EXHIBIT 10.1.20
XXXXXXXX PROPERTIES MANAGEMENT, INC.
STANDARD FORM
COMMERCIAL LEASE - 1097675 - DJC - D
In consideration of the covenants herein contained, Xxxxxxxx Properties
Management, Inc., hereinafter call LESSOR, does hereby lease to Beacon Power
Corp. (a MA corp), 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000 hereinafter called
LESSEE, the following described premises, hereinafter called the leased
premises: approximately 10,439 square feet at 6-D Xxxx Xxxxxx, Xxxxxx, XX 00000
TO HAVE AND HOLD the leased premises for a term of two (2) years commencing at
noon on December 1, 1997 and ending at noon on November 30, 1999 unless sooner
terminated as herein provided. LESSOR and LESSEE now covenant and agree that the
following terms and conditions shall govern this lease during the term hereof
and for such further time as LESSEE shall hold the leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent at the rate of one hundred
fourteen thousand three hundred seven (114,307.00) U.S. dollars per year, drawn
on a U.S. bank, payable in advance in monthly installments of $9,525.58 on the
first day in each calendar month in advance, the first monthly payment to be
made upon LESSEE's execution of this lease, including payment in advance of
appropriate fractions of a monthly payment for any portion of a month at the
commencement or end of said lease term. All payments shall be made to LESSOR or
agent at 000 Xxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other
place as LESSOR shall from time to time in writing designate. If the "Cost of
Living" has increased as shown by the Consumer Price Index (Boston,
Massachusetts, all items, all urban consumers), U.S. Bureau of Labor Statistics,
the amount of base rent due during each calendar year of this lease and any
extensions thereof shall be annually adjusted in proportion to any increase in
the Index. All such adjustments shall take place with the rent due on January 1
of each year during the lease term. The base month from which to determine the
amount of each increase in the Index shall be January 1997, which figure shall
be compared with the figure for November 1998, and each November thereafter to
determine the percentage increase (if any) in the base rent to be paid during
the following calendar year. In the event that the Consumer Price Index as
presently computed is discontinued as a measure of "Cost of Living" changes, any
adjustment shall then be made on the basis of a comparable index then in general
use. Notwithstanding the foregoing there shall be no "Cost of Living" increase
during the initial term of this lease (only).
2. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in the amount
of nineteen thousand (19,000) U.S. dollars upon the execution of this lease by
LESSEE, which shall be held as security for LESSEE's performance as herein
provided and refunded to LESSEE without interest at the end of this lease,
subject to LESSEE's satisfactory compliance with the conditions hereof. LESSEE
may not apply the security deposit to payment of the last month's rent. In the
event of any default or breach of this lease by LESSEE, LESSOR may immediately
apply the security deposit first to any unamortized improvements completed for
LESSEE's occupancy, then to offset any outstanding invoice or other payment due
to LESSOR, with the balance applied to outstanding rent. If all or any portion
of the security deposit is applied to cure
a default or breach during the term of the lease, LESSEE shall be responsible
for restoring said deposit forthwith, and failure to do so shall be considered a
substantial default under the lease. LESSEE's failure to remit the full security
deposit or any portion thereof when due shall also constitute a substantial
lease default. Until such time as LESSEE pays the security deposit and first
month's rent, LESSOR may declare this lease null and void for failure of
consideration.
3. USE OF PREMISES. LESSEE shall use the leased premises only for the purpose of
executive and administrative offices and light manufacturing.
4. ADDITIONAL RENT. LESSEE shall pay to LESSOR as additional rent a
proportionate share (based on square footage leased by LESSEE as compared with
the total leaseable square footage of the building of which the leased premises
are a part) of any increase in the real estate taxes levied against the land and
building of which the leased premises are a part (hereinafter called the
building ), whether such increase is caused by an increase in the tax rate, or
the assessment on the property, or a change in the method of determining real
estate taxes. LESSEE shall make payment within thirty (30) days of written
notice from LESSOR that such increased taxes are payable, and any additional
rent shall be prorated should the lease terminate before the end of any tax
year. The base from which to determine the amount of any increase in taxes shall
be the rate and the assessment in effect as of July 1, 1997.
5. UTILITIES. LESSOR shall provide equipment per LESSOR's building standard
specifications to heat the leased premises in season and to cool all office
areas between May 1 and November 1. LESSEE shall pay all charges for utilities
used on the leased premises, including electricity, gas, oil, water and sewer.
LESSEE shall pay the utility provider or LESSOR, as applicable, for all such
utility charges as determined by separate meters serving the leased premises
and/or as a proportionate share of the utility charges for the building if not
separately metered. LESSEE shall also pay LESSOR a proportionate share of any
other fees and charges relating in any way to utility use at the building. No
plumbing, construction or electrical work of any type shall be done without
LESSOR's prior written approval, which approval shall not be unreasonably
withheld, and LESSEE obtaining the appropriate municipal permit.
6. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade, occupation, activity
or work shall be conducted in the leased premises or use made thereof which may
be unlawful, improper, noisy, offensive, or contrary to any applicable statute,
regulation, ordinance or bylaw. LESSEE shall keep all employees working in the
leased premises covered by Worker's Compensation Insurance and shall obtain any
licenses and permits necessary to LESSEE's occupancy. LESSEE shall be
responsible for causing the leased premises and any alterations by LESSEE which
are allowed hereunder to be in full compliance with any applicable statute,
regulation, ordinance or bylaw.
7. FIRE, CASUALTY, EMINENT DOMAIN. Should a substantial portion of the leased
premises, or of the property of which they are a part, be substantially damaged
by fire or other casualty, or be taken by eminent domain, LESSOR may elect to
terminate this lease. When such fire, casualty, or taking renders the leased
premises substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and LESSEE may elect to
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terminate this lease if: (a) LESSOR fails to give written notice within thirty
(30) days of intention to restore the leased premises, or (b) LESSOR fails to
restore the leased premises to a condition substantially suitable for their
intended use within ninety (90) days of said fire, casualty or taking. LESSOR
reserves all rights for damages or injury to the leased premises for any taking
by eminent domain, except for damage to LESSEE's property or equipment.
8. FIRE INSURANCE. LESSEE shall not permit any use of the leased premises which
will adversely affect or make voidable any insurance on the property of which
the leased premises are a part, or on the contents of said property, or which
shall be contrary to any law or regulation from time to time established by the
Insurance Services Office (or successor), local Fire Department, LESSOR's
Insurer, or any similar body. LESSEE shall on demand reimburse LESSOR, and all
other tenants, all extra insurance premiums caused by LESSEE's use of the leased
premises.
9. MAINTENANCE OF PREMISES. LESSOR will be responsible for all structural
maintenance of the leased premises and for the normal daytime maintenance of all
space heating and cooling equipment, sprinklers, doors, locks, plumbing, and
electrical wiring, but specifically excluding damage caused by the careless,
malicious, willful, or negligent acts of LESSEE or others, chemical, water or
corrosion damage from any source, and maintenance of any non "building standard"
leasehold improvements. LESSEE agrees to maintain at its expense all other
aspects of the leased premises in the same condition as they are at the
commencement of the term or as they may be put in during the term of this lease,
normal wear and tear and damage by fire or other casualty only excepted, and
whenever necessary, to replace light bulbs, plate glass and other glass therein,
acknowledging that the leased premises are now in good order and the light bulbs
and glass whole. LESSEE will properly control or vent all solvents, degreasers,
smoke, odors, etc. and shall not cause the area surrounding the leased premises
to be in anything other than a neat and clean condition, depositing all waste in
appropriate receptacles. LESSEE shall be solely responsible for any damage to
plumbing equipment, sanitary lines, or any other portion of the building which
results from the discharge or use of any acid or corrosive substance by LESSEE.
LESSEE shall not permit the leased premises to be overloaded, damaged, stripped
or defaced, nor suffer any waste, and will not keep animals within the leased
premises. If the leased premises include any wooden mezzanine type space, the
floor capacity of such space is suitable only for office use, light storage or
assembly work. LESSEE will protect any carpet with plastic or masonite chair
pads under any rolling chairs. Unless heat is provided at LESSOR's expense,
LESSEE shall maintain sufficient heat to prevent freezing of pipes or other
damage. Any increase in air conditioning equipment or electrical capacity or any
installation or maintenance of equipment which is necessitated by some specific
aspect of LESSEE's use of the leased premises shall be LESSEE's sole
responsibility, at LESSEE's expense and subject to LESSOR's prior written
consent. All maintenance provided by LESSOR shall be during LESSOR's normal
business hours.
10. ALTERATIONS. LESSEE shall not make structural alterations or additions of
any kind to the leased premises, but may make nonstructural alterations provided
LESSOR consents thereto in writing, which consent, shall not be unreasonably
withheld. All such allowed alterations shall be at LESSEE's expense and shall
conform with LESSOR's construction
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specifications. If LESSOR or LESSOR's agent provides any services or maintenance
for LESSEE in connection with such alterations or otherwise under this lease,
any just invoice will be promptly paid. LESSEE shall not permit any mechanics'
liens, or similar liens, to remain upon the leased premises in connection with
work of any character performed or claimed to have been performed at the
direction of LESSEE and shall cause any such lien to be released or removed
forthwith without cost to LESSOR. Any alterations or additions shall become part
of the leased premises and the property of LESSOR. Any alterations completed by
LESSOR or LESSEE shall be LESSOR's "building standard" unless noted otherwise.
LESSOR shall have the right at any time to change the arrangement of parking
areas, stairs, walkways or other common areas of the building.
11. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign this lease or sublet or
allow any other firm or Individual to occupy the whole or any part of the leased
premises without LESSOR's prior written consent which consent shall not be
unreasonably withheld. Notwithstanding such assignment or subleasing, LESSEE and
GUARANTOR shall remain liable to LESSOR for the payment of all rent and for the
full performance of the covenants and conditions of this lease. LESSEE shall pay
LESSOR promptly for legal and administrative expenses incurred by LESSOR not to
exceed a maximum of $500.00 in connection with any consent requested hereunder
by LESSEE.
12. SUBORDINATION. This lease shall be subject and subordinate to any and all
mortgages and other instruments in the nature of a mortgage, now or at any time
hereafter, and LESSEE shall, when requested, promptly execute and deliver such
written instruments as shall be necessary to show the subordination of this
lease to said mortgages or other such instruments in the nature of a mortgage.
13. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at any reasonable time and
upon reasonable notice except in the case of an emergency enter to view the
leased premises, to make repairs and alterations as LESSOR should elect to do
for the leased premises, the common areas or any other portions of the building,
to make repairs which LESSEE is required but has failed to do, and to show the
leased premises to others.
14. SNOW REMOVAL. The plowing of snow from all roadways and unobstructed parking
areas shall be at the sole expense of LESSOR. The control of snow and ice on all
walkways, steps and loading areas serving the leased premises and all other
areas not readily accessible to plows shall be the sole responsibility of
LESSEE. Notwithstanding the foregoing, however, LESSEE shall hold LESSOR and
OWNER harmless from any and all claims by LESSEE's agents, representatives,
employees, callers or invitees for damage or personal injury resulting in any
way from snow or ice on any area serving the leased premises.
15. ACCESS AND PARKING. LESSEE shall have the right without additional charge to
use parking facilities provided for the leased premises in common with others
entitled to the use thereof. Said parking areas plus any stairs, corridors,
walkways, elevators or other common areas (hereinafter collectively called the
common areas) shall in all cases be considered a part of the leased premises
when they are used by LESSEE or LESSEE's employees, agents, callers or
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invitees. LESSEE will not obstruct in any manner any portion of the building or
the walkways or approaches to the building, and will conform to all rules and
regulations now or hereafter made by LESSOR for parking, and for the care, use,
or alteration of the building, its facilities and approaches. LESSEE further
warrants that LESSEE will not permit any employee or visitor to violate this or
any other covenant or obligation of LESSEE. No unattended parking defined as
when the vehicle operator is not readily available at the leased premises will
be permitted between 7:00 PM and 7:00 AM without LESSOR's prior written
approval, and from December 1 through March 31 annually, such parking shall be
permitted only in those areas specifically designated for assigned overnight
parking. Unregistered or disabled vehicles, or storage trailers of any type, may
not be parked at any time. LESSOR may tow, at LESSEE's sole risk and expense,
any misparked vehicle belonging to LESSEE or LESSEE's agents, employees,
invitees or callers, at any time. LESSOR shall not be responsible for providing
any security services for the leased premises.
16. LIABILITY. LESSEE shall be solely responsible as between LESSOR and LESSEE
for deaths or personal injuries to all persons whomsoever occurring in or on the
leased premises (including any common areas that are considered part of the
leased premises hereunder) from whatever cause arising, and damage to property
to whomsoever belonging arising out of the use, control, condition or occupation
of the leased premises by LESSEE; and LESSEE agrees to indemnify and save
harmless LESSOR and OWNER from any and all liability, including but not limited
to costs, expenses, damages, causes of action, claims, judgments and attorney's
fees caused by or in any way growing out of any matters aforesaid, except for
death, personal injuries or property damage directly resulting from the
negligence of LESSOR.
17. INSURANCE. LESSEE will secure and carry at its own expense a commercial
general liability policy insuring LESSEE, LESSOR and OWNER against any claims
based on bodily injury (including death) or property damage arising out of the
condition of the leased premises (including any common areas that are considered
part of the leased premises hereunder) or their use by LESSEE, such policy to
insure LESSEE, LESSOR and OWNER against any claim up to One Million (1,000,000)
Dollars in the case of any one accident involving bodily injury (including
death), and up to One Million (1,000,000) Dollars against any claim for damage
to property. LESSOR and OWNER shall be included in each such policy as
additional insureds using ISO Form CG 20 23 11 [CUTOFF] or some other form
approved by LESSOR. LESSEE will file with LESSOR prior to occupancy certificates
and any applicable riders or endorsements showing that such insurance is in
force, and thereafter will file renewal certificates prior to the expiration of
any such policies. All such insurance certificates shall provide that such
policies shall not be cancelled without at least ten (10) days prior written
notice to each insured. In the event LESSEE shall fail to provide or maintain
such insurance at any time during the term of this lease, then LESSOR may elect
to contract for such insurance at LESSEE's expense.
18. SIGNS. LESSOR authorizes, and LESSEE at LESSEE's expense agrees to erect
promptly upon commencement of this lease, signage for the leased premises in
accordance with LESSOR's building standards for style, size, location, etc.
LESSEE shall obtain the prior written consent of LESSOR before erecting any sign
on the leased premises, which consent shall include
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approval as to size, wording, design and location. LESSOR may remove and dispose
of any sign not approved, erected or displayed in conformance with this lease.
19. BROKERAGE. LESSEE warrants and represents to LESSOR that LESSEE has dealt
with no broker except Xxxxx Xxxxxx of Avalon Partners, Inc. or third person with
respect to this lease LESSEE agrees to indemnify LESSOR against any brokerage
claims arising by virtue of this lease. LESSOR warrants and represents to LESSEE
that LESSOR has employed no exclusive broker or agent in connection with the
letting of the leased premises.
20. DEFAULT AND ACCELERATION OF RENT. In the event that: (a) any assignment for
the benefit of creditors, trust mortgage, receivership or other insolvency
proceeding shall be made or instituted with respect to LESSEE or LESSEE's
property; (b) LESSEE shall default in the observance or performance of any of
LESSEE's covenants, agreements, or obligations hereunder, other than substantial
monetary payments as provided below, and such default shall not be corrected
within ten (10) days after written notice thereof; or (c) LESSEE vacates the
leased premises, then LESSOR shall have the right thereafter, while such default
continues and without demand or further notice, to re-enter and take possession
of the leased premises, to declare the term of this lease ended, and to remove
LESSEE's effects, without being guilty of any manner of trespass, and without
prejudice to any remedies which might be otherwise used for arrears of rent or
other default or breach of the lease. If LESSEE shall default in the payment of
the security deposit, rent, taxes, substantial invoice from LESSOR or LESSOR's
agent for goods and/or services or other sum herein specified, and such default
shall continue for ten (10) days after written notice thereof, and, because both
parties agree that nonpayment of said sums when due is a substantial breach of
the lease, and, because the payment of rent in monthly installments is for the
sole benefit and convenience of LESSEE, then in addition to the foregoing
remedies the entire balance of rent which is due hereunder shall become
immediately due and payable as liquidated damages except that such liquidated
damages shall not exceed $100,000. LESSOR, without being under any obligation to
do so and without thereby waiving any default, may remedy same for the account
and at the expense of LESSEE. If LESSOR pays or incurs any obligations for the
payment of money in connection therewith, such sums paid or obligations incurred
plus interest and costs, shall be paid to LESSOR by LESSEE as additional rent.
Any sums received by LESSOR from or on behalf of LESSEE at any time shall be
applied first to any unamortized improvements completed for LESSEE's occupancy,
then to offset any outstanding invoice or other payment due to LESSOR, with the
balance applied to outstanding rent. LESSEE agrees to pay reasonable attorney's
fees and/or administrative costs incurred by LESSOR in enforcing any or all
obligations of LESSEE under this lease at any time. LESSEE shall pay LESSOR
interest at the rate of twelve (12) percent per annum on any payment from LESSEE
to LESSOR which is past due.
21. NOTICE. Any notice from LESSOR to LESSEE relating to the leased premises or
to the occupancy thereof shall be deemed duly served when served by constable,
or sent to the leased premises by certified mail, return receipt requested,
postage prepaid, addressed to LESSEE. Any notice from LESSEE to LESSOR relating
to the leased premises or to the occupancy thereof shall be deemed duly served
when served by constable, or delivered to LESSOR by certified mail, return
receipt requested, postage prepaid, addressed to LESSOR at
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000 Xxxx Xxxxxxxx Xxxx, Xxxxxx, XX 00000 or at LESSOR's last designated address.
No oral notice or representation shall have any force or effect. Time is of the
essence in the service of any notice.
22. OCCUPANCY. In the event that LESSEE takes possession of said leased premises
prior to the start of the lease term, LESSEE will perform and observe all of
LESSEE's covenants from the date upon which LESSEE takes possession except the
obligation for the payment of extra rent for any period of less than one month.
LESSEE shall not remove LESSEE's goods or property from the leased premises
other than in the ordinary and usual course of business, without having first
paid and satisfied LESSOR for all rent which may become due during the entire
term of this lease. In the event that LESSEE continues to occupy or control all
or any part of the leased premises after the agreed termination of this lease
without the written permission of LESSOR, then LESSEE shall be liable to LESSOR
for any and all loss, damages or expenses incurred by LESSOR, and all other
terms of this lease shall continue to apply except that rent shall be due in
full monthly installments at a rate of one hundred fifty (150) percent of that
which would otherwise be due under this lease, it being understood between the
parties that such extended occupancy is as a tenant at sufferance and is solely
for the benefit and convenience of LESSEE and as such has greater rental value.
LESSEE's control or occupancy of all or any part of the leased premises beyond
noon on the last day of any monthly rental period shall constitute LESSEE's
occupancy for an entire additional month, and increased rent as provided in this
section shall be due and payable immediately in advance. LESSOR's acceptance of
any payments from LESSEE during such extended occupancy shall not alter LESSEE's
status as a tenant at sufferance.
23. FIRE PREVENTION. LESSEE agrees to use every reasonable precaution against
fire and agrees to provide and maintain approved, labeled fire extinguishers,
emergency lighting and exit signs and complete any other modifications within
the leased premises as required or recommended by the Insurance Services Office
(or successor organization), OSHA, the local Fire Department, or any similar
body.
24. OUTSIDE AREA. Any goods, equipment, or things of any type or description
held or stored in any common area without LESSOR's prior written consent shall
be deemed abandoned and may be removed by LESSOR at LESSEE's expense without
notice. LESSEE shall maintain a building standard size dumpster in a location
approved by LESSOR, which dumpster shall be provided and serviced at LESSEE's
expense by whichever disposal firm may from time to time be designated by
LESSOR. Alternatively, if a shared dumpster or compactor is provided by LESSOR,
LESSEE shall pay its proportionate share of any costs associated therewith.
25. ENVIRONMENT. LESSEE will so conduct and operate the leased premises as not
to interfere in any way with the use and enjoyment of other portions of the same
or neighboring buildings by others by reason of odors, smoke, exhaust, smells,
noise, pets, accumulation of garbage or trash, vermin or other pests, or
otherwise, and will as its expense employ a professional pest control service if
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from solvents, degreasers, cutting oils,
propellants, etc. which may be present at the leased premises. No hazardous
materials or wastes
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shall be stored, disposed of, or allowed to remain at the leased premises at any
time, and LESSEE shall be solely responsible for any and all corrosion or other
damage associated with the use, storage and/or disposal of same by LESSEE.
26. RESPONSIBILITY. Neither LESSOR nor OWNER shall be held liable to anyone for
loss or damage caused in any way by the use, leakage, seepage or escape of water
from any source, or for the cessation of any service rendered customarily to
said premises or buildings, or agreed to by the terms of this lease, due to any
accident, the making of repairs, alterations or improvements, labor
difficulties, weather conditions, mechanical breakdowns, trouble or scarcity in
obtaining fuel, electricity, service or supplies from the sources from which
they are usually obtained for said building, or any cause beyond LESSOR's
immediate control.
27. SURRENDER. LESSEE shall at the termination of this lease remove all of
LESSEE's goods and effects from the leased premises. LESSEE shall deliver to
LESSOR the leased premises and all keys and locks thereto, all fixtures and
equipment connected therewith, and all alterations, additions and improvements
made to or upon the leased premises, whether completed by LESSEE, LESSOR or
others, including but not limited to any offices, modular offices, partions, and
furniture used by lessee will remain property of LESSEE, partitions, window
blinds, floor coverings (including computer floors), plumbing and plumbing
fixtures, air conditioning equipment and ductwork of any type, exhaust fans or
heaters, burglar alarms, telephone wiring, air or gas distribution piping, or
signs attached to walls or floors, all electrical work, including but not
limited to lighting fixtures of any type, wiring, conduit, EMT, transformers,
distribution panels, bus ducts, raceways, outlets and disconnects, and
furnishings or which have been bolted, welded, nailed, screwed, glued or
otherwise attached to any wall, floor, ceiling, roof, pavement or ground, or
which have been directly wired to any portion of the electrical system or which
have been plumbed to the water supply, drainage or venting systems serving the
leased premises. LESSEE shall deliver the leased premises sanitized from any
chemicals or other contaminants, and broom clean and in the same condition as
they were at the commencement of this lease or any prior lease between the
parties for the leased premises, or as they were modified during said term with
LESSOR's written consent, reasonable wear and tear and damage by fire or other
casualty only excepted. In the event of LESSEE's failure to remove any of
LESSEE's property from the leased premises upon termination of the lease, LESSOR
is hereby authorized, without liability to LESSEE for loss or damage thereto,
and at the sole risk of LESSEE, to remove and store any such property at
LESSEE's expense, or to retain same under LESSOR's control, or to sell at public
or private sale, any or all of the property not so removed and to apply the net
proceeds of such sale to the payment of any sum due hereunder, or to destroy
such abandoned property. In no case shall the leased premises be deemed
surrendered to LESSOR until the termination date provided herein or such other
date as may be specified in a written agreement between the parties,
notwithstanding the delivery of any keys to LESSOR. LESSEE shall repair any
damage caused by the removal of the stricken items.
28. GENERAL. (a) The invalidity or unenforceability of any provision of this
lease shall not affect or render invalid or unenforceable any other provision
hereof. (b) The obligations of this lease shall run with the land, and this
lease shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that LESSOR and OWNER
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shall be liable only for obligations occurring while lessor, owner, or master
lessee of the premises. (c) Any action or proceeding arising out of the subject
matter of this lease shall be brought by LESSEE within one year after the cause
of action has occurred and only in a court of the Commonwealth of Massachusetts.
(d) If LESSOR is acting under or as agent for any trust or corporation, the
obligations of LESSOR shall be binding upon the trust or corporation, but not
upon any trustee, officer, director, shareholder, or beneficiary of the trust or
corporation individually. (e) If LESSOR is not the owner (OWNER) of the leased
premises, LESSOR represents that said OWNER has agreed to be bound by the terms
of this lease unless LESSEE is in default hereof. (f) This lease is made and
delivered in the Commonwealth of Massachusetts, and shall be interpreted,
construed, and enforced in accordance with the laws thereof. (g) This lease was
the result of negotiations between parties of equal bargaining strength, and
when executed by both parties shall constitute the entire agreement between the
parties, superseding all prior oral and written agreements, representations,
statements and negotiations relating in any way to the subject matter herein.
This lease may not be extended or amended except by written agreement signed by
both parties or as otherwise provided herein, and no other subsequent oral or
written representation shall have any effect hereon. (h) Notwithstanding any
other statements herein, LESSOR makes no warranty, express or implied,
concerning the suitability of the leased premises for LESSEE's intended use. (i)
LESSEE agrees that if LESSOR does not deliver possession of the leased premises
as herein provided for any reason, LESSOR shall not be liable for any damages to
LESSEE for such failure, but LESSOR agrees to use reasonable efforts to deliver
possession to LESSEE at the earliest possible date. A proportionate abatement of
rent, excluding the cost of any amortized improvements to the leased premises,
for such time as LESSEE may be deprived of possession of the leased premises,
except where a delay in delivery is caused in any way by LESSEE, shall be
LESSEE's sole remedy. (j) Neither the submission of this lease form, nor the
prospective acceptance of the security deposit and/or rent shall constitute a
reservation of or option for the leased premises, or an offer to lease, it being
expressly understood and agreed that this lease shall not bind either party in
any manner whatsoever until it has been executed by both parties. (k) LESSEE
shall not be entitled to exercise any option contained herein if LESSEE is at
that time in default of any terms or conditions hereof. (l) Except as otherwise
provided herein, LESSOR, OWNER and LESSEE shall not be liable for any special,
incidental, indirect or consequential damages, including but not limited to lost
profits or loss of business, arising out of or in any manner connected with
performance or nonperformance under this lease, even if any party has knowledge
of the possibility of such damages. (m) The headings in this lease are for
convenience only and shall not be considered part of the terms hereof. (n) No
endorsement by LESSEE on any check shall bind LESSOR in any way. (o) LESSOR and
LESSEE hereby waive any and all rights to a JURY trial in any proceeding in any
way arising out of this lease.
29. SECURITY AGREEMENT. This Paragraph Does Not Apply
30. WAIVERS, ETC. No consent or waiver, express or implied, by LESSOR, to or of
any breach of any covenant, condition or duty of LESSEE shall be construed as a
consent or waiver to or of any other breach of the same or any other covenant,
condition or duty. If LESSEE is several persons, several corporations or a
partnership, LESSEE's obligations are joint or partnership and also several.
Unless repugnant to the context, "LESSOR" and "LESSEE" mean
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the person or persons, natural or corporate, named above as LESSOR and as LESSEE
respectively, and their respective heirs, executors, administrators, successors
and assigns.
31. AUTOMATIC FIVE-YEAR EXTENSIONS. This Paragraph Does Not Apply
32. ADDITIONAL PROVISIONS. (Continued on attached rider(s) if necessary.)
- See Attached Rider -
IN WITNESS WHEREOF, LESSOR and LESSEE have hereunto set their hands and
common seals and intend to be legally bound hereby this 19th day of November,
1997.
LESSOR: XXXXXXXX PROPERTIES LESSEE: BEACON POWER CORP.
MANAGEMENT, INC.
By: /s/ X.X. XXXXXXXX By: /s/ XXXXXXX XXXXXXX
------------------------------------ -------------------------
PRESIDENT
GUARANTY
IN CONSIDERATION of the making of the above lease by Xxxxxxxx
Properties Management, Inc. with Beacon Power Corp. at the request of the
undersigned and in reliance on this guaranty, the undersigned (Guarantor) hereby
personally guarantees the prompt payment, rent by LESSEE and the performance by
LESSEE of all terms, conditions, covenants and agreement of the lease, any
amendments thereto and are extensions or assignments thereof, and the
undersigned promises to pay all expenses, including reasonable attorney's fees,
incurred by LESSOR enforcing all obligations of LESSEE under the lease or
incurred by LESSOR in enforcing this guaranty. LESSOR's consent to any
assignments, sublease amendments and extensions by LESSEE or to any compromise
or release of LESSEE's liability hereunder, with or without notice to the
undersigned, LESSOR's failure to notify the undersigned of any default and/or
reinstatement of the lease by LESSEE, shall not relieve the undersigned from
liability GUARANTOR.
IN WITNESS WHEREOF, the undersigned GUARANTOR has hereunto set
his/her/its hand and common seal intending to be legally bound hereby as this
______________ day of ___________________.
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5/97 _________________________________________
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XXXXXXXX PROPERTIES MANAGEMENT, INC.
STANDARD FORM 1097675 - DJC - 8
RIDER TO LEASE
The following additional provisions are incorporated into and made a part of the
attached lease:
A. *The leased premises consists of approximately 7,027 square feet of
ground level space and approximately 3,412 square feet of mezzanine
level office space.
B. At any one time during the initial term of this lease, LESSEE may
request larger similar space of approximately 30,000 contiguous square
feet (which may or may not include the current leased premises). LESSEE
shall give LESSOR written notice of such requirement for larger space
and shall then execute an amendment to this lease adding to the
existing leased premises such larger space in the same or other
buildings of LESSOR at LESSOR's then current published rates within
three business days of LESSOR's notification to LESSEE that said larger
space will be available. If LESSOR does not offer such larger similar
space within 6 months after receipt of written notice from LESSEE, then
LESSEE shall have the option to terminate the unexpired portion of this
lease, without penalty, and without any further obligation, either
party to the other, after the expiration of the 6-month delivery
period, by serving LESSOR with 30 days written notice to that effect
within 30 days after expiration of the delivery period. Cancellation of
the lease shall be LESSEE's exclusive remedy for any failure by LESSOR
to offer such larger similar space or any breach by LESSOR of the
provisions of this paragraph. Time is of the essence.
C. *LESSOR represents that, to the best of its knowledge and belief, the
common areas serving the leased premises are in compliance with current
requirements of the Americans with Disabilities Act of 1991 ("ADA") for
LESSEE's use as set forth in Section 3 above. If LESSEE receives
written notice from any enforcement authority at any time, however,
that any of said common areas are not in compliance with the ADA as now
written, then LESSEE shall serve LESSOR with written notice thereof.
LESSOR shall then have 60 days to correct any noncomplying element, and
if LESSOR fails to complete, or to be diligently pursuing completion
of, any necessary corrective action within said 60-day period, then
LESSEE may elect to cancel this lease without penalty by serving LESSOR
with 30 days prior written notice. Cancellation of the lease shall be
LESSEE's exclusive remedy for any failure by LESSOR to comply with this
paragraph.
D. *LESSEE shall have the right to assign this lease or sublet the leased
premises to an affiliated corporation, namely a corporation in which
LESSEE owns at least a 50 percent interest, a corporation which owns at
least a 50 percent interest in LESSEE, a corporation which is under
common control with LESSEE, a corporation with which LESSEE merges, or
a corporation which is formed as a result of a merger or consolidation
involving LESSEE, without further consent from LESSOR, provided LESSEE
serves
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LESSOR with prior written notice to that effect. The provisions of
Section 11 shall govern said assignment in all other respects.
E. *If LESSOR is unable to deliver possession of the leased premises on
the commencement date by reason of the holding over of a previous
occupant, or by reason of any other cause beyond the reasonable control
of LESSOR, or because the leased premises is located in a building
being constructed and which has not been sufficiently completed to make
the property ready for occupancy, or for any other reason, then the
payment of rent shall not commence until LESSOR notifies LESSEE that
the premises are ready for occupancy by LESSEE. LESSOR's failure to
give possession on the commencement date shall not affect the validity
of this lease or the obligations of LESSEE under this lease, except,
however, in the event LESSOR is unable to deliver possession on or
before February 1, 1998, then LESSEE may elect to terminate this lease
without penalty by giving LESSOR written notification to that effect on
or before February 2, 1998, and neither party shall thereafter have any
further obligation to the other. Time is of the essence.
LESSOR: XXXXXXXX PROPERTIES LESSEE: BEACON POWER CORP.
MANAGEMENT, INC.
By: /s/X.X. XXXXXXXX By: /s/XXXXXXX XXXXXXX
------------------------------- ------------------------------
PRESIDENT
Date: 11/19/97 5/93
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