EXHIBIT 10(y)
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LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into as of the 30th day of
November, 2007, by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of SPI-Trust, under a
declaration of trust, dated May 3, 1976, and recorded with Middlesex South
District Registry of Deeds, Book 12970, Page 625, having a mailing address at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Landlord") and Spire
Corporation, a Massachusetts corporation, with an address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Tenant").
W I T N E S S E T H:
WHEREAS, Tenant wishes to lease the Premises (as herein defined) from
Landlord; and
WHEREAS, Landlord wishes to lease the Premises to Tenant.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby enter
into this Lease Agreement upon the terms and conditions set forth herein.
1. Lease of Premises. Subject to all of the provisions herein
contained, and in consideration of the rentals to be paid to Landlord by Tenant,
and the other covenants and agreements to be kept and performed by Tenant
hereunder, as hereinafter set forth, Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, the entire building consisting of
approximately 144,230 square feet (the "Premises") situated in Bedford,
Middlesex County, Massachusetts, located on the real estate owned by Landlord on
the Westerly side of ▇▇▇▇▇▇▇ Avenue, known as Patriots Park (the "Real Estate")
of which approximately 91,701 square feet are located on the first floor of the
Premises (the "First Floor Space") and 52,529 square feet are located on the
second floor of the Premises (the "Second Floor Space"). Subject to Landlord's
rights hereunder, the Tenant shall have the exclusive right to use all areas
within the Premises, including without limitation, stairs, lobbies, elevators,
hallways, corridors, restrooms, cafeteria and entrances and exits in the
Premises, and the right to use all access roads, driveways, parking areas,
loading docks, sidewalks, landscaped areas, trash pick-up areas, recreational
areas and other amenities which are located within the Real Estate. Tenant
acknowledges that it has been in possession of the Premises since December 1,
1985 (the "Original Occupancy Date") and accepts the same in "AS IS, WHERE IS"
condition. Subject to applicable law, Tenant shall use the Premises only for
general office, warehouse, research and development (including, without
limitation, a so-called "clean room"), and light manufacturing (the "Permitted
Uses") and for no other use or purpose unless mutually agreed otherwise.
2. Term. The term of this Lease Agreement (the "Term") shall be for a
period of five (5) years, beginning on the 1st day of December, 2007 (the
"Commencement Date") and, unless terminated as herein provided, continuing until
expiration on the 30th day of November, 2012 (the "Term Expiration Date").
Tenant shall have the right to extend the Term for one (1) additional period of
five (5) years as set forth in Section 20 herein.
3. Rent. For the use and occupancy of the Premises Tenant hereby
covenants and agrees to pay to or for the account of Landlord as rental
("Rental"), without demand, deduction or offset, the following amounts:
(a) An annual fixed rental due and payable in advance in monthly
installments as provided below ("Base Rental") at Landlord's business premises
located at Patriots Park, Bedford, Massachusetts, on the first day of each and
every calendar month during the Term (a prorated and proportional rent shall be
due for any periods of less than a calendar month at the commencement and
expiration of the Term), all without set off or deduction:
---------- ----------------------- ------------- -----------
Annual Base Rental Rate Annual Monthly
Lease Year (per square foot) Base Rental Base Rental
---------- ----------------------- ------------- -----------
1 $12.50 $1,802,785.00 $150,239.58
---------- ----------------------- ------------- -----------
2 $13.25 $1,911,047.50 $159,253.95
---------- ----------------------- ------------- -----------
3 $14.00 $2,019,220.00 $168,268.33
---------- ----------------------- ------------- -----------
4 $14.75 $2,127,392.50 $177,282.70
---------- ----------------------- ------------- -----------
5 $15.50 $2,235,565.00 $186,297.08
---------- ----------------------- ------------- -----------
(b) All real estate taxes, or taxes in the nature of real estate
taxes, or taxes assessed in lieu of or in addition thereto (except income taxes
of general application, inheritance, estate or like taxes) including special and
general assessments, however the same may be designated, levied or to be levied
by any taxing authority upon the Premises or Real Estate ("Real Estate Taxes")
throughout the entire Term. Real Estate Taxes shall be paid by Tenant directly
to such taxing authority upon receipt of the tax ▇▇▇▇ but in no event later than
fifteen (15) days prior to the last date upon which such taxes may be paid
without interest or penalty. If the first or last year of the Term shall not be
co-extensive with the tax year the amount of taxes payable by Tenant hereunder
for such years shall be prorated in proportion to the period of effectiveness of
the Lease Agreement during such years. Tax receipts shall be furnished to
Landlord by Tenant from time to time upon request to show Tenant's compliance
herewith on a current basis. If requested by any first mortgagee of the Real
Property, Tenant agrees to instead make monthly deposits to such mortgagee on
account of such taxes in an amount reasonably estimated to be sufficient to pay
such taxes when they become due, provided that such deposits are maintained in a
separate account and any interest payable with respect thereto shall be payable
to Tenant.
(c) All utilities, including, without limitation, costs of
electricity, gas, fuel, water and sewage services assessed against the Premises
and Real Estate ("Utility Costs").
(d) All other costs and expenses of every kind with respect to (i)
operation, maintenance, repair and replacement of the Premises and Real Estate
(excluding Direct Landlord Costs (as defined in Section 6(b) below))
("Operations Costs") and (ii) insurance of the Premises and Real Estate
("Insurance Costs").
(e) Notwithstanding Tenant's obligations to pay Real Estate Taxes (as
defined in Section 3(b) above), Utility Costs (as defined in Section 3(c)
above), Operations Costs (as defined in Section 3(d) above) and Insurance Costs
(as defined in Section 3(d) above) as set forth in this Section 3, Landlord
shall be solely responsible for the payment any Direct Landlord Costs (as
defined in Section 6(b) below) and the performance of any obligation associated
with such costs.
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4. Net Lease. It is the intention of the parties hereto that this is
a net lease and that all costs of ownership, maintenance, repair, replacement
and use of the Premises and the Real Estate shall be paid by Tenant in addition
to the fixed rent specified above and other sums payable by Tenant hereunder
(each of which shall be treated as Rental, for non-payment of which Landlord
shall have all rights which Landlord would have for non-payment of fixed rent
hereunder), provided, however, that Landlord shall be responsible for
maintenance and repair of structural portions of the Premises in accordance with
Section 6(b) hereof. Tenant shall pay to or on behalf of Landlord, through the
term of this Lease Agreement, the rent and other payments hereunder, free of any
charges, assessments, impositions or deductions of any kind, all of which Tenant
shall pay or discharge, without abatement, deduction or set off, and Landlord
shall not be required to make any payment of any kind whatsoever hereunder
(whether due to circumstances now existing or beyond present contemplation of
the parties), except as herein otherwise set forth. It is the intention of the
parties hereto that the obligations of Tenant hereunder shall be separate and
independent covenants and agreements; that the Rental payable by Tenant to, or
on behalf of, Landlord shall continue to be payable in all events except as
expressly provided hereunder; and that the obligations of Tenant hereunder shall
continue unaffected, unless the requirement to pay or perform the same shall
have been abated pursuant to an express provision of this Lease. Tenant waives
all rights (i) to any abatement, suspension, deferment, reduction, or deduction
of or from the Rental or (ii) to quit, terminate, or surrender this Lease or the
Premises or any part thereof, except as expressly provided herein. The rights of
the parties in the event of a casualty to the Premises shall be governed by
Section 13 hereto.
5. Tenants Covenants. Tenant further covenants and agrees as follows:
(a) Except as set forth in Section 6(b) below, to maintain the
Premises and Real Estate including, without limitation, the doors and windows
thereof in good repair, condition and order in accordance with good maintenance
practices; and to yield peaceable possession to Landlord of the Premises at
termination or expiration of this Lease Agreement free of all tenants and
occupants in as good repair and condition as at occupancy by Tenant or may be
put thereafter except for ordinary wear and tear.
(b) To comply fully with any applicable statutes, ordinances, and
lawful regulations, rules or orders which are now or hereafter in effect
pertaining to the Premises and the Real Estate, including, without limitation,
the Americans with Disabilities Act, and to the activities conducted thereon, to
comply with all applicable rules or conditions reasonably imposed with respect
to the Premises by any insurance carrier, and to prevent the existence of any
nuisance, or the violation of any statute, ordinance or valid rule, order or
regulation with respect thereto and to save Landlord harmless from any failure
to do so.
(c) To keep the Premises and improvements thereto and property of
Tenant therein insured to the extent of replacement value, against loss or
damage by fire, windstorm, hail, explosion and the other risks included in
Causes of Loss - Special Form property insurance policies from time to time,
subject, however to a "deductible" clause in the maximum amount of $50,000 or
such other amount as Tenant shall reasonably request and Landlord shall approve,
which approval shall not be unreasonably withheld or delayed; all of such
policies shall name as insured Landlord, any first mortgagee to the Premises and
Tenant, as their respective interests may appear and shall provide that they may
not be cancelled without at least fifteen (15) days' prior written notice to
Landlord. Tenant agrees to furnish Landlord with a certificate by the insurer as
to the existence thereof, together with a copy of such policy. Tenant may
procure such insurance under a so-called
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blanket policy insuring other locations of the Tenant, provided however, that
such policy shall provide on its face that such portion of the face amount as is
required by this Lease Agreement is payable with respect to covered loss
relating to the Premises and is not affected by losses on other premises.
(d) To the fullest extent permitted by law, to indemnify Landlord
fully against and to save Landlord harmless from loss, liability, costs,
expense, attorney's fees and court costs, arising directly or indirectly from
any claim or lawsuit by any person, firm, corporation, association or
governmental agency or authority whomsoever, including (but not limited to)
Tenant's officers, agents, contractors, employees or invitees, for damages
asserted or sustained to person or property by reason of any activity conducted
by Tenant upon the Premises or the Real Estate, or of any breach by Tenant, its
officers, agents, employees, or invitees of the terms, provisions and conditions
of this Lease Agreement, or occurring upon the Premises or the Real Estate,
regardless of the merit or lack of merit of any such claim or lawsuit, of the
fault or lack of fault on the part of Landlord and regardless of the amount of
insurance carried; and further, to procure and keep in force, at Tenant's sole
expense, public liability insurance written on an occurrence basis covering the
Premises, with combined single limits of at least $5,000,000.00 per occurrence,
and $5,000,000.00 annual aggregate, and of $l,250,000.00 for property damage
naming Landlord and any mortgagee of the Premises as additional insureds,
provided that if greater coverage limits are normally carried under similar
circumstances, Tenant agrees to increase such coverage limits appropriately.
(e) To use its best efforts to prevent the filing or imposition of
any lien of any kind whatsoever upon or against the Premises based upon or
arising out of Tenant's actions, except by Landlord or with Landlord's prior
written consent and in the event of the filing or imposition of any such lien,
to discharge same or to obtain a surety bond sufficient to discharge same within
30 days following the date of any such filing or imposition.
(f) To permit Landlord to enter the Premises during normal business
hours, subject to Tenant's reasonable security and confidentiality requirements,
where such entry will not unreasonably disturb or interfere with Tenant's use of
the Premises and the operation of Tenant's business, and at any time in case of
emergency, to examine, inspect, or make repairs, replacements, changes or
alterations as set out in this Lease Agreement, and to take such steps as
Landlord may reasonably deem necessary for the safety, improvement or
preservation of the Premises. Landlord shall give reasonable notice to Tenant
prior to any such entry, except in the case of an emergency, but no such entry
shall constitute an eviction or entitle Tenant to any abatement of Rental.
(g) In the event that Tenant shall fail to perform any act required
by the foregoing covenants and such failure shall continue for a period of 30
days after notice thereof from Landlord, Landlord may (but shall not be
obligated to do so) perform such act without waiving or releasing Tenant from
any of its obligations with respect thereto. Landlord shall be entitled to
recover from Tenant all sums paid or costs incurred in performing such acts on
demand.
(h) To perform all maintenance, repairs and replacements necessary to
keep in good condition and working order (a) the heating, ventilating, air
conditioning, plumbing, security, electrical, life safety and all other
mechanical systems and equipment serving the Premises, (b) the trees, shrubs,
plants, landscaping, on the Real Estate or otherwise serving the Premises, and
(c) the parking lot, driveways and walkways on the Real Estate.
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(i) To perform all clearance and removal of snow and ice from the
parking areas, driveways and walkways of the Real Estate for safe use of such
parking areas and safe access to the Premises by Tenant and its employees,
agents, contractors and invitees.
6. Landlord's Covenants.
(a) Landlord hereby represents, warrants, covenants and agrees as
follows that Landlord has good and marketable title to the Real Property and the
Premises, and Landlord has full right and authority to lease the Premises and to
carry out its obligation under this Lease Agreement.
(b) Landlord agrees to maintain all structural portions of the
Premises including the foundation, roof, exterior walls, structural members and
other supporting structures, in good repair, condition and order; provided,
however, that Landlord's responsibility for repair and maintenance of the roof
shall exclude responsibility for repair of (i) leaks occurring by reason of roof
penetrating structures installed or constructed by Tenant, (ii) isolated minor
leaks occurring on the portion of the roof which Landlord has not installed a
new rubber membrane as required by this Section 6(b) properly repaired by simple
patching procedures (as opposed to a leak or series of leaks which properly
require replacement or restoration of all or any portion of a roof), or (iii)
any repairs required by reason of the negligence or default of Tenant, its
officers, agents, employees, and invitees except to the extent that Landlord
shall be insured against the same and receive the proceeds of such insurance and
Landlord's mortgagees shall not retain the proceeds of such insurance. In
addition, no later than September 1, 2009, Landlord, at its sole expense, shall:
(1) install a new rubber membrane roof on the two-story portion of the Premises,
but Tenant shall be responsible for the removal and re-installation of any
special equipment, including all costs with respect to such removal and
re-installation, on such portion of the roof as is necessary or desirable in
connection with the installation of the rubber membrane roof, (2) upgrade and
repair the front entrance of the Building as mutually agreed upon by Landlord
and Tenant, (3) upgrade and repair the landscaped areas between the parking lots
serving the Building and the entrance of the Building as mutually agreed upon by
Landlord and Tenant, including without limitation grind down or remove exposed
tree stumps, plant new grass, remove and replace dead shrubs, (4) repair or
replace those certain window ▇▇▇▇▇ and trims, which, as of the date hereof, are
damaged or faulty. Except as expressly stated, any costs incurred by Landlord in
performing the foregoing obligations shall be deemed a "Direct Landlord Cost".
Any exclusions from Landlord's maintenance obligation above shall be Tenant's
responsibility. Landlord is not obligated to provide or perform any service,
maintenance, repair, or replacement with respect to the Premises or the Real
Estate except as set forth in this Section 6(b). In performance of its
obligations set forth in this Section 6(b), Landlord shall use commercially
reasonable efforts to perform such work in a manner and at such times as shall
minimize disruption of Tenant's business operations in the Premises.
(c) To give Tenant prompt notice of the name and mailing address of
any mortgagee or holder of a first mortgage lien with respect to the Premises
and of any change therein.
7. Subletting. Subject to all of the provisions of this Lease
Agreement, Tenant shall not sublet, license, or permit the use or occupancy of,
all or any portion of the Premises without the prior written consent of the
Landlord, which consent, shall not be unreasonably withheld, conditioned or
delayed. Tenant shall have no right to assign this Lease Agreement nor any of
its rights hereunder, nor may same be assigned or pass to another by operation
of law, and any attempt to so assign, without the express prior consent of
Landlord, shall be utterly void. If Tenant desires to effectuate a sublease,
Tenant shall deliver a notice to Landlord, which shall include (i) the
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commencement date and termination date of such sublease and the rent per square
foot, (ii) a true and complete statement reasonably detailing the identity of
the proposed sublessee, the nature of its business and its proposed use of the
Premises, (iii) current financial information with respect to the sublessee,
including its most recent financial statements, and (iv) the form of agreement
by which the sublease will be effected. Landlord shall be entitled to fifty
percent (50%) of any consideration payable under the sublease which exceeds the
Base Rental (pro rated on a per square foot basis for the portion of the
Premises subject to such sublease) accruing hereunder during the term of the
sublease after first deducting the monthly amortized costs incurred by Tenant to
prepare the subleased premises for occupancy by such subtenant and the amount of
the reasonable out-of-pocket brokerage and attorneys' fees incurred by Tenant in
connection with such sublease. The sums payable under this Section shall be paid
by Tenant to Landlord monthly as and when paid from the subtenant to Tenant. The
obligation to obtain Landlord's prior consent and Landlord's right to share in
profit shall not apply to (i) transactions with a business entity, into or with
which Tenant is merged or consolidated, or to which all or substantially all of
Tenant's assets are transferred, so long as (A) such transfer was made for a
legitimate independent business purpose and not primarily for the purpose of
transferring this Lease; (B) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
net worth of Tenant immediately prior to such merger, consolidation or transfer;
and (C) proof satisfactory to Landlord of such net worth is delivered to
Landlord at least ten (10) days prior to the effective date of any such
transaction. Landlord's consent to any sublease shall not relieve Tenant from
the obligation to obtain Landlord's consent to any further sublease.
Notwithstanding any sublease or assignment, Tenant shall remain fully liable for
the payment of all Rental and for the performance of all the terms, covenants
and conditions contained in this Lease on Tenant's part to be observed and
performed, and any default under any term, covenant or condition of this Lease
by any sublessee or assignee shall be deemed to be a default under this Lease by
Tenant.
8. Signs. Tenant shall be entitled to erect reasonable ground and
building signs, subject to approval of Landlord, which shall not be unreasonably
withheld, provided, however, Tenant's signs that are presently existing and/or
installed on the Premises or Real Estate are hereby deemed approved by Landlord.
All signs installed by Tenant shall comply with all requirements of appropriate
governmental authorities, and all necessary permits or licenses shall be
obtained by Tenant. Tenant shall maintain all signs in good condition and repair
at all times, and shall save Landlord harmless form injury to person or
property, arising from the erection and maintenance of said signs. Upon vacating
the Premises, Tenant shall remove all signs and repair all damage caused by such
removal.
9. Alterations and Improvements by Tenant.
(a) Tenant shall have the right during the continuance of this Lease
Agreement to make such non-structural alterations, changes and improvements to
the Premises as may be proper and necessary for the conduct of Tenant's business
and for the full beneficial use of the Premises. Tenant shall not make any
structural change in the Premises, alterations or additions to the exterior of
the Premises (unless such alterations or additions are cosmetic in nature), or
penetrations of the roof (except in connection with the re-installation of
Tenant's equipment pursuant to Section 6(b) hereof, without first having
obtained Landlord's written consent thereto, which consent may be withheld in
Landlord's sole discretion. Without limitation, Landlord may condition any such
consent by reserving the right to require the Premises to be restored to the
same condition they were in prior to the making of any such structural or
exterior change. Tenant shall pay all costs and expenses of such alterations,
changes, and improvements, shall make the same in a good and
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workmanlike manner, and in accordance with all applicable laws, codes, and
building regulations, and shall, prior to the making of such alterations,
changes, and improvements, assure Landlord, in form satisfactory to Landlord,
that payment for the same will be made by Tenant. Tenant hereby completely and
fully indemnifies Landlord against any Mechanic's Liens or other liens or claims
in connection with the making of such alterations, changes, and improvements.
Any liens arising out of such alterations, changes, and improvements shall be
discharged of record by Tenant within thirty (30) days after the same have been
filed, Tenant shall pay any and all taxes relating to its personal property,
business, or improvements and alterations constructed as provided in this
Section 9. Upon completion of any non-cosmetic alterations, Tenant shall provide
Landlord an "As Built" plan of the Premises showing such alterations in
reasonable detail. With respect to any non-cosmetic alteration, change or
improvement performed by Tenant, after the date hereof, Tenant will restore the
Premises to the condition which existed prior to the making of alterations,
changes or improvements, at the expiration or earlier termination of the Term,
unless Landlord has failed to request such restoration at the time Landlord's
consent is granted, if such consent is required, or by notice to Tenant that
Landlord shall waive its rights to require such restoration, in which event
Tenant shall have no obligation to restore the Premises. Such waiver by Landlord
may be in whole or in part, and if in part, subject to the preceding sentence,
Tenant shall restore to the extent such obligation is not waived by Landlord.
Any cabling or wiring installed in the Premises shall be removed by Tenant at
the end of the Term if and to the extent so requested by Landlord.
(b) Except as otherwise provided, all signs, furnishings, trade
fixtures and other removable equipment installed in the Premises by Tenant
(whether before or during the Term) and paid for by Tenant shall remain the
property of Tenant and shall be removed by Tenant upon the termination of this
Lease Agreement provided that if any of the same are affixed to the Premises,
Tenant shall immediately repair any damage caused by such removal.
10. Waiver of Claims and Waiver of Subrogation. Tenant hereby
releases Landlord from any and all liability or responsibility to the Tenant or
anyone claiming through or under Tenant by way of subrogation or otherwise for
any loss or damage to property caused by fire or any other perils insured or
required to be insured against in policies of insurance covering such property,
even if such loss or damage shall have been caused by the fault or negligence of
the Landlord, or anyone for whom Landlord may be responsible. Tenant shall
insure that its insurance policy contains a waiver of subrogation for the
benefit of Landlord.
11. Subordination.
(a) Subject to Section 11(b) hereof, this Lease shall be subordinate
to any mortgage, deed of trust or ground lease or similar encumbrance
(collectively, a "Mortgage", and the holder thereof from time to time the
"Holder") from time to time encumbering the Premises, whether executed and
delivered prior to or subsequent to the date of this Lease, unless the Holder
shall elect otherwise. At the request of the Holder or any other party who shall
succeed to the interest of Landlord (such Holder or other party, a "Successor"),
subject to Section 11(b) hereof, Tenant shall attorn to the Successor. Not more
than fifteen (15) days after receipt of a written request from Landlord or a
Holder, Tenant agrees to execute such instruments as may be required by any such
Holder in order to effectuate such subordination and such certificates as to the
status of this Lease Agreement and other matters as such Holders shall
reasonably require. Tenant shall be bound by and observe all conditions of said
Mortgage which shall require the giving of reports and copies of notices to any
such Holders, as well as those which afford such Holders the opportunity to cure
any default of Landlord hereunder and, subject to paragraph (b) below, to take
possession of the Premises without
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liability for any default of the Landlord occurring prior thereto or which
cannot reasonably be cured by such Holder not be subject to any offset or
defenses on account thereof nor bound by any prepayment of rent beyond the then
current period.
(b) Notwithstanding the foregoing, the provisions of Section 11(a)
above are conditioned upon, Landlord shall procure from any such Holder an
agreement-in-writing, in a form reasonably acceptable to Tenant, which shall be
delivered to Tenant, providing in substance that so long as Tenant shall
faithfully discharge the obligations on its part to be kept and performed under
the terms of this Lease Agreement, Tenant's tenancy will not be disturbed nor
this Lease Agreement affected by any default under such Mortgage, and Tenant
agrees that this Lease Agreement shall remain in full force and effect even
though default in the Mortgage may occur.
(c) With reference to any assignment by Landlord of Landlord's
interest in this Lease, or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of a Mortgage on Real Estate
which includes the Premises, Tenant agrees:
(i) That the execution thereof by Landlord, and the acceptance
thereof by the Holder of such Mortgage shall never be treated
as an assumption by such Holder of any of the obligations of
Landlord hereunder, unless such Holder shall, by notice sent
to Tenant, specifically otherwise elect or upon foreclosure,
Holder has taken possession of the Premises; and
(ii) That, except as aforesaid, such Holder shall be treated as
having assumed Landlord's obligations hereunder only upon
foreclosure of such Holder's Mortgage and the taking of
possession of the Premises, or, in the case of a ground
lessor, the assumption of Landlord's position hereunder by
such ground lessor.
12. Limitation of Landlord Liability.
(a) If Landlord shall fail to perform any covenant, term or condition
of this Lease Agreement upon Landlord's part to be performed and, as a
consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the interest of Landlord
in the Real Estate and the Premises or insurance proceeds therefrom and Landlord
shall not be liable for any deficiency. It is understood and agreed that in no
event shall Tenant have any right to levy execution against any property of
Landlord other than its interest in the Real Estate and the Premises as herein
before expressly provided. Upon receipt of notice to do so from any first
mortgagee of the Real Estate or the Premises, Tenant agrees to give written
notice to such mortgagee in the event of any default hereunder by Landlord.
Nothing herein contained shall be deemed to in any way limit or restrict
Tenant's right to obtain specific performance or other injunctive or equitable
relief with respect to the performance by Landlord of its covenants herein.
(b) To the fullest extent permitted by law, Tenant hereby agrees that
Landlord shall not be liable for any claim for damage to person or property,
sustained by Tenant or any person claiming through Tenant resulting from any
accident or occurrence in, about, or upon the Premises unless due to the fault
or negligence of Landlord, and Landlord's failure to make such repairs as it is
obligated to make within a reasonable period after notice from Tenant of the
need for such repairs. Said waiver shall include claims for unforeseen acts or
events resulting in damage or injury to person or property sustained by Tenant
or any person claiming through Tenant.
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(c) The sale, conveyance or assignment of the Real Estate shall
operate to release Landlord from liability, from and after the effective date
thereof, upon all of the covenants, terms and conditions of this Lease
Agreement, express or implied, except as such may relate to the period prior to
such effective date, and Tenant shall with respect to claims arising thereafter
look solely to Landlord's successor in interest in and to this Lease Agreement.
This Lease Agreement shall not be affected by any such sale, conveyance or
assignment, and Tenant shall attorn to Landlord's successor in interest
thereunder.
(d) Landlord shall not be deemed to be in default of its obligations
under this Lease Agreement unless Landlord or any mortgagee of which Tenant has
been given notice pursuant to Section 6(c) shall have received notice thereof
and such default shall continue uncured for a period of thirty (30) days
following receipt of such notice. No performance by any such mortgagee of
Landlord's obligations or exercise of its rights, undertaken in a commercially
reasonable manner, shall subject such mortgagee to any liability under this
Lease Agreement. Landlord and Tenant agree that the covenants to be performed by
each are independent and Tenant shall have no right to offset against Rental
(except as expressly permitted hereunder) or terminate this Lease in the event
of Landlord's failure to perform any of its obligations hereunder.
13. Casualty to Premises.
(a) If, during the term hereof, the Premises shall be destroyed or
damaged by fire or other casualty, in whole or in part, Tenant shall not be
entitled to surrender possession of the Premises nor shall Tenant's liability to
pay rent under this Lease Agreement cease and Tenant shall restore the Premises
to substantially the same condition as existed before such destruction or damage
with all reasonable speed. If required by Landlord's mortgagee, all insurance
proceeds shall be delivered by Tenant to Landlord's mortgagee and Landlord's
mortgagee shall make monthly disbursements of the same during the course of
reconstruction subject to Tenant's compliance with such reasonable construction
disbursement conditions as Landlord's mortgagee require. Tenant shall be
required to fund any restoration costs to the extent insurance proceeds are not
sufficient to fund the restoration of the Premises. If Landlord's mortgagee
shall refuse to release insurance proceeds to Tenant, Tenant shall have the
right to terminate this Lease, which election must be exercised by Tenant within
thirty (30) days after the date of notice from Tenant to Landlord that the
insurance proceeds will not be released by Landlord's mortgagee.
(b) If Landlord desires to perform the restoration related to such
destruction or damage, Landlord shall notify Tenant within sixty (60) days after
the happening of such destruction or damage. If Landlord shall so elect to
perform the repairs, Tenant shall deliver all insurance proceeds to Landlord and
Landlord shall restore the Premises to substantially the same condition as
existed prior to the destruction or damage, subject to legal requirements. If
the insurance proceeds delivered to Landlord by Tenant are insufficient to fund
the restoration of the Premises, Tenant shall fund any projected shortfall, as
the same may be revised from time to time, within ten (10) days of request of
Landlord. If Landlord's mortgagee shall refuse to release insurance proceeds to
Landlord or shall require the same to be applied to the debt secured by the
mortgage, Landlord shall notify Tenant and Tenant shall have the right to
terminate this Lease, which election must be exercised by Tenant within thirty
(30) days after the date of notice from Landlord that the insurance proceeds
will not be released by its mortgagee.
(c) Reconstruction shall be at least equal in quality to the original
construction of the Premises and shall, to the extent practical, be wholly
consistent in design and materials therewith. It
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shall be undertaken only in full compliance with law after all permits and
approvals have been obtained. It shall be further undertaken only after plans
and specifications therefore have been approved by Landlord, which approval
shall not be unreasonably withheld or delayed.
(d) Landlord shall have no liability to Tenant by reason of any
injury to or interference with Tenant's business or property arising from any
such destruction or damage. Landlord shall in no event be liable for any such
injury or interference resulting from the making of any repairs to the Premises
undertaken by Landlord in good faith.
14. Condemnation.
(a) In the event that the entire Premises shall be taken by
condemnation or right of eminent domain, this Lease Agreement shall terminate as
of the day possession shall be taken by the taking authority, and Landlord and
Tenant shall be released from any further liability hereunder thereafter
accruing.
(b) In the event that only a portion of the Premises shall be taken
by condemnation or right of eminent domain and the portion so taken renders the
balance unsuitable for the purpose of this Lease Agreement, the Tenant may, at
its option, elect to terminate this Lease Agreement effective as of the day
possession shall be taken, provided thirty (30) days notice of such termination
is given. If, in such case, this Lease Agreement is not terminated, Landlord
may, at its option restore the Premises with reasonable speed to an
architectural unit as nearly like its condition prior to such taking as shall be
practicable; and if during and/or after the work of restoration, Tenant is
deprived of, the use of all or a part of the Premises, an appropriate reduction
of Rental, depending upon the time during which and the portion of said Premises
of which Tenant is so deprived, shall be granted. In the event Landlord elects
not to so restore the Premises, then Tenant may at its option; (i) terminate
this Lease Agreement and any further liability hereunder; or (ii) continue this
Lease Agreement with the Rental adjusted to appropriately reflect the diminution
in value of the Premises effected by such taking, effective as of the date
thereof. If Tenant elects to continue this Lease Agreement then Tenant may, at
its own cost and expense, so restore the Premises.
(c) All damages awarded in connection with the taking of the
Premises, whether allowed as compensation for diminution in value to the
leasehold or to the fee of the Premises, shall belong to the Landlord.
Notwithstanding the foregoing, Tenant shall be entitled to make a separate claim
for damage to merchandise and moveable trade fixtures, and removal
reinstallation, and moving expenses, provided it does not reduce the award
payable to Landlord.
15. Default. If: (i) there shall be a default in payment of any
Rental which shall continue for a period of ten (10) days following receipt by
Tenant of notice thereof from Landlord; or (ii) there shall be a default in any
other of Tenant's obligations hereunder or if the Premises be abandoned or
vacated by Tenant; and if such default or condition shall continue for a period
of thirty (30) days following receipt by Tenant of notice from Landlord to make
good such default or correct such condition; or (iii) any proceedings under the
present or any future Bankruptcy Act be instituted by or against Tenant, or any
receiver or trustee be appointed for or ordered to dispose of Tenant's business
or property, or if Tenant makes any assignment or conveyance for benefit of
creditors and if any such proceeding instituted against Tenant shall not be
dismissed within 20 days following the date of such institution; then, in such
event Landlord shall have the right, immediately or at any time thereafter, to
enter upon the Premises in the name of the whole and repossess the same as of
its former estate and expel Tenant and all those claiming by, through or under
it, and
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remove their goods and effects and store the same on behalf of Tenant without
being deemed guilty of any manner of trespass and without prejudice to any
remedies which might otherwise be used for arrears of rent or other default
hereunder and upon entry as aforesaid this Lease Agreement shall be terminated.
Landlord, at its election, may effect such termination by written notice to
Tenant to that effect, which shall have the same force as an entry for breach as
provided in this Section. In case of such termination, Landlord shall become
entitled to receive from Tenant, and Tenant shall pay to Landlord on demand, as
initial liquidated damages, a sum equal to the amount by which the sum of the
rent and other payments called for hereunder for the remainder of the term
exceeds the fair rental value of the Premises for the remainder of the term.
Further, Tenant shall, on demand of Landlord, from time to time indemnify
Landlord against all loss of rent, other payments and damages, however caused,
which it may incur by reason of such termination during the remainder of the
term, first giving credit to any payments made by Tenant to Landlord on account
of initial liquidated damages as aforesaid. In computing such damages there
shall be added such reasonable expenses as Landlord may incur in connection with
such termination and/or reletting, such as legal expenses, brokerage, expenses
for keeping the Premises in good order and for preparing the same for reletting
and expenses and/or decorations in the Premises as way be necessary for the
purpose of reletting. Landlord shall also have the right to pursue such other
rights and remedies as may be allowed at law or equity against Tenant, and any
and all other parties who may be liable. All such remedies shall be cumulative.
Provided, however, if any such default be under clause (ii) above and it would
take more than thirty (30) days to cure the same, Landlord shall not forfeit the
lease created hereby, enter upon the Premises or exercise any of the other
remedies herein provided for such default if Tenant begins the cure thereof
within such period and pursues same with reasonable due diligence to completion.
16. Quiet Enjoyment. The Landlord covenants and agrees with Tenant
that as long as the Tenant keeps and performs all of the covenants and
conditions to be performed by Tenant hereunder, during the term of this Lease
Agreement Tenant shall have quiet and undisturbed and continued possession of
the Premises, free from any claims against the Landlord and all persons claiming
under, by or through the Landlord.
17. Arbitration. If any controversy shall arise relating to the
provisions of this Lease Agreement or the tenancy or other rights created hereby
(other than with respect to the lack of payment of Rental), and such dispute
shall not be resolved by the parties within fifteen (15) days after either party
shall notify the other in writing of its desire to arbitrate the dispute, then
the dispute shall be settled by arbitration. Such arbitration shall be conducted
at Boston, Massachusetts, under the rules then obtaining of the American
Arbitration Association. There shall be a board of three arbitrators, one
appointed by the Landlord, one appointed by Tenant and a third selected by the
two so named. The arbitrators shall have no power to add to, subtract from or
modify any of the terms or conditions of this Lease Agreement. The award of the
arbitrators shall be final and binding and conclusive on the parties, provided,
however, that nothing herein contained shall limit Tenant's right to exercise
the rights referred to in the last sentence of Section 12(a) hereof.
18. General Provisions. (a) Words of any gender used herein shall be
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires, (b) the terms
and provisions of this Lease Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors, permitted
assigns and legal representatives; (c) the headings used herein are for
reference purposes only and do not affect the meaning or construction hereof;
(d) this Lease Agreement may not be altered or amended and no waiver of any of
the provisions hereof shall be effective except by an
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instrument in writing signed by both parties hereto; (e) all notices, consents,
waivers or demands hereunder shall be in writing and shall be delivered or
mailed by a nationally recognized overnight mail courier, Registered or
Certified mail, postage paid, to the party to whom given at the address set
forth above or at such other address as such party may specify in accordance
with this clause; (f) if any provision of this Lease Agreement shall be held to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Lease Agreement shall not in any way be
affected or impaired thereby; (g) this Lease Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts; (h)
each of the parties represents and warrants to the other that it has not dealt
with any broker or finder in connection with this Lease Agreement and agrees to
indemnify and hold the other harmless from and against any claims, liabilities
or losses (including attorney's fees) arising out of a breach of this warranty;
(i) Landlord and Tenant shall each have the right to contest in good faith the
validity or amount of any tax, assessment, license fee, excise fee and other
charge for which it is responsible under this Lease Agreement provided that no
contest by Tenant may be undertaken unless Tenant shall, upon Landlord's
request, deposit with Landlord adequate and sufficient security against any loss
or damage which may ensue or involve the reasonable possibility of forfeiture,
sale or disturbance of Landlord's interest in the Premises and that upon the
final determination of any contest by Tenant, Tenant shall immediately pay and
satisfy the amount found to be due, together with any costs, penalties and
interest; (j) In any case where either party hereto is required to do any act,
other than the making of any payment of Rental, the time for performance thereof
shall be extended for a period equal to any delay caused by or resulting from
any act of God, war, civil commotion, fire, casualty, labor difficulties,
shortages of labor, materials or equipment, governmental regulations or other
causes beyond such party's reasonable control, the extent that the performance
of such obligation was actually prevented thereby; (k) This instrument
constitutes the entire agreement between the parties relating to the subject
matter hereof and supercedes all prior negotiations, contracts or
understandings; Tenant acknowledges that except for the provisions of Section 6
hereof, it has not been induced to enter into this Lease Agreement based on any
representations made by Landlord.
19. Direct Landlord Costs and Exclusions. Except for Direct Landlord
Costs (as defined in Section 6(b)), all expenses and costs incurred by Tenant in
performing its obligations under this Lease Agreement shall remain the expense
of Tenant, including, without limitation, all expenses and costs related to the
maintenance, repair and replacement of the Premises and the systems and services
exclusively serving the same.
20. Extension of Term.
(a) Tenant shall have the right to extend the Term hereof (the
"Extension Option") upon all of the same terms, conditions, covenants and
agreements herein contained (except that Base Rental for the first year of such
extended period shall be the greater of (a) the Base Rental in effect
immediately prior to such extended period or (b) the Fair Market Rent, which
shall be determined in accordance with the procedure set forth below and
thereafter shall be adjusted in accordance with the provisions set forth below),
for one (1) additional period of five (5) years (such period, the "Extended
Term") provided that Tenant is not in default beyond any applicable notice and
cure periods at either the time of delivery of the Exercise Notice or at the
commencement of the Extended Term. If Tenant desires to exercise the Extension
Option, Tenant shall give notice (the "Exercise Notice") to Landlord not later
than twelve (12) months prior to the Term Expiration Date. Upon the giving of
notice by Tenant to Landlord exercising Tenant's Extension Option and provided
the conditions as to no default beyond applicable notice and cure periods by
Tenant are
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satisfied, the Term in accordance with the provisions of this Section shall be
extended for the Extended Term without the necessity of the execution of any
additional documents; and in such event all references herein to the Term shall
be construed as referring to the Term, as so extended, unless the context
clearly requires otherwise. In the event that Fair Market Rent has not been
determined by the commencement of the Extended Term, Base Rental for the first
year of such Extended Term shall be the Base Rental in effect immediately
preceding the Extended Term, and shall be retroactively adjusted upon the final
determination of Fair Market Rent, if applicable. For purposes of this Lease,
the term "Fair Market Rent" shall mean the Base Rental on the date on which the
Base Rental will become effective for the Extension Option that is being
negotiated in so-called "triple net" leases or is reflected in triple net leases
which have been recently executed, in arm's length transactions between other
landlord and tenants, each acting in its own best interest and without duress,
for comparable space and for a comparable term located in the Bedford,
Massachusetts area, with such adjustment as is necessary in order to reflect the
business terms and obligations of the parties as are set forth in this Lease.
(b) If Tenant properly exercises the Extension Option, the Base
Rental for the first year of the Extended Term shall be determined in the
following manner. The Base Rent for the first year of the Extended Term shall be
the greater of (a) the Base Rent in effect immediately prior to the Extended
Term or (b) an amount equal to the Fair Market Rent for the Premises as of the
commencement of the Extended Term, as specified by Landlord by notice to Tenant
not less than ninety (90) days prior to commencement of the Extended Term,
subject to Tenant's right of arbitration as set forth below. If Tenant believes
that the Fair Market Rent specified by Landlord exceeds the actual Fair Market
Rent for the Premises as of commencement of the Extended Term, then Tenant shall
so notify Landlord within ten (10) business days following receipt of Landlord's
notice. If Tenant fails to so notify Landlord within said ten (10) business
days, Landlord's determination of the Fair Market Rent for the Premises for the
Extended Term shall be final and binding upon the parties. If the parties are
unable to agree upon the Fair Market Rent for the Premises within ten (10) days
after Landlord's receipt of notice of Tenant's objection, the amount of Base
Rent as of commencement of the Extended Term for the first year of such Extended
Term shall be determined as follows:
(1) Within thirty (30) days after receipt of Landlord's notice
specifying Fair Market Rent, Tenant, at its sole expense, shall obtain and
deliver in writing to Landlord a determination of the Fair Market Rent for the
Premises for a term equal to the Extended Term from a broker ("Tenant's Broker")
licensed in the Commonwealth of Massachusetts for at least the immediately
preceding five (5) years. If Landlord accepts such determination, the Base Rent
for the first year of the Extended Term shall be the greater of (a) the Base
Rental in effect immediately preceding the Extended Term or (b) an amount equal
to of the amount determined by Tenant's Broker.
(2) If Landlord does not accept such determination, within
fifteen (15) days after receipt of the determination of Tenant's broker,
Landlord shall designate a broker ("Landlord's Broker") licensed in the
Commonwealth of Massachusetts for at least the immediately preceding five (5)
years. Landlord's Broker and Tenant's Broker shall name a third broker,
similarly qualified, within five (5) days after the appointment of Landlord's
Broker. Each of said three brokers shall each independently determine the Fair
Market Rent for the Premises as of the commencement of the Extended Term for a
term equal to the Extended Term of the Lease within 15 days after the
appointment of the third broker. The Base Rent payable by Tenant effective as of
the commencement of the first year of the Extended Term shall be an amount equal
to the greater of
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(a) the Base Rental in effect immediately preceding the Extended Term or (b) the
average of the two closest determinations, and such determination shall be
binding on Landlord and Tenant.
(3) Landlord shall pay the costs and fees of Landlord's Broker
in connection with any determination hereunder, and Tenant shall pay the costs
and fees of Tenant's Broker in connection with such determination. The costs and
fees of any third broker shall be paid one-half by Landlord and one-half by
Tenant.
(c) On December 1 of each succeeding year after the first year of the
Extended Term, the Annual Base Rental shall be increased by $108,172.50 (144,230
square feet x $0.75 per square foot).
21. Hold Over. Any holding over by Tenant after the expiration of the
Term of this Lease shall be treated as a tenancy at sufferance and shall be on
the terms and conditions as set forth in this Lease, as far as applicable except
that Tenant shall pay as a use and occupancy charge an amount equal to the
greater of (x) 150% of the Basic Rental calculated (on a daily basis) at the
rental rate payable under the terms of this Lease immediately prior to the
expiration of the Term or (y) the fair market rental value of the Premises, in
each case for the period measured from the day on which Tenant's hold-over
commences and terminating on the day on which Tenant vacates the Premises. In
addition, Tenant shall save Landlord, its agents and employees harmless and will
exonerate, defend and indemnify Landlord, its agents and employees from and
against any and all damages which Landlord may suffer on account of Tenant's
hold-over in the Premises after the expiration or prior termination of the term
of this Lease. Nothing in the foregoing nor any other term or provision of this
Lease shall be deemed to permit Tenant to retain possession of the Premises or
hold over in the Premises after the expiration or earlier termination of the
Lease Term. All property which remains in the Premises after the expiration or
termination of this Lease shall be conclusively deemed to be abandoned and may
either be retained by Landlord as its property or sold or otherwise disposed of
in such manner as Landlord may see fit. If any part thereof shall be sold, then
Landlord may receive the proceeds of such sale and apply the same, at its option
against the expenses of the sale, the cost of moving and storage, any arrears of
rent or other charges payable hereunder by Tenant to Landlord and any damages to
which Landlord may be entitled under this Lease and at law and in equity.
22. Late Payment of Rental. If Landlord shall not have received any
payment or installment of Rental (the "Outstanding Amount") on or before the
date on which the same first becomes payable under this Lease (the "Due Date"),
the amount of such payment or installment shall incur a late charge equal to the
sum of: (a) five percent (5%) of the Outstanding Amount for administration and
bookkeeping costs associated with the late payment and (b) interest on the
Outstanding Amount from five days after the Due Date through and including the
date such payment or installment is received by Landlord, at a rate equal to the
lesser of (i) the rate announced by Bank of America, N.A. (or its successor)
from time to time as its prime or base rate (or if such rate is no longer
available, a comparable rate reasonably selected by Landlord), plus two percent
(2%), or (ii) the maximum applicable legal rate, if any. Such interest shall be
deemed Rental and shall be paid by Tenant to Landlord upon demand.
23. Tenant's Environmental Covenants. Tenant hereby covenants and
agrees with Landlord that until the expiration of the Term and for such further
time as Tenant, or any other person or persons claiming through or under Tenant
shall hold the Premises or any part thereof, Tenant shall:
14
(a) comply, and cause all other persons on or occupying the Premises
to comply, with all statutes, codes, ordinances and regulations applicable to
gasoline, petroleum, asbestos containing materials, explosives, radioactive
materials, microbial matter, biological toxins, mycotoxins, mold or mold spores
or any hazardous or toxic material, substance or waste which is defined by those
or similar terms or is regulated as such under any legal requirement, including:
(i) any "hazardous substance" defined as such in (or for purposes of) the (A)
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C.A. ss. 9601(14) as may be amended from time to time, or any so-called
"superfund" or "superlien" legal requirement, or (B) Massachusetts General Laws,
Chapter 21E and the rules and regulations promulgated thereunder; (ii) any
"pollutant or contaminant" as defined in 42 U.S.C.A. ss. 9601(33); (iii) any
material now defined as "hazardous waste" pursuant to 40 C.F.R. Part 260; (iv)
any petroleum, including crude oil or any fraction thereof; (v) natural gas,
natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel;
(vi) any "hazardous chemical" as defined pursuant to 29 C.F.R. Part 1910; and
(vii) any other toxic substance or contaminant that is subject to any other
legal requirement or other past or present requirement of any governmental
agency (or instrumentality thereof) (collectively, "Hazardous Material");
(b) not install, use, generate, manufacture, store, treat, release or
dispose of, nor permit the installation, use, generation, manufacture, storage,
treatment, release or disposal of, Hazardous Material on, under or about the
Premises and/or Real Estate except in compliance with all applicable statutes,
codes, ordinances and regulations;
(c) immediately advise Landlord in writing of the release of any
Hazardous Material on, under or about the Premises and/or the Real Estate, and
provide Landlord with copies of all reports, analyses, notices, licenses,
approvals, orders, correspondences or other written materials in its possession
or control relating to the environmental condition of the Premises immediately
upon receipt of such materials; and
(d) not create, or permit to continue in existence, any lien upon the
Premises and/or the Real Estate imposed pursuant to any legal requirement
relating to Hazardous Material used, generated, released or disposed of by
Tenant; and
(e) defend, indemnify and hold harmless Landlord and any Holder from
and against any and all claims, losses, and liabilities arising out of Tenant's
breach of, or failure to comply with, any of the foregoing provisions.
24. Transfers by Landlord. Landlord shall have the right to transfer
and assign, in whole or in part, all of its rights and obligations hereunder and
in the Real Estate, and in such event and upon the assumption by the transferee
of the obligations of Landlord hereunder, Landlord shall be released from any
further obligations accruing after the date of transfer, and Tenant agrees to
look solely to such successor-in-interest of Landlord for the performance of
such obligations.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED as of the date first hereinabove stated.
LANDLORD: TENANT:
SPI-TRUST SPIRE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------ --------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, as Trustee and not Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
individually Title: Chief Operating Officer
16
