EXHIBIT 10.3
HERITAGE Building Lease
LANDLORD: HERITAGE BUILDING ASSOCIATES, L.L.C.
TENANT: SPECTRA SYSTEMS CORPORATION
Heritage Building
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HERITAGE Building Lease
This HERITAGE BUILDING LEASE (the "Lease") is made and entered into on
the date, between the parties and upon the terms and conditions hereinafter set
forth. If any provision relating to which a blank is to be filled in, is not
filled in, it is inapplicable.
Section 1 - Information and Definitions
1.1 Date of Execution of the Lease: 30th day of August, 2002.
1.2 "Landlord" shall mean HERITAGE BUILDING ASSOCIATES, L.L.C., a Rhode
Island Limited Liability Company, with an address of Union Trust
Building, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
1.3 "Tenant" shall mean:
Spectra Systems Corporation
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1.4 The "Building" shall mean that five-story office building known as the
HERITAGE BUILDING, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, in Providence,
Rhode Island; which contains for purposes of the Lease, the number of
square feet on each floor thereof as is set forth on Exhibit A (all
Exhibits are annexed hereto and made a part hereof by reference).
1.5 The "Premises" shall mean that portion of the Building located on the
first floor of the Building, designated as Suite numbered __________,
as shown in red on the plan of the appropriate floor of the Building
which is Exhibit A, containing for purposes hereof approximately 8,728
rentable square feet, which is 16.03% of the Building's total rentable
space ("Tenant's Share").
1.6 "Term" of the Lease:
"Initial Term": Five (5) Years
"Commencement Date": (check applicable provision)
[X] If this provision is checked as being applicable, the
Commencement Date shall be the 1st day of September, 2002,
and said Commencement Date shall not be affected by any
provisions of this Lease in respect to the date on which the
Premises shall be ready for Tenant's use.
[ ] If this provision is checked as being applicable, the
Commencement Date shall be _________________________ after
the date upon which the Premises are
"ready for Tenant's use," as defined in section 2.2.4
hereof, but in no event later than the______day of
___________________, 20____.
1.7 Purpose: Office.
1.8 "Security Deposit": $13,819.33
1.9 "Rent":
a. During the first and second years of the term of this Lease,
the Rent shall be $19.00 per square foot of rentable space
as set forth above per year. During the third, fourth and
fifth years of the terms of the lease, the Rent shall be
$20.00 per square foot of rentable space as set forth above
per year. For years one (1) and two (2), the monthly Rent
payment shall be $13,819.33 For years three (3), four (4)
and five (5), the monthly Rent payment shall be $14,546.67.
b. [ ] If this provision is checked as being applicable, Other
Rent provisions as set forth on attached Rent Addendum.
1.10 "Additional Rent": Any amounts, payments, expenses or other charges,
credits or funds due from Tenant to Landlord hereunder in any form
whatsoever (other than Base Rent) shall be "Additional Rent"
hereunder, shall be in the nature of Rent for purpose of determining
Landlord's rights and Tenant's obligations with respect thereto and
shall be due and payable without deduction or setoff other than as set
forth in this Lease.
1.11 "Base Tax Year": 2002; taxes assessed December 31, 2001.
Section 2 - Improvements
2.1 Section 2 shall be inapplicable if, at the date of execution hereof,
the Premises are ready for Tenant's use or shall be occupied in their
present condition.
2.2 Any work on the Building to be completed by Landlord prior to
occupancy by Tenant shall be done in accordance with Plans and
Specifications prepared by Landlord's Architect, as they may be
amended from time to time (the "Building Plans"); and shall be
performed expeditiously so that the Building shall be substantially
complete (i.e., completed sufficient for general use, but subject to
corrections, installations, adjustments, alterations and other work
which does not prevent or substantially interfere with Tenant's use of
the Premises or access thereto). "Landlord's Improvements" are those
to be provided by Landlord. Landlord's Improvements shall be performed
expeditiously. "Tenant's Improvements" are those which Tenant has
requested to be performed as work beyond Landlord's Improvements.
Landlord's Improvements and Tenant's Improvements shall be subject to
the following provisions:
2.2.1 If there are to be any Tenant's Improvements, they may be
set forth in an Exhibit C, if attached hereto. If, at the
date of execution hereof, the plans for Landlord's and
Tenant's Improvements have been determined, the parties
shall initial same and/or shall attach the same hereto as an
Exhibit. If Landlord's and Tenant's Improvements are net so
determined, Landlord's Architect shall determine
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Tenant's requirements and at Landlord's expense shall
provide to Tenant a set of plans and specifications for
Tenant's space. Any additional work requested or required of
Landlord's Architect shall be performed by Landlord's
Architect at Tenant's expense. Landlord shall have the right
of prior written approval of such plans and specifications,
which approval shall not be unreasonably withheld. After
Landlord's approval of same, Landlord's Architect shall
prepare working plans for Landlord's and Tenant's
Improvements, if necessary. The initial working plans shall
be at Landlord's expense and any changes thereto required or
requested shall be at Tenant's expense. Any special
engineering or design work required solely by Tenant's
Improvements shall be done at Tenant's expense by engineers
or designers approved by Landlord's Architect.
Notwithstanding the foregoing, at Tenant's request Landlord
may allow the plans and specifications referred to in this
subsection to be furnished by an architect of Tenant's
choice, at Tenant's sole expense, so long as Tenant's
architect complies with all of the other terms and
conditions set forth in this Section 2.
2.2.2 Landlord's and Tenant's Improvements shall be done by
Landlord's contractor. Such Improvements shall be done in a
good and workmanlike manner in compliance with all building,
fire and other laws and ordinances and the requirements of
the Board of Fire Underwriters or other applicable insurance
requirements. Landlord's and Tenant's Improvements shall be
promptly commenced at the earliest practicable date and
shall be diligently prosecuted to completion. Any Tenant's
Improvements that do not conform to the requirements of this
Lease may be removed and replaced by Landlord at Tenant's
expense. Landlord shall have the right to complete at
Tenant's expense any Tenant's Improvements commenced but
uncompleted. Any materials, finishes or other Tenant's
Improvements not approved by Landlord prior to its use or
installation shall be deemed to be prohibited hereby.
2.2.3 Landlord shall provide a Tenant Improvement allowance of
$5.00 per rentable square foot to the Tenant for Tenant's
Improvements. Tenant shall pay the cost of all Tenant's
Improvements above the allowance provided by Landlord set
forth herein, which payments shall be via monthly progress
payments to the contractor (including any advance payment
required by the contractor) as determined by the contractor.
Tenant shall promptly pay for all Tenant's Improvements,
keeping the Premises and Building free from any lien or
encumbrance, hereby covenanting and agreeing to indemnify
and hold Landlord harmless from any loss, cost or damage
with respect thereto, agreeing to discharge, by surety bond
if necessary, any mechanics' liens placed upon the Premises
or Building. No Tenant's Improvements shall be financed on a
financing lease or other form of secured transaction,
without Landlord's prior written consent.
2.2.4 The Premises shall be deemed to be "ready for Tenant's use"
when either:
(a) the Building, Landlord's Improvements and Tenant's
Improvements are substantially complete: or
(b) the Building is substantially complete, and Landlord's
Improvements and/or Tenant's Improvements either have
been substantially completed or would have been except
for delays occasioned by:
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1) Tenant's failure to complete satisfactory plans
and specifications;
2) Tenant's tardy approval of plans, specifications
or work;
3) Tenant's request for special materials, equipment
or changes in the Premises or Building;
4) Tenant's alterations of plans and specifications;
5) performance of work or failure to perform by the
contractor, any subcontractor or any independent
contractor for Tenant's Improvements for any
reason, or by any contractor or subcontractor for
Landlord's Improvements, if other than Landlord's
Contractor or any subcontractor of Landlord's
contractor;
6) failure or delay of utilities to complete required
work; or
7) failure or delay of installation of any equipment,
fixtures or materials required by Tenant.
2.3 In the event that the Premises are not ready for Tenant's use at the
date set forth in section 1.6 hereof for any reason, this Lease shall
nevertheless continue in full force and effect; provided, however,
there shall be an abatement of rent if the Premises are not ready for
Tenant's use due solely to a delay in substantial completion of the
Building and/or Landlord's Improvements of the Building and/or
Landlord's Improvements caused by Landlord's contractor's failure or
inability to substantially complete such work on schedule. In such
event, the Commencement Date shall be the date of substantial
completion of such work. If Tenant shall enter into possession of all
or any part of the Premises prior to the Commencement Date, all the
covenants and conditions of this Lease including the obligation to pay
rent shall be binding upon the parties hereto in respect of such
possession the same day as if the first day of the Initial Term had
been fixed as of the date when Tenant entered into such possession
(but such earlier tenancy shall not change the termination date of the
Initial Term). In no event shall Tenant have the right to terminate
this Lease for failure of Landlord to deliver the Premises ready for
Tenant's use until six (6) months have expired after the date set
forth in section 1.6 hereof.
Section 3 - Additional Rent
3.1 As Additional Rent, Tenant shall pay for its electricity usage, at the
rates in effect from time to time of the utility supplier for retail
customers. The amount of usage shall be that as shown on an electric
meter applicable to the Premises. Electricity charges shall include,
without limitation, electric current for the operation of lighting
fixtures, electrical outlets, electrical equipment and
air-conditioning units. Landlord shall have the right at any time to
require Tenant to contract for electricity directly with the utility
supplier, so long as the utility supplier is willing to separately
invoice Tenant.
3.2 As Additional Rent, Tenant shall pay Tenant's Share of increases in
Landlord's expenses, as follows:
3.2.1 Landlord has estimated its "Expenses" as herein defined per
square foot, for the Base Tax Year, determined on the basis
of the total square feet of rentable space in the Building.
Such estimated Expenses per square foot are set forth on
Exhibit B. If, for the Base Tax Year or any year thereafter
Landlord's Expenses or any
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individual Expense shall have increased or may reasonably be
anticipated to increase over the Expenses on the Exhibit,
Tenant shall pay Tenant's Share thereof as provided in
section 3.3.
3.2.2 For purposes hereof, "Expenses" are as follows:
(a) Taxes upon the parcel of real estate on which the
Building is located or upon the Building, wherein
increases result either from an increase of valuation
or rate of tax. Such taxes shall include: all taxes and
special assessments of every kind and nature assessed
and levied against the Building (as a complete taxable
entity) and land, including, but not limited to, real
estate taxes on the Building and land and any taxes
upon the Building or land levied or imposed by any
governmental tax authority in addition to, in lieu of,
or as a substitute for real estate taxes, which shall
include any taxes hereafter imposed upon Landlord for
the payment and/or receipt of rent and in the case of
any such taxes the entire amount thereof shall be
deemed an "increase" in taxes for purposes of this
paragraph, installments and interest on assessments for
public betterments or public improvements (such
assessments to be paid over the longest period
permitted by law); all personal property taxes upon
elevators, air conditioning equipment or similar
building appurtenances for the use and benefit of all
of the occupants of the Building (excluding therefrom
the amount of any such taxes allocable to major
improvements or items of equipment installed by any
tenant after the first year of such tenant's lease, in
the same space occupied by such tenant under such
lease, and for the exclusive benefit of such tenant, in
which case such tenant shall pay all of such tax), and
expenses including, but not limited to, legal expenses
of any proceedings for abatement of taxes and
assessments with respect to the first or any subsequent
calendar year or fraction of a calendar year hereof.
(b) Landlord's expenses for the Building and land excluding
the items of expenses referred to in sections 3.1 and
3.2.2(a) hereof and costs of special services rendered
to tenants (including Tenant) for which a special
charge is made, but including, without limitation,
premiums for insurance of the kind normally carried by
owners of similar properties (including fire, casualty
and liability insurance) or, if there be any mortgage
of the land or building, or both, as may be required by
the holder of such mortgage; salaries and wages of,
medical, surgical and general welfare benefits
(including group life insurance and retirement
benefits) for employees of Landlord or its managing
agent to the extent engaged in operating, maintaining,
managing or cleaning of the Building or land and
payroll taxes and workmen's compensation insurance
premiums relating thereto; fuel oil, gas, electricity
(i.e. the difference between Landlord's total expenses
for electricity for the Building and the aggregate of
charges to the tenants in the Building) and telephone
charges not chargeable to individual tenants; cost of
building and cleaning supplies and equipment; cost of
maintenance, cleaning and repairs of the Building or
land (other than repairs for which Landlord has
received reimbursement from contractors or
subcontractors under contract guaranties); cost of
trash or
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waste hauling and recycling; cost of maintenance,
replacement, cleaning and repair of elevators; cost of
periodic painting of leased premises in the Building;
cost of window cleaning; cost of security protection
provided within and without the Building, if any; cost
of snow removal and care of landscaping; management and
leasing fees paid to third parties at rates consistent
with the type of occupancy and the services rendered;
payments under service contracts with independent
contractors for any of the foregoing, and all other
expenses paid in connection with the operation,
cleaning, management and maintenance of the Building
and land; the cost of Landlord's compliance with the
provisions of the Occupational Safety and Health Act of
1970 as amended from time to time and the regulations
promulgated thereunder or any other federal, state or
local law, statute, ordinance, act or regulation
requiring expenditures by Landlord, other than those
which are paid for by any tenant under the provisions
hereof, and the cost of interest or other finance
charges of any mortgage loan or loans upon the Building
and/or land from time to time. Any expenses of Landlord
that are not itemized on Exhibit B hereto shall be
deemed to be included in the item of "Miscellaneous" on
Exhibit B. Landlord shall reasonably determine which
expenses are chargeable to income, and as to
expenditures that are not so chargeable to income,
"Expenses" shall include the amount of depreciation of
an item taken by Landlord for such calendar year on its
income tax return.
3.3 Additional Rent shall be in the nature of Rent for purposes of
determining Landlord's rights in respect thereto, and shall be due and
payable when billed or monthly with the Rent, without deduction or
setoff. With each reconciliation thereof which Landlord furnishes,
Landlord shall indicate the basis on which Additional Rent stemming
from Expenses has been calculated, which account Tenant may verify
from Landlord's tax returns or other records at reasonable times and
places. Landlord shall have the right from time to time to change the
periods of accounting hereunder to any other period than based upon a
calendar year, and upon any such change, all items referred to above
shall be appropriately apportioned. In all invoices rendered
hereunder, amounts for periods partially within and partially without
the accounting periods shall be appropriately apportioned. Landlord
shall have the right to estimate Expenses for purposes of invoices to
Tenant, subject to annual reconciliation. If at the beginning of or
during a year Landlord has estimated that its Expenses shall be
increased during that year, it may invoice Tenant based upon such
estimation, subject to annual reconciliation, and Landlord may invoice
Tenant for that portion of the year which has theretofore passed; and,
thereafter, for the balance of that year shall invoice Tenant on a
monthly basis. Otherwise, Landlord shall invoice all tenants for their
respective shares on a monthly basis,
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Section 4 - Premises
4.1 Landlord, in consideration of the rentals, covenants and agreements to
be paid, kept and performed by Tenant as herein provided, hereby
demises and leases unto Tenant the Premises described above, together
with the right in common with other tenants entitled thereto, to use
the common facilities, bathrooms, halls, elevators and stairways in
the Building for purposes of ingress and egress. Tenant acknowledges
that Landlord's determination of rentable square feet in the Premises
and/or the Building does not relate to actual usable square feet, but
has been determined by Landlord solely for purposes of rentals in the
Building and includes the actual space of the Premises plus a share of
common area space.
4.2 Tenant shall have the option to add the approximately 2,500 square
feet of space adjacent to the Premises as shown as Expansion Space
(the "Expansion Space") on Exhibit A to the Premises subject to the
following conditions:
4.2.1 The Tenant shall have provided written notice of its
election to include the Expansion Space as part of the
Premises to the Landlord on or before September 30,2002;
4.2.2 Upon such election to add the Expansion Space to the
Premises, the parties shall execute an amendment to the
Lease to reflect the fact that the Premises includes the
Expansion Space and appropriately adjust the monthly rent
and the Tenant's Share as a result of the addition of the
Expansion Space to the Premises. The Expansion Space shall
become part of the Premises effective October 1, 2002.
4.2.3 In the event that the Tenant does not elect to add the
Expansion Space to the Premises pursuant to Section 4.2
hereof by September 30, 2002, the Landlord shall install a
demising wall between the Premises and the Expansion Space,
provided however, in the event that the applicable building
or fire codes do not permit the Landlord to install a
demising wall in such location, the Tenant shall be
obligated to add such amount of space from the Expansion
Space to the Premises as necessary as to permit the Landlord
to divide the remaining part of the Expansion Space from the
Premises in accordance with all applicable building and fire
code, but in no event shall the Premises as expanded
pursuant to this Section 4.2.3 be required to exceed 9,500
square feet.
Section 5 - Purpose
5.1 The Premises shall be used solely for the Purpose set forth above and
not for any unlawful purpose. Any use of the Premises in violation of
this provision may be enjoined by Landlord without prejudice to any
other remedy of Landlord.
Section 6 - Rental
6.1 Tenant shall pay the rentals set forth herein in consecutive monthly
installments in readily available funds, in advance, at the office of
Landlord, on the first business day of each month during each Term.
The Rent for the calendar month during which Rent shall begin to
accrue and for the last calendar month of a Term, if either is not a
full month, shall be apportioned.
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Section 7 - Rights and Obligations of Landlord
7.1 So long as Tenant shall not be in default hereunder, Landlord shall
provide (subject to the provisions hereinabove contained in section
3.1 relating to the cost of electrical service):
7.1.1 Electric current as provided in section 3.1;
7.1.2 Removal of waste paper and other materials from the Building
and the Premises, excluding, however, dangerous,
contaminated or potentially harmful or hazardous waste
materials for which it shall be Tenant's obligation to
remove or have removed; routine daily cleaning of the
Building and the Premises, which shall include vacuuming of
carpets, lighthand dusting, emptying of waste baskets and
sweeping or washing of floors without carpets (any cleaning
services beyond those provided by Landlord to all tenants
shall be at the expense of Tenant, payable upon invoice by
Landlord or the cleaning supplier);
7.1.3 Water for domestic purposes, Tenant paying for any unusual
or excessive use of water, and Tenant installing at its
expense a water meter if such unusual or excessive use is
anticipated to be continuous;
7.1.4 Air conditioning (subject to the provisions of section 3.1
in respect to the cost of electric current) and heating
during normal business hours (as determined by Landlord)
throughout the appropriate air conditioning or heating
seasons;
7.1.5 Self-operating passenger elevator service on a 24-hour
basis; and with Landlord's consent on each occasion, freight
elevator service;
7.1.6 Maintenance of the roof, exterior and structural members of
the Building as hereinafter provided;
7.1.7 Washing of interior and exterior surfaces of windows at
reasonable intervals; and
7.1.8 Security service for the Building as a whole, of a nature as
determined by Landlord, but of the quality customarily
provided by landlords in office buildings in Providence.
7.2 Landlord makes no representations or warranties that any of the
above-mentioned services or any other services, amenities, utilities
or the like to be provided by Landlord under this Lease will be free
from interruption, delay or failure and Landlord shall have no
responsibility or liability for failure to operate, delays, lapses or
cessation of such services arising out of labor disputes, strikes,
fire, storm, flood, freezing, earthquake, explosion, civil disorder,
vandalism, sabotage, delay in transportation, energy, labor or fuel
shortages, unavoidable casualty, mechanical failures, negligence or
fault of contractors, subcontractors or suppliers, or any other cause
beyond the control of Landlord. In any event, Landlord shall have no
liability for consequential damages arising from any delay, lapse or
cessation of such services or any other services.
7.3 Landlord shall have the following rights, exercisable without notice
and without liability to Tenant for damage or injury to property,
persons or business and without effecting an eviction, constructive or
actual, or disturbance of Tenant's use or possession or giving rise to
a claim for setoff or abatement of rentals:
7.3.1 To inspect the Premises at reasonable times, including
before and after business hours; and, during the last six
months of a Term, to show them to prospective tenants; or,
at any reasonable time to prospective purchasers of the
Building;
7.3.2 To change the name or street address of the Building;
7.3.3 To have installed and maintain a sign or signs on the
exterior of the Building;
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7.3.4 To take any and all measures, including inspection, making
repairs, alterations, additions and improvements to the
Premises or to the Building as may be in the opinion and at
the discretion of Landlord necessary or desirable for the
safety, protection, improvement, enlargement or preservation
of the Premises or the Building, or as may be necessary or
desirable in the operation of the Building.
7.3.5 To grant to anyone the exclusive right to conduct any
business or render any service in or to the Building,
provided such exclusive right shall not operate to exclude
Tenant from the use expressly permitted herein; to designate
the use of any portion of the Building, so long as such use
complies with any applicable zoning ordinance; and to
designate vending machine operators and caterers serving the
Building;
7.3.6 To close the Building after normal business hours (as
determined by Landlord) and on Sundays and legal holidays;
subject, however, to Tenant's right to admittance under such
regulations as Landlord may prescribe from time to time;
7.3.7 To prevent the Tenant from erecting signs or other
communications on the Building or the Premises, except on
Building directories or such signs and other communications
for the purpose of directing Tenant's invitees to the
Premises, and as may have Landlord's prior written approval;
and
7.3.8 To close doors, entryways and common areas for the purpose
of effecting repairs, remodeling, redecorating, alterations
or additions, so long as reasonable access is provided to
the Premises.
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Section 8 - Tenant's Undertakings
Tenant further agrees that Tenant shall:
8.1 Use its best efforts to conserve energy, fuel and water.
8.2 Keep the Premises neat and in good order, condition and repair.
8.3 Observe the rules established from time to time by Landlord, which
shall be applicable to all tenants, and shall be for the general
safety, care and cleanliness of the Building, the preservation of good
order therein, and the comfort, quiet and convenience of the tenants
therein; and Landlord shall not be responsible for the failure of
other tenants to observe the same.
8.4 At Tenant's own cost and expense, promptly observe and comply with all
ordinances, requirements, orders, directives, rules and regulations of
the federal, state and local governments and all governmental
authorities, or any national or local Board of Fire Insurance
Underwriters affecting the Premises or appurtenances thereto or any
part thereof or the use or occupancy thereof whether the same are now
in force or may in the future be passed, enacted or directed.
8.5 At all times during any Term of this Lease, or thereafter regarding
any indemnification:
8.5.1 Maintain at its expense public liability insurance for
injury to persons and property in a sum not less than
$1,000,000 per each occurrence, or such higher sum as the
Landlord may require in the future, naming Landlord as a
co-insured; and maintain at its expense "all risk" property
insurance, insuring against loss of any property of the
Tenant, its employees or invitees; and all such insurance
relating to the Premises and the Building containing a
waiver of any right of subrogation which such insurance
carrier might have against Landlord, its servants or
invitees;
8.5.2 Tenant agrees that it shall indemnify, defend and hold
harmless Landlord from all liability, loss, cost, expense
and damage from and against any and all suits, claims and
demands of every nature, including counsel fees, by reason
of any damage or injury to any person, property or thing
which may arise from or be due to the use of the Premises or
Building by Tenant or the conduct of Tenant's business or
profession or from any activity, work or thing done,
permitted or suffered by Tenant in or about the same;
8.5.3 Tenant will further, indemnify, defend and hold harmless
Landlord from any and all claims arising from any breach or
default on Tenant's part pursuant to the terms of this
Lease, or arising from any act or neglect of Tenant or any
of Tenant's agents, contractors, servants, employees or
invitees and from and against all costs, counsel fees,
expenses and liabilities incurred in connection with any
such claim or action or proceeding brought thereon, and if
any action or proceeding be brought against Landlord by
reason of any such claim, Tenant, or its insurer, upon
notice from Landlord, agrees to resist and defend at
Tenant's or insurer's expense such action or proceeding by
counsel satisfactory to Landlord; and
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8.5.4 Tenant assumes all risk of damage in respect to property in,
upon or about the Premises or Building, to whomsoever
belonging, waiving all claims with respect to such damage
thereof against Landlord and agreeing to indemnify, defend,
and save Landlord harmless from and against all loss, cost,
damage expense or claims by others except only where the
same be due in whole or in part to Landlord's negligence;
such damages to include, without limiting the generality of
the foregoing, any act or neglect of any tenant of the
Building or any employee or invitee of Tenant or any
trespasser.
8.6 Use the Premises solely for purposes compatible with a first-class
office building; and free from objectionable noises or odors.
8.7 Refrain from placing in the sewerage system any chemical, waste or
substance that may require special treatment or may cause damage or
injury to the sewerage system and to pay the cost of any repair or
damages in the sewerage system necessitated by any violation of this
undertaking.
8.8 Refrain from obstructing the sidewalks;
8.9 Refrain from placing a load upon any floor in the Premises exceeding
the floor load per square foot of area which such floor was designed
to carry and which is allowed by law (as determined by Landlord's
Architect); and Landlord reserves the right to prescribe the weight
and position of all business machines and mechanical equipment,
including safes, which shall be placed so as to distribute the weight;
and business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient, in
Landlord's judgment, to absorb and prevent vibration, noise and
annoyance; and Tenant shall not move any safe, heavy machinery, heavy
equipment, freight, bulky matter or fixtures into or out of the
Building without Landlord's prior consent; and
8.10 Recognizing that Landlord may find it necessary to establish to third
parties, including but not limited to accountants, banks, mortgagees
or the like, the then current status of performance hereunder, Tenant,
at the request of Landlord from time to time, will, within ten (10)
business days, furnish to Landlord, or the holder of any mortgage
encumbering the Building, a statement of the status of any matter
pertaining to this Lease, including, without limitation,
acknowledgments that (or the extent to which) Landlord or Tenant is in
compliance with its obligations under the terms of this Lease. In the
event that Tenant fails to furnish the same within ten (10) business
days, the Tenant hereby irrevocably constitutes and appoints the
Landlord as the attorney-in-fact of Tenant to execute, acknowledge and
deliver any such certificates for and on behalf of the Tenant.
Section 9 - Tenant's Repairs, Alterations & Surrender
9.1 Tenant, at its own expense, shall keep the Premises in good repair and
tenantable condition during each Term of this Lease, except as
otherwise specifically undertaken by Landlord, and shall promptly and
adequately repair all damage to the Premises and all fixtures, piping,
apparatus or equipment used in connection therewith, including broken
window glass of the Premises, and shall replace the same or integral
parts thereof, as
Page 11
necessary, and shall replace portions of carpets damaged, under the
supervision of and at the direction of Landlord, and due to any cause
whatsoever. Such repairs and replacements shall be effected with all
due dispatch and shall be of good and workmanlike quality and class
equal to the original work or installation. If Tenant shall become
aware of any needed repairs, replacements or restorations to the
Premises or Building, which it is Landlord's obligation to make under
this Lease, a notice shall be promptly given to Landlord.
9.2 Tenant shall make no alterations, installations, additions or
improvements, in or to the Premises, without the prior written consent
of Landlord, and, if such consent is given, only by contractors or
mechanics approved by Landlord, and at Tenant's expense. All of
Tenant's Improvements and all such alterations, installations,
improvements and additions shall be deemed to be part of the Building
and to belong to Landlord, including any property which has in any way
been affixed to the floors, walls and/or ceiling of the Premises,
subject, however, to the provisions of section 9.3.
9.3 All business and office machines, furniture and other items of
personal property owned or installed by Tenant in the Premises at its
expense shall remain the property of Tenant (and any taxes thereon
shall be borne by Tenant), and may be removed by Tenant at any time
provided that the Tenant shall, at its expense, repair any damage,
holes or openings caused or occasioned by such removal. Any such
personal property of the Tenant left upon the Premises after the
termination of the Lease shall be deemed abandoned by Tenant and may,
at the election of Landlord, be removed at Tenant's expense and sold,
stored and discarded, or be deemed to have been abandoned and to
belong to Landlord.
9.4 At the termination of the Lease, Tenant shall promptly yield up and
surrender the Premises, clean and in as good condition and repair as
at the commencement of Tenant's occupancy of the Premises or in which
it may be later put, ordinary wear and tear and damage by fire or
other insured casualty only excepted. Further, Tenant shall remove
from the Premises all goods and effects; and, at the request of
Landlord, all alterations, additions, improvements and installations,
whether or not a part of Tenant's Improvements, whether made in
replacement of, substitution of, or addition to existing facilities;
all at Tenant's expense.
Section 10 - Fire, Casualty and Eminent Domain
10.1 In the event of damage or destruction to the Building or Premises
during a Term by fire or other casualty, Landlord shall as soon as
practicable commence and continue with all reasonable diligence to
repair the same; provided, however, in the event that the cost of such
repairs would exceed either the amount of $50,000 or the amount
recoverable from Landlord's fire and casualty policies (which Landlord
shall maintain at Landlord's expense) by a sum in excess of $10,000,
then upon notice to Tenant given not later than ninety (90) days
after the occurrence of such casualty, Landlord shall have the right
to terminate this Lease as of the time of such casualty. In the event
that such damage or destruction may be reasonably expected to take in
excess of nine months from the date of such casualty to repair and
during such nine-month period Tenant would be substantially deprived
of all beneficial use of the Premises, Tenant shall have the right to
terminate this Lease by notice given not later than thirty (30) days
following the time of such casualty.
Page 12
Until the Premises are restored by the Landlord, there shall be an
equitable abatement of rent.
10.2 In the event that the entire Building or such portion thereof as would
deprive Tenant of all beneficial use of the Premises is taken or
condemned by any competent authority for any public or quasi-public
use or purpose, or is sold as a result of an impending taking or
condemnation (a "taking"), this Lease shall terminate as of the date
of the taking. If a taking relates only to a portion of the Building
and Tenant is not deprived of all beneficial use of the Premises,
Landlord shall make any restoration necessary to make the Premises
entirely tenantable and the Lease shall continue without reduction of
the rent. In any event of a taking, the entire award (other than any
moving expenses available to Tenant) shall belong to Landlord.
Section 11 - Subordination & Attornment
11.1 This Lease is and shall be junior and subordinate to any mortgage now
or hereafter constituting a lien upon the Building, and, in addition,
Tenant will on request at any time or from time to time by any holder
of a mortgage on all or any portion of the Building subordinate this
Lease and all of Tenant's rights and estate hereunder to such mortgage
and to any renewals, extensions, substitutions, refinancings,
modifications or amendments thereof, or declare this Lease to be prior
to such mortgage and to any renewals, extensions, substitutions,
refinancings, modifications or amendments thereof, and agree with such
holder that Tenant will attorn thereto in the event of foreclosure and
that Tenant will not without the written consent of such holder amend
this Lease or prepay any rental hereunder; Landlord agrees to use
reasonable effort (provided that Landlord shall not be obligated to
make payment to such lien holder for any such agreement) to obtain a
written agreement from any such holder (and the foregoing
subordination shall not be effective unless and until said agreement
has been executed and delivered to Tenant) in form customarily used by
such holder, under which such holder recognizes and consents to this
Lease and provides that, notwithstanding such mortgage or any default,
expiration, termination, foreclosure, sale, entry or other act or
omission under, pursuant to or affecting said mortgage, Tenant shall
not be disturbed in peaceful enjoyment of the Premises nor shall this
Lease be terminated or canceled, nor shall the rights of Tenant
hereunder be materially affected thereby, except in the event that the
holder of the Landlord's interest shall have the right to terminate
this Lease under the terms and provisions set forth herein
Section 12 - Attornment
12.1 In the event that a mortgagee or any purchaser at foreclosure sale or
judicial proceedings, shall succeed to the interest of the Landlord,
this Lease, nevertheless, shall continue in full force and effect and
Tenant shall and does hereby agree to attorn to such mortgagee or
purchaser and to recognize such mortgagee or purchaser as its
landlord.
Page 13
Section 13 - Exterior Repairs and Quiet Enjoyment
13.1 Upon receiving written notice from Tenant of the need of repairs to
the Building portions for which Landlord is responsible hereunder,
Landlord shall make such repairs as it shall deem necessary as soon as
practicable; provided, however, the liability of Landlord for any
breach of this clause shall be limited to the cost of making said
repairs. Tenant, paying the rent and performing all the covenants,
terms and conditions in this Lease contained to be performed on the
part of Tenant, may peacefully hold and enjoy the Premises during each
Term hereof without any lawful let or hindrance by Landlord or any
person claiming by, through or under it.
Section 14 - Representations by Landlord
14.1 No representations or promises with respect to the Premises or the
Building or the grounds adjacent thereto, except as herein expressly
set forth, have been made by Landlord or any other party of Landlord's
behalf (including any real estate broker), and Tenant agrees that it
has examined the Premises and takes the same in their present
condition and state of repair, except to the extent of Landlord's
Improvements to be performed therein. The taking of possession of the
Premises by Tenant shall be conclusive evidence as against Tenant that
the Premises were in satisfactory condition at the time such
possession was so or is taken.
Section 15 - Assignment
15.1 Tenant shall not, without prior written consent of Landlord, which
consent shall not be unreasonably withheld (i) assign this Lease or
any interest hereunder; (ii) permit any assignment of this Lease by
operation of law; (iii) sublet the Premises or any part thereof; or
(iv) permit the use of the Premises by any parties other than Tenant,
its agents and employees. Tenant shall, by notice in writing, advise
Landlord of its intention from, on and after a stated date (which
shall not be less than thirty (30) days after the date of Tenant's
notice), to assign this Lease or to sublet any part or all of the
Premises for the balance or any part of the Term. Tenant's notice
shall include all of the terms of the proposed assignment or sublease
and shall state the consideration therefor. In such event, Landlord
shall have the right, to be exercised by giving written notice to
Tenant within thirty (30) days after receipt of Tenant's notice, to
recapture the space described in Tenant's notice and such recapture
notice shall, if given, cancel and terminate this Lease with respect
to the space therein described as of the date stated in Tenant's
notice, provided however the Landlord shall not have a right to
recapture the space described in Tenant's notice if such assignee or
subtenant is a subsidiary, affiliate, parent of the Tenant. Tenant's
notice shall state the name and address of the proposed assignee or
subtenant and a true and complete copy of the proposed assignment or
sublease shall be delivered to Landlord with Tenant's notice. If
Tenant's notice shall cover all of the Premises, and Landlord shall
have exercised its foregoing recapture right, the Term of this Lease
shall expire and end on the date stated in Tenant's notice as fully
and completely as if that date had been herein definitely fixed for
the expiration of the Term. If, however, this Lease be canceled with
respect to less than the entire Premises, Base Rent and Additional
Rent reserved herein shall be adjusted on the basis of the number of
square feet retained by Tenant in proportion to the number of square
feet contained in the Premises, and this Lease as so amended shall
continue thereafter in full force and effect.
Page 14
15.2 If Landlord, upon receiving Tenant's notice with respect to any such
space, shall not exercise its right to recapture as aforesaid,
Landlord will not unreasonably withhold its consent to Tenant's
assignment of the Lease or subletting such space to the party
identified in Tenant's notice; provided, however, that in the event
Landlord consents to any such assignment or subletting, and as a
condition thereto, Tenant shall pay to Landlord all profit derived by
Tenant from such assignment or subletting. For purposes of the
foregoing, profit shall be deemed to include, but shall not be limited
to, the amount of all rent payable by such assignee or sublessee in
excess of the Base Rent and Additional Rent payable by Tenant under
this Lease. If a part of the consideration for such assignment or
subletting shall be payable other than in cash, the payment to
Landlord of its share of such non-cash consideration shall be in such
form as is satisfactory to Landlord. Tenant shall and hereby agrees
that it will furnish to Landlord upon request from Landlord a complete
statement, certified by the chief financial officer of Tenant, setting
forth in detail the computation of all profit derived and to be
derived from such assignment or subletting, such computation to be
made in accordance with generally accepted accounting principles.
Tenant agrees that Landlord or its authorized representatives shall be
given access at all reasonable times to the books, records and papers
of Tenant relating to any such assignment or subletting, and Landlord
shall have the right to make copies thereof. Tenant's profit due
Landlord hereunder shall be paid to Landlord within two (2) days of
receipt by Tenant of all payments made from time to time by such
assignee or sublessee to Tenant.
15.3 Any subletting or assignment hereunder shall not release or discharge
Tenant of or from any liability, whether past, present or future,
under this Lease, and Tenant shall continue fully liable thereunder.
The subtenant or assignee shall agree in a form satisfactory to
Landlord to comply with and be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease to the extent of
the space sublet or assigned, and Tenant shall deliver to Landlord
promptly after execution, an executed copy of each sublease or
assignment and an agreement of compliance by each such subtenant or
assignee.
15.4 Any sale, assignment, mortgage, transfer or subletting of this Lease
which is not in compliance with the provisions of this Section shall
be of no effect and void.
Section 16 - Landlord's Remedies
16.1 If, at any time subsequent to the date of this Lease, any one or more
of the following events (an "Event of Default") shall happen, time
being of the essence:
16.1.1 Tenant shall default in the due and punctual payment of any
Rent or Additional Rent and such default shall continue
after 10 days after written notice from the Landlord,
provided that Landlord shall only be required to provide
such notice once during each Calendar Year.; or
16.1.2 Tenant shall neglect or fail to perform or observe any of
the other covenants or agreements herein contained on the
part of the Tenant to be performed or observed and Tenant
shall fail to remedy the same within thirty (30) days after
notice to Tenant specifying such neglect or failure, or if
such Event of Default is of such a nature that Tenant cannot
reasonably remedy the same within such thirty (30)
Page 15
day period, Tenant shall fail to commence promptly to
remedy the same and to prosecute such remedy to completion
with all due diligence and continuity; or
16.1.3 Tenant's leasehold interest in the Premises shall be taken
on execution or by other process of law; or
16.1.4 Tenant shall make an assignment for the benefit of
creditors; or
16.1.5 {Reserved}; or
16.1.6 Tenant shall seek or consent to or acquiesce in the
appointment of any receiver or liquidator of Tenant or of
all or any substantial part of its property; or
16.1.7 A petition shall be filed against Tenant under any law
seeking any reorganization, arrangement, readjustment,
composition, liquidation, dissolution, stay, injunction or
other similar relief under any present or future state
statute, law or regulation and shall remain undismissed or
unstayed for an aggregate of sixty (60) days, or if any
debtor in possession (whether or not Tenant), receiver or
liquidator of Tenant or of all or any substantial part of
Tenant's properties or of the Premises shall be appointed
without the consent or acquiescence of Tenant and such
appointment shall remain undismissed or unstayed for an
aggregate of sixty (60) days;
Then, in any such case, this Lease shall terminate upon the election
of Landlord as if such date was the date herein originally fixed for the
termination hereof, and Tenant shall then peacefully quit and surrender the
Premises to Landlord but Tenant shall remain liable as hereafter provided. All
costs and expenses incurred by or on behalf of Landlord occasioned by such Event
of Default including, without limiting the foregoing generality, attorney's fees
and other costs of collection, recovery of possession and the exercise of any
right or remedy permitted Landlord hereunder, shall be paid by Tenant.
16.2 Upon any such expiration or termination of this Lease, Tenant shall
quit and peacefully surrender the Premises to Landlord, and Landlord,
upon or at any time after any such expiration or termination, may, to
the extent permitted by law, without further notice, enter upon and
re-enter the Premises and possess and repossess itself thereof, by
force, summary proceedings, ejectment or otherwise, and may dispossess
Tenant and remove Tenant and all other persons and property from the
Premises and may have, hold and enjoy the Premises and the right to
receive all rental income of and from the same.
16.3 At any time or from time to time after any such expiration or
termination, Landlord may relet the Premises or any part thereof, in
the name of Landlord or otherwise, for such term or terms (which may
be greater or less than the period which would otherwise have
constituted the balance of the Term of this Lease) and on such
conditions (which may include concessions or free rent) as Landlord,
in its uncontrolled discretion, may determine and may collect and
receive the rents therefore. Landlord shall in no way be responsible
or liable for any failure to relet the Premises or any part thereof,
or for any failure to collect any rent due upon any such reletting.
16.4 No such expiration or termination of this Lease shall relieve Tenant
of its liability and obligations under this Lease, and such liability
and obligations shall survive any such expiration or termination. In
the event of any such expiration or termination, whether or not the
Premises or any part thereof shall have been relet, Tenant shall pay
to the Landlord the Rent, Additional Rent and all other sums and
charges required to be paid by Tenant up to the time of such
expiration or termination of this Lease, and thereafter
Page 16
Tenant, until the end of what would have been the Term of this Lease
in the absence of such expiration or termination, shall be liable to
Landlord for, and shall pay to Landlord, as and for liquidated and
agreed current damages for Tenant's default: (a) the equivalent of the
amount of the Rent, Additional Rent and the other sums and charges
which would be payable under this Lease by Tenant if this Lease were
still in effect, less (b) the net proceeds of any reletting effected
pursuant to the provisions of Paragraph 16.3 hereof, after deducting
all Landlord's expenses in connection with such reletting, including,
without limitation, removal and warehousing of Tenant's property,
removal of Tenant's improvements, additions, alterations and the like,
whether or not Tenant's Improvements, all repossession costs,
brokerage commissions, legal expenses, attorney's fees, alteration
costs, and expenses of preparation of the Premises for such reletting.
Tenant shall pay such damages (herein called "deficiency") to Landlord
monthly on the days on which the Rent would have been payable under
this Lease if this Lease were still in effect, and Landlord shall be
entitled to recover from Tenant each monthly deficiency as the same
shall arise; or, at any time after any such expiration or termination,
whether or not Landlord shall have collected any monthly deficiencies
as aforesaid, Landlord shall be entitled to recover from Tenant, and
Tenant shall pay to Landlord, on demand, as and for liquidated and
agreed final damages for Tenant's default, the entire amount of the
deficiency, if the Premises have been relet, or, if the Premises have
not been relet, the rent for the balance of the Term, the Additional
Rent (based upon the then current Additional Rent) for the balance of
the Term, any other charges which may reasonably be anticipated
hereunder for the balance of the Term and Landlord's expenses as set
forth above. If, after Landlord has recovered the foregoing from
Tenant, Landlord shall relet the Premises or a part thereof, it shall
reimburse Tenant to the extent Tenant has paid amounts to Landlord and
in amounts not to exceed the Rent, Additional Rent, charges and
expenses actually paid by Tenant to Landlord.
16.5 All sums due to Landlord from Tenant under this Lease which are not
paid when due (due dates shall not be extended by any periods of grace
granted under this Lease for this purpose), whether or not a default
hereunder has occurred or been declared by Landlord, shall bear
interest at the rate of .050% per day until paid in full, payable to
Landlord on demand.
16.6 Tenant hereby expressly waives, so far as permitted by law, the
service of any notice of intention to re-enter provided for in any
statute, or of the institution of legal proceedings to that end, and
Tenant, for and on behalf of Tenant and all persons claiming through
or under Tenant also waive any and all right of redemption or re-entry
or repossession or to restore the operation of this Lease in case
Tenant shall be dispossessed by a judgment or by warrant of any court
or judge or in case of re-entry or repossession by Landlord or in case
of any expiration or termination of this Lease, Landlord and Tenant,
so far as permitted by law, waive and will WAIVE TRIAL BY JURY in any
action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or
in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises, or any claim of
injury or damage. The terms "enter", "re-enter", "entry" or
"re-entry", as used in this Lease, are not restricted to their
technical legal meaning.
Page 17
16.7 In the event of any breach or threatened breach by Tenant of any of
the covenants, agreements, terms or conditions contained in this
Lease, Landlord shall be entitled to enjoin such breach or threatened
breach and shall have the right to invoke any right and remedy allowed
at law or in equity or by statute or otherwise as though re-entry,
summary proceedings, and other remedies were not provided for in this
Lease.
16.8 Each right and remedy of Landlord provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy
provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of
the exercise by Landlord of any one or more of the rights or remedies
provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the simultaneous
or later exercise by Landlord of any or all other rights or remedies
provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 17 - Landlord's Right to Pay Money to Effect Performance
17.1 If Tenant at any time or from time to time shall fail to perform any
of the covenants, terms and conditions in this Lease contained to be
performed on the part of Tenant, Landlord may immediately, or at any
time thereafter without notice, perform the same for the account of
Tenant, and in any such event, any monies paid by Landlord for such
purpose shall be deemed to be additional rent due hereunder and shall
be payable forthwith to Landlord upon rendition of an invoice
therefor.
Section 18 - No Waiver
18.1 The failure of Landlord to seek redress for violation of, or to insist
upon the strict performance of, any covenant, term or condition of
this Lease or any of the rules established by Landlord under the
provisions of this Lease, shall not prevent a subsequent act, which
would have originally constituted a violation, from having all the
force and effect of an original violation. The receipt by Landlord of
rent, with knowledge of the breach of any such covenant, term,
condition or rule shall not be deemed a waiver of such breach and no
provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver be in writing and signed by Landlord. No
act or thing done by Landlord, its servants and agents, during the
term of this Lease shall constitute an eviction by Landlord, nor shall
it be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such surrender shall be valid unless in writing,
signed by Landlord.
Section 19 - Landlord's Lien
19.1 All fixtures, furniture, machinery, equipment and improvements of
whatever kind and nature, goods, wares and merchandise of every kind
and nature that may be in, about or upon the Premises, hereby are and
shall be and shall stand pledged for the fulfillment of the covenants,
terms and conditions herein contained to be kept and performed on the
part of Tenant, and shall not be taken down or removed from the
Premises during the Term of this Lease or any continuance thereof,
without the written consent of or direction by Landlord, except so far
as the stock-in-trade, goods, wares and merchandise is concerned in
the regular course of business of Tenant. Upon request by Landlord,
Tenant shall
Page 18
execute a UCC-1 form, or other form Landlord may request, for filing
with the Rhode Island Secretary of State in respect to this lien.
Section 20 - Security Deposit
20.1 Tenant has deposited with Landlord the sum set forth above as security
for the full and faithful performance and observance by Tenant of all
the covenants, terms and conditions herein contained to be performed
and observed by Tenant, and Landlord may use, apply or retain the
whole or any part of said security to the extent required for the
payment of any rent or any sum as to which Tenant is in default in
respect to any of the covenants, terms or conditions of this Lease.
Said sum (to the extent permitted by law, without interest), or any
balance thereof, shall be returned to Tenant after the time fixed as
the expiration of this Lease provided that Tenant shall have fully
performed all of said covenants, terms and conditions. It is agreed
that said security is not an advance payment of, or on account of the
rent herein reserved, or any part of settlement thereof, or a measure
of Landlord's damages, and in no event shall Tenant be entitled to a
return or particular application of said sum or any part thereof,
until the end of the Term hereby granted. In the event of a sale of
the land and Building, Landlord shall have the right to transfer the
security to the vendee and Landlord shall thereupon be released from
all liability for the return of such security.
Section 21 - Holding Over
21.1 If Tenant shall hold possession of the Premises beyond the Term
without Landlord's written consent Tenant shall pay to Landlord double
the Rent plus the Additional Rent then applicable for each month
during which Tenant shall retain such possession, and also shall pay
all damages sustained by Landlord on account thereof. The provisions
of this section shall not operate as a bar or as a waiver by Landlord
of any right of re-entry or any remedy or election provided under
Section 16 hereof or available to Landlord under common law.
Section 22 - Broker
22.1 Landlord recognizes CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ as broker in connection with this
Lease and agrees to pay a commission in accordance with its agreement
with the said broker. Tenant represents that it has not negotiated
with any other broker in connection with this Lease.
Section 23 - Notice
23.1 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, to the parties at their addresses set forth above, or in the
case of Tenant, to the Premises, or in either case, to such other
person or at such other address as either party may hereafter
designate by notice to the other party.
Section 24 - Captions
24.1 The captions appearing in this Lease are intended only as a matter of
convenience and for reference and in no way define, limit or describe
the scope of this Lease or the intent of any provisions hereof.
Page 19
Section 25 - Recording of Lease
25.1 The parties agree that this Lease shall not be recorded, but Landlord
and Tenant hereby agree upon request of either party to enter into a
memorandum of lease in recordable form, setting forth the actual time
of commencement and time of termination of this Lease and such other
provisions, except rental provisions, with respect to the Lease as
will put on notice any third party of the existence of this Lease.
Section 26 - Parties and Definitions
26.1 The terms "Landlord" and "Tenant" wherever used in this Lease shall
include the successors and assigns of said parties (subject to the
assignment provisions hereof), and if either of the parties shall not
be a corporation or partnership, said term shall include the heirs,
executors and administrators of said party, wherever the context
requires or permits of such construction, and all of the covenants,
terms and conditions herein contained shall be binding upon and inure
to the benefit of the heirs, executors, administrators, successors and
said assigns of the parties in the same manner as if they were
expressly mentioned. The term "Tenant" as used in this Lease shall
include all signatories hereto as tenants, and, if there be more than
one tenant, their obligations hereunder shall be JOINT AND SEVERAL.
The term "Landlord" as used in this Lease means only the owner for the
time being of the land and Building, so that in the event of any sale
of the land and Building, Landlord shall be and it hereby is entirely
freed and relieved of all covenants and obligations of Landlord
hereunder, it being understood and agreed that the purchaser has
assumed and agreed to carry out any and all obligations of Landlord
hereunder.
Section 27 - Partial Invalidity
27.1 If any term, covenant, condition or provision of this Lease or the
application thereof to any person or circumstance shall, at any time
or to any extent, be invalid or unenforceable, the remainder of this
Lease, 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, covenant,
condition and provision of this Lease shall be valid and enforceable
to the fullest extent permitted by law.
Section 28 - Submission Of Instrument
28.1 Submission of this instrument for examination shall not be binding
upon Landlord in any way and no lease or obligation on the part of
Landlord to enter into a lease shall arise until this instrument has
been executed and delivered to Landlord by Tenant and has been
executed and delivered by Landlord. Such submission shall not
constitute an offer, but Tenant's execution hereof shall constitute an
offer, which may be accepted only by Landlord's execution and delivery
hereof to Tenant.
Section 29 - Amendments, Additions And Deletions To Lease
29.1 Any alterations or deletions herein were made in the Lease before
execution and any additional provisions to which the parties have
agreed and which are added herein or in any Addenda attached hereto
shall be considered a part hereof.
Page 20
Section 30 - Agreement Negotiated
30.1 The terms of this Agreement were fully negotiated by the parties and
shall not be construed for or against Landlord or Tenant.
Section 31 - Parking
31.1 Tenant shall have the right to use up to eleven (11) parking spaces in
the parking garage located under the Building during the term of the
Lease at a cost of $150.00 per parking space per month provided Tenant
remains current in its payment of all obligations under the Lease and
is not otherwise in default. Tenant shall remit payment for parking,
as Additional Rent, at the times and in the manner provided herein for
payment of Base Rent. Landlord shall have the right, without
obligation, and from time to time, to change the number, size,
location, shape and arrangement of parking areas and other common
areas, restrict parking of tenants or their guests to designated
areas, designate loading or handicap loading areas and change the
level or grade of parking. Except as otherwise specifically provided
herein, all access roads, courtyards and other areas, facilities or
improvements furnished by Landlord are for the general and
nonexclusive use in common of all tenants of the Building and those
persons invited upon the land upon which the Building is situated.
Tenant's use of the parking garage, as herein set forth, shall be in
common with other tenants of the Building and any other parties
permitted by Landlord to use the parking garage. The parking rights
herein granted shall not be deemed a lease but shall be constructed as
a license granted by Landlord to Tenant.
Page 21
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate as of the date set forth above.
Tenant: SPECTRA SYSTEMS CORPORATION HERITAGE BUILDING ASSOCIATES, L.L.C.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ [ILLEGIBLE]
----------------------- -----------------------
Authorized Signature Authorized Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ [ILLEGIBLE]
----------------------- -----------------------
Printed Name Printed Name
Chief Financial Officer Manager
----------------------- -----------------------
Title Title
WITNESS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- -----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- -----------------------
Printed Name Printed Name
Page 22
INDEX
page
Section 1 - Information and Definitions
1.1 Date of Execution
1.2 Identity of Landlord
1.3 Identity of Tenant
1.4 Description of the Building
1.5 Description of the Premises
1.6 Term of the Lease
1.7 Purpose
1.8 Security Deposit
1.9 Rent
1.10 Additional Rent
1.11 Base Tax Year
1.12 Option to Renew
Section 2 - Improvements
2.1 General Information
2.2 Landlord Work
2.3 Readiness of Premises
Section 3 - Additional Rent
3.1 Description
3.2 Landlord's Expenses
3.3 Additional Rent Payable
Section 4 - Premises
Section 5 - Purpose
Section 6 - Rental
Section 7 - Rights and Obligations of Landlord
7.1 Description
7.2 Interruption of Services
7.3 Landlord's Rights
Section 8 - Tenant's Undertakings
8.1 Energy Conservation
8.2 Condition of Premises
Page i
8.3 Observe Rules
8.4 Observe Rules and Regulations
8.5 Maintain Public Liability
8.6 Use of Premises
8.7 Use of Sewerage System
8.8 Refrain from Sidewalk Obstruction
8.9 Floor Load
8.10 Status of Performance
Section 9 - Tenant's Repairs, Alterations & Surrender
9.1 Description
9.2 Prior Consent of Landlord
9.3 Removal of Personal Property
9.4 Termination of Lease
Section 10 - Fire, Casualty and Eminent Domain
10.1 Description
10.2 Deprivation of Beneficial Use
Section 11 - Subordination
Section 12 - Attornment
Section 13 - Exterior Repairs and Quiet Enjoyment
Section 14 - Representations By Landlord
Section 15 - Assignment
Section 16 - Landlord's Remedies
16.1 Event of Default
16.2 Upon Lease Expiration or Termination
16.3 After Expiration or Termination
16.4 Tenant Liability and obligations
16.5 Sums Due to Landlord
16.6 Tenant Waives Service of Any Notice, Etc.
16.7 In the Event of Breach by Tenant
16.8 Landlord's Rights and Remedies
Section 17 - Landlord's Right to Pay Money to Effect Performance
Section 18 - No Waiver
Section 19 - Landlord's Lien
Page ii
Section 20 - Security Deposit
Section 21 - Holding Over
Section 22 - No Broker
Section 23 - Notice
Section 24 - Captions
Section 25 - Recording of Lease
Section 26 - Parties and Definitions
Section 27 - Partial Invalidity
Section 28 - Submission of Instrument
Section 29 - Amendments, Additions and Deletions to Lease
Section 30 - Agreement Negotiated
Section 31 - Parking
Guaranty
▇▇▇▇▇▇▇/Heritage/Spectra Systems Lease
Page iii
EXHIBIT A
[GRAPHIC APPEARS HERE]
MEMORANDUM
COMMENCEMENT OF SUBLEASE TERM:
321 South Main Street, Providence, Rhode Island ("Building")
This Memorandum is dated this 21st day of Sept, 1999 between
Complete Business Solutions, Inc. ("Landlord"), a Michigan corporation, and
Spectra Science Corporation, ("Tenant") a Delaware corporation.
WHEREAS, the parties have agreed that Landlord shall sublet 5,200
square feet of such space on the first floor of the building to tenant and the
parties have executed a Partial Sublease for same;
WHEREAS, pursuant to Partial Sublease Paragraph (1), in the event
actual possession of the Subleased Premises is not delivered by Landlord to
Tenant by September 1, 1999 and the Sublease Term, commences on a date other
than October 1, 1999, Landlord and Tenant shall execute a memorandum setting
forth the actual date of commencement, of the Sublease Term and in such event
possession of the Subleased Premises shall be delivered to Tenant at least
thirty (30) days prior to the Commencement Date.
NOW THEREFORE, in order to memorialize the Subleased Premises delivery
date and the Sublease commencement date, Landlord and Tenant agree as follows:
1. The Subleased Premises were delivered by Landlord to Tenant on
September 20, 1999.
2. The actual date of commencement of the Sublease term is October 20,
1999.
IN WITNESS hereof, the parties have signed this Memorandum as of the
date first above written.
Landlord: Tenant:
Complete Business Solutions, Inc. Spectra Science Corporation
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
Its: E.V.P. Finance Its: CHIEF FINANCIAL OFFICER
Date: 9/21/99 Date: Sept. 20, 1999
PARTIAL SUBLEASE
This Partial Sublease is made as of the 3rd day of September, 1999, between
COMPLETE BUSINESS SOLUTIONS, INC., successor to ▇.▇. ▇▇▇▇▇▇▇▇ & Associates Inc.,
a Michigan corporation with its principal place of business at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Landlord") and SPECTRA
SCIENCE CORPORATION, a Delaware corporation, having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Tenant").
RECITALS
A. Landlord, as lessee, entered into a lease with Nationwide Life
Insurance Company, an Ohio corporation ("Prime Landlord"), as lessor, dated July
10, 1996, as amended by Amendments dated June 10, 1997, and April 10, 1998
(collectively, "Prime Lease"), leasing certain space ("Premises") on the first
floor in the building, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ("Building") to which Lease reference is made and incorporated as if the
same were set forth in this Sublease at length; and
B. The parties have agreed that Landlord shall sublet 5,200 square feet
of such space on the first floor of the Building to Tenant.
NOW, THEREFORE, the parties covenant and agree as follows:
1. PREMISES/LEASE TERM: Subject to the provisions of ▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ hereby leases to Tenant and Tenant hereby leases from Landlord 5,200
square feet of its space on the first floor of the Building, as shown on Exhibit
A attached hereto and made a part hereof (said space, together with the Tenant's
Parking Spaces (as defined below) shall be referred to herein as the "Subleased
Premises"), for a term beginning thirty (30) days from the date of delivery of
actual possession of the Subleased Premises by Landlord to Tenant, but in no
event later than October 1, 1999 (the "Commencement Date") and ending on August
31, 2002 (the "Lease Termination Date") unless sooner terminated in accordance
with this Sublease or unless Landlord's tenancy is terminated under the Prime
Lease (the "Sublease Term").
In the event actual possession of the Subleased Premises is not delivered
by Landlord to Tenant by September 1, 1999 and the Sublease Term (as set forth
above), commences on a date other than October 1, 1999, Landlord and Tenant
shall execute a memorandum setting forth the actual date of commencement of the
Sublease Term and in such event possession of the Subleased Premises shall be
delivered to Tenant at least thirty (30) days prior to the Commencement Date.
Neither this Sublease or any memorandum of commencement shall be recorded.
2. RENT: Subject to the provisions of Paragraph 14, commencing one
hundred twenty (120) days from the Commencement Date, Tenant shall pay to
Landlord rent at the address set forth for Landlord below, or at such other
place as Landlord shall designate from time to time by notice to Tenant, in the
sum of Six Thousand Sixty-Six and 66/100 Dollars ($6,066.66) per month during
the Sublease Term in advance on the first day of each month, plus the additional
rent for the parking spaces as set forth in Paragraph 6 hereof:
CBSI
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
If the Sublease Term begins or ends on a day other than the first or last
day of a month, the rent for the partial months shall be prorated on a per diem
basis.
3. ADDITIONAL RENT: None, except as set forth in Paragraph 6 for
additional parking spaces. Landlord shall be solely responsible for the timely
payment of any additional rent, rent adjustment or other sums charged for the
Premises (including the Subleased Premises) pursuant to the provisions of the
Prime Lease,
including but not limited to increases in operating expenses, real estate taxes
and electrical utility bills for the Subleased Premises.
4. SECURITY DEPOSIT: Intentionally omitted.
5. USE/ALTERATIONS: Tenant has agreed to make certain improvements to the
Subleased Premises as more fully set forth in Exhibit C. The Subleased Premises
are demised "as is" in their current state of condition and shall be used for
general office purposes, and for no other purpose without the prior written
consent of Landlord and the Prime Landlord. Tenant shall not be allowed to make
any structural alteration of the Subleased Premises, and shall only make
non-structural alteration of the Subleased Premises with Landlord's (and Prime
Landlord's to the extent required under the Prime Lease) prior written approval,
which shall not be unreasonably withheld or delayed. In the event that Tenant
proposes to make any non-structural alterations, Tenant shall submit plans for
such alterations to Landlord (and Prime Landlord to the extent required in the
Prime Lease) for approval. Landlord shall render its approval/disapproval within
three (3) business days. In the event of disapproval, Landlord shall state in
specific detail the reasons for disapproval, and Tenant may resubmit to Landlord
plans which address Landlord's reasons for disapproval. Landlord shall then have
three (3) business days in which to review the revised plans to determine if the
reasons for disapproval were addressed, and to grant its approval if such
reasons are satisfactorily addressed. Landlord's approval of such plans shall
not also be deemed to be the Prime Landlord's approval of such plans. In
accordance with section 10.c of the Prime Lease, notwithstanding the foregoing,
the Landlord agrees that for any non-structural alterations of the Subleased
Premises for which cost may be reasonably estimated to be less than $2,000.00
per year shall not require Landlord's prior written approval unless such
alteration requires a building permit from the City of Providence, Rhode Island.
6. PARKING: During the Sublease Term, Landlord shall make available to
Tenant eight (8) parking spaces ("Tenant's Parking Spaces") in the Building's
garage at no additional cost to Tenant. Further, until such time as Landlord
provides Tenant 30 days prior written notice of its intent to do otherwise,
Landlord agrees to lease three (3) additional parking spaces in the Building's
garage to Tenant and Tenant agrees to pay Landlord as Additional Rent hereunder
the sum of One Hundred and 00/100 Dollars ($100.00) per month for each of the
additional parking spaces.
7. SERVICES: Notwithstanding anything in this Sublease, the only services
or rights to which Tenant is entitled hereunder are those to which Landlord is
entitled under the Prime Lease and that for all such services and rights Tenant
will look to the Prime Landlord under the Prime Lease. Such services shall
include nightly janitorial service of the Subleased Premises at no additional
cost to Tenant. Landlord agrees to use best efforts to enforce the Prime
Landlord's obligations to provide such services and rights under the Prime
Lease.
8. SIGNAGE. Signage in the Building's directory shall be provided by
Prime Landlord. In the event that Prime Landlord does not pay for such signage,
then Tenant shall be responsible for the payment of such signage. Tenant shall
also be permitted, at its sole cost and expense, to install and maintain a sign
at the entrance of the Subleased Premises. Tenant acknowledges that such sign
shall be subject to the approval of the Prime Landlord.
9. ASSIGNMENT/SUBLETTING: Tenant shall not assign this Sublease nor
sublet the Subleased Premises in whole or in part without Landlord's (and Prime
Landlord's to the extent required in the Prime Lease) prior written consent,
which shall not be unreasonably withheld or delayed; and shall not permit
Tenant's interest in this Sublease to be vested in any third party by operation
of law or otherwise.
10. INSURANCE: Tenant shall maintain with respect to the Subleased
Premises and the property of which the Subleased Premises are a part, the same
insurance as required to be maintained by Landlord under the Prime Lease and
shall name Landlord and Prime Landlord as additional insureds. Tenant shall
deposit with the Landlord and Prime Landlord certificates for such insurance at
or prior to the Commencement Date, and thereafter within thirty (30) days prior
to the expiration of any such policy.
11. CASUALTY/TAKING: Landlord agrees that with respect to this Sublease,
Tenant shall have the same rights as Landlord regarding the tenant's right to
terminate the Prime Lease in the event of a casualty or taking.
12. RELATION WITH PRIME LEASE: This Sublease is subject and subordinate to
the Prime Lease. Except as may be inconsistent with the terms hereof and except
as set forth in Exhibit B attached hereto and made a
-2-
part hereof, all of the terms, covenants and conditions contained in the Prime
Lease, shall be applicable to this Sublease with the same force and effect as if
Landlord were the lessor under the Prime Lease and Tenant were the lessee
thereunder; and in case of any breach hereof by Tenant, Landlord shall have all
the rights against Tenant as would be available to the lessor against the lessee
under the Prime Lease if such breach were by the lessee thereunder. Landlord
agrees not to amend the Prime Lease in any manner which would adversely affect
Tenant's rights hereunder.
13. COMPLIANCE WITH PRIME LEASE: Landlord represents that the Prime Lease
is in full force and effect and that Landlord has received no notice of default
on its part as tenant under the Prime Lease, nor does the Landlord know of any
default existing under the Prime Lease as of the date of the execution of this
Sublease. Tenant represents that it has read and is familiar with the terms of
the Prime Lease. Tenant shall neither do nor permit anything to be done which
would cause the Prime Lease to be terminated or forfeited by reason of any right
of termination or forfeiture reserved or vested in the lessor under the Prime
Lease, and Tenant shall indemnify and hold Landlord harmless from and against
all liability, judgment, costs, damages demand or claims of any kind whatsoever
including reasonable attorney fees by reason of any breach or default on the
part of Tenant by reason of which the Prime Lease may be terminated or
forfeited.
Further, Tenant assumes and agrees to perform the Lessee's obligations
under the Prime Lease during the Sublease Term to the extent that such
obligations are applicable to the Subleased Premises, except that the obligation
to pay rent and other sums to Prime Landlord under the Prime Lease shall be
considered performed by Tenant to the extent rent and other sums are paid by
Tenant to Landlord in accordance with the provisions of this Sublease. Landlord
shall exercise best efforts to cause Prime Landlord to perform its obligations
under the Prime Lease for the benefit of Tenant. If the Prime Lease terminates,
this Sublease shall terminate and the parties shall be relieved of any further
liability or obligation under this Sublease, provided however, that if the Prime
Lease terminates as a result of a default or breach by Landlord or Tenant under
this Sublease and/or the Prime Lease, then the defaulting party shall be liable
to the nondefaulting party for the damage suffered as a result of such
termination. Notwithstanding the foregoing, if the Prime Lease gives Landlord
any right to terminate the Prime Lease in the event of the partial or total
damage, destruction, or condemnation of the Subleased Premises, the Premises, or
the Building of which the Subleased Premises or Premises are a part, the
exercise of such right by Landlord shall not constitute a default or breach
hereunder.
14. OTHER PROVISIONS: Notwithstanding any provision herein to the
contrary, the parties hereto agree that actual square footage of the Subleased
Premises as set forth in Paragraph 1 shall be subject to final measurement to be
taken either prior to the execution of this Sublease or at the time Tenant takes
actual possession of the Subleased Premises, and the sum set forth for monthly
rent In Paragraph 2 shall be adjusted accordingly. In the event the final square
footage of the Subleased Premises is different from the 5,200 square feet set
forth in Paragraph 1, then Landlord and Tenant shall execute a memorandum
setting forth the actual square footage of the Subleased Premises and the
corresponding adjustment in the amount of rent payable monthly, which memorandum
shall not be recorded.
If actual possession of the Subleased Premises shall not be delivered by
Landlord to Tenant by September 1, 1999, Tenant may, in its sole discretion,
elect within thirty (30) days thereafter, to cancel this Sublease; whereupon,
this Sublease shall be deemed terminated and of no further force or effect and
the parties shall be relieved of any further liability or obligation under this
Sublease.
Landlord shall pay all brokerage charges in connection with this Sublease,
and agrees to indemnify and hold Tenant harmless from and against any and all
loss, costs, damages or expenses, including reasonable attorney's fees, by
reason of any claims of any kind whatsoever by any broker or person claiming
through such party and arising out of or in connection with the negotiation,
execution and delivery of this Sublease. Tenant represents and warrants that
Tenant has not had any dealings with any realty broker or agent other than ▇▇▇▇▇
▇▇▇▇▇▇▇▇, CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇, in connection with the
negotiation of this Sublease.
Landlord represents as of the date hereof, that to the best of Landlord's
actual knowledge, (i) no Hazardous Material (as such term is defined in
Paragraph 36(b) of the Prime Lease) has been brought upon, kept, released, used
in or about the Premises; and (ii) Landlord has not received any notice, advice
or other communication from any governmental entity or any source whatsoever
with respect to Hazardous Material on, from or affecting the Premises.
-3-
In the event that the Prime Lease is to be subordinated to a superior
interest pursuant to Paragraph 27(a) of the Prime Lease, and provided that
Tenant is not in default under the terms of this Lease, Landlord shall request
that the Prime Landlord request the holder of such superior interest to grant a
nondisturbance agreement to the Landlord.
15. NOTICE: Any notice or demand which either party may or must give to
the other hereunder shall be in writing and delivered personally or sent by
registered mail addressed if to Landlord, as follows:
Complete Business Solutions, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director, Contracts Administration
with a copy to:
CBSI
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and if to Tenant, as follows:
Spectra Science Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Either party may, by notice in writing, direct that future notices or
demands be sent to a different address.
16. NO OTHER AGREEMENT: All prior understandings and agreements between
the parties are merged within this Sublease, which alone fully and completely
sets forth the understanding of the parties; and this Sublease may not be
changed or terminated orally or in any manner other than by an agreement in
writing and signed by the party against whom enforcement of the change or
termination is sought.
17. SUCCESSOR AND ASSIGNS: The covenants and agreements contained in this
Sublease shall bind and inure to the benefit of Landlord, the Tenant, and their
respective executors, administrators, legal representatives, successors and
permitted assigns.
18. CONSENT OF PRIME LANDLORD: This Sublease is contingent upon, and shall
not be effective until Landlord obtains the written consent of the Prime
Landlord to this Sublease as provided under the terms of the Prime Lease. If
such consent is not obtained on or before September 1, 1999, then either party
may terminate this Sublease by notice to the other party and in such event this
Sublease shall become null and void and neither party shall have any further
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the day and year first above written, in multiple counterparts, each of
which counterparts shall be deemed an original instrument and all of which
together shall constitute a single instrument of the same.
-4-
LANDLORD:
COMPLETE BUSINESS SOLUTIONS, INC.,
a Michigan corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Exec. V/P
TENANT:
SPECTRA SCIENCE CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
Date: ________________
-5-
Exhibit "A"
[GRAPHIC APPEARS HERE]
EXHIBIT B
Excepted Provisions of Prime Lease
1. Paragraph 2(a)
2. Paragraph 3
3. Paragraph 5
4. Paragraph 7(b) (2nd and 3rd sentences)
5. Paragraph 19(j) (4th sentence)
6. Paragraph 22
7. Paragraph 25
8. Paragraph 29
9. Paragraph 31
10. Exhibit D
11. Paragraphs 2-6, 7 (2nd sentence) and 10 of the First Amendment to Lease
12. Paragraphs 2 and 4 of the Amended Memorandum of Lease
-6-
Exhibit "C"
[GRAPHIC APPEARS HERE]
FIFTH AMENDMENT TO LEASE
THIS AGREEMENT is made as of this 28th day of June, 2002, by and between
WESTMINSTER PARK PARTNERS OF EAST PROVIDENCE ASSOCIATES, a Rhode Island limited
partnership ("Landlord") and SPECTRA SYSTEMS CORPORATION (f/k/a SPECTRA SCIENCE
CORPORATION), a Delaware corporation ("Tenant").
WITNESSETH
WHEREAS, pursuant to Lease dated February 28, 1997, as amended by First
Amendment to Lease dated October 15, 1997, by Second Amendment to Lease dated
July 27, 2000, by Third Amendment to Lease dated December 3, 2001 and by Fourth
Amendment to Lease dated February 22, 2002 (as amended, the "Lease"), by and
between Landlord and Tenant, Landlord has leased to Tenant certain space in
those buildings located at ▇▇-▇▇-▇▇-▇▇, 56-58 and 60 ▇▇▇▇▇▇ Street, East
Providence, Rhode Island (collectively, the "Building"); and
WHEREAS, pursuant to the Lease, Tenant occupies approximately 15,050 square
feet of space in the Building; and
WHEREAS, the parties wish to amend the Lease in order to enable Tenant to
lease additional space in the Building.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Commencing on August 1, 2002 (the "Fourth Additional Space
Commencement Date"), Landlord leases to Tenant and Tenant leases from Landlord
those additional premises located in the Building adjacent to the Premises as
shown on Exhibit A attached hereto, also identified as 62 ▇▇▇▇▇▇ Street,
consisting of approximately 2,200 square feet (the "Fourth Additional
Premises"). From and after the Fourth Additional Space Commencement Date, all
references in the Lease to the Premises shall be deemed to include the Fourth
Additional Premises and the Premises shall consist of 17,250 square feet.
2. Prior to the Fourth Additional Space Commencement Date, Landlord, at
its expense, shall complete those items identified as "Landlord's
Responsibility" as shown on Exhibit A attached hereto. In all other respects,
the Fourth Additional Premises shall be delivered to Tenant in "as is"
condition.
3. Notwithstanding anything contained in the Lease to the contrary,
commencing as of the Fourth Additional Space Commencement Date, Tenant shall pay
Base Rent in advance in equal monthly installments of $15,100.
4. From and after the Fourth Additional Space Commencement Date, Tenant's
pro rata share shall be 43%.
5. Capitalized terms not defined herein shall have the meaning set forth
in the Lease.
6. Except as amended hereby, the Lease remains in full force and effect
and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned have executed this Fifth Amendment as
of the day and year first set forth above.
LANDLORD
WITNESS:
WESTMINSTER PARK PARTNERS
OF EAST PROVIDENCE ASSOCIATES
EIN: ▇▇-▇▇▇▇▇▇▇
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
----------------------------- -----------------------------------------
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
General Partner
WITNESS: TENANT:
SPECTRA SYSTEMS CORPORATION
(f/k/a SPECTRA SCIENCE CORPORATION)
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- -----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CFO
- 2 -
EXHIBIT A
[GRAPHIC APPEARS HERE]
FOURTH AMENDMENT TO LEASE
THIS AGREEMENT is made as of this 22nd day of February, 2002, by and
between WESTMINSTER PARK PARTNERS OF EAST PROVIDENCE ASSOCIATES, a Rhode Island
limited partnership ("Landlord") and SPECTRA SYSTEMS CORPORATION (f/k/a SPECTRA
SCIENCE CORPORATION), a Delaware corporation ("Tenant").
WITNESSETH
WHEREAS, pursuant to Lease dated February 28, 1997, as amended by First
Amendment to Lease dated October 15, 1997, by Second Amendment to Lease dated
July 27, 2000 and by Third Amendment to Lease dated December 3, 2001 (as
amended, the "Lease"), by and between Landlord and Tenant, Landlord has leased
to Tenant certain space in those buildings located at 42-44, 56-58 and 60 ▇▇▇▇▇▇
Street, East Providence, Rhode Island (collectively, the "Building"); and
WHEREAS, pursuant to the Lease, Tenant occupies approximately 11,600
square feet of space in the Building; and
WHEREAS, the parties wish to amend the Lease in order to enable Tenant to
lease additional space in the Building.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Commencing on March 1, 2002 (the "Third Additional Space Commencement
Date"), Landlord leases to Tenant and Tenant leases from Landlord those
additional premises located in the Building adjacent to the Premises as shown on
Exhibit A attached hereto, also identified as 46 ▇▇▇▇▇▇ Street, consisting of
approximately 3,450 square feet (the "Third Additional Premises"). From and
after the Third Additional Space Commencement Date, all references in the Lease
to the Premises shall be deemed to include the Third Additional Premises and the
Premises shall consist of 15,050 square feet.
2. The Third Additional Premises shall be delivered to Tenant in "as is"
condition.
3. Notwithstanding anything contained in the Lease to the contrary,
commencing as of the Third Additional Space Commencement Date, Tenant shall pay
Base Rent in advance in equal monthly installments of $12,856.
4. From and after the Third Additional Space Commencement Date, Tenant's
pro rata share shall be 38%.
5. Capitalized terms not defined herein shall have the meaning set forth
in the Lease.
6. Except as amended hereby, the Lease remains in full force and effect
and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned have executed this Fourth Amendment as
of the day and year first set forth above.
LANDLORD:
WITNESS:
WESTMINSTER PARK PARTNERS
OF EAST PROVIDENCE ASSOCIATES
EIN: ▇▇-▇▇▇▇▇▇▇
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
-------------------------------- -----------------------------------
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
General Partner
WITNESS: TENANT:
SPECTRA SYSTEMS CORPORATION
(f/k/a SPECTRA SCIENCE CORPORATION)
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
CFO
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