Exhibit 10.D
COMMERCIAL LEASE
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1. PARTIES
Celtower Realty Trust under assignment of lease, 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 hereinafter referred to as LESSOR, which
expression shall include his heirs, successors, and assigns where the
context so admits, does hereby lease to Xxxxx Inc. (a valid Delaware
Corporation) of 0000 Xxxxx XX 0, Xxxx Xxxxxx, XX 00000 hereinafter referred
to as LESSEE, which expression shall include its successors, and assigns
where the context so admits.
2. PREMISES
LESSEE hereby leases the following described premises in the building at 00
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx :
First floor with offices- containing approximately 1,800 square feet
3. TERM
The term of this lease shall be for one (1) year commencing on January 1,
2003 and ending on December 31, 2003.
4. RENT
During the term of this Lease the LESSEE shall pay to the LESSOR a "base"
rent, due on the first day of each month at the rate of:
The monthly rate is $2,500.00 commencing on January 1, 2003 through
December 31, 2003 for a total of $30,000.00 for the 12 month period. Said
sum shall be applied towards the purchase of 128,250 shares of Xxxxx Inc.
restricted common stock at a 10% discount from closing price on November
10, 2003 of $0.26 for an adjusted price of $0.234 per share
5. UTILITIES
The LESSOR shall pay for all utilities with the exception of any and all
telephone expenses. The LESSEE shall be allowed to install a separate phone
system in accordance with its business requirements.
6. USE OF LEASED PREMISES
The LESSEE shall only use the leased premises for the purposes of
professional office uses. The LESSEE is solely responsible for all permits,
licenses and the like required to operate its business.
7. COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in
the leased premises or use made thereof which will be unlawful, improper,
noisy or offensive, or contrary to any law or any municipal by-law or
ordinance in force in the city or town in which the premises are situated.
Notwithstanding anything in this Lease to the contrary, LESSEE'S
obligations to comply with the aforesaid laws, rules, orders, regulations
and requirements shall be limited to those which are based upon the use of
the Premises by the LESSEE for any purpose other than for which the
Premises are leased hereunder and to those obligations imposed due to the
particular use of the Premises by Tenant, as opposed to the use of office
premises generally. Any requirements for repairs, improvements or
replacements shall be complied with by LESSOR unless the condition
necessitating the same was caused by LESSEE.
8. ASSIGNMENT-SUBLEASING
The LESSEE shall not assign or sublet the whole or any part of the leased
premises without LESSORS prior written consent, such consent not to be
unreasonably withheld. Notwithstanding such consent, LESSEE shall remain
liable to LESSOR for the payment of all rent and for the full performance
of the covenants and conditions of this lease. Notwithstanding anything
contained herein to the contrary, LESSEE shall be entitled, without the
consent of LESSOR and without triggering any right of LESSOR to terminate
or cancel this Lease, to assign this Lease or any interest hereunder, or to
sublet the Premises or any part hereof to any subsidiary or affiliate of
LESSEE. The term "affiliate" shall include any corporation or other entity,
which controls, is controlled by, or is under common control with, LESSEE.
LESSEE shall be entitled to sell insurance in the Premises for and in the
name of any insurance subsidiary or affiliate of LESSEE. The sale or
transfer of any or all of the common stock of LESSEE shall not be deemed an
assignment or sublease, by operation of law or otherwise, within the
meaning of this provision.
9. SUBORDINATION
This lease shall be subject and subordinate to any and all mortgages, deeds
of trust and other instruments in the nature of a mortgage, now or at any
time hereafter, a lien or liens on the property of which the leased
premises are a part and the 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, deeds of trust or other such
instruments in the nature of a mortgage. Notwithstanding anything herein to
the contrary, LESSOR agrees that the subordination of this Lease to any
ground lease, mortgage, deed of trust or other hypothecation for security
shall be subject and subordinate to LESSEE'S right to the continued quiet
enjoyment of the Premises under the terms of this Lease so long as LESSEE
is not in default under the terms of this Lease and during any applicable
cure period or cure period following notice provided herein. No default by
LESSOR under any such ground lease, mortgage, deed of trust or
hypothecation shall affect LESSEE'S right hereunder so long as LESSEE is
not in default under this Lease.
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10. REPAIRS AND MAINTENANCE
LESSEE shall, at its cost and expense, keep the Premises, including the
interior of any buildings erected thereon and facilities located therein,
in good condition and repair, excepting reasonable wear and tear and damage
by fire or other casualty covered by LESSEE'S fire and extended coverage
insurance, excepting damages and expenses arising from the negligence of
LESSOR or LESSOR'S agents, officers, employees, or invitees and shall, at
his cost and expense maintain all portions of the Premises in a clean,
safe, and orderly condition, free of unlawful obstructions. LESSOR covenant
to make all structural repairs, including repairs to the foundation and
supports, masonry walls, ceilings, floors, roof and replacement of or major
repairs to the heating and cooling systems, electrical systems and the fuel
tanks. LESSOR shall not be obligated to make or pay for any repairs to the
Premises rendered necessary by the fault or negligence of the LESSEE or any
of his servants, employees, agents, invitees or customers. The cost of said
repairs to be borne solely by the LESSEE.
11. SIGNAGE
LESSEE shall be permitted to place a name plate, meeting zoning
requirements, on marquis located in front of property on Medford Street,
Arlington or at the LESSEE'S option, the LESSOR will provide an appropriate
sign for a one time fee of $50.00.
12. 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, the LESSORS 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 the LESSEE may elect to terminate this
lease if:
(a) The LESSORS fail to give written notice within thirty (30) days of
intention to restore leased premises; or
(b) The LESSORS fail to restore the leased premises to a condition
substantially suitable for their intended use within ninety (90) days
of said fire, casualty, or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which
the LESSEE may have for damages or injury to the leased premises for any
taking by eminent domain, except for damage to the LESSEE'S fixtures,
property, or equipment.
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13. DISTRAINT; OTHER REMEDIES OF LESSOR AND LESSEE
(a) If LESSEE defaults in the payment of rent or additional rent or
defaults in the performance of any of the covenants or conditions
hereof, LESSOR may give to LESSEE notice of such default and if LESSEE
does not cure any rent or additional rent default within five (5)
days, or other default, within ten (10) days, after the giving of such
notice (or, if such other default is of such nature that it cannot be
completely cured within such ten (10) days, if LESSEE does not
commence such curing within such ten (10) days and thereafter proceed
with reasonable diligence and in good faith to cure such default), or
if the LESSEE shall compound its debts, or make an assignment for the
benefit of creditors, or if a receiver or trustee is applied for or
appointed for the LESSEE, or if there be fled a petition in bankruptcy
or insolvency, or for an arrangement for reorganization by or against
the LESSEE, or if the LESSEE is adjudicated a bankrupt or is adjudged
to be insolvent, or if there is advertised any sale of LESSEE'S
property under process of law, or if the assets or property of the
LESSEE in the Premises shall be attached or levied upon, then LESSOR
may terminate this lease agreement on not less than three (3) days'
notice to LESSEE, and on the date specified in said notice the term of
this lease agreement shall terminate and LESSEE shall then quit and
surrender the Leased Premises to LESSOR, but LESSEE shall remain
liable as hereinafter provided. If this lease agreement shall have
been so terminated by LESSOR, LESSOR may at any time thereafter resume
possession of the Premises by any lawful means and remove LESSEE or
other occupants and their effects.
(b) In any case where LESSOR has recovered possession of the Premises by
reason of LESSEE'S default, LESSOR may at LESSOR's option occupy the
Premises or cause the Leased Premises to be redecorated, altered,
divided, consolidated with other adjoining premises, or otherwise
changed or prepared for reletting, and may relet the Leased Premises
or any part thereof as agent of LESSEE or otherwise, for a term or
terms to expire prior to, at the same time as or subsequent to, the
original expiration date of this lease agreement, at LESSOR's option,
and receive the rent therefore, applying the same first to the payment
of such expense as LESSOR may have incurred in connection with the
recovery of possession, redecorating, altering, dividing,
consolidating with other adjoining premises, or otherwise changing or
preparing for reletting and the reletting, including brokerage and
reasonable attorney's fees, and then to the payment of damages in
amounts equal to the rent hereunder and to the cost and expense of
performance of the other covenants of LESSEE as herein provided; and
LESSEE agrees, whether or not LESSOR has relet, to pay the LESSOR
damages equal to the rent and other sums herein agreed to be paid by
LESSEE, less the net proceeds of the reletting, if any, as ascertained
from time to time, and the same shall be payable by LESSEE on the
several rent days above specified. In reletting the Leased Premises as
aforesaid, LESSOR may grant rent concessions, and LESSEE shall not be
credited therewith. No such reletting shall constitute a surrender and
acceptance or be deemed evidence thereof. The LESSEE shall not be
entitled to any surplus accruing as a result of any reletting. If
LESSOR elects pursuant hereto to occupy and use the Leased Premises or
any part thereof during any part of the balance of the term as
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originally fixed or since extended, there shall be allowed against
LESSEE'S obligation for rent or damages as herein defined, during the
term of said occupancy.
(c) LESSOR shall not be in default under this Lease for thirty (30) days
after written notice by LESSEE to LESSOR specifying the nature of
LESSOR'S failure to perform; but LESSOR shall be in default thereafter
if it fails to perform within said 30-day period as set forth in
LESSOR'S notice. However, if the nature of the failure is such that
more than thirty (30) days are required for performance, then LESSOR
shall not be in default, if LESSOR commences performance within the
said 30-day period and thereafter diligently proceeds to correct such
failure.
14. NOTICE
Any notice from the LESSOR to the LESSEE relating to the leased premises or
to the occupancy thereof, shall be deemed duly served, if mailed to the
leased premises, registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE Xxxxx Inc., 0000 Xxxxx XX 0, Xxxx
Xxxxxx, XX 00000. Any notice from the LESSEE to the LESSOR relating to the
leased premises or to the occupancy thereof, shall be deemed duly served,
if mailed to the LESSOR by registered or certified mail, return receipt
requested, postage prepaid, or sent by recognized overnight courier,
addressed to the LESSOR at such address as the LESSOR may from time to time
advise in writing. All rent and notices shall be made payable to and sent
to Celtower Realty Trust, 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
15. SURRENDER
The LESSEE shall at the expiration or other termination of this lease
remove all LESSEE'S goods and effects from the leased premises, (including,
without hereby limiting the generality of the foregoing, all signs and
lettering affixed or painted by the LESSEE, either inside or outside the
leased premises). LESSEE shall deliver to the LESSORS the leased premises
and all keys, locks thereto, and other fixtures connected therewith and all
alterations and additions made to or upon the leased premises, in the same
condition as they were at the commencement of the term, or as they were put
in during the term hereof, reasonable wear and tear and damage by fire or
other casualty only excepted. In the event of the LESSEE'S failure to
remove any of LESSEE'S property from the premises, 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 of the property at the
LESSEE'S expense, or to retain same under LESSORS's control or to sell at
public or private sale, without notice 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 property.
Notwithstanding anything contained herein to the contrary, LESSEE shall not
be required to remove any improvements or additions unless LESSOR expressly
reserves the right to require such removal by written notice to LESSEE at
the same time LESSOR consents to the making of such improvements or
additions.
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16. INSURANCE
The LESSEE agrees that it will at all times during the term of this lease,
at its own expense, carry insurance on the leased premises from time to
time on said premises against loss or damage by fire and lightening in the
aggregate amount of contents.
17. LEGAL JURISDICTION
This Lease is made and delivered within the Commonwealth of Massachusetts
and shall be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts.
18. AUTHORITY OF CORPORATE AGENT
If LESSEE is a corporation, each individual executing this Lease on behalf
of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation, in accordance
with the bylaws of said corporation, and that this Lease is binding upon
said corporation in accordance with its terms.
19. ACKNOWLEDGEMENT OF TERMS
This Lease sets forth the entire understanding between the parties hereto
with respect to all matters referred to herein, and the provisions hereof
may not be changed or modified except by an instrument in writing signed by
both parties hereto. LESSEE acknowledges that in executing and delivering
this Lease it is not relying on any verbal or written understanding,
promise or representation outside the scope of this Lease and not described
or referred to herein.
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this 10th _day of November, 2003.
--------------------------------- ---------------------------------
Witness LESSOR under assignment-Xxxxxxx Xxxxx-
--------------------------------- ---------------------------------
Witness LESSEE- Xxxxx Inc.
Title: CFO
6
COMMERCIAL LEASE
----------------
1. PARTIES
Celtower Realty Trust under assignment of lease, 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 hereinafter referred to as LESSOR, which
expression shall include his heirs, successors, and assigns where the
context so admits, does hereby lease to Xxxxx Inc. (a valid Delaware
Corporation) of 0000 Xxxxx XX 0, Xxxx Xxxxxx, XX 00000 hereinafter referred
to as LESSEE, which expression shall include its successors, and assigns
where the context so admits.
2. PREMISES
LESSEE hereby leases the following described premises in the building at 00
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx :
First floor with five offices - containing approximately 2,050 square
feet
3. TERM
The term of this lease shall be for one (1) year commencing on January 1,
2004 and ending on December 31, 2004.
4. RENT
During the term of this Lease the LESSEE shall pay to the LESSOR a "base"
rent, due on the first day of each month at the rate of:
The monthly rate is $2,738.00 commencing on January 1, 2004 through
December 31, 2004 for a total of $32,852.00 for the 12 month period. Said
sum shall be applied towards the purchase of 203,922 shares of Xxxxx Inc.
restricted common stock at a 10% discount from closing price on May 28,
2004 of $0.179 for an adjusted price of $0.161 per share
5. UTILITIES
The LESSOR shall pay for all utilities with the exception of any and all
telephone expenses. The LESSEE shall be allowed to install a separate phone
system in accordance with its business requirements.
6. USE OF LEASED PREMISES
The LESSEE shall only use the leased premises for the purposes of
professional office uses. The LESSEE is solely responsible for all permits,
licenses and the like required to operate its business.
7. COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in
the leased premises or use made thereof which will be unlawful, improper,
noisy or offensive, or contrary to any law or any municipal by-law or
ordinance in force in the city or town in which the premises are situated.
Notwithstanding anything in this Lease to the contrary, LESSEE'S
obligations to comply with the aforesaid laws, rules, orders, regulations
and requirements shall be limited to those which are based upon the use of
the Premises by the LESSEE for any purpose other than for which the
Premises are leased hereunder and to those obligations imposed due to the
particular use of the Premises by Tenant, as opposed to the use of office
premises generally. Any requirements for repairs, improvements or
replacements shall be complied with by LESSOR unless the condition
necessitating the same was caused by LESSEE.
8. ASSIGNMENT-SUBLEASING
The LESSEE shall not assign or sublet the whole or any part of the leased
premises without LESSORS prior written consent, such consent not to be
unreasonably withheld. Notwithstanding such consent, LESSEE shall remain
liable to LESSOR for the payment of all rent and for the full performance
of the covenants and conditions of this lease. Notwithstanding anything
contained herein to the contrary, LESSEE shall be entitled, without the
consent of LESSOR and without triggering any right of LESSOR to terminate
or cancel this Lease, to assign this Lease or any interest hereunder, or to
sublet the Premises or any part hereof to any subsidiary or affiliate of
LESSEE. The term "affiliate" shall include any corporation or other entity,
which controls, is controlled by, or is under common control with, LESSEE.
LESSEE shall be entitled to sell insurance in the Premises for and in the
name of any insurance subsidiary or affiliate of LESSEE. The sale or
transfer of any or all of the common stock of LESSEE shall not be deemed an
assignment or sublease, by operation of law or otherwise, within the
meaning of this provision.
9. SUBORDINATION
This lease shall be subject and subordinate to any and all mortgages, deeds
of trust and other instruments in the nature of a mortgage, now or at any
time hereafter, a lien or liens on the property of which the leased
premises are a part and the 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, deeds of trust or other such
instruments in the nature of a mortgage. Notwithstanding anything herein to
the contrary, LESSOR agrees that the subordination of this Lease to any
ground lease, mortgage, deed of trust or other hypothecation for security
shall be subject and subordinate to LESSEE'S right to the continued quiet
enjoyment of the Premises under the terms of this Lease so long as LESSEE
is not in default under the terms of this Lease and during any applicable
cure period or cure period following notice provided herein. No default by
LESSOR under any such ground lease, mortgage, deed of trust or
2
hypothecation shall affect LESSEE'S right hereunder so long as LESSEE is
not in default under this Lease.
10. REPAIRS AND MAINTENANCE
LESSEE shall, at its cost and expense, keep the Premises, including the
interior of any buildings erected thereon and facilities located therein,
in good condition and repair, excepting reasonable wear and tear and damage
by fire or other casualty covered by LESSEE'S fire and extended coverage
insurance, excepting damages and expenses arising from the negligence of
LESSOR or LESSOR'S agents, officers, employees, or invitees and shall, at
his cost and expense maintain all portions of the Premises in a clean,
safe, and orderly condition, free of unlawful obstructions. LESSOR covenant
to make all structural repairs, including repairs to the foundation and
supports, masonry walls, ceilings, floors, roof and replacement of or major
repairs to the heating and cooling systems, electrical systems and the fuel
tanks. LESSOR shall not be obligated to make or pay for any repairs to the
Premises rendered necessary by the fault or negligence of the LESSEE or any
of his servants, employees, agents, invitees or customers. The cost of said
repairs to be borne solely by the LESSEE.
11. SIGNAGE
LESSEE shall be permitted to place a name plate, meeting zoning
requirements, on marquis located in front of property on Medford Street,
Arlington or at the LESSEE'S option.
12. 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, the LESSORS 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 the LESSEE may elect to terminate this
lease if:
(a) The LESSORS fail to give written notice within thirty (30) days of
intention to restore leased premises; or
(b) The LESSORS fail to restore the leased premises to a condition
substantially suitable for their intended use within ninety (90) days
of said fire, casualty, or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which
the LESSEE may have for damages or injury to the leased premises for any
taking by eminent domain, except for damage to the LESSEE'S fixtures,
property, or equipment.
3
13. DISTRAINT; OTHER REMEDIES OF LESSOR AND LESSEE
(a) If LESSEE defaults in the payment of rent or additional rent or
defaults in the performance of any of the covenants or conditions
hereof, LESSOR may give to LESSEE notice of such default and if LESSEE
does not cure any rent or additional rent default within five (5)
days, or other default, within ten (10) days, after the giving of such
notice (or, if such other default is of such nature that it cannot be
completely cured within such ten (10) days, if LESSEE does not
commence such curing within such ten (10) days and thereafter proceed
with reasonable diligence and in good faith to cure such default), or
if the LESSEE shall compound its debts, or make an assignment for the
benefit of creditors, or if a receiver or trustee is applied for or
appointed for the LESSEE, or if there be fled a petition in bankruptcy
or insolvency, or for an arrangement for reorganization by or against
the LESSEE, or if the LESSEE is adjudicated a bankrupt or is adjudged
to be insolvent, or if there is advertised any sale of LESSEE'S
property under process of law, or if the assets or property of the
LESSEE in the Premises shall be attached or levied upon, then LESSOR
may terminate this lease agreement on not less than three (3) days'
notice to LESSEE, and on the date specified in said notice the term of
this lease agreement shall terminate and LESSEE shall then quit and
surrender the Leased Premises to LESSOR, but LESSEE shall remain
liable as hereinafter provided. If this lease agreement shall have
been so terminated by LESSOR, LESSOR may at any time thereafter resume
possession of the Premises by any lawful means and remove LESSEE or
other occupants and their effects.
(b) In any case where LESSOR has recovered possession of the Premises by
reason of LESSEE'S default, LESSOR may at LESSOR'S option occupy the
Premises or cause the Leased Premises to be redecorated, altered,
divided, consolidated with other adjoining premises, or otherwise
changed or prepared for reletting, and may relet the Leased Premises
or any part thereof as agent of LESSEE or otherwise, for a term or
terms to expire prior to, at the same time as or subsequent to, the
original expiration date of this lease agreement, at LESSOR's option,
and receive the rent therefore, applying the same first to the payment
of such expense as LESSOR may have incurred in connection with the
recovery of possession, redecorating, altering, dividing,
consolidating with other adjoining premises, or otherwise changing or
preparing for reletting and the reletting, including brokerage and
reasonable attorney's fees, and then to the payment of damages in
amounts equal to the rent hereunder and to the cost and expense of
performance of the other covenants of LESSEE as herein provided; and
LESSEE agrees, whether or not LESSOR has relet, to pay the LESSOR
damages equal to the rent and other sums herein agreed to be paid by
LESSEE, less the net proceeds of the reletting, if any, as ascertained
from time to time, and the same shall be payable by LESSEE on the
several rent days above specified. In reletting the Leased Premises as
aforesaid, LESSOR may grant rent concessions, and LESSEE shall not be
credited therewith. No such reletting shall constitute a surrender and
acceptance or be deemed evidence thereof. The LESSEE shall not be
entitled to any surplus accruing as a result of any reletting. If
LESSOR elects pursuant hereto to occupy and use the Leased Premises or
any part thereof during any part of the balance of the term as
4
originally fixed or since extended, there shall be allowed against
LESSEE'S obligation for rent or damages as herein defined, during the
term of said occupancy.
(c) LESSOR shall not be in default under this Lease for thirty (30) days
after written notice by LESSEE to LESSOR specifying the nature of
LESSOR'S failure to perform; but LESSOR shall be in default thereafter
if it fails to perform within said 30-day period as set forth in
LESSOR'S notice. However, if the nature of the failure is such that
more than thirty (30) days are required for performance, then LESSOR
shall not be in default, if LESSOR commences performance within the
said 30-day period and thereafter diligently proceeds to correct such
failure.
14. NOTICE
Any notice from the LESSOR to the LESSEE relating to the leased premises or
to the occupancy thereof, shall be deemed duly served, if mailed to the
leased premises, registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE Xxxxx Inc., 0000 Xxxxx XX 0, Xxxx
Xxxxxx, XX 00000. Any notice from the LESSEE to the LESSOR relating to the
leased premises or to the occupancy thereof, shall be deemed duly served,
if mailed to the LESSOR by registered or certified mail, return receipt
requested, postage prepaid, or sent by recognized overnight courier,
addressed to the LESSOR at such address as the LESSOR may from time to time
advise in writing. All rent and notices shall be made payable to and sent
to Celtower Realty Trust, 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
15. SURRENDER
The LESSEE shall at the expiration or other termination of this lease
remove all LESSEE'S goods and effects from the leased premises, (including,
without hereby limiting the generality of the foregoing, all signs and
lettering affixed or painted by the LESSEE, either inside or outside the
leased premises). LESSEE shall deliver to the LESSORS the leased premises
and all keys, locks thereto, and other fixtures connected therewith and all
alterations and additions made to or upon the leased premises, in the same
condition as they were at the commencement of the term, or as they were put
in during the term hereof, reasonable wear and tear and damage by fire or
other casualty only excepted. In the event of the LESSEE'S failure to
remove any of LESSEE'S property from the premises, 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 of the property at the
LESSEE'S expense, or to retain same under LESSORS's control or to sell at
public or private sale, without notice 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 property.
Notwithstanding anything contained herein to the contrary, LESSEE shall not
be required to remove any improvements or additions unless LESSOR expressly
reserves the right to require such removal by written notice to LESSEE at
the same time LESSOR consents to the making of such improvements or
additions.
16. INSURANCE
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The LESSEE agrees that it will at all times during the term of this lease,
at its own expense, carry insurance on the leased premises from time to
time on said premises against loss or damage by fire and lightening in the
aggregate amount of contents.
17. LEGAL JURISDICTION
This Lease is made and delivered within the Commonwealth of Massachusetts
and shall be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts.
18. AUTHORITY OF CORPORATE AGENT
If LESSEE is a corporation, each individual executing this Lease on behalf
of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation, in accordance
with the bylaws of said corporation, and that this Lease is binding upon
said corporation in accordance with its terms.
19. ACKNOWLEDGEMENT OF TERMS
This Lease sets forth the entire understanding between the parties hereto
with respect to all matters referred to herein, and the provisions hereof
may not be changed or modified except by an instrument in writing signed by
both parties hereto. LESSEE acknowledges that in executing and delivering
this Lease it is not relying on any verbal or written understanding,
promise or representation outside the scope of this Lease and not described
or referred to herein.
6
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this _____________________ day of ____________________, 2004.
--------------------------------- ---------------------------------
Witness LESSOR under assignment-Xxxxxxx Xxxxx
Trustee of Celtower Realty Trust
--------------------------------- ---------------------------------
Witness LESSEE- Xxxxx Inc.
Title: Treasurer
7
COMMERCIAL LEASE
----------------
1. PARTIES
Celtower Realty Trust under assignment of lease, 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 hereinafter referred to as LESSOR, which
expression shall include his heirs, successors, and assigns where the
context so admits, does hereby lease to Xxxxx Inc. (a valid Delaware
Corporation) of 0000 Xxxxx XX 0, Xxxx Xxxxxx, XX 00000 hereinafter referred
to as LESSEE, which expression shall include its successors, and assigns
where the context so admits.
2. PREMISES
LESSEE hereby leases the following described premises in the building at 00
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx :
First floor and second floor with six offices and basement, common
space, business center w/ equipment use, conference room and storage area -
containing approximately 3,650 square feet
3. TERM
The term of this lease shall be for one (1) year commencing on January 1,
2005 and ending on December 31, 2005.
4. RENT
During the term of this Lease the LESSEE shall pay to the LESSOR a "base"
rent, due on the first day of each month at the rate of:
The monthly rate is $4,826.21 commencing on January 1, 2005 through
December 31, 2005 for a total of $57,914.57 for the 12 month period. Said
sum shall be applied towards the purchase of 607,071 shares of Xxxxx Inc.
restricted common stock at a 10% discount from closing price on January 5,
2005 of $0.106 for an adjusted price of $0.0954 per share
5. UTILITIES
The LESSOR shall pay for all utilities with the exception of any and all
telephone expenses. The LESSEE shall be allowed to install a separate phone
system in accordance with its business requirements.
6. USE OF LEASED PREMISES
The LESSEE shall only use the leased premises for the purposes of
professional office uses. The LESSEE is solely responsible for all permits,
licenses and the like required to operate its business.
7. COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in
the leased premises or use made thereof which will be unlawful, improper,
noisy or offensive, or contrary to any law or any municipal by-law or
ordinance in force in the city or town in which the premises are situated.
Notwithstanding anything in this Lease to the contrary, LESSEE'S
obligations to comply with the aforesaid laws, rules, orders, regulations
and requirements shall be limited to those which are based upon the use of
the Premises by the LESSEE for any purpose other than for which the
Premises are leased hereunder and to those obligations imposed due to the
particular use of the Premises by Tenant, as opposed to the use of office
premises generally. Any requirements for repairs, improvements or
replacements shall be complied with by LESSOR unless the condition
necessitating the same was caused by LESSEE.
8. ASSIGNMENT-SUBLEASING
The LESSEE shall not assign or sublet the whole or any part of the leased
premises without LESSORS prior written consent, such consent not to be
unreasonably withheld. Notwithstanding such consent, LESSEE shall remain
liable to LESSOR for the payment of all rent and for the full performance
of the covenants and conditions of this lease. Notwithstanding anything
contained herein to the contrary, LESSEE shall be entitled, without the
consent of LESSOR and without triggering any right of LESSOR to terminate
or cancel this Lease, to assign this Lease or any interest hereunder, or to
sublet the Premises or any part hereof, to any subsidiary or affiliate of
LESSEE. The term "affiliate" shall include any corporation or other entity,
which controls, is controlled by, or is under common control with, LESSEE.
LESSEE shall be entitled to sell insurance in the Premises for and in the
name of any insurance subsidiary or affiliate of LESSEE. The sale or
transfer of any or all of the common stock of LESSEE shall not be deemed an
assignment or sublease, by operation of law or otherwise, within the
meaning of this provision.
9. SUBORDINATION
This lease shall be subject and subordinate to any and all mortgages, deeds
of trust and other instruments in the nature of a mortgage, now or at any
time hereafter, a lien or liens on the property of which the leased
premises are a part and the 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, deeds of trust or other such
instruments in the nature of a mortgage. Notwithstanding anything herein to
the contrary, LESSOR agrees that the subordination of this Lease to any
ground lease, mortgage, deed of trust or other hypothecation for security
shall be subject and subordinate to LESSEE'S right to the continued quiet
enjoyment of the Premises under the terms of this Lease so long as LESSEE
is not in default under the terms of this Lease and during any applicable
cure period or cure period following notice provided herein. No default by
LESSOR under any such ground lease, mortgage, deed of trust or
2
hypothecation shall affect LESSEE'S right hereunder so long as LESSEE is
not in default under this Lease.
10. REPAIRS AND MAINTENANCE
LESSEE shall, at its cost and expense, keep the Premises, including the
interior of any buildings erected thereon and facilities located therein,
in good condition and repair, excepting reasonable wear and tear and damage
by fire or other casualty covered by LESSEE'S fire and extended coverage
insurance, excepting damages and expenses arising from the negligence of
LESSOR or LESSOR'S agents, officers, employees, or invitees and shall, at
his cost and expense maintain all portions of the Premises in a clean,
safe, and orderly condition, free of unlawful obstructions. LESSOR covenant
to make all structural repairs, including repairs to the foundation and
supports, masonry walls, ceilings, floors, roof and replacement of or major
repairs to the heating and cooling systems, electrical systems and the fuel
tanks. LESSOR shall not be obligated to make or pay for any repairs to the
Premises rendered necessary by the fault or negligence of the LESSEE or any
of his servants, employees, agents, invitees or customers. The cost of said
repairs to be borne solely by the LESSEE.
11. SIGNAGE
LESSEE shall be permitted to place a name plate, meeting zoning
requirements, on marquis located in front of property on Medford Street,
Arlington or at the LESSEE'S option.
12. 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, the LESSORS 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 the LESSEE may elect to terminate this
lease if:
(a) The LESSORS fail to give written notice within thirty (30) days of
intention to restore leased premises; or
(b) The LESSORS fail to restore the leased premises to a condition
substantially suitable for their intended use within ninety (90) days
of said fire, casualty, or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which
the LESSEE may have for damages or injury to the leased premises for any
taking by eminent domain, except for damage to the LESSEE'S fixtures,
property, or equipment.
3
13. DISTRAINT; OTHER REMEDIES OF LESSOR AND LESSEE
(a) If LESSEE defaults in the payment of rent or additional rent or
defaults in the performance of any of the covenants or conditions
hereof, LESSOR may give to LESSEE notice of such default and if LESSEE
does not cure any rent or additional rent default within five (5)
days, or other default, within ten (10) days, after the giving of such
notice (or, if such other default is of such nature that it cannot be
completely cured within such ten (10) days, if LESSEE does not
commence such curing within such ten (10) days and thereafter proceed
with reasonable diligence and in good faith to cure such default), or
if the LESSEE shall compound its debts, or make an assignment for the
benefit of creditors, or if a receiver or trustee is applied for or
appointed for the LESSEE, or if there be fled a petition in bankruptcy
or insolvency, or for an arrangement for reorganization by or against
the LESSEE, or if the LESSEE is adjudicated a bankrupt or is adjudged
to be insolvent, or if there is advertised any sale of LESSEE'S
property under process of law, or if the assets or property of the
LESSEE in the Premises shall be attached or levied upon, then LESSOR
may terminate this lease agreement on not less than three (3) days'
notice to LESSEE, and on the date specified in said notice the term of
this lease agreement shall terminate and LESSEE shall then quit and
surrender the Leased Premises to LESSOR, but LESSEE shall remain
liable as hereinafter provided. If this lease agreement shall have
been so terminated by LESSOR, LESSOR may at any time thereafter resume
possession of the Premises by any lawful means and remove LESSEE or
other occupants and their effects.
(b) In any case where LESSOR has recovered possession of the Premises by
reason of LESSEE'S default, LESSOR may at LESSOR's option occupy the
Premises or cause the Leased Premises to be redecorated, altered,
divided, consolidated with other adjoining premises, or otherwise
changed or prepared for reletting, and may relet the Leased Premises
or any part thereof as agent of LESSEE or otherwise, for a term or
terms to expire prior to, at the same time as or subsequent to, the
original expiration date of this lease agreement, at LESSOR's option,
and receive the rent therefore, applying the same first to the payment
of such expense as LESSOR may have incurred in connection with the
recovery of possession, redecorating, altering, dividing,
consolidating with other adjoining premises, or otherwise changing or
preparing for reletting and the reletting, including brokerage and
reasonable attorney's fees, and then to the payment of damages in
amounts equal to the rent hereunder and to the cost and expense of
performance of the other covenants of LESSEE as herein provided; and
LESSEE agrees, whether or not LESSOR has relet, to pay the LESSOR
damages equal to the rent and other sums herein agreed to be paid by
LESSEE, less the net proceeds of the reletting, if any, as ascertained
from time to time, and the same shall be payable by LESSEE on the
several rent days above specified. In reletting the Leased Premises as
aforesaid, LESSOR may grant rent concessions, and LESSEE shall not be
credited therewith. No such reletting shall constitute a surrender and
acceptance or be deemed evidence thereof. The LESSEE shall not be
entitled to any surplus accruing as a result of any reletting. If
LESSOR elects pursuant hereto to occupy and use the Leased Premises
4
or any part thereof during any part of the balance of the term as
originally fixed or since extended, there shall be allowed against
LESSEE'S obligation for rent or damages as herein defined, during the
term of said occupancy.
(c) LESSOR shall not be in default under this Lease for thirty (30) days
after written notice by LESSEE to LESSOR specifying the nature of
LESSOR'S failure to perform; but LESSOR shall be in default thereafter
if it fails to perform within said 30-day period as set forth in
LESSOR'S notice. However, if the nature of the failure is such that
more than thirty (30) days are required for performance, then LESSOR
shall not be in default, if LESSOR commences performance within the
said 30-day period and thereafter diligently proceeds to correct such
failure.
14. NOTICE
Any notice from the LESSOR to the LESSEE relating to the leased premises or
to the occupancy thereof, shall be deemed duly served, if mailed to the
leased premises, registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE Xxxxx Inc., 0000 Xxxxx XX 0, Xxxx
Xxxxxx, XX 00000. Any notice from the LESSEE to the LESSOR relating to the
leased premises or to the occupancy thereof, shall be deemed duly served,
if mailed to the LESSOR by registered or certified mail, return receipt
requested, postage prepaid, or sent by recognized overnight courier,
addressed to the LESSOR at such address as the LESSOR may from time to time
advise in writing. All rent and notices shall be made payable to and sent
to Celtower Realty Trust, 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
15. SURRENDER
The LESSEE shall at the expiration or other termination of this lease
remove all LESSEE'S goods and effects from the leased premises, (including,
without hereby limiting the generality of the foregoing, all signs and
lettering affixed or painted by the LESSEE, either inside or outside the
leased premises). LESSEE shall deliver to the LESSORS the leased premises
and all keys, locks thereto, and other fixtures connected therewith and all
alterations and additions made to or upon the leased premises, in the same
condition as they were at the commencement of the term, or as they were put
in during the term hereof, reasonable wear and tear and damage by fire or
other casualty only excepted. In the event of the LESSEE'S failure to
remove any of LESSEE'S property from the premises, 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 of the property at the
LESSEE'S expense, or to retain same under LESSORS's control or to sell at
public or private sale, without notice 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 property.
Notwithstanding anything contained herein to the contrary, LESSEE shall not
be required to remove any improvements or additions unless LESSOR expressly
reserves the right to require such removal by written notice to LESSEE at
the same time LESSOR consents to the making of such improvements or
additions.
5
16. INSURANCE
The LESSEE agrees that it will at all times during the term of this lease,
at its own expense, carry insurance on the leased premises from time to
time on said premises against loss or damage by fire and lightening in the
aggregate amount of contents.
17. LEGAL JURISDICTION
This Lease is made and delivered within the Commonwealth of Massachusetts
and shall be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts.
18. AUTHORITY OF CORPORATE AGENT
If LESSEE is a corporation, each individual executing this Lease on behalf
of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation, in accordance
with the bylaws of said corporation, and that this Lease is binding upon
said corporation in accordance with its terms.
19. ACKNOWLEDGEMENT OF TERMS
This Lease sets forth the entire understanding between the parties hereto
with respect to all matters referred to herein, and the provisions hereof
may not be changed or modified except by an instrument in writing signed by
both parties hereto. LESSEE acknowledges that in executing and delivering
this Lease it is not relying on any verbal or written understanding,
promise or representation outside the scope of this Lease and not described
or referred to herein.
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this 5th day of January, 2005.
--------------------------------- ---------------------------------
Witness LESSOR under assignment-Xxxxxxx Xxxxx
--------------------------------- ---------------------------------
Witness LESSEE- Xxxxx Inc.
Title: CFO
6
COMMERCIAL LEASE
----------------
1. PARTIES
Celtower Realty Trust under assignment of lease, 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 hereinafter referred to as LESSOR, which
expression shall include his heirs, successors, and assigns where the
context so admits, does hereby lease to Xxxxx Inc. (a valid Delaware
Corporation) of 0000 Xxxxx XX 0, Xxxx Xxxxxx, XX 00000 hereinafter referred
to as LESSEE, which expression shall include its successors, and assigns
where the context so admits.
2. PREMISES
LESSEE hereby leases the following described premises in the building at 00
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx:
First and second floors, with six offices, common space use of
reception, business center and conference room - containing approximately
3,000 square feet
3. TERM
The term of this lease shall be for one (1) year commencing on January 1,
2006 and ending on December 31, 2006.
4. RENT
During the term of this Lease the LESSEE shall pay to the LESSOR a "base"
rent, due on the first day of each month at the rate of:
The monthly rate is $4,000.00 commencing on January 1, 2006 through
December 31, 2006 for a total of $48,000.00 for the 12 month period. Said
sum shall be applied towards the purchase of 506,667 shares of Xxxxx Inc.
restricted common stock at a 10% discount from closing price on January 5,
2006 of $0.10 for an adjusted price of $0.09 per share
5. UTILITIES
The LESSOR shall pay for all utilities with the exception of any and all
telephone expenses. The LESSEE shall be allowed to install a separate phone
system in accordance with its business requirements.
6. USE OF LEASED PREMISES
1
The LESSEE shall only use the leased premises for the purposes of
professional office uses. The LESSEE is solely responsible for all permits,
licenses and the like required to operate its business.
7. COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in
the leased premises or use made thereof which will be unlawful, improper,
noisy or offensive, or contrary to any law or any municipal by-law or
ordinance in force in the city or town in which the premises are situated.
Notwithstanding anything in this Lease to the contrary, LESSEE'S
obligations to comply with the aforesaid laws, rules, orders, regulations
and requirements shall be limited to those which are based upon the use of
the Premises by the LESSEE for any purpose other than for which the
Premises are leased hereunder and to those obligations imposed due to the
particular use of the Premises by Tenant, as opposed to the use of office
premises generally. Any requirements for repairs, improvements or
replacements shall be complied with by LESSOR unless the condition
necessitating the same was caused by LESSEE.
8. ASSIGNMENT-SUBLEASING
The LESSEE shall not assign or sublet the whole or any part of the leased
premises without LESSORS prior written consent, such consent not to be
unreasonably withheld. Notwithstanding such consent, LESSEE shall remain
liable to LESSOR for the payment of all rent and for the full performance
of the covenants and conditions of this lease. Notwithstanding anything
contained herein to the contrary, LESSEE shall be entitled, without the
consent of LESSOR and without triggering any right of LESSOR to terminate
or cancel this Lease, to assign this Lease or any interest hereunder, or to
sublet the Premises or any part hereof, to any subsidiary or affiliate of
LESSEE. The term "affiliate" shall include any corporation or other entity,
which controls, is controlled by, or is under common control with, LESSEE.
LESSEE shall be entitled to sell insurance in the Premises for and in the
name of any insurance subsidiary or affiliate of LESSEE. The sale or
transfer of any or all of the common stock of LESSEE shall not be deemed an
assignment or sublease, by operation of law or otherwise, within the
meaning of this provision.
9. SUBORDINATION
This lease shall be subject and subordinate to any and all mortgages, deeds
of trust and other instruments in the nature of a mortgage, now or at any
time hereafter, a lien or liens on the property of which the leased
premises are a part and the 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, deeds of trust or other such
instruments in the nature of a mortgage.
2
Notwithstanding anything herein to the contrary, LESSOR agrees that the
subordination of this Lease to any ground lease, mortgage, deed of trust or
other hypothecation for security shall be subject and subordinate to
LESSEE'S right to the continued quiet enjoyment of the Premises under the
terms of this Lease so long as LESSEE is not in default under the terms of
this Lease and during any applicable cure period or cure period following
notice provided herein. No default by LESSOR under any such ground lease,
mortgage, deed of trust or hypothecation shall affect LESSEE'S right
hereunder so long as LESSEE is not in default under this Lease.
10. REPAIRS AND MAINTENANCE
LESSEE shall, at its cost and expense, keep the Premises, including the
interior of any buildings erected thereon and facilities located therein,
in good condition and repair, excepting reasonable wear and tear and damage
by fire or other casualty covered by LESSEE'S fire and extended coverage
insurance, excepting damages and expenses arising from the negligence of
LESSOR or LESSOR'S agents, officers, employees, or invitees and shall, at
his cost and expense maintain all portions of the Premises in a clean,
safe, and orderly condition, free of unlawful obstructions. LESSOR covenant
to make all structural repairs, including repairs to the foundation and
supports, masonry walls, ceilings, floors, roof and replacement of or major
repairs to the heating and cooling systems, electrical systems and the fuel
tanks. LESSOR shall not be obligated to make or pay for any repairs to the
Premises rendered necessary by the fault or negligence of the LESSEE or any
of his servants, employees, agents, invitees or customers. The cost of said
repairs to be borne solely by the LESSEE.
11. SIGNAGE
LESSEE shall be permitted to place a name plate, meeting zoning
requirements, on marquis located in front of property on Medford Street,
Arlington or at the LESSEE'S option.
12. 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, the LESSORS 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 the LESSEE may elect to terminate this
lease if:
(a) The LESSORS fail to give written notice within thirty (30) days of
intention to restore leased premises; or
3
(b) The LESSORS fail to restore the leased premises to a condition
substantially suitable for their intended use within ninety (90) days
of said fire, casualty, or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which
the LESSEE may have for damages or injury to the leased premises for any
taking by eminent domain, except for damage to the LESSEE'S fixtures,
property, or equipment.
13. DISTRAINT; OTHER REMEDIES OF LESSOR AND LESSEE
(a) If LESSEE defaults in the payment of rent or additional rent or
defaults in the performance of any of the covenants or conditions
hereof, LESSOR may give to LESSEE notice of such default and if LESSEE
does not cure any rent or additional rent default within five (5)
days, or other default, within ten (10) days, after the giving of such
notice (or, if such other default is of such nature that it cannot be
completely cured within such ten (10) days, if LESSEE does not
commence such curing within such ten (10) days and thereafter proceed
with reasonable diligence and in good faith to cure such default), or
if the LESSEE shall compound its debts, or make an assignment for the
benefit of creditors, or if a receiver or trustee is applied for or
appointed for the LESSEE, or if there be fled a petition in bankruptcy
or insolvency, or for an arrangement for reorganization by or against
the LESSEE, or if the LESSEE is adjudicated a bankrupt or is adjudged
to be insolvent, or if there is advertised any sale of LESSEE'S
property under process of law, or if the assets or property of the
LESSEE in the Premises shall be attached or levied upon, then LESSOR
may terminate this lease agreement on not less than three (3) days'
notice to LESSEE, and on the date specified in said notice the term of
this lease agreement shall terminate and LESSEE shall then quit and
surrender the Leased Premises to LESSOR, but LESSEE shall remain
liable as hereinafter provided. If this lease agreement shall have
been so terminated by LESSOR, LESSOR may at any time thereafter resume
possession of the Premises by any lawful means and remove LESSEE or
other occupants and their effects.
(b) In any case where LESSOR has recovered possession of the Premises by
reason of LESSEE'S default, LESSOR may at LESSORS option occupy the
Premises or cause the Leased Premises to be redecorated, altered,
divided, consolidated with other adjoining premises, or otherwise
changed or prepared for reletting, and may relet the Leased Premises
or any part thereof as agent of LESSEE or otherwise, for a term or
terms to expire prior to, at the same time as or subsequent to, the
original expiration date of this lease agreement, at LESSOR's option,
and receive the rent therefore, applying the same first to the payment
of such expense as LESSOR may have incurred in connection with the
4
recovery of possession, redecorating, altering, dividing,
consolidating with other adjoining premises, or otherwise changing or
preparing for reletting and the reletting, including brokerage and
reasonable attorney's fees, and then to the payment of damages in
amounts equal to the rent hereunder and to the cost and expense of
performance of the other covenants of LESSEE as herein provided; and
LESSEE agrees, whether or not LESSOR has relet, to pay the LESSOR
damages equal to the rent and other sums herein agreed to be paid by
LESSEE, less the net proceeds of the reletting, if any, as ascertained
from time to time, and the same shall be payable by LESSEE on the
several rent days above specified. In reletting the Leased Premises as
aforesaid, LESSOR may grant rent concessions, and LESSEE shall not be
credited therewith. No such reletting shall constitute a surrender and
acceptance or be deemed evidence thereof. The LESSEE shall not be
entitled to any surplus accruing as a result of any reletting. If
LESSOR elects pursuant hereto to occupy and use the Leased Premises or
any part thereof during any part of the balance of the term as
originally fixed or since extended, there shall be allowed against
LESSEE'S obligation for rent or damages as herein defined, during the
term of said occupancy.
(c) LESSOR shall not be in default under this Lease for thirty (30) days
after written notice by LESSEE to LESSOR specifying the nature of
LESSOR'S failure to perform; but LESSOR shall be in default thereafter
if it fails to perform within said 30-day period as set forth in
LESSOR'S notice. However, if the nature of the failure is such that
more than thirty (30) days are required for performance, then LESSOR
shall not be in default, if LESSOR commences performance within the
said 30-day period and thereafter diligently proceeds to correct such
failure.
14. NOTICE
Any notice from the LESSOR to the LESSEE relating to the leased premises or
to the occupancy thereof, shall be deemed duly served, if mailed to the
leased premises, registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE Xxxxx Inc., 0000 Xxxxx XX 0, Xxxx
Xxxxxx, XX 00000. Any notice from the LESSEE to the LESSOR relating to the
leased premises or to the occupancy thereof, shall be deemed duly served,
if mailed to the LESSOR by registered or certified mail, return receipt
requested, postage prepaid, or sent by recognized overnight courier,
addressed to the LESSOR at such address as the LESSOR may from time to time
advise in writing. All rent and notices shall be made payable to and sent
to Celtower Realty Trust, 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
15. SURRENDER
The LESSEE shall at the expiration or other termination of this lease
remove all LESSEE'S goods and effects from the leased premises, (including,
without hereby limiting the generality of the foregoing, all signs and
5
lettering affixed or painted by the LESSEE, either inside or outside the
leased premises). LESSEE shall deliver to the LESSORS the leased premises
and all keys, locks thereto, and other fixtures connected therewith and all
alterations and additions made to or upon the leased premises, in the same
condition as they were at the commencement of the term, or as they were put
in during the term hereof reasonable wear and tear and damage by fire or
other casualty only excepted. In the event of the LESSEE'S failure to
remove any of LESSEE'S property from the premises, 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 of the property at the
LESSEE'S expense, or to retain same under LESSORS's control or to sell at
public or private sale, without notice 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 property.
Notwithstanding anything contained herein to the contrary, LESSEE shall not
be required to remove any improvements or additions unless LESSOR expressly
reserves the right to require such removal by written notice to LESSEE at
the same time LESSOR consents to the making of such improvements or
additions.
16. INSURANCE
The LESSEE agrees that it will at all times during the term of this lease,
at its own expense, carry insurance on the leased premises from time to
time on said premises against loss or damage by fire and lightening in the
aggregate amount of contents.
17. LEGAL JURISDICTION
This Lease is made and delivered within the Commonwealth of Massachusetts
and shall be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts.
18. AUTHORITY OF CORPORATE AGENT
If LESSEE is a corporation, each individual executing this Lease on behalf
of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation, in accordance
with the bylaws of said corporation, and that this Lease is binding upon
said corporation in accordance with its terms.
19. ACKNOWLEDGEMENT OF TERMS
This Lease sets forth the entire understanding between the parties hereto
with respect to all matters referred to herein, and the provisions hereof
may not be changed or modified except by an instrument in writing signed by
both parties hereto. LESSEE acknowledges that in executing and delivering
6
this Lease it is not relying on any verbal or written understanding,
promise or representation outside the scope of this Lease and not described
or referred to herein.
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this 5th day of January, 2006.
--------------------------------- ---------------------------------
Witness LESSOR under assignment-Xxxxxxx Xxxxx-
Trustee of Celtower Realty Trust
--------------------------------- ---------------------------------
Witness LESSEE- Xxxxx Inc.
Title: CFO
7
COMMERCIAL LEASE
----------------
1. PARTIES
Celtower Realty Trust under assignment of lease, 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 hereinafter referred to as LESSOR, which
expression shall include his heirs, successors, and assigns where the
context so admits, does hereby lease to Xxxxx Inc. (a valid Delaware
Corporation) of 0000 Xxxxx XX 0, Xxxx Xxxxxx, XX 00000 hereinafter referred
to as LESSEE, which expression shall include its successors, and assigns
where the context so admits.
2. PREMISES
LESSEE hereby leases the following described premises in the building at 00
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx:
First and second floors, with six offices, common space use of
reception, business center and conference room - containing approximately
3,000 square feet
3. TERM
The term of this lease shall be for one (1) year commencing on January 1,
2007 and ending on December 31, 2007.
4. RENT
During the term of this Lease the LESSEE shall pay to the LESSOR a "base"
rent, due on the first day of each month at the rate of:
The monthly rate is $4,000.00 commencing on January 1, 2007 through
December 31, 2007 for a total of $48,000.00 for the 12 month period. Said
sum shall be applied towards the purchase of 506,667 shares of Xxxxx Inc.
restricted common stock at a 10% discount from closing price on January 3,
2007 of $0.10 for an adjusted price of $0.09 per share
5. UTILITIES
The LESSOR shall pay for all utilities with the exception of any and all
telephone expenses. The LESSEE shall be allowed to install a separate phone
system in accordance with its business requirements.
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6. USE OF LEASED PREMISES
The LESSEE shall only use the leased premises for the purposes of
professional office uses. The LESSEE is solely responsible for all permits,
licenses and the like required to operate its business.
7. COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in
the leased premises or use made thereof which will be unlawful, improper,
noisy or offensive, or contrary to any law or any municipal by-law or
ordinance in force in the city or town in which the premises are situated.
Notwithstanding anything in this Lease to the contrary, LESSEE'S
obligations to comply with the aforesaid laws, rules, orders, regulations
and requirements shall be limited to those which are based upon the use of
the Premises by the LESSEE for any purpose other than for which the
Premises are leased hereunder and to those obligations imposed due to the
particular use of the Premises by Tenant, as opposed to the use of office
premises generally. Any requirements for repairs, improvements or
replacements shall be complied with by LESSOR unless the condition
necessitating the same was caused by LESSEE.
8. ASSIGNMENT-SUBLEASING
The LESSEE shall not assign or sublet the whole or any part of the leased
premises without LESSORS prior written consent, such consent not to be
unreasonably withheld. Notwithstanding such consent, LESSEE shall remain
liable to LESSOR for the payment of all rent and for the full performance
of the covenants and conditions of this lease. Notwithstanding anything
contained herein to the contrary, LESSEE shall be entitled, without the
consent of LESSOR and without triggering any right of LESSOR to terminate
or cancel this Lease, to assign this Lease or any interest hereunder, or to
sublet the Premises or any part hereof, to any subsidiary or affiliate of
LESSEE. The term "affiliate" shall include any corporation or other entity,
which controls, is controlled by, or is under common control with, LESSEE.
LESSEE shall be entitled to sell insurance in the Premises for and in the
name of any insurance subsidiary or affiliate of LESSEE. The sale or
transfer of any or all of the common stock of LESSEE shall not be deemed an
assignment or sublease, by operation of law or otherwise, within the
meaning of this provision.
9. SUBORDINATION
This lease shall be subject and subordinate to any and all mortgages, deeds
of trust and other instruments in the nature of a mortgage, now or at any
time hereafter, a lien or liens on the property of which the leased
premises are a part and the LESSEE shall, when requested, promptly execute
and deliver such written instruments as shall be necessary to show the
2
subordination of this lease to said mortgages, deeds of trust or other such
instruments in the nature of a mortgage. Notwithstanding anything herein to
the contrary, LESSOR agrees that the subordination of this Lease to any
ground lease, mortgage, deed of trust or other hypothecation for security
shall be subject and subordinate to LESSEE'S right to the continued quiet
enjoyment of the Premises under the terms of this Lease so long as LESSEE
is not in default under the terms of this Lease and during any applicable
cure period or cure period following notice provided herein. No default by
LESSOR under any such ground lease, mortgage, deed of trust or
hypothecation shall affect LESSEE'S right hereunder so long as LESSEE is
not in default under this Lease.
10. REPAIRS AND MAINTENANCE
LESSEE shall, at its cost and expense, keep the Premises, including the
interior of any buildings erected thereon and facilities located therein,
in good condition and repair, excepting reasonable wear and tear and damage
by fire or other casualty covered by LESSEE'S fire and extended coverage
insurance, excepting damages and expenses arising from the negligence of
LESSOR or LESSOR'S agents, officers, employees, or invitees and shall, at
his cost and expense maintain all portions of the Premises in a clean,
safe, and orderly condition, free of unlawful obstructions. LESSOR covenant
to make all structural repairs, including repairs to the foundation and
supports, masonry walls, ceilings, floors, roof and replacement of or major
repairs to the heating and cooling systems, electrical systems and the fuel
tanks. LESSOR shall not be obligated to make or pay for any repairs to the
Premises rendered necessary by the fault or negligence of the LESSEE or any
of his servants, employees, agents, invitees or customers. The cost of said
repairs to be borne solely by the LESSEE.
11. SIGNAGE
LESSEE shall be permitted to place a name plate, meeting zoning
requirements, on marquis located in front of property on Medford Street,
Arlington or at the LESSEE'S option.
12. 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, the LESSORS 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 the LESSEE may elect to terminate this
lease if:
3
(a) The LESSORS fail to give written notice within thirty (30) days of
intention to restore leased premises; or
(b) The LESSORS fail to restore the leased premises to a condition
substantially suitable for their intended use within ninety (90) days
of said fire, casualty, or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which
the LESSEE may have for damages or injury to the leased premises for any
taking by eminent domain, except for damage to the LESSEE'S fixtures,
property, or equipment.
13. DISTRAINT; OTHER REMEDIES OF LESSOR AND LESSEE
(a) If LESSEE defaults in the payment of rent or additional rent or
defaults in the performance of any of the covenants or conditions
hereof, LESSOR may give to LESSEE notice of such default and if LESSEE
does not cure any rent or additional rent default within five (5)
days, or other default, within ten (10) days, after the giving of such
notice (or, if such other default is of such nature that it cannot be
completely cured within such ten (10) days, if LESSEE does not
commence such curing within such ten (10) days and thereafter proceed
with reasonable diligence and in good faith to cure such default), or
if the LESSEE shall compound its debts, or make an assignment for the
benefit of creditors, or if a receiver or trustee is applied for or
appointed for the LESSEE, or if there be fled a petition in bankruptcy
or insolvency, or for an arrangement for reorganization by or against
the LESSEE, or if the LESSEE is adjudicated a bankrupt or is adjudged
to be insolvent, or if there is advertised any sale of LESSEE'S
property under process of law, or if the assets or property of the
LESSEE in the Premises shall be attached or levied upon, then LESSOR
may terminate this lease agreement on not less than three (3) days'
notice to LESSEE, and on the date specified in said notice the term of
this lease agreement shall terminate and LESSEE shall then quit and
surrender the Leased Premises to LESSOR, but LESSEE shall remain
liable as hereinafter provided. If this lease agreement shall have
been so terminated by LESSOR, LESSOR may at any time thereafter resume
possession of the Premises by any lawful means and remove LESSEE or
other occupants and their effects.
(b) In any case where LESSOR has recovered possession of the Premises by
reason of LESSEE'S default, LESSOR may at LESSOR's option occupy the
Premises or cause the Leased Premises to be redecorated, altered,
divided, consolidated with other adjoining premises, or otherwise
changed or prepared for reletting, and may relet the Leased Premises
or any part thereof as agent of LESSEE or otherwise, for a term or
terms to expire prior to, at the same time as or subsequent to, the
original expiration date of this lease agreement, at LESSOR'S option,
4
and receive the rent therefore, applying the same first to the payment
of such expense as LESSOR may have incurred in connection with the
recovery of possession, redecorating, altering, dividing,
consolidating with other adjoining premises, or otherwise changing or
preparing for reletting and the reletting, including brokerage and
reasonable attorney's fees, and then to the payment of damages in
amounts equal to the rent hereunder and to the cost and expense of
performance of the other covenants of LESSEE as herein provided; and
LESSEE agrees, whether or not LESSOR has relet, to pay the LESSOR
damages equal to the rent and other sums herein agreed to be paid by
LESSEE, less the net proceeds of the reletting, if any, as ascertained
from time to time, and the same shall be payable by LESSEE on the
several rent days above specified. In reletting the Leased Premises as
aforesaid, LESSOR may grant rent concessions, and LESSEE shall not be
credited therewith. No such reletting shall constitute a surrender and
acceptance or be deemed evidence thereof. The LESSEE shall not be
entitled to any surplus accruing as a result of any reletting. If
LESSOR elects pursuant hereto to occupy and use the Leased Premises or
any part thereof during any part of the balance of the term as
originally fixed or since extended, there shall be allowed against
LESSEE'S obligation for rent or damages as herein defined, during the
term of said occupancy.
(c) LESSOR shall not be in default under this Lease for thirty (30) days
after written notice by LESSEE to LESSOR specifying the nature of
LESSOR'S failure to perform; but LESSOR shall be in default thereafter
if it fails to perform within said 30-day period as set forth in
LESSOR'S notice. However, if the nature of the failure is such that
more than thirty (30) days are required for performance, then LESSOR
shall not be in default, if LESSOR commences performance within the
said 30-day period and thereafter diligently proceeds to correct such
failure.
14. NOTICE
Any notice from the LESSOR to the LESSEE relating to the leased premises or
to the occupancy thereof, shall be deemed duly served, if mailed to the
leased premises, registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE Xxxxx Inc., 0000 Xxxxx XX 0, Xxxx
Xxxxxx, XX 00000. Any notice from the LESSEE to the LESSOR relating to the
leased premises or to the occupancy thereof, shall be deemed duly served,
if mailed to the LESSOR by registered or certified mail, return receipt
requested, postage prepaid, or sent by recognized overnight courier,
addressed to the LESSOR at such address as the LESSOR may from time to time
advise in writing. All rent and notices shall be made payable to and sent
to Celtower Realty Trust, 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
5
15. SURRENDER
The LESSEE shall at the expiration or other termination of this lease
remove all LESSEE'S goods and effects from the leased premises, (including,
without hereby limiting the generality of the foregoing, all signs and
lettering affixed or painted by the LESSEE, either inside or outside the
leased premises). LESSEE shall deliver to the LESSORS the leased premises
and all keys, locks thereto, and other fixtures connected therewith and all
alterations and additions made to or upon the leased premises, in the same
condition as they were at the commencement of the term, or as they were put
in during the term hereof, reasonable wear and tear and damage by fire or
other casualty only excepted. In the event of the LESSEE'S failure to
remove any of LESSEE'S property from the premises, 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 of the property at the
LESSEE'S expense, or to retain same under LESSORS's control or to sell at
public or private sale, without notice 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 property.
Notwithstanding anything contained herein to the contrary, LESSEE shall not
be required to remove any improvements or additions unless LESSOR expressly
reserves the right to require such removal by written notice to LESSEE at
the same time LESSOR consents to the making of such improvements or
additions.
16. INSURANCE
The LESSEE agrees that it will at all times during the term of this lease,
at its own expense, carry insurance on the leased premises from time to
time on said premises against loss or damage by fire and lightening in the
aggregate amount of contents.
17. LEGAL JURISDICTION
This Lease is made and delivered within the Commonwealth of Massachusetts
and shall be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts.
18. AUTHORITY OF CORPORATE AGENT
If LESSEE is a corporation, each individual executing this Lease on behalf
of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation, in accordance
with the bylaws of said corporation, and that this Lease is binding upon
said corporation in accordance with its terms.
6
19. ACKNOWLEDGEMENT OF TERMS
This Lease sets forth the entire understanding between the parties hereto
with respect to all matters referred to herein, and the provisions hereof
may not be changed or modified except by an instrument in writing signed by
both parties hereto. LESSEE acknowledges that in executing and delivering
this Lease it is not relying on any verbal or written understanding,
promise or representation outside the scope of this Lease and not described
or referred to herein.
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this 3rd day of January, 2007.
--------------------------------- ---------------------------------
Witness LESSOR under assignment-Xxxxxxx Xxxxx-
Trustee of Celtower Realty Trust
--------------------------------- ---------------------------------
Witness LESSEE- Xxxxx Inc.
Title: CFO
7
TENANT AT WILL- COMMERCIAL LEASE
--------------------------------
1. PARTIES
Xxx XxxXxxxxx Trustee of 3T Realty Trust of 00X Xxx Xxxxx Xxxxxx, Xxxx 0,
Xxxxxxxxx, XX hereinafter referred to as LESSOR, which expression shall
include his heirs, successors, and assigns where the context so admits,
does hereby lease to Xxxxx Inc. (a valid Delaware Corporation) of 0000
Xxxxx XX 0, Xxxx Xxxxxx, XX 00000 hereinafter referred to as LESSEE, which
expression shall include its successors, and assigns where the context so
admits.
2. PREMISES
LESSEE hereby leases the following described premises in the building at
00X Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000:
Building 00X Xxx Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxxxx Xxx with front
parking +12 car parking - containing approximately 3,000 square feet. In
addition, Lessee leases lab space in Unit 5 approx 250 sq ft
3. TERM
The term of this lease shall be for one (1) year commencing on August 15,
2006 and ending on February 15, 2008.
4. RENT
During the term of this Lease the LESSEE shall pay to the LESSOR a "base"
rent, due on the first day of each month at the rate of:
The base rent is $2,800/month; The tenant will pay 1/2 the taxes plus 1/2
the common fee estimated at $350/mo. In addition, Lessor leases lab space
in Unit 5 for $350/mo under same terms. The total rent to be paid the
Lessor is $3,500/mo
5. UTILITIES
The LESSEE shall pay for all its utilities.
6. USE OF LEASED PREMISES
The LESSEE shall only use the leased premises for the purposes of
Laboratory and uses allowed under zoning.
1
7. COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in
the leased premises or use made thereof which will be unlawful, improper,
noisy or offensive, or contrary to any law or any municipal by-law or
ordinance in force in the city or town in which the premises are situated.
Notwithstanding anything in this Lease to the contrary, LESSEE'S
obligations to comply with the aforesaid laws, rules, orders, regulations
and requirements shall be limited to those which are based upon the use of
the Premises by the LESSEE for any purpose other than for which the
Premises are leased hereunder and to those obligations imposed due to the
particular use of the Premises by Tenant, as opposed to the use of office
premises generally. Any requirements for repairs, improvements or
replacements shall be complied with by LESSOR unless the condition
necessitating the same was caused by LESSEE.
8. ASSIGNMENT-SUBLEASING
The LESSEE shall not assign or sublet the whole or any part of the leased
premises without LESSORS prior written consent, such consent not to be
unreasonably withheld. Notwithstanding such consent, LESSEE shall remain
liable to LESSOR for the payment of all rent and for the full performance
of the covenants and conditions of this lease. Notwithstanding anything
contained herein to the contrary, LESSEE shall be entitled, without the
consent of LESSOR and without triggering any right of LESSOR to terminate
or cancel this Lease, to assign this Lease or any interest hereunder, or to
sublet the Premises or any part hereof, to any subsidiary or affiliate of
LESSEE. The term "affiliate" shall include any corporation or other entity,
which controls, is controlled by, or is under common control with, LESSEE.
LESSEE shall be entitled to sell insurance in the Premises for and in the
name of any insurance subsidiary or affiliate of LESSEE. The sale or
transfer of any or all of the common stock of LESSEE shall not be deemed an
assignment or sublease, by operation of law or otherwise, within the
meaning of this provision.
9. SUBORDINATION
This lease shall be subject and subordinate to any and all mortgages, deeds
of trust and other instruments in the nature of a mortgage, now or at any
time hereafter, a lien or liens on the property of which the leased
premises are a part and the 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, deeds of trust or other such
instruments in the nature of a mortgage. Notwithstanding anything herein to
the contrary, LESSOR agrees that the subordination of this Lease to any
ground lease, mortgage, deed of trust or other hypothecation for security
shall be subject and subordinate to LESSEE'S right to the continued quiet
enjoyment of the Premises under the terms of this Lease so long as LESSEE
2
is not in default under the terms of this Lease and during any applicable
cure period or cure period following notice provided herein. No default by
LESSOR under any such ground lease, mortgage, deed of trust or
hypothecation shall affect LESSEE'S right hereunder so long as LESSEE is
not in default under this Lease.
10. REPAIRS AND MAINTENANCE
LESSEE shall, at its cost and expense, keep the Premises, including the
interior of any buildings erected thereon and facilities located therein,
in good condition and repair, excepting reasonable wear and tear and damage
by fire or other casualty covered by LESSEE'S fire and extended coverage
insurance, excepting damages and expenses arising from the negligence of
LESSOR or LESSOR'S agents, officers, employees, or invitees and shall, at
his cost and expense maintain all portions of the Premises in a clean,
safe, and orderly condition, free of unlawful obstructions. LESSOR covenant
to make all structural repairs, including repairs to the foundation and
supports, masonry walls, ceilings, floors, roof and replacement of or major
repairs to the heating and cooling systems, electrical systems and the fuel
tanks. LESSOR shall not be obligated to make or pay for any repairs to the
Premises rendered necessary by the fault or negligence of the LESSEE or any
of his servants, employees, agents, invitees or customers. The cost of said
repairs to be borne solely by the LESSEE.
11. SIGNAGE
LESSEE shall be permitted to place a name plate, meeting zoning
requirements, on marquis located in front of property on New Salem Street
or at the LESSEE'S option.
12. 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, the LESSORS 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 the LESSEE may elect to terminate this
lease if:
(a) The LESSORS fail to give written notice within thirty (30) days of
intention to restore leased premises; or
(b) The LESSORS fail to restore the leased premises to a condition
substantially suitable for their intended use within ninety (90) days
of said fire, casualty, or taking.
3
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which
the LESSEE may have for damages or injury to the leased premises for any
taking by eminent domain, except for damage to the LESSEE'S fixtures,
property, or equipment.
13. DISTRAINT; OTHER REMEDIES OF LESSOR AND LESSEE
(a) If LESSEE defaults in the payment of rent or additional rent or
defaults in the performance of any of the covenants or conditions
hereof, LESSOR may give to LESSEE notice of such default and if LESSEE
does not cure any rent or additional rent default within five (5)
days, or other default, within ten (10) days, after the giving of such
notice (or, if such other default is of such nature that it cannot be
completely cured within such ten (10) days, if LESSEE does not
commence such curing within such ten (10) days and thereafter proceed
with reasonable diligence and in good faith to cure such default), or
if the LESSEE shall compound its debts, or make an assignment for the
benefit of creditors, or if a receiver or trustee is applied for or
appointed for the LESSEE, or if there be filed a petition in
bankruptcy or insolvency, or for an arrangement for reorganization by
or against the LESSEE, or if the LESSEE is adjudicated a bankrupt or
is adjudged to be insolvent, or if there is advertised any sale of
LESSEE'S property under process of law, or if the assets or property
of the LESSEE in the Premises shall be attached or levied upon, then
LESSOR may terminate this lease agreement on not less than three (3)
days' notice to LESSEE, and on the date specified in said notice the
term of this lease agreement shall terminate and LESSEE shall then
quit and surrender the Leased Premises to LESSOR, but LESSEE shall
remain liable as hereinafter provided. If this lease agreement shall
have been so terminated by LESSOR, LESSOR may at any time thereafter
resume possession of the Premises by any lawful means and remove
LESSEE or other occupants and their effects.
(b) In any case where LESSOR has recovered possession of the Premises by
reason of LESSEE'S default, LESSOR may at LESSOR's option occupy the
Premises or cause the Leased Premises to be redecorated, altered,
divided, consolidated with other adjoining premises, or otherwise
changed or prepared for reletting, and may relet the Leased Premises
or any part thereof as agent of LESSEE or otherwise, for a term or
terms to expire prior to, at the same time as or subsequent to, the
original expiration date of this lease agreement, at LESSOR's option,
and receive the rent therefore, applying the same first to the payment
of such expense as LESSOR may have incurred in connection with the
recovery of possession, redecorating, altering, dividing,
consolidating with other adjoining premises, or otherwise changing or
preparing for reletting and the reletting, including brokerage and
reasonable attorney's fees, and then to the payment of damages in
amounts equal to the rent hereunder and to the cost and expense of
4
performance of the other covenants of LESSEE as herein provided; and
LESSEE agrees, whether or not LESSOR has relet, to pay the LESSOR
damages equal to the rent and other sums herein agreed to be paid by
LESSEE, less the net proceeds of the reletting, if any, as ascertained
from time to time, and the same shall be payable by LESSEE on the
several rent days above specified. In reletting the Leased Premises as
aforesaid, LESSOR may grant rent concessions, and LESSEE shall not be
credited therewith. No such reletting shall constitute a surrender and
acceptance or be deemed evidence thereof. The LESSEE shall not be
entitled to any surplus accruing as a result of any reletting. If
LESSOR elects pursuant hereto to occupy and use the Leased Premises or
any part thereof during any part of the balance of the term as
originally fixed or since extended, there shall be allowed against
LESSEE'S obligation for rent or damages as herein defined, during the
term of said occupancy.
(c) LESSOR shall not be in default under this Lease for thirty (30) days
after written notice by LESSEE to LESSOR specifying the nature of
LESSOR'S failure to perform; but LESSOR shall be in default thereafter
if it fails to perform within said 30-day period as set forth in
LESSOR'S notice. However, if the nature of the failure is such that
more than thirty (30) days are required for performance, then LESSOR
shall not be in default, if LESSOR commences performance within the
said 30-day period and thereafter diligently proceeds to correct such
failure.
14. NOTICE
Any notice from the LESSOR to the LESSEE relating to the leased premises or
to the occupancy thereof, shall be deemed duly served, if mailed to the
leased premises, registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE Xxxxx Inc., 0000 Xxxxx XX 0, Xxxx
Xxxxxx, XX 00000. Any notice from the LESSEE to the LESSOR relating to the
leased premises or to the occupancy thereof, shall be deemed duly served,
if mailed to the LESSOR by registered or certified mail, return receipt
requested, postage prepaid, or sent by recognized overnight courier,
addressed to the LESSOR at such address as the LESSOR may from time to time
advise in writing. All rent and notices shall be made payable to and sent
to Celtower Realty Trust, 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
15. SURRENDER
The LESSEE shall at the expiration or other termination of this lease
remove all LESSEE'S goods and effects from the leased premises, (including,
without hereby limiting the generality of the foregoing, all signs and
lettering affixed or painted by the LESSEE, either inside or outside the
leased premises). LESSEE shall deliver to the LESSORS the leased premises
5
and all keys, locks thereto, and other fixtures connected therewith and all
alterations and additions made to or upon the leased premises, in the same
condition as they were at the commencement of the term, or as they were put
in during the term hereof, reasonable wear and tear and damage by fire or
other casualty only excepted. In the event of the LESSEE'S failure to
remove any of LESSEE'S property from the premises, 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 of the property at the
LESSEE'S expense, or to retain same under LESSORS's control or to sell at
public or private sale, without notice 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 property.
Notwithstanding anything contained herein to the contrary, LESSEE shall not
be required to remove any improvements or additions unless LESSOR expressly
reserves the right to require such removal by written notice to LESSEE at
the same time LESSOR consents to the making of such improvements or
additions.
16. INSURANCE
The LESSEE agrees that it will at all times during the term of this lease,
at its own expense, carry insurance on the leased premises from time to
time on said premises against loss or damage by fire and lightening in the
aggregate amount of contents.
17. LEGAL JURISDICTION
This Lease is made and delivered within the Commonwealth of Massachusetts
and shall be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts.
18 ACKNOWLEDGEMENT OF TERMS
This Lease sets forth the entire understanding between the parties hereto
with respect to all matters referred to herein, and the provisions hereof
may not be changed or modified except by an instrument in writing signed by
both parties hereto. LESSEE acknowledges that in executing and delivering
this Lease it is not relying on any verbal or written understanding,
promise or representation outside the scope of this Lease and not described
or referred to herein.
6
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this 1st day of August, 2006.
--------------------------------- ---------------------------------
Witness LESSOR -Xxx XxXxxxxx, Trustee of 3T
Realty Trust
--------------------------------- ---------------------------------
Witness LESSEE- Xxxxx Inc.
Title: President
7
