LEASE AGREEMENT
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AGREEMENT of Lease made this 7th day of October, 2005 by and between, Adom
Realty Trust, a Massachusetts Realty Trust by Antonio Moda, its Trustee, X.X.
Xxx 000 Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000 its heirs, successors and assigns
where the context so admits, (hereinafter referred to as "LESSOR"), and YDI
Wireless, Inc., a Delaware Corporation, 0000 X'Xxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx
00000 (hereinafter referred as its "LESSEE").
Whereas, the LESSEE is desirous of leasing the Property as described below
and the LESSOR is willing to lease said Property to LESSEE upon the terms and
conditions hereinafter set forth:
1. PROPERTY
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That portion of the building located at 00 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxx County, containing approximately 17,316 square feet, more or less,
on first floor and mezzanine, hereinafter referred to as the "Premises" or
the "Property". (See Exhibit A.)
2. TERM
----
Unless sooner terminated as hereinafter provided, the term of this Lease
shall be for a period of approximately 10 years, commencing on the later
of (a) November 1, 2005 (C.D.) or (b) ten (10) days after written notice
of substantial completion by Lessor of its contemplated renovations and
ending on October 31, 2015, (this Term is subject to Lessee's early
Termination Rights as described in Addendum 3),,. The LESSEE shall
thereafter hold said Property hereby leased during the full term of this
lease and paying rent stated in Paragraph 3 for said term.
3. BASE RENT
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LESSEE shall pay to LESSOR base rent at the rate of six ($6.00) dollars
per year, payable in advance in twelve (12) monthly installments of
$8,658. on the first day of each calendar month in advance, the first
monthly payment (for the third month of the term of this Lease) to be made
on execution of this Lease, including payment in advance for appropriate
fractions of a monthly payment for any portion of a month at the
commencement of said term or at the termination of this Lease, all
payments to be made to LESSOR or its agent, at X.X. Xxx 000, Xxxx Xxxxxxx,
Xxxxxxxxxxxxx 00000 or at such other place as LESSOR shall from time to
time designate in writing. * The first two months of the term of this
Lease are hereby provided to LESSEE without charge.
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The Base Rent for each year of the term (the Base Rent) shall be as
follows:
Lease Year Per SF Per Year Per Month
---------- ------ -------- ---------
1 $6.00 * $86,580. $ 8,658.06
2-3 $6.50 $112,554. $ 9,379.50
4-5 $6.75 $116,883. $ 9,740.25
6-7 $7.00 $121,212. $10,101.00
8 $7.20 $124,675 $10,389.60
9 $7.40 $128,138 $10,678.20
10 $7.60 $131,601. $10,966.80
The LESSEE agrees that it will during said Term and for such further time
as the said LESSEE or any person or persons claiming under it shall hold
said Property or any part thereof pay unto the LESSOR and its assigns and
successor the said yearly rent herein before provided for upon the days
herein before appointed for the payment of rent during said term.
4. PAYMENTS UPON SIGNING AGREEMENT
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LESSEE shall pay to LESSOR upon the Execution of this Agreement the First
Month's rent per Paragraph 3, $8,658.00 and the Additional Rent per
Paragraph 7, $2,164.50 and the Security Deposit per Paragraph 5,
$10,822,56 for a Total Due upon Execution of this Lease, $21,645.06.
5. SECURITY DEPOSIT
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Upon the execution of this Lease, LESSEE shall pay to LESSOR a security
deposit in the amount of $10,822.56., which shall be held as security for
the LESSEE's performance as provided herein and refunded to LESSEE without
interest within thirty (30) days of the expiration or earlier termination
oft this Lease subject to LESSEE's satisfactory compliance with the
conditions hereof. LESSOR shall not be required to segregate any such sums
held as a security deposit from other funds of the LESSOR.
6. USE OF PROPERTY
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LESSEE shall use the leased Property only for the purpose of Office,
Research and Development, Manufacturing, and Warehouse. LESSEE agrees that
said use of the Property by LESSEE shall be in accordance with the
Zoning-By-Laws of the Town or City that the Property is situated in as
amended from time to time. If the Property is not zoned so as to allow
Lessee's use as set forth in the foregoing, Lessee may terminate this
Lease upon thirty (30) days notice to Lessor and upon Lessee's vacating
the Property in accordance with this Lease, all obligations of the parties
hereto shall cease.
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7. ADDITIONAL RENT
---------------
(A) During each year of the initial term of this Lease and any renewal
term, LESSEE shall pay to LESSOR, as additional rent, LESSEE's
proportionate share of any and all real estate taxes assessed for or
with respect to the land and building of which the leased Property
are a part for all tax periods wholly or partially included in the
term of this Lease. The term "real estate taxes" shall mean the real
estate taxes and assessments imposed upon the land and building of
which the leased Property are a part, including, but not limited to,
any and all other taxes, levies, betterments, assessments and
charges arising from the ownership and/or the operation of the
building which are or shall be imposed by Federal, State, Municipal
or other authorities, and which are or may become a lien upon said
land and building. If due to a future change in the method of
taxation, any franchise, income or profit tax shall be levied
against LESSOR in substitution for or in lieu of any tax which would
otherwise constitute real estate taxes or if a specific tax on
rentals from the building shall be levied against LESSOR, such
franchise, rental, income or profit tax shall be deemed to
constitute real estate taxes for the purposes hereof. LESSEE's
proportionate share of any such real estate taxes shall be a sum
equal to 33.42 percent of such real estate taxes as defined
hereinabove.
(B) During each year of the initial term of this Lease and any renewal
term, LESSEE shall pay to LESSOR 33.42 percent of LESSOR's operating
costs which include, but not limited to management fees (capped at
5% of gross rents of building), fire protection, security
guard/alarms, utilities, supplies, janitorial services, rubbish
removal and snow and ice removal, routine maintenance and
replacement of landscaping, and premiums for public liability and
property, damage, fire, and extended coverage insurance. LESSEE
shall not be responsible for (i) capital improvements; (ii) salaries
of officers and executives of the LESSOR; (iii) depreciation of the
Building; (iv) expenses relating to alterations made by the LESSEE;
(v) interest and amortization of principal on indebtedness; (vi) if
already charged to LESSEE, expenses for which the LESSOR, by the
terms of this Lease, or any other lease or rental arrangement makes
a separate charge; (vii) real estate taxes as part of the operating
fees; (viii) the cost of any electric current furnished exclusively
to and responsible to be paid for by any Building occupant (other
than LESSEE); (ix) leasing fees or commissions; (x) the cost to
perform an environmental site assessment of the Property and, if
pollutants are found thereby, to clean the Property of same and the
cost of any work needed to have the Property comply with any
environmental laws; (xi) any cost incurred to benefit Building
occupants other than LESSEE; (xii) any ground lease rent; (xiii) any
costs associated with rebuilding the Building or other costs
incurred resulting from damage by fire or other casualty or
condemnation not otherwise the responsibility of LESSEE under this
Lease; (xiv) any costs to correct original defects or latent
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defects in the Building; and (xv) all other items which under
generally accepted accounting principles as consistently applied in
the real estate industry for industrial buildings are properly
classified as capital expenditures.
(C) LESSEE shall pay interest, at an annual rate of eighteen (18%)
percent from the date due, for any installment of rent or other
payment which is not received by LESSOR within seven (7) days of
said due date. LESSOR's failure during the Lease term to prepare
and/or deliver any of the foregoing statements or invoices, or
LESSOR's failure to make a demand under paragraph 7 or any other
provisions of this Lease, shall not in any way cause LESSOR to
forfeit or surrender its rights to collect any of the foregoing
items of additional rent which may have become due during the term
of this Lease.
(D) The Additional Rent consisting of Real Estate Taxes and Operating
Costs are to be paid on an estimated monthly basis with the Base
Rent and will be adjusted upward or downward as called for by the
actual expenses attributed to the premises on an annual basis
(January 1 - December 31). LESSOR will submit a copy of the Annual
Additional Rent Reconciliation to the LESSEE along with a xxxx,
(which shall include copies of all invoices, property tax bills and
with copies of cancelled checks), for any outstanding balance due
LESSOR or a credit from any overpayments made to LESSOR by LESSEE.
The current estimated Additional Rent is $1.50 per Square Foot
annually, $2,164.50 monthly, (see Exhibit B),. Any additional
amounts owing to Lessor from Lessee must be claimed by May 1 of the
ensuing year or such amounts shall be waived.
8. UTILITIES
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LESSOR shall provide and maintain equipment required to adequately heat
and cool the leased Property (68-72 degrees year-round) at its cost.
LESSEE shall pay directly as they become due, all charges for utilities,
including but not limited to, heat, fuel electricity, water, and
telephone, used and/or furnished on the leased Property. No plumbing or
electrical work of any type shall be done without LESSOR's approval and
the appropriate municipal permit and inspector's approval. LESSEE hereby
acknowledges that water connections are provided by LESSOR for domestic
sanitary purposes only and no process water usage shall be permitted on
the leased Property. LESSOR shall have no obligation to provide utilities
or equipment other than the utilities and equipment within the Property as
of the commencement date of this lease. In the event LESSEE requires
additional utilities or equipment, the installation and maintenance
thereof shall be the LESSEE's sole obligation, provided that such
installation shall be subject to the written consent of the LESSOR. The
LESSOR shall provide existing HVAC system in good working order, capable
of maintaining 68-72 degrees of temperature, (year round),. Lessor
represents to Lessee that all utilitities serving the
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Property of Lessee are separately metered except water, sewer, and common
area/house electricity (of which charges Lessee shall be responsible for
33.42%).
9. COMPLIANCE WITH LAWS
--------------------
LESSEE acknowledges that no trade, occupation, or activity shall be
conducted in the leased Property 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
Property is situated or which tend to degrade the economic status or
reputation of the building. LESSEE shall keep all employees working in the
leased Property covered with Worker's Compensation insurance, and LESSEE
shall be responsible for causing the Property and any work conducted
therein to be in full compliance with the Occupational Safety and Health
Act of 1970 and any amendments thereof.
10. FIRE INSURANCE
--------------
LESSEE shall not permit any use of the leased Property which will make
voidable any insurance on the Property of which the Leased Property is a
part, or on the contents of said Property or which would be contrary to
any law or regulation from time to time established by the New England
Fire Insurance Rating Association, local fire department or similar body.
LESSEE shall on demand reimburse LESSOR, and all other LESSEES, if
applicable, for all additional insurance premiums caused by LESSEE's use
of the Property.
11. MAINTENANCE
-----------
(A) LESSOR's Obligations
LESSOR agrees to keep in good order and condition the utility
systems, mechanical systems, life safety systems, landscaping,
driveways, parking, loading areas and the structural portions of the
Property in the same condition as it is on the Commencement Date or
as it may be put in, i.e. improvements, during the term of the
Lease, reasonable wear and tear, damage by fire and other casualty
only excepted, unless such maintenance is required because of
conduct of LESSEE or those for which conduct the LESSEE is legally
responsible, and, excepting any glass in the leased Property and any
condition in the Property caused by any act or negligence of the
LESSEE or any employee, agent servant or contractor of LESSEE.
Without limitation, LESSOR shall not be responsible for the making
of any improvements or repairs in the Property not expressly
provided herein. Further, LESSOR shall never be liable for any
failure to make repairs inside the leased Premises which, under the
provisions of this section or elsewhere in this Lease, LESSOR has
undertaken to make unless LESSEE has given notice to LESSOR of the
need to make such repairs, or of a condition of the Property
requiring repair and LESSOR
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has failed to commence to make such repairs within a reasonable time after
receipt of such notice.
(B) LESSEE's Obligations:
LESSEE agrees to maintain, at its sole expense, all other aspects of
the leased Property in the same condition as they are at the
commencement of the term or as they may be put in as to improvements
during the term of this Lease, normal wear and tear and damage by
fire or other casualty only excepted, and whenever necessary, to
replace light bulbs, plate glass and other glass therein,
acknowledging that the leased Property is now in good order and the
light bulbs and glass whole. LESSEE will properly control or vent
all solvents, degreasers, or other similar substances, and shall not
cause the areas surrounding the leased Property to be in anything
other than a neat and clean condition, depositing all waste in
appropriate receptacles. LESSEE shall not permit the leased Property
to be overloaded, damaged, stripped or defaced nor suffer any waste
and will not keep animals within the leased Property. Any
maintenance which is necessitated by some specific aspect of
LESSEE's use of the Property shall be at LESSEE's expense. LESSEE
shall obtain written consent of LESSOR before erecting any sign on
the Property or sign that may be visible from the exterior of the
Property or Building. LESSEE shall be responsible for ordinary
maintenance to the Premise's mechanical and electrical systems
and/or wiring and/or units including but not limited to all heating,
air conditioning, ventilation and other mechanical installation
including but not limited to ordinary maintenance of said systems.
12. ALTERATIONS
-----------
LESSEE shall not make any structural changes, alterations or additions to
the leased Property, but LESSEE shall have the right, as its expense, from
time to time, having first obtained LESSOR's written consent thereto
(which consent shall not be unreasonably withheld) to make non-structural
alterations, additions and changes in the leased Property; provided,
however, that such alterations and changes shall not injure the safety of
the structure of the leased Property, nor diminish its value and shall be
done in a good workmanlike manner in a quality at least equal to the
present construction and provided further that upon the LESSOR's request,
LESSEE, at the expiration or other termination of this Lease, shall
restore the leased Property to its original condition (but LESSEE shall
only have the obligation to restore if LESSOR required this in writing as
part of giving LESSOR's initial consent to the changes, alterations, or
additions). All such allowed alterations shall be at LESSEE's expense.
LESSEE shall not permit any mechanics liens, or similar liens, to remain
upon the leased Property for labor and materials furnished to LESSEE in
connection with work of any character performed to or claimed to have been
performed at the direction of LESSEE and shall cause any such lien to be
released of record forthwith without cost
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or expense of any kind to LESSOR. Except as otherwise provided, upon
expiration or earlier termination of this Lease, any such alteration,
addition or change shall become part of the real estate and the Property
of LESSOR. LESSEE further covenants and agrees to save LESSOR harmless and
indemnified from all injury, loss, claims or damage to any person or
Property occasioned by or arising out of any such work.
The LESSOR has reviewed the LESSEE's proposed layouts and has accepted
LESSEE's alterations and additions, (See Exhibit C),.
13. ASSIGNMENT OR SUBLEASING
------------------------
Except as to its subsidiaries, affiliates, parent or successors in
interest, the Lessee shall not assign or sublet the whole or any part of
the leased premises without the Lessor's prior written consent. Said
consent shall not be unreasonably withheld, denied or delayed.
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.
Lessee shall have the right to assign the Lease to any of its
subsidiaries, parent, affiliates or working partnership or surviving
company resulting from a merger or sale of assets of the Lessee, without
Lessor's consent. In no event shall such assignment release the original
tenant. However Lessor shall be notified in the event of any change.
14. SUBORDINATION
-------------
This Lease, and LESSEE's interest hereunder, shall be subject and
subordinate to the lien of any and all present or future mortgage or
mortgages upon the leased Property or any property of which the leased
Property is a part irrespective of the time of execution or recording of
any such mortgage or mortgages. The word "mortgage"(s) as used in this
Paragraph shall mean mortgages, deeds of trust, and any other similar
instruments in the nature of a mortgage at any time hereafter, and all
modifications, extensions, renewals and replacements thereof, and any and
all advances thereunder. LESSEE shall, when requested, promptly execute
and deliver such written instruments as shall be necessary to show the
subordination of this Lease to said mortgages or other such instruments in
the nature of a mortgage and in any event, LESSEE hereby appoints LESSOR
attorney-in-fact irrevocable of LESSEE to execute, acknowledge and deliver
any and all further instruments required to affect any such subordination,
if required by the holder of any mortgage or other such instrument in the
nature of a mortgage. As long as the Tenant is provided the quiet
enjoyment and nondisturbance of the Premises. Notwithstanding the
forgoing, LESSEE's obligations to subordinate this Lease is conditioned
upon Lessee's receipt of a nondisturbance agreement whereby Lessee's
rights hereunder are not interfered with provided that Lessee is not in
default of this Lease. Lessor shall use commercially reasonable efforts to
secure a nondisturbance agreement from any current mortgagee.
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15. LESSOR'S ACCESS
---------------
LESSOR or its Agents shall have the right to enter the lease Property at
all reasonable hours for the purpose of inspecting or making repairs to
the same, and LESSOR shall also have the right to make access available at
all reasonable hours, after reasonable notice, to prospective or existing
mortgagees or purchasers of the leased Property or the Property of which
the leased Property is a part. For a period commencing twelve (12) months
prior to the expiration of the term of this Lease, LESSOR shall have
reasonable access at all reasonable hours to the leased Property for the
purpose of exhibiting the same to prospective tenants. At any time within
the twelve- (12) months before the expiration of the term, LESSOR may
affix to any suitable part of the Property of which the Property is a
part, a sign and keep the same so affixed without hindrance or
molestation.
16. SNOW REMOVAL
------------
The plowing of snow from all roadways, access ways and unobstructed
parking and loading areas shall be the responsibility of LESSOR with
LESSEE paying its proportionate share for the costs thereof as provided
for in Paragraph 7 hereinabove. The control of snow and ice on all steps
serving the leased Property and all other areas not readily accessible to
plow shall be the sole responsibility of LESSEE. Notwithstanding the
foregoing, however, LESSEE shall hold LESSOR harmless from any and all
claims by LESSEE, LESSEE's agents, representatives, employees or business
invitees for damage or personal injury resulting in any way from snow or
ice on any areas serving the leased Property, the removal of which is
Lessee's responsibility.
17. RUBBISH REMOVAL
---------------
LESSEE shall utilize any independent rubbish or trash removal service or
their choice and at the LESSEE'S expense, and Lessor shall provide Lessee
with a location for a dumpster at no additional cost.
18. COMMON AREAS AND PARKING
------------------------
LESSEE shall have the right, without additional charge, to use up to 40
parking spaces in the parking facilities provided for the leased Property,
stairs, walkways or other areas in common with the others entitled to the
use thereof for reasonable access to the leased Property. Said parking
areas plus any stairs, walkways or other common areas shall in all cases
be considered extensions of the leased Property to the extent that they
are utilized by LESSEE, or LESSEE's employees, visitors or business
invites. LESSEE shall not obstruct in any manner any portion of the
building or the walkways or approaches to said building and will conform
to all reasonable rules and regulations now or hereafter made by LESSOR
for parking and for the care, use, or alteration of the building, its
facilities and approaches provided that any such rules and regulations are
applicable to all occupants of the building and are uniformly enforced.
LESSEE further warrants that LESSEE will not permit any employee or
visitor to violate this or any other covenant or
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obligation of LESSEE. No vehicle shall be stored or left in any parking
area for more than three (3) nights without LESSOR's written approval.
Unregistered or disabled vehicles or storage trailers of any type may not
be parked overnight at any time. LESSEE agrees to assume all expense and
risk for the towing of any misparked vehicle belonging to LESSEE or
LESSEE's agents, employees, business invites or callers at any time.
LESSOR shall have the right from time to time, to (A) change the size of
any common facility, (B) change the location and nature of any common
facility, (C) make, and from time to time change, reasonable rules and
regulations relating to the use of the common facilities, (D) employ
police officers to enforce such rules and regulations and to regulate the
conduct of persons using the common facilities, (E) designate specific
parking areas or other facility or portions thereof for use by occupants
of the leased Property and their employees and agents and to change from
time to time the arrangement of parking areas, (F) temporarily close any
common facilities to make repairs or changes or to prevent the acquisition
of easements or a dedication to public use, or to discourage use of such
facilities by anyone not entitled thereto, and (G) do any other act or
thing respecting the common facilities which in LESSOR's sole judgment may
be desirable to improve the convenience and utility of the common
facilities to the occupants of the Property and their customers.
Notwithstanding the foregoing, no alteration shall materially change
access to the Premises or change the number of parking spaces available to
Lessee.
19. INDEMNIFICATION
---------------
A. To the maximum extent that this agreement may be made effective
according to the law, LESSEE agrees that it will protect and
indemnify LESSOR and save Lessor harmless from and against all
liabilities, obligations, claims damages, penalties, causes of
action, costs and expenses (including, without limitation,
reasonable attorney's fees and expenses) imposed upon or incurred by
or asserted against LESSOR by third party (a) by reason of LESSEE's
use of the leased premises or by conduct of its business or from any
activity, work or thing done, permitted or suffered by LESSEE, in or
about the leased premises, or (b) in any manner related to the
maintenance, use or disposal of any oil or hazardous material, as
defined in Chapter 21E of the General Laws by the LESSEE, its
agents, servants or employees, unless, in either situation, caused
by the LESSOR, his agents, servants or employees, provided, however,
that LESSOR notifies LESSEE of such claim in writing within ten (10)
days following receipt of the notice. LESSEE shall control defense
thereof. If LESSOR desires to join any defense of such claim, it
shall be entitled to do so at its sold cost and expense. LESSOR
agrees to cooperate with LESSEE and its counsel. LESSOR represents
to LESSEE that to the best of its knowledge without inquiry, as of
the date of this lease, there does not exist on, in or under the
Property or Building any oil or hazardous material, as defined in
Chapter 21E of the General Laws. If any such hazardous material is
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discovered at any time during the term of this lease, LESSOR shall
indemnify, defend and hold LESSEE harmless from and against and all
claims, liabilities, actions, judgments, and damages directly
resulting from the presence and/or removal of such hazardous
material, unless caused by the acts of the LESSEE or LESSEE's
employees while in or around the Property or Building, provided that
in no event shall LESSEE be responsible for any conditions existing
prior to the date of this lease. LESSOR shall defend, indemnify and
save LESSEE harmless from and against all liabilities, claims,
judgments, costs and expenses, including, but not limited to,
reasonable attorneys' fees, to the extent arising by reason of any
negligent or tortuous act on the part of LESSOR or any of its
employees or agents.
B. To the maximum extent that this agreement may be made effective
according to the law, LESSOR agrees that it will protect and
indemnify LESSEE and save Lessee harmless from and against all
liabilities, obligations, claims damages, penalties, causes of
action, costs and expenses (including, without limitation,
reasonable attorney's fees and expenses) imposed upon or incurred by
or asserted against LESSEE by third party (a) by reason of LESSOR's
ownership or use of the leased premises or the building or property
of which the leased premises constitutes a portion or by conduct of
its business or from any activity, work or thing done, permitted or
suffered by LESSOR, in or about the leased premises or the building
or property of which the leased premises constitutes a portion, or
(b) in any manner related to the maintenance, use or disposal of any
oil or hazardous material, as defined in Chapter 21E of the General
Laws by the LESSOR, its agents, servants or employees, unless, in
either situation, caused by the LESSEE, his agents, servants or
employees, provided, however, that LESSEE notifies LESSOR of such
claim in writing within ten (10) days following receipt of the
notice. LESSOR shall control defense thereof. If LESSEE desires to
join any defense of such claim, it shall be entitled to do so at its
sold cost and expense. LESSEE agrees to cooperate with LESSOR and
its counsel.
20. LESSEE'S LIABILITY INSURANCE
----------------------------
During the term of this Lease and any extension thereof, LESSEE, at
LESSEE's own cost and expense shall maintain or cause to be procured and
maintained, in the names of LESSOR and LESSEE, a policy or policies of
general liability insurance and/or comprehensive Commercial Liability
Insurance against claims and damages in connection with the Property in
amount of not less than One Million ($1,000,000.00) Dollars with respect
to injuries or deaths suffered in any one accident and Two Million
($2,000,000.00) Dollars per location and in the amount of not less than
One Million ($1,000,000.00) Dollars with respect to damage to property.
LESSEE covenants and agrees that LESSEE, will upon demand, as often as
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reasonably requested by LESSOR and within 30 days after the Commencement
Date, furnish to LESSOR a complete list, statement and description of all
insurance, together with certificates from each insurance company issuing
any thereof, that the same is in full force and effect, that all premiums
have been paid, and that the same will not be canceled except upon (30)
days written notice to LESSOR by registered or certified mail, return
receipt requested. Renewal Certificates of Insurance shall be delivered to
the LESSOR at least fifteen (15) days in advance of each renewal date.
LESSEE agrees that the insurance coverages required under paragraph 20
shall be written by: a company or companies authorized to do business in
the Commonwealth of Massachusetts within an A.M. - Best rating of "A",
VIII or better.
21. FIRE, CASUALTY, EMINENT DOMAIN AND DEMOLITION
---------------------------------------------
(A) Should 25% or more of the Premises or of the property of which it is
a part, be substantially damaged by fire or other casualty, or be
taken by eminent domain, LESSOR or LESSEE may elect to terminate
this Lease. In addition, if such fire, casualty or taking renders
25% or more of the Premises unusable, LESSEE may elect to terminate
this Lease, provided that if LESSEE does not terminate this Lease, a
just and proportionate abatement of rent shall be made. LESSEE may
elect to terminate this Lease if LESSOR fails to restore the
Premises to the same condition existing immediately prior to the
date of fire or casualty (excluding the restoration of any tenant
improvements made by LESSEE) within ninety (90) days thereafter.
LESSOR shall not be liable for any inconvenience or annoyance to
LESSEE or for injury to the business of LESSEE resulting from
excused delays in connection with restoration delays which may arise
by reason of adjustment of insurance, reasonable delays on account
of "labor troubles" or other cause beyond the LESSOR's reasonable
delays on account of "labor troubles" or other cause beyond the
LESSOR's reasonable control.
LESSOR reserves and the LESSEE grants to LESSOR all rights which the
LESSEE may have for damages or injury to the Premises for any taking
by eminent domain, except for damage to LESSEE's improvements,
fixtures, property or equipment and relocation expense.
The provisions of this paragraph as it relates to fire and casualty
shall govern in the case of damage or destruction of the Building or
any part thereof and restoration thereof due to a fire or casualty
notwithstanding any inconsistent provisions of this Lease.
Not withstanding anything to the contrary in this Paragraph, the
provisions hereof shall be subject and subordinate to the rights
contained in any of LESSOR's mortgage financing documents affecting
the Property.
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(B) Waiver of Subrogation: LESSOR and LESSEE hereby release each other
from any and all liability or responsibility to the other or anyone
claiming through or under them by way of subrogation or otherwise
for any loss or damage covered by property insurance or coverable by
a customary form of policy of the insurance required under
subsection C below, even if such fire or other casualty shall have
been caused by the fault or negligence of the other party, or anyone
for whom such party may be responsible, provided, however, that this
release shall be applicable and in force and effect only to the
extent permitted by law. LESSOR and LESSEE each agree that it will
request its insurance carriers to include in it policies, whether or
not such policies are required hereunder, a clause or endorsement to
the effect that any such release shall not adversely affect such
policies or prejudice the right of the releaser to recover
thereunder. If extra cost shall be charged, each party will bear the
amount of its extra cost.
(C) Lessor's Insurance: LESSOR shall maintain all-risk property
insurance with respect to the Building in an amount equal to the
full replacement value of the Building.
22. BROKERAGE
---------
Each party warranties that they have only spoken with Coldwell Banker and
Vesper Realty Advisors, Inc. regarding the lease on this property. Lessor
shall pay these two brokers. LESSEE shall in no event bear any cost or
expense of brokerage commissions or fees for the above brokers in the
negotiation of this Lease at this time. LESSEE agrees to indemnify and
hold the LESSOR harmless if such warranty or representation shall be
deemed untrue.
23. SIGNS
-----
LESSEE shall not erect any sign on the leased Property without the written
consent of the LESSOR (which shall not be unreasonably withheld, delayed,
or conditioned); and in the event of LESSOR's consent, LESSEE shall only
place such signs as shall be of such size, style, color, and working and
in such location as LESSOR shall in its sold direction deem necessary in
order to maintain an aesthetically pleasing appearance for the land and
building of which the leased Property is a part.
24. DEFAULT, BANKRUPTCY AND ACCELERATION OF RENT
--------------------------------------------
In the event that, (A) LESSEE shall be declared bankrupt or insolvent
according to law, or if any assignment shall be made of LESSEE's property
for the benefit of creditors or, (B) LESSEE shall default in the payment
of any installment of rent or other sums herein specified and such default
shall continue for ten (10) days after written notice thereof, of (C)
LESSEE shall default in the observance or performance of any other of
LESSEE's covenants, agreements or obligations hereunder and the effect of
any such default shall not have been cured or LESSEE shall not have
commenced and
-12-
diligently prosecuted the same at all times thereafter within thirty (30)
days after written notice of said default from the LESSOR, then LESSOR
shall have the right thereafter while such default continues and without
demand or further notice, to re-enter and take complete possession of the
Premises, to declare the term of this Lease ended and to remove LESSEE's
effects without being guilt of any manner of trespass and without
prejudice to any remedies which might be otherwise used for arrears of
rent or other default or breach of covenant.
LESSEE shall indemnify LESSOR against all loss of rent and other payments
that LESSOR may incur by reason of such termination during the remainder
of the term. If LESSEE shall default, in the observance or performance of
any conditions or covenants on LESSEE's part to be observed or performed
under or by virtue of any of the provisions in any Paragraph of this
Lease, LESSOR upon ten (10) days written notice to LESSEE, without being
under any obligation to do so and without thereby waiving such default,
may remedy the same for the account of and at the expense of LESSEE. If
LESSOR pays or incurs any obligations for the payment of money in
connection therewith, including, but not limited to, reasonable attorney's
fees in instituting, prosecuting or defending any action or proceeding,
such sums paid or obligations incurred, with interest at the rate of ten
percent per annum and costs, shall be paid to LESSOR by LESSEE as
additional rent. LESSEE further agrees to pay all reasonable attorneys'
fees if LESSOR obtains a judgment against LESSEE incurred by LESSOR in
enforcing non-payment of rent.
25. NOTICE
------
All notices or other communications shall be deemed given and delivered to
the respective parties five (5) business days after mailed, by registered
or certified mail, postage and registration or certification charges
prepaid, addressed to the parties at the addresses set forth below or by
constable except that either party may, by written notice to the other,
designate another address which shall thereupon become the effective
address of such party for the purposes of this paragraph. All notices
shall be sent to the following:
To the LESSOR:
Xx. Xxxxxxx Moda, Trustee
Adom Realty Trust
(000) 000-0000
xxxxxxxxxxxxxx@xxxxxxx.xxx
X.X. Xxx 000
Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
-13-
To the LESSEE:
Terabeam/YDI Wireless, Inc.
Xx. Xxxx Xxxxxxx
(000) 000-0000
xxxxxxxx@xxxxxxxx.xxx
---------------------
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
With Copy to:
YDI Wireless, Inc.
0000 X'Xxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
Main: (000) 000-0000
Fax: (000) 000-0000
26. OCCUPANCY
---------
LESSOR agrees that LESSEE shall have the right to access the Premises from
and after the mutual execution and delivery of this Lease, in order to
prepare the Premises for LESSEE's occupancy. In the event that LESSEE
takes possession of the Premises prior to the commencement of the term of
this Lease, LESSEE covenants and agrees to perform and observe all of
LESSEE's covenants herein from the date upon which LESSEE takes possession
except its obligation for the payment of any rent. In the event that
LESSEE remains after the agreed expiration date of this Lease without the
written permission of LESSOR then all other terms of this Lease shall
continue to apply except that LESSEE shall be liable to LESSOR for any and
all loss, damages or expenses incurred by LESSOR, and rent shall be due in
monthly installments at a rate of one hundred and fifty (150%) percent of
that which would otherwise be due under this Lease, it being understood
between the parties that such extended occupancy as a tenant at sufferance
is solely for the benefit and convenience of LESSEE and as such has
greater value.
27. FIRE PREVENTION
---------------
LESSEE agrees to use every reasonable precaution against fire and agrees
to provide and maintain approved, labeled fire extinguishers and maintain
emergency lighting equipment within the leased Property as required or
recommended by the New England Fire Insurance Association (or successor
organization), OSHA or local authorities or similar entity. LESSOR
represents that the leased Property currently contains emergency lighting
equipment within the leased Property as required or recommended by the New
England Fire Insurance Association (or successor organization), OSHA or
local authorities or similar entity.
-14-
28. OUTSIDE AREA
------------
No goods or things of any type or description shall be held or stored
outside the leased Property at any time without the express written
approval of LESSOR.
29. ENVIRONMENT
-----------
LESSEE will so conduct and operate the leased Property as not to interfere
in any manner with the use and enjoyment of other portions of the same or
neighboring buildings by other reason of odors, smells, noise,
accumulation of garbage or trash, vermin or other pests or otherwise and
will at its expense employ a professional pest control service if
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from harmful solvents, degreasers,
cutting oils, and similar substances which may be used within the
Property. No hazardous waste or chemical waste of any sort shall be stored
or allowed to remain within the leased Property at any time.
30. RESPONSIBILITY
--------------
If either party is delayed, hindered or prevented from the performance of
an obligation because of strikes, lockouts, labor troubles, the inability
to procure materials, power failure, restrictive governmental laws or
regulations, riots, insurrection, war or another reason not the fault of
the party delayed, but not including financial inability, the performance
shall be excused for the period of delay. The period for the performance
shall also be extended for a period equal to the period of delay.
Notwithstanding the foregoing, LESSEE shall not be excused from the prompt
payment of rental, additional rental or other payments. It shall be a
condition of LESSEE's right to claim an extension that LESSEE notify
LESSOR, in writing, within 10 days after the occurrence of the cause,
specifying the nature of the cause and the period of time necessary for
performance. LESSOR shall not be held liable to anyone for loss or damage
caused in any way by the use, leakage or escape of water, or for cessation
of any service or utility rendered customarily to said Property or
buildings or agreed to by the terms of this Lease, due to any accident, to
the making of repairs, alterations, or improvements, to labor
difficulties, weather conditions, or mechanical breakdowns, to trouble or
scarcity in obtaining fuel, electricity, service or supplies from the
sources which they are usually obtained for said building or to any cause
beyond the LESSOR's immediate control.
31. SURRENDER
---------
LESSEE shall at the expiration or earlier termination of this Lease remove
all of LESSEE's good and effects from the Premises (including, without
hereby limiting the generality of the foregoing, all lettering, affixed or
painted by the LESSEE, either inside or outside the Property). LESSEE
shall deliver to LESSOR the Premises (subject to reasonable wear and tear
and damage by other casualty) and all keys, locks thereto, and other
fixtures and equipment connected therewith to the extent installed by
LESSOR and
-15-
all alterations, additions and improvements made to or upon the Premises,
including, but not limited to, any offices, partitions, plumbing and
plumbing fixtures, air conditioning equipment and duct and plumbing
fixtures, air conditioning equipment and duct work of any type, exhaust or
heaters, burglar alarms, telephone wiring, air or gas distribution piping,
compressors, to the extent that the foregoing are attached to the walls or
floors and all electrical work, including but not limited to, lighting
fixtures of any type, wiring conduits, distribution panels, bus ducts,
raceways, outlets and disconnects. Lessee shall not be obligated to
restore the Premises to its pre-occupancy status. LESSEE shall deliver the
Premises in a clean and neat order and in the same conditions 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. LESSEE shall have the right to remove any trade fixtures,
equipment or personal property owned by LESSEE and located in the
Premises. In the event of LESSEE's failure to remove any of the foregoing
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 such property at LESSEE's expense, or to retain the
same under LESSOR's control or to sell at public or private sale without
notice, any or all the property not so recovered and to apply the net
proceeds from such sale to the payment of any sum due hereunder, or to
destroy such property which shall be conclusively deemed to have been
abandoned.
32. WAIVER
------
One or more waivers of any covenant, condition or agreement contained
herein shall not be construed as a waiver of a further breach of the same
covenant, condition or agreement or of any other covenant, condition or
agreement and a consent or approval by one party to any act by the other
requiring such consent or approval shall not he deemed a waiver or render
unnecessary consent or approval to any subsequent similar act.
33. NO ABATEMENT OF RENT
--------------------
The obligation of LESSEE to make all payments of rent and any additional
rent in the form of real estate taxes, operating costs or otherwise shall
be absolute and unconditional and shall not be subject to set off,
recoupment or counterclaim, except as expressly set forth herein or as
otherwise provided by the laws of the Commonwealth of Massachusetts.
34. BENEFIT
-------
All covenants, agreements, conditions and undertakings under this Lease
shall extend to and be binding upon the legal representatives, successors
and assigns of the respective parties hereto.
35. GENERAL
-------
(A) Every term and provision of this Lease shall be deemed of the essence
and every breach thereof material to the LESSOR. (B) All representations,
-16-
warranties and agreements of the parties in this Lease shall be deemed
special, unique and extraordinary; and any breach thereof by the parities
shall be deemed to cause the other party irreparable injury not property
compensable by damages in an action of law, and the rights and remedies of
the parties hereunder may therefore be enforced both at law and in equity,
by injunction or otherwise. (C) All rights and remedies of each party
shall be cumulative and not alternative, in addition to and not exclusive
of any other right or remedy to which such party may be lawfully entitled
in case of any breach or threatened breach of any terms or provisions
herein except as otherwise expressly provided herein. (D) The rights and
remedies of each party shall be continuing and not exhausted by any one or
more uses, thereof, and may be exercised at any time or from time to time
and as often as maybe expedient; and any option or election to enforce any
such right or remedy may be exercised or changed at any time or from time
to time. (E) This Lease sets forth the entire agreement by the parties,
and no custom, act, forbearance, or words of silence at any time,
gratuitous or otherwise, shall impose any additional obligation or
liability upon either party or waive or release either party from any
default or from the performance or fulfillment of any obligation or
liability, or operate as against either party as a supplement, alteration,
amendment or change of any term or provision set forth herein, including
this clause, unless set forth in a written instrument duly executed by
such party expressly stating that it is intended to impose such an
additional obligation or liability to constitute such a waiver or release,
or that it is intended to operate as such a supplement, alteration,
amendment or change. (F) If any term or provision of this Lease or the
application thereof to any person, Property or circumstance shall to any
extent be invalid or unenforceable, the remaining terms and provisions
shall not be affected thereby, and each term and provision of this Lease
shall be valid and enforceable to the fullest extent permitted by Law. (G)
The various headings of this Lease Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this Agreement
or any provision hereof. (H) This Lease shall be construed in accordance
with the laws of the Commonwealth of Massachusetts.
36. OPTION TO RENEW
---------------
In the event that LESSEE is not in default beyond any applicable notice
and cure period of any of the provisions of this Lease at the time of its
exercise of the option hereunder and for the period of time continuing to
the expiration of the initial term of the initial term or the renewal
term, if any, the LESSEE shall have the right and option to extend this
Lease for one additional term(s) of five (5) year(s) each by giving
written notice of its desire to so extend this Lease one hundred and
eighty (180) days at least prior to the expiration of the initial term or
any such renewal term. Upon the giving of any such notice, the term of
this Lease shall automatically be extended for an additional period of
five (5) year(s) without the necessity for the execution of any other
instrument in confirmation thereof. LESSOR and LESSEE shall execute and
deliver any such reasonable instrument as either may
-17-
reasonably request for the purpose of confirming this Lease and the
exercise of any such extension right. Except for the rights of extension
which have theretofore been exercised and the rent payable during any such
extension period, any such extension shall be upon all of the same terms,
conditions and provisions herein contained. References in this Lease to
the term hereof shall be deemed to include any renewal term for which the
original term may be so extended. The base rent due and payable by LESSEE
during any such renewal term shall be in an amount equal to 95% of the
then current "Fair Market Value" as defined, provided that in no event
shall the Base Rent be less than the Base Rent being paid by LESSEE
immediately prior to the applicable renewal term. For purposes hereof,
Fair Market Value means the annual rent per for square foot for the
Premises as of the commencement of the applicable renewal term that a
willing tenant would pay, and a willing landlord would accept, in
arms-length bona fide negotiations, taking into account any pertinent
factors, including, but not limited to, the effective annual rates per
leasable square foot for substantially comparable buildings containing
manufacturing, office space under leases recently or then being entered
into in the Haverhill, Massachusetts area. Within thirty (30) days of
LESSOR's receipt of LESSEE's exercise of its applicable renewal option,
LESSOR agrees to provide LESSEE with LESSOR's initial estimate of Fair
Market Value for the applicable renewal term. If LESSEE agrees with
LESSOR's estimate of Fair Market Value, LESSEE may accept such estimate by
delivering written notice to LESSOR in which event Base Rent for the
applicable renewal term shall equal LESSOR's estimate of Fair Market
Value. If LESSEE disagrees with LESSOR's estimate of Fair Market Value,
LESSOR and LESSEE shall negotiate in good faith to determine Fair Market
Value for the thirty (30) day period following LESSOR's initial estimate.
If after such period, LESSOR and LESSEE are still unable to agree on Fair
Market Value, the Fair Market Value shall be settled by arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof.
37. SEVERABILITY
------------
If any term or condition of this Lease be held unenforceable, the
remaining terms and conditions shall remain binding upon the parties as
though said unenforceable provision were not contained herein.
38. RULES AND REGULATIONS
---------------------
LESSEE agrees to comply with the rules and regulations set forth in the
Addendum I attached to this Lease as to the use and/or occupancy of the
Premises and land and buildings of which the same form a part, and the
same are incorporated by reference herein and made a part of this Lease.
-18-
39. ENTIRE AGREEMENT
----------------
This Lease sets forth the entire agreement between the parties and cannot
be modified or amended except in writing duly executed by the respective
parties.
40. RECORDING
---------
A short form version of this Lease shall be recorded in the Essex Registry
of Deeds, Salem, Essex County, Massachusetts.
41. ADDENDUM
--------
The riders and exhibits attached hereto are incorporated herein by this
reference.
Addendum 1 Rules and Regulations
Addendum 2 LESSOR's and LESSEE's Work
Addendum 3 LESSEE's Early Termination Right
Exhibit A The Premises
Exhibit B Estimated Additional Rent Schedule
Exhibit C LESSEE's Alterations and Additions Layout
42. TRUSTEE AS LESSOR
-----------------
If the LESSOR is a trust or a trustee or trustees, it is agreed that no
trustee nor any beneficiary under any agreement or declaration of trust
under which said trust exists or by virtue of which such trustees act,
shall be personally liable under any of the covenants or agreements of the
parties expressed herein or implied hereunder, or otherwise because of
anything arising from or connected with the use and occupation of the
demised Property by the LESSEE and the parties agree that any and all
claims arising or accruing to them hereunder shall be enforced and
satisfied only against the assets and Property of said trust and not in
any case against trustees or any of them or their successors in trust
individually.
43. AUTHORITY:
---------
If LESSEE is a corporation, each person executing this Lease on behalf of
the LESSEE hereby covenants, represents and warrants that LESSEE is a duly
incorporated or duly qualified (if foreign) corporation and validly
existing and in good standing and is authorized to do business in the
Commonwealth of Massachusetts (a copy of evidence thereof to be supplied
to LESSOR upon execution of the Lease and upon request); and that each
person executing this Lease on behalf of LESSEE is an officer of LESSEE
and that he or she is fully authorized to execute, acknowledge and deliver
this Lease to LESSOR (a copy of a resolution to that effect to be supplied
to LESSOR upon execution of this Lease and upon request).
44. FIRST OPTION FOR ADDITIONAL SPACE.
---------------------------------
The Landlord shall notify the Tenant when additional space becomes
available in the building of which Lessee is leasing a portion by this
Lease. The notice shall contain the Lease Price and other Terms and
conditions for
-19-
the Tenants consideration. The Tenant shall have 30 days from the
postmarked date to respond to the Landlord. Upon Landlords receipt of a
positive response from the Tenants, the parties shall negotiate and sign a
Lease Amendment within 30 days or the Landlord shall have the right to
Offer the space to a third party.
If the Tenant does not respond to the Landlord by the 31st day the
Landlord shall have the right to put the space on the market. However, the
Landlord shall notify the Tenant each and every time space becomes
available within the subject premises.
45. LESSOR REPRESENTATIONS.
----------------------
LESSOR represents to LESSEE, as an inducement to LESSEE to enter into this
Lease, as follows:
(a) LESSOR is the owner of the Property in fee simple and is not
aware of any matter impacting the title which would limit or interfere
with the LESSEE's use and enjoyment of the Property;
(b) LESSOR has not received notice from any governmental authority
that the Property is not in compliance with applicable laws;
(c) LESSOR represents that there is no mortgage currently affecting
the Property (except the mortgage of which LESSOR has provided notice to
LESSEE);
(d) LESSOR represents that the LESSOR is current on all real estate
tax obligations to Haverhill;
(e) LESSOR represents that the LESSOR has no knowledge of any
hazardous materials or hazardous substances, as those terms are defined
under Massachusetts State Laws and Regulations, present at the Property;
and
(f) LESSOR represents that the Property is served by public water
and a public sewer system.
-20-
IN WITNESS WHEREOF, the LESSOR and LESSEE have executed or have caused
their properly representatives to duly execute on the date and year first
above written intending this document to take effect as a sealed
instrument.
LESSOR:
Adom Realty Trust
/s/ Xxxxxxx X. XxXxxxx /s/ Antonio Moda
---------------------- ----------------------
WITNESS By: Antonio Moda
Its: Trustee
LESSEE:
YDI Wireless, Inc.
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------- ----------------------
WITNESS By: Xxxxx X. Xxxxxxx
Its: Vice President
-21-
ADDENDUM I
----------
RULES AND REGULATIONS EXHIBIT
-----------------------------
1. In the event the LESSEE shall desire to place any shades, coverings,
decorations, or the like upon any windows in the leased Property, LESSEE
shall only utilize vertical blinds for such purposes, which blinds shall
first be approved by LESSOR, said approval not to be unreasonably
withheld.
2. LESSEE hereby acknowledges that LESSOR maintains high pressure sodium
lights on or about the leased Property which provide exterior lighting for
the safety and convenience of all the LESSOR's tenants and a portion of
said high pressure sodium lights are regulated by circuit breakers located
with the leased Property. LESSEE shall not, at any time during this Lease
or any extension thereof, in any manner interfere with the automatic
on/off device for said high pressure sodium lights nor shall LESSEE at any
time interfere with the electricity being provided to said lights or place
the circuit breakers with the leased Property in such a position as to
prevent electricity from being provided to said lights.
3. LESSEE shall not obstruct any pedestrian walks, entrances, or exits to the
building in which the leased Property are situated, or any common areas or
facilities, with anything, or in any manner whatsoever, and shall not
obstruct any and all entrances, exists, curb cuts, or walks serving the
land and building of which the leased Property are a part, nor create or
suffer any hazardous condition therein or thereat.
4. LESSEE shall not leave, place, or dispose of any litter, refuse, garbage,
or things outside the leased Property other than garbage or refuse in
containers or receptacles expressly designate by LESSOR for that purpose,
as and where so designated. All refuse and garbage shall be removed by
LESSEE from the leased Property and deposited and disposed of in
containers, in a manner and at time acceptable to LESSOR.
5. Receiving, shipping, loading, and unloading by LESSEE shall be done at the
loading dock or docks, serving the leased Property; and LESSEE, and its
employees, agents or invites shall exercise due care and safety precaution
with respect to the same.
6. LESSEE shall not conduct, advertise or suffer the occurrence of any
auction sale, bankruptcy sale, going out of business sale, distress sale
or the like at the leased Property or at the land and buildings of which
the leased Property are a part.
-22-
7. LESSEE shall keep the leased Property clean and free of refuse at all
times, shall paint the interior of the leased Property when reasonably
necessary, and shall use pest extermination as and when required and
whenever LESSOR shall direct.
8. LESSOR shall comply with all applicable laws and governmental authorities
regarding this use and occupancy of the leased Property as said laws may
from time to time appear and/or be amended.
9. LESSEE shall keep and maintain temperatures at the leased Property
sufficiently high to prevent freezing of, or interference with, any flow
in pipes in, at, and about the leased Property.
10. LESSEE shall not attach, display, or maintain on the outer walls, doors,
windows, or roof of the leased Property or the building of which the same
form a part, any sign, awning, aerial, lettering matter or thing of any
kind without LESSOR's prior written consent which consent shall not be
unreasonably withheld. In the event LESSOR grants approval to LESSEE for
the display or erection of any sign, display or lettering, LESSEE shall
maintain and keep the same in good repair, good appearance and good
working order at all times and make all replacements thereto as when
required to keep the same in such condition.
11. LESSEE shall not use sound device which shall be deemed objectionable to
LESSOR or other tenants, including, but not limited to loud speakers,
microphones, transmitters, amplifiers, or phonographs, which sounds can be
heard from outside of the leased Property.
12. LESSEE shall not do anything which may damage the personal property of any
business or occupant at the building in which the leased Property is
located or any part thereof, or be a nuisance to their tenants locate
therein.
13. The plumbing facilities, drains and lines in or about the leased Property
shall not be used by LESSEE or anyone under its control for any purpose
other than that for which they were constructed, nor shall LESSEE put (or
dispose of) any foreign substance therein of a kind other than that for
which such facility was specifically designed, or permit such event to
occur; and all costs and expenses of repairing, replacing or restoring
said facilities or equipment by reason of any breakage, stoppage, or
damage resulting from a violation of this provision shall be borne by
LESSEE.
14. LESSEE shall not burn any trash or garbage of any kind in or about the
leased Property, the building and land of which leased Property are a
part, or within one thousand feet of the outside property lines of said
land and building.
-23-
15. LESSEE shall not use nor suffer the use of the respective portions of the
land of which leased premises are a part of any purposes other than those
designated by LESSOR, to wit: parking areas for parking of vehicles used
in the business conducted in the leased premises, employee parking, and
parking for business invitees; loading docks for the loading and unloading
of vehicles transporting material or equipment to or from the leased
premises; and curb cut and turn around areas for the unobstructed passage
of vehicles of and from said areas.
Initials
/s/ DLR
-----------------
-24-
ADDENDUM II
I. LESSOR'S WORK
-------------
The LESSOR shall complete prior to the LESSEE taking occupancy the following:
A) Separation of the electrical power.
B) Separation of HVAC ducts and piping and controls.
C) Construct a firewall between the premises from the balance of the building
including the office space on the first and second floors.
Initials
/s/ DLR
-----------------
-25-
ADDENDUM III
LESSEE'S EARLY TERMINATION RIGHT
--------------------------------
The LESSEE shall have the right to terminate this Agreement at any time after
the end of the 60th month of the term. The LESSEE shall provide the LESSOR with
eight months advance notice of the LESSEE's intent to terminate this Lease
Agreement under this Addendum III (which notice may be given prior to the 60th
month of the term). Upon termination, Lessee shall pay Lessor a penalty of
$29,220.75 plus the remaining unamortized portion of brokerage costs
(Amortization Schedule - Exhibit D). The brokerage costs are being amortized
over the 10-year lease at an 8% interest rate.
Initials
/s/ DLR
-----------------
-26-
EXHIBIT A
THE PREMISES
Graphic omitted
-27-
EXHIBIT B
ADDITIONAL RENT
---------------
Estimated Budget 2005
---------------------
Total Building Square Feet 51,800 square feet
Lessee Premises 17,316 square feet
Lessee Pro Rata Share 33.42 percent
CAM Charges Annual Monthly PSF
----------- ------ ------- ---
Real Estate Taxes $42,000.00 $ 3,500.00 $ 0.28
Insurance $ 8,000.00 $ 667.00 $ 0.15
Snow Removal $ 2,200.00 $ 183.00 $ 0.03
Landscaping $ 1,800.00 $ 150.00 $ 0.03
Common Utilities $ $ $
Maintenance and Repairs $ 1,000.00 $ 84.00 $ 0.02
Management Fee $23,000.00 $ 1,916.00 $ 0.45
---------- ----------
$78,000.00 $ 6,500.00
=======================
Cost per SqFt $ 1.51 $ 0.13 $ 1.50
CAM + NNN
Cost per SqFt $ 1.50
LESSEE Annual Pro Rata Share of expenses $25,974.00
LESSEE Monthly Pro Rata Share of expenses $ 2,164.50
Initials
/s/ DLR
-------------------
-28-
EXHIBIT C
LESSEE'S ALTERATIONS AND ADDITIONALS LAYOUT
-------------------------------------------
-29-
