant or acceptance by
Landlord of a lesser amount than shall be due from Tenant to
Landlord shall be deemed to be anything but payment on account,
and the acceptance by Landlord of a check for a lesser amount
with an endorsement or statement thereon or upon a letter
accompanying said check that said lesser amount is payment in
full shall not be deemed an accord and satisfaction, and Landlord
may accept said check without prejudice to recover the balance
due or pursue any other remedy. Any and all rights and remedies
which Landlord may have under this Lease or by operation of law,
either at law or in equity, upon any breach, shall be distinct,
separate and cumulative and shall not be deemed inconsistent with
each other; and no one of them, whether exercised by Landlord or
not, shall be deemed to be in exclusion of any other; any two or
more or all of such rights and remedies may be exercised at the
same time.
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22.RULES AND
REGULATIONS Tenant shall observe and comply with, and will cause its
subtenants, and its and their employees and agents, to observe
and comply with reasonable rules and regulations from time to
time promulgated by Landlord for the benefit and prosperity of
the Industrial Park, if any, in which the Demised Premises are
situated, including without limitation, the prohibition or
restriction of any activities upon the outdoor areas of the
Demised Premises other than parking, loading and unloading.
However, neither Tenant nor any person claiming under it shall be
bound by any such rules and regulations until such time as Tenant
receives a copy thereof.
23.QUIET
ENJOYMENT Landlord agrees that upon Tenant's paying the rent and
performing and observing the agreements, conditions and other
provisions on its part to be performed and observed, Tenant shall
and may peaceably and quietly have, hold and enjoy the Demised
Premises during the term of this Lease without any manner of
hindrance or molestation from Landlord or any person claiming
under Landlord, subject however, to the terms of this Lease and
any instruments having a prior lien.
24.FAILURE OF
PERFORMANCE If Tenant shall make any default or defaults under this Lease
and shall fail to cure the same within five (5) days after
Landlord gives Tenant notice thereof, then, Landlord may, at its
election, immediately or at any time thereafter, without waiving
any claim for breach of agreement, and without further notice to
Tenant, cure such default or defaults for the account of Tenant,
except that when reasonably deemed necessary by Landlord to
prevent injury to person or property Landlord may cure such
default without waiting five (5) days, but after notice to
Tenant, and, in either case, the cost to Landlord thereof shall
be deemed to be additional rent due upon demand and shall be
added to the installment of rent next accruing or to any
subsequent installment of rent, at the election of Landlord.
25.MISCELLANEOUS (A) The words "Landlord" and "Tenant" and the pronouns
referring thereto, as used in the Lease, shall mean, where the
context requires or admits, the persons named herein as Landlord
and as Tenant, respectively, and their respective heirs, legal
representatives, successors and assigns, irrespective of whether
singular or plural, masculine, feminine or neuter. Except as
hereinafter provided otherwise, the agreements and conditions in
this Lease contained on the part of Landlord to be performed or
observed shall be binding upon Landlord and its heirs, legal
representatives, successors and assigns and shall enure to the
benefit of
<PAGE>
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Tenant and its heirs, legal representatives, successors, and
assigns; and the agreements and conditions on the part of Tenant
to be performed or observed shall be binding upon Tenant and its
heirs, legal representatives, successors and assigns and shall
enure to the benefit of Landlord and its heirs, legal
representatives, successors and assigns. Two persons shall be
deemed affiliated if (i) one controls the other, either directly
by ownership of a majority of its voting stock or of such
minority thereof as to give it substantial control of the other,
or indirectly by ownership of such a majority of the voting stock
of a third company so controlling the other or (ii) if one is
controlled by a third company (or by individuals) so controlling
the other. The word "Landlord", as used herein, means only the
owner for the time being of Landlord's interest in this Lease,
that is, in the event of any transfer of Landlord's interest in
this Lease the transferor shall cease to be liable and shall be
released from all liability for the performance or observance of
any agreements or conditions on the part of the Landlord to be
performed or observed subsequent to the time of said transfer, it
being understood and agreed that from and after said transfer the
transferee shall be liable for the performance and observance of
said agreements and conditions. If Tenant shall consist of more
than one person or if there shall be a guarantor of Tenant's
obligations, then the liability of all such persons, including
the guarantor, if any, shall be joint and several and the word
"Tenant", as used in clauses (4), (5), (6), and (7) of section
(B) of Article 15 of this Lease, shall be deemed to mean any one
of such persons. No trustee, shareholder or beneficiary of any
trust and no partner, venturer or participant in any joint
venture or partnership and no individual, group of individuals,
partnership, joint venture, trust, corporation or other entity
(and no officer or director thereof) who or which hold Landlord's
interest in this Lease shall be personally liable for any of the
agreements, express or implied, hereunder, except that such
agreement shall, as the case may be, be binding (i) upon the
trustees of said trust as trustees, but not individually, and
upon the trust estate, or (ii) upon an individual, group of
individuals jointly and severally, joint venture, partnership,
corporation or other entity only to the extent of his, its or
their ownership interest in the Demised Premises, and subject to
the prior rights of the holders of any mortgages upon the Demised
Premises and/or the Entire Parcel and/or premises of which the
Entire Parcel is a part.
(B) It is agreed that if any provisions of this Lease shall
be determined to be void by any court of competent jurisdiction
then such determination shall not affect any other provisions 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 is capable of two
constructions, one of which would render the provision void and
<PAGE>
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the other of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
(C) This instrument contains the entire and only agreement
between the parties, and no oral statements or representations or
prior written matter not contained in this instrument shall have
any force or effect. This Lease shall not be modified in any way
except by a writing subscribed by both parties.
(D) At any time after the commencement of the term of this
Lease and within five (5) days after receipt by Tenant of a
written request from Landlord, Tenant shall acknowledge in
writing to Landlord or any mortgagee or prospective mortgagee or
other person designated by Landlord that all the construction
required of Landlord has been completed, that Tenant has accepted
possession of the Demised Premises, that Landlord is not in
default under this Lease, if such be the case, or otherwise
specifying each such default in detail, that Tenant has no right
of set-off against rents for any reason and no defenses against
the enforcement of any provision in this Lease contained, that no
rentals have been paid in advance except for the then current
month and for the security deposit so provided in Article 5, that
this Lease is in full force and effect and has not been assigned
or amended in any way and any other information reasonably
requested.
(E) Whenever in this Lease provision is made for the doing of
any act by any person it is understood and agreed that said act
shall be done by such person at its own cost and expense unless a
contrary intent is expressed.
(F) This Lease shall not be recorded, but a Notice of Lease
describing the Demised Premises, the term hereof and referring
hereto may be recorded by either party, and the other party shall
execute, acknowledge and deliver such instrument upon request. If
the precise calendar date on which the term of this Lease
commences shall not be specified therein, then at the request of
either party, the other party shall execute, acknowledge and
deliver any instrument amending the foregoing instrument of
record to give notice of the precise calendar date on which the
term of this Lease commenced and shall terminate. All
governmental charges attributable to the execution or recording
to any of the foregoing shall be paid by the party requesting the
same.
(G) This instrument shall be construed in accordance with the
laws of the Commonwealth of Massachusetts.
<PAGE>
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26.DELAYS In any case where either party hereto is required to do any
act other than the payment of money, delays caused by or
resulting from Act of God, war, civil commotion, fire or other
casualty, labor difficulties, shortages of labor, material or
equipment, government regulations or other causes beyond such
party's reasonable control shall not be counted in determining
the time during which such work shall be completed, whether such
time be designated by a fixed time or "a reasonable time". In any
case where work is to be paid for out of insurance proceeds or
condemnation awards, due allowance shall be made, both to the
party required to perform such work and to the party required to
make such payment, for delays in the collection of such proceeds
and awards.
27.NOTICES All notices and other communications authorized or required
hereunder shall be in writing and shall be given by mailing the
same by certified or registered mail, return receipt requested,
postage prepaid. If given to Tenant, the same shall be mailed to
Tenant at Damonmill Square, 9 Pond Lane, Concord, MA 01742 or to
such other person or at such other address as Tenant may
hereafter designate by notice to Landlord; and if given to
Landlord the same be mailed to Landlord at O'Brien & Company 10
Craig Rd., Acton, MA 01720 or to such other person or at such
other address as Landlord may hereafter designate by notice to
Tenant.
28.CAPTIONS The captions used as headings for the various Articles of
this Lease are used only as a matter of convenience for
reference, and are not to be considered a part of this Lease or
to be used in determining the intent of the parties of this
Lease.
29.BROKERS
COMMISSION Tenant hereby represents and warrants to Landlord that Tenant
has dealt with no brokers in connection with this Lease other
than Jim O'Neil ("the Broker"). Tenant shall save Landlord
harmless from, and indemnify Landlord against, all loss or damage
(including without limitation the cost of defending same) arising
from any claim by any other brokers alleging they have dealt with
Tenant.
30.31.32. Intentionally Omitted
33.ADDITIONAL
WORK TO BE
DONE Landlord agrees to: NONE
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
instrument, under seal, all as of the day and year first above written.
/s/ Thomas B. O'Brien /s/ Ed McGrath, Treasurer
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LANDLORD TENANT
March 13, 1995 March 13, 1995
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DATE DATE