XXXXX XXXXXXXX LIMITED PARTNERSHIP
COMMERCIAL LEASE
1. PARTIES:
XXXXX XXXXXXXX LIMITED PARTNERSHIP, a Massachusetts limited partnership located
at 000 Xxxxxxxx Xxxx Xx. Waltham MA., LESSOR, which expression shall include
its, successors, and assigns where the context so admits, does hereby lease to
SPECTRUM MEDICAL TECHNOLOGIES, INC. a Delaware corporation located at 0-X
Xxxxxxxxxx Xx. Natick MA. LESSEE, which expression shall include its heirs,
successors, executors, administrators, and assigns where the context so admits,
and the LESSEE hereby leases the following described Premises:
2. PREMISES:
Twenty-five Thousand (25,000) sq. ft., more or less, (the "Leased Premises") in
the LESSOR'S Building located at 00 Xxxxxxxx Xxx. Xxxxxxxxx XX, including
exclusive use of the loading platform all as shown on Exhibit A, "Floor Plan",
attached hereto, together with the right to use in common, with others entitled
thereto, any hallways, and stairways necessary for access to said Leased
Premises.
Appurtenant to the Premises the LESSEE shall have the right, in common with
others entitled thereto, to access ways, walkways and any other common
facilities necessary for access to or beneficial use of the Leased Premises.
LESSEE shall have right to use Eighty-eight unassigned parking spaces in the
parking areas adjacent to the Buildings on the site. LESSEE shall have rights in
common with other lessees to use of the common entrance serving the Leased
Premises.
3. TERM:
The term of this lease shall be for Five (5) years commencing on the
Commencement Date (defined below) and ending on May 31, 2000.
The Commencement Date shall be the later of completion of the Lessor's work,
Exhibit B, or June 1, 1995. The Lessor's work shall be deemed complete upon
issuance of a certificate of occupancy for the Premises by the Town of Lexington
MA.
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4. RENT:
The LESSEE shall pay to LESSOR rent at the rates per year, shown below,
which rent shall be payable in advance in the monthly installments shown below
on the first day of each month.
YEARS ANNUAL RENT MO. RENT $/SF RATE
1 - 5 $412,500 $34,375.00 $16.50
5. SECURITY DEPOSIT:
Upon the execution of this lease, the LESSEE shall pay to the LESSOR the amount
of $34,375, which shall be held as a security for the LESSEE'S performance as
herein provided and promptly refunded to the LESSEE at the end of this lease
subject to the LESSEE'S satisfactory compliance with the conditions hereof.
6. RENT ADJUSTMENT:
A. TAX ADJUSTMENT
If in any tax year commencing with the fiscal year 1997 (the fiscal year ending
June 30, 1997), the real estate taxes on the land and buildings, of which the
Leased Premises are a part, are in excess of the amount of the real estate taxes
thereon for the fiscal year 1996 (hereinafter called the "Base Year"), LESSEE
will pay to LESSOR as additional rent hereunder, when and as designated by
notice in writing by LESSOR, Fifty (50%) percent of such excess that may occur
in each year of the term of this lease or any extension or renewal thereof and
proportionately for any part of a fiscal year. LESSOR'S demand shall be
accompanied by a copy of the applicable tax xxxx or bills and a statement
showing the manner of calculation of LESSEE'S proportionate share of such taxes.
If the LESSOR obtains an abatement of any such excess real estate tax, a
proportionate share of such abatement, less the reasonable fees and costs
incurred in obtaining the same, if any, shall be refunded to the LESSEE. LESSEE
may itself, or with any co-tenant, seek review of the assessed valuation of the
property of witch the Leased Premises are a part, or otherwise seek abatement of
real estate taxes in any year in which the LESSOR declines to seek such review
or reduction, provided it shall do so at its own cost or expense.
For purposes of this adjustment the fiscal year 1996 tax rate shall be $1.08 per
square foot, or $54,472.08 for the land and building of which the lease premises
are a part.
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B. OPERATING COSTS:
The LESSEE shall pay to the LESSOR as additional rent hereunder when and as
designated by notice in writing by LESSOR, Fifty (50%) per cent of any operating
costs incurred during the calendar year which are in excess of $4.00 per square
foot. LESSOR'S demand shall be accompanied by a statement of the applicable
operating costs and a statement showing the manner of calculation of LESSEE'S
proportionate share of such costs. In the event LESSEE wishes verification of
the costs and its share, LESSOR will authorize its' independent C.P.A. to
provide certification of the statement and charges to the LESSEE, and LESSEE
shall bear the expense of the C.P.A. certification. The operating costs increase
shall be prorated should this lease be in effect with respect to only a portion
of any calendar year, or which pertain to less than a fully occupied building.
Operating costs are defined for the purpose of this agreement as:
Water and Sewer Charges for the Premises
Heating, Ventilation and Air Conditioning
Maintenance Expenses of Lessor
Cleaning Expenses
Management Expenses (allocated at Five (5%) percent of rent)
Insurance
Exceptions to Operating Expenses are defined in Exhibit E.
C. BUILDING ACCESS AND OPERATING EXPENSES
The LESSEE shall have unlimited access to the Building. However, Operating
Expenses are calculated based upon daily operating hours of 7:00 AM to 6:00 PM
five days a week. In the event LESSEE usage outside those hours may be subject
to additional operating expenses.
7. UTILITIES:
The LESSEE shall pay, as they become due, all bills for electricity and other
utilities (whether they are used for furnishing heat or other purposes) that are
furnished to the Leased Premises and which are separately metered. The LESSOR
agrees to provide utility services to the leased premises, all subject to
interruption due to any accident, to the making of repairs, alterations, or
improvements, to labor difficulties, to trouble in obtaining fuel, electricity,
service, or supplies from the sources from which they are usually obtained for
said building, or to any cause beyond the LESSOR'S control.
LESSOR shall have no obligation to provide utilities or equipment other than the
utilities and equipment within the premises as of the Commencement Date of this
lease which include the HVAC now serving the Leased Premises. In the event
LESSEE requires additional utilities or equipment, the installation and
maintenance thereof shall be the LESSEE'S sole obligation,
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provided that such installation shall be the subject to the written consent of
the LESSOR. Costs for the installation of separate metering for utilities shall
be borne by the LESSOR.
8. USE OF LEASED PREMISES:
The LESSEE shall use the Leased Premises only for the purpose of office, light
manufacturing and R&D purposes.
9. COMPLIANCE WITH LAW:
The LESSEE acknowledges that no trade or occupation shall be conducted in the
Leased Premises or use made thereof which will be unlawful, improper, noisy or
offensive, or contrary to any law or any municipal by-law or ordinance in force
in the Town of Lexington in which the premises are situated.
10. FIRE INSURANCE:
The LESSEE shall not permit any use of the Leased Premises which will make
voidable any insurance on the property of which the Leased Premises are a part,
or on the contents of said property or which shall be contrary to any law or
regulation from time to time established by the New England Fire Insurance
Rating Association, or any similar body succeeding to its powers. The LESSEE
shall on demand reimburse the LESSOR, and all other tenants all extra insurance
premiums caused by the LESSEE'S use of the premises.
11. MAINTENANCE:
A. LESSEE'S OBLIGATIONS
The LESSEE agrees to maintain the Leased Premises in as good condition as at the
beginning of the term, fair wear and tear and damage by fire and other casualty
only excepted, and whenever necessary, to replace plate glass and other glass
therein, and upon occupancy the LESSEE acknowledges that the Leased Premises are
then in good order and the glass whole. The LESSEE shall not permit the Leased
Premises to be overloaded, damaged, stripped, or defaced, nor suffer any waste.
LESSEE shall obtain written consent of LESSOR before erecting any sign on the
exterior of the Leased Premises, which consent shall not be unreasonably
withheld or delayed.
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X. XXXXXX'X OBLIGATIONS
The LESSOR agrees to maintain the structure of the building of which the Leased
Premises are a part, the HVAC, mechanical, electrical and plumbing facilities,
fire protection, parking lot, exterior lighting, exterior window frames and the
common areas of the building in the same condition as it is at the commencement
of the term or as it may be put in during the term of this lease, reasonable
wear and tear, damage by fire and other casualty only excepted, unless such
maintenance is required because of the LESSEE or those for whose conduct the
LESSEE is legally responsible. LESSOR shall maintain access ways and common
areas of the land in neat and orderly condition including clearance of snow and
ice in the walk ways and parking lot. LESSOR shall keep the building and common
areas under its control in compliance with all current and future zoning laws
and other applicable municipal laws, regulations and ordinances.
12. ALTERATIONS/ADDITIONS:
The LESSEE shall not make structural alterations or additions to the Leased
Premises, but may make non-structural alterations provided the LESSOR consents
thereto in writing, which consent shall not be unreasonably withheld or delayed.
All such allowed alterations shall be at LESSEE'S expense and shall be in
quality at least equal to the present construction. LESSEE shall not permit any
mechanics' liens, or similar liens, to remain upon the Leased Premises for labor
and material furnished to LESSEE or claimed to have been furnished to LESSEE in
connection with work of any character performed or claimed to have been
performed at the direction of LESSEE and shall cause any such lien to be
released of record forthwith without cost to LESSOR. Any alterations or
improvements made by the LESSEE shall become the property of the LESSOR at the
termination of occupancy as provided herein. Notwithstanding the foregoing
sentence, LESSEE may, at its sole option, submit its plans for any alteration or
improvement to LESSOR in writing before installation with a request for removal
at LESSEE'S expense upon termination of this lease, and LESSOR'S approval of
such request, which may require restoration of damages caused by the removal,
shall not be unreasonably withheld or delayed.
13. ASSIGNMENT SUBLEASING:
The LESSEE shall not assign or sublet the whole or any part of the Leased
Premises without LESSOR'S prior written consent which shall not be unreasonably
withheld 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.
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14. SUBORDINATION:
This lease shall be subject and subordinate to any and all mortgages, deeds of
trust and other instruments in the nature of a mortgage, now or any time
hereafter, which may constitute a lien or liens on the property of which the
Leased Premises are a part and the LESSEE shall, when requested, promptly
execute and deliver such written instruments as shall be necessary to show the
subordination of this lease to said mortgages, deeds, of trust or other such
instruments in the nature of a mortgage, provided, however, that the LESSEE may
thereupon request and receive the mortgagee's reciprocal non-disturbance
agreement.
15. LESSOR'S ACCESS:
The LESSOR or agents of the LESSOR may, at reasonable times and upon appropriate
notice, (normally one day's prior notice) enter to view the Leased Premises and
may remove placards and signs not approved and affixed to the exterior of the
Leased Premises as herein provided, and make repairs and alterations as LESSOR
should elect to do. The LESSOR may show the Leased Premises to others, and at
any time within six (6) months before the expiration of the term, may affix to
any suitable part of the lease premises a notice for letting or selling the
Leased Premises or property of which the Leased Premises are a part and keep the
same so affixed without hindrance or molestation. LESSOR shall use best effort
to minimize inconvenience and interference with LESSEE and LESSEE'S business
operations.
16. INDEMNIFICATION & LIABILITY:
The LESSEE shall save the LESSOR harmless from all loss and damage occasioned by
the use or escape of water or by the bursting of pipes, as well as from any
claim or damage resulting from neglect in not removing snow and ice from the
roof of the building or from the sidewalks bordering upon the premises so
leased, or by any nuisance made or suffered on the Leased Premises, unless such
loss is caused by the neglect of the LESSOR. The removal of snow and ice from
the sidewalks bordering upon the Leased Premises shall be LESSOR'S
responsibility. LESSOR shall save the LESSEE harmless from loss or damage
occasioned by acts or omissions of the LESSOR, its employees or agents.
17. LESSEE'S LIABILITY INSURANCE:
The LESSEE shall maintain with respect to the Leased Premises and the property
of which the Leased Premises are a part comprehensive public liability insurance
in the amount of $1 million Combined Single Limit with property damage insurance
in the same limit in responsible companies qualified to do to persons or damage
to property as provided. The LESSEE shall deposit with the LESSOR certificates
for such insurance at or prior to the commencement of the term, and thereafter
within (30) days prior to the expiration of any such policies. All such
insurance certificates shall provide that such policies shall not be canceled
without at least ten (10) days prior written notice to each assured named
therein.
18. FIRE, CASUALTY AND EMINENT DOMAIN:
Should a substantial portion of the Leased Premises, or the property of which
they are a part, be substantially damaged by fire or other casualty, or be taken
by eminent domain, the LESSOR may elect to terminate this lease. When such fire,
casualty, or taking renders the Leased
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Premises substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and the LESSEE, may elect to
terminate this lease if:
(a) the LESSOR fails to give written notice within thirty (30) days of
intention to restore Leased Premises, or
(b) the LESSOR fails to restore the Leased Premises to a condition
substantially suitable for their intended use within ninety (90) days of
said fire, casualty or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which the
LESSEE may have for damages or injury to the Leased Premises for any taking by
eminent domain, except for damage to the LESSEE'S fixtures, property, or
equipment.
19. DEFAULT & BANKRUPTCY:
In the event that:
(a) The LESSEE shall default in the payment of any installment of rent or
other sum herein specified and such default shall continue for ten (10)
days after written notice thereof; or
(b) The LESSEE shall default in the observance of performance of any other
of the LESSEE'S covenants, agreements, or obligations hereunder and such
default shall not be corrected within thirty (30) days after written notice
thereof (except if such default is not cured due to governmental
restrictions or other causes beyond the control of LESSEE, then such thirty
(30) day period shall be extended for a reasonable additional period); or
(c) The 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, then the LESSOR shall have the right thereafter, while such
default continues, to re-enter and take complete possession of the Leased
Premises, to declare the term of this lease ended, and remove the LESSEE'S
effects, without prejudice to any remedies which might be otherwise used
for arrears of rent or other default. The LESSOR shall use reasonable
efforts to relet the Premises. The LESSEE shall indemnify the LESSOR
against all loss of rent and other payments which the LESSOR may incur by
reason of such termination during the residue of the term. If the LESSEE
shall default, after reasonable notice thereof, 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 article of
this lease, the LESSOR without being under any obligation to do so and
without thereby waiving such default, may remedy such default for the
account and at the expense of the LESSEE. If the LESSOR makes any
expenditures or incurs any obligations for the payment of money in
connection therewith, including but not limited to, reasonable attorneys's
fees in instituting, prosecuting or defending any action or proceeding,
such sums paid or obligations incurred, with interest at the rate of 12%
percent per annum and costs, shall be
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paid to the LESSOR by the LESSEE as additional rent.
20. NOTICE:
Any notice from the LESSOR to the LESSEE relating to the Leased Premises or to
the occupancy thereof, shall be deemed duly served, if left at the Leased
Premises addressed to the LESSEE, or if mailed to the Leased Premises,
registered or certified mail, return receipt requested, postage prepaid,
addressed to the LESSEE. Any notice from the LESSEE to the LESSOR relating to
the Leased Premises or to the occupancy thereof, shall be deemed duly served, if
mailed to the LESSOR by registered or certified mail, return receipt requested,
postage prepaid, addresses to the LESSOR at such address as the LESSOR may from
time to time advise in writing. Until such advice all rent shall be paid and all
notices sent to the LESSOR at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx XX 00000.
21. SURRENDER:
The LESSEE shall at the expiration or other termination of this lease remove all
LESSEE'S goods and effects from the Leased Premises, (including, without hereby
limiting the generality of the foregoing all signs and lettering affixed or
painted by the LESSEE, either inside or outside the Leased Premises). LESSEE
shall deliver to the LESSOR the Leased Premises and all keys, locks thereto, and
other fixtures connected therewith and all alterations and additions made to or
upon the Leased Premises, in good condition, fair wear and tear and damage by
fire or other casualty only excepted. In the event of the LESSEE'S failure to
remove any of LESSEE'S property from the premises, LESSOR is hereby authorized,
without liability to LESSEE for loss or damage thereto, and at the sole risk of
LESSEE, to remove and store any of the property at LESSEE'S expense, or to
retain same under LESSOR'S control or to sell at public or private sale, without
notice, any or all of the property not so removed and to apply the net proceeds
of such sale to the payment of any sum hereunder, or to destroy such property.
22. BROKERAGE:
The Brokers named herein: Xxxxxxx & Wakefield and Leggat XxXxxx Xxxxx and Xxxxx
warrant that they are duly licensed as such by the Commonwealth of
Massachusetts, and join in this agreement and become parties hereto, insofar as
any provisions of this agreement expressly apply to them, and to any amendments
or modifications of such provisions to which they agree in writing.
LESSOR agrees to pay the above named Brokers upon the term commencement date a
fee for
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professional services as agreed between LESSOR and Brokers under a separate
agreement.
Each party represents and warrants that it has not retained or dealt with any
other broker or brokers in connection with this Lease, and each party agrees to
indemnify, defend and save harmless the other party from any claims for fees or
commissions arising out of its dealings with a broker with respect to this
Lease.
23. LATE FEES:
LESSEE agrees that because actual damages for a late payment or a dishonored
check are difficult to fix or ascertain, but recognizing that damage and injury
result therefore, LESSEE agrees that if payments of rent and other obligations
are not received in hand by LESSOR five (5) days after the due date, LESSEE
agrees to pay liquidated damages of $100.00 plus 18% per annum on the delinquent
amount from the due date. The postmark on the payment received plus two (2)
days, shall be conclusive evidence of whether the payment is delinquent.
However, LESSOR is not responsible for late deliveries by U.S. Mail. Provided,
however, that on a first occasion of such late payment, LESSOR shall give five
days written notice to LESSEE prior to application of the liquidated damages
charge for late payment. LESSEE agrees to pay a liquidated damage of $25.00 for
each dishonored check. In the event that two or more of the LESSEE'S checks are
dishonored in a 12 month period, the LESSOR, in addition to other Rights, shall
have the right to demand payment by Certified Check or Money Order.
24. OTHER PROVISIONS:
It is also understood and agreed that:
(a) The attached Addendum and Exhibits A., B., C., D., and E. are part of
this Agreement.
(b) LESSEE shall have a Five Year option to renew at market rates
prevailing at the time of exercise of such option(s). Such an option shall
be exercised by written notice to LESSOR six months prior to the expiration
of the then current term. See Addendum Part D for procedure.
(c) LESSOR shall perform the work outlined in Exhibit B, "Build Out
Specifications", at LESSOR'S expense, prior to the Commencement Date.
(d) LESSEE shall have a Right of First Refusal on additional space in the
building, in accordance with provisions of Exhibit D.
IN WITNESS WHEREOF, the said parties hereunto set their hand and seal as of this
day of March, 1996.
SPECTRUM MEDICAL TECHNOLOGIES, INC. XXXXX XXXXXXXX LIMITED PARTNERSHIP
LESSEE LESSOR
_________________________ _____________________________
XXXXXX X. XXXXX,
General Partner
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XXXXX XXXXXXXX LIMITED PARTNERSHIP
COMMERCIAL LEASE ADDENDUM
A. LESSEE OBLIGATIONS
1. Lessee shall not change the color or appearance of the outside of the Leased
Premises except upon the prior written consent of the Lessor.
2. Lessee shall not post signs on or about the Premises except that Lessee shall
be entitled to sign space where provided by Lessor in common with other lessees
in the Building.
3. The parking areas shall not be used for storage of unused, damaged or
unregistered vehicles, nor shall the Lessee store merchandise or other materials
in the parking areas.
4. Lessee shall not otherwise store vehicles, containers, or refuse outside the
Leased Premises, except for routine parking of vehicles and delivery or pickup
of products or materials.
5. Lessee shall be responsible to dispose of Lessee trash and refuse which
emanates from its manufacturing or R&D operations.
6. The Lessee may maintain insurance required by this Lease under a blanket
policy of insurance which insures the Lessee and any affiliates of the Lessee.
7. No animals, reptiles or pets of any kind shall be kept in or about the
building.
X. XXXXXX OBLIGATIONS
1. Lessor shall, at its own cost and expense, maintain in good condition and
repair all structural components of the building containing the Leased Premises,
including the foundation, floor, walls and roof, common areas of the Building,
landscaping, parking areas and access ways.
2. Lessor shall remove snow and ice from the access roadway, the parking areas,
and the walkways which serve the building, and Lessor will remove snow or ice
from the roof of the building if, as and when the conditions cause roof leakage
or threaten ice falls over access ways.
3. Lessor shall maintain with insurance companies, licensed in Massachusetts,
all risk fire insurance policies with extended coverage insuring the property
containing the Leased Premises
against loss or damage caused by fire or casualty in an amount equal to the full
replacement cost of the Building.
4. Lessor shall clean the Leased Premises and common areas in conformance with
Exhibit C. attached hereto.
C. SUBLEASING PROVISION
In the event Lessee requests consent of Lessor for sublease or assignment of all
or a material portion of the Lease Premises, Lessor may refuse consent for the
purpose of re-lease of the Leased Premises or the portion thereof to the
assignee, the sub-lessee or to a third party. Upon the mutual agreement of the
parties, hereto, this lease shall then terminate at a mutually agreed date as to
the Leased Premises or the portion thereof, as if the Lease had expired on its
termination date.
The Lessor shall be deemed to approve any assignment or sub-lease to a parent,
subsidiary or affiliate of the Lessee upon written assurance by Lessee that the
subsequent use will be in conformance with and subject to section 8, above, "USE
OF LEASED PREMISES".
D. MARKET RATE RENT FOR RENEWAL OPTIONS
Upon receipt of written notice from the Lessee of intent to renew, Lessor shall
respond within thirty days with a quote for market rate rent. The Lessee shall
respond within thirty (30) days agreeing to the quotation, rejecting the renewal
or requesting third party determination of market rate. In the later event each
party shall then appoint a realty broker who is familiar with similar commercial
property in the Lexington area, they shall confer, and each shall recommend a
market rate by writing to the parties. In the event their recommendations are
joint or equal, this shall be market rate. If the recommendations differ by 5%
or less, their average shall be deemed market rate. In the event their rates
differ by a greater amount they shall jointly nominate a third such broker who
shall make an independent recommendation of market rate. The two closest of the
three recommendations shall then be averaged to establish the market rate. Each
party hereto shall pay the expense of it nominee broker, and each shall share
equally the expense of a third, if required. However, in no event shall market
rate be less than the rate then payable by the Lessee.
EXHIBIT A
[FLOOR PLAN]
EXHIBIT B.
BUILDOUT SPECIFICATIONS
The Lessor shall deliver the layout and location of offices, rooms, corridors,
lighting, bathrooms, plumbing, electrical services, floors, dock area and
climate controls as presently located, in good operating condition. The Lessor
shall repaint wall surfaces, replace carpet and damaged tile flooring up to an
allowance of $15.00 per square yard, replace damaged or stained ceiling tile,
and shall install new light bulbs where applicable, all to building standard, at
Lessor's sole cost.
The Lessor shall provide the building and facilities in compliance with ADA
requirements for accessibility.
The Lessor shall remove cafeteria venting presently in place.
The Lessor shall also provide kitchen cabinets, counter, sink and dishwasher
equipment for the area marked cafeteria, to Lessee specification, at Lessee's
cost. Such costs shall be payable to Lessor upon Occupancy.
The Lessor shall take all necessary steps to correct the condition that has
caused the odor of oil in the Leased Premises.
EXHIBIT C
CLEANING SCHEDULE
NIGHTLY Between the hours of 5:00 p.m. and 6:00 a.m. Monday through Friday,
Legal Holidays excepted
1. Clean Lavatories as follows:
(a) Sweep and wash floors, using a disinfectant in wash water.
(b) Wash and polish all mirrors, powder shelves, bright work, and enamel
surfaces.
(c) Thoroughly scour, wash and disinfect all basins, bowls and urinals.
(d) Wash and disinfect all toilet seats, both sides.
(e) Wash all partitions, tile walls, towel, paper, and sanitary napkin
dispensers, and receptacles, as required.
(f) Empty and clean paper towel and sanitary disposal receptacles.
(g) Fill toilet tissue holders, soap dispensers and towel dispensers,
materials to be furnished by LESSOR.
2. Empty and clear all waste receptacles, ash trays and sand urns.
3. Wash, clean and disinfect water fountains and water coolers.
4. Remove rubbish and trash from LESSEE'S premises resulting from business
office use, but this shall not include manufacturing or product packaging
materials, the removal of which is LESSEE'S responsibility.
5. Vacuum LESSEE'S carpeted areas as needed.
6. Damp mop floors in entrance foyers, elevator lobbies, and public corridors
if applicable.
7. Wet sponge wipe table tops in LESSEE'S employee lounge, including cleaning
of any spills, if applicable.
8. Keep sidewalks, and parking area clean and rubbish free.
WEEKLY
1. Damp mop all uncarpeted areas.
2. Keep lawn and landscaping properly maintained, if applicable.
SEMI ANNUALLY
1. Clean all ceiling and wall air supply and exhaust diffusers or grills.
ANNUALLY
1. Wash all windows inside and out.
NOTE:
Manufacturing and Lab areas, and storage sections to be omitted.
HOLIDAYS
During the 10 legal holidays of the year no cleaning will be performed.
EXHIBIT D.
RIGHT OF FIRST REFUSAL ON ADDITIONAL SPACE
Lessee shall have a right of first refusal on additional lease space as it
becomes available during the term of this Lease Agreement or any extension of
such term. This right is subject to any preexisting rights of other lessees. The
Lessor will use its best efforts to accommodate Lessee's space requirements.
The procedure for effecting the Right of First Refusal shall be exercised in the
following manner:
(i) Lessee shall in any quarter year of the lease term or its
extension give to Lessor written notice of its projected space
requirements and its interest in space that is available or may
become available for lease.
(ii) Lessor, within ten days of Lessee's notice, shall give written
response describing to Lessee the availability of or the
projected availability of floor space. "Availability" shall mean
and include any vacant space and any space which is or may become
free of leasehold commitment. Such Lessor notice will contain the
rental rate for which such space will be offered.
(iii)If the Lessor can provide such space by relocation of an
existing lessee, Lessor shall, at the earliest reasonable date
consistent with discussion with the existing lessee, respond to
the Lessee's notice as set forth in the first paragraph of this
Section.
(iv) Lessee shall have fourteen (14) days to exercise its right by
written notice to Lessor to accept or reject Lessor's notice and
proposal.
(v) In the event Lessee, by writing, accepts such additional space
the parties will forthwith, within 30 days of Lessee's written
response, execute a lease agreement or lease modification to
reflect the additional space, its rental rate, the adjusted term
of Lease, if any, and such other changes as may be required to
reflect the additional space.
(vi) In the event Lessee does not accept the Lessor's proposal within
the 14 day period, or in the event the parties are unable to
conclude a lease agreement for the additional premises within the
above thirty day period, the Lessee shall be deemed to have
refused the space and Lessor may offer and contract for lease of
the space to third parties, the Lessee's rights under this
provision having lapsed as to the proposed premises.
EXHIBIT E
EXCLUSIONS FROM OPERATING EXPENSES
The following items shall be excluded in computing LESSEE's share of operating
expenses applicable to the Leased Premises:
1. Any ground lease rental;
2. Costs of capital repairs or capital replacements (except as specifically
permitted herein), capital improvements and equipment; except those: (a)
required by laws enacted on or after the date the temporary certificate of
occupancy issued for the LESSEE work shall be validly issued with the cost of
any such improvements and equipment depreciated over the usual life of the
improvement and/or equipment, or (b) installed at the Leased Premises to reduce
operating expenses, with the cost of any such improvements and equipment
depreciated at an annual rate reasonably calculated to equal the amount of
operating expenses to be saved in each calendar year throughout the term (as
determined at the time LESSOR elected to proceed with the capital improvement or
acquisition of the capital equipment to reduce operating expenses);
3. Rentals for items (except when needed in connection with normal repairs
and maintenance of the building which shall be permitted) which if purchased,
rather than rented, would constitute a capital improvement specifically excluded
in Subsection 2, above;
4. Costs incurred by LESSOR for the repair for replacement of damage to the
building or its contents caused by fire or other casualty;
5. Depreciation, amortization, lender's fees and interest payments except
as permitted pursuant to Subsection 2, above, and, if permitted, then determined
in accordance with generally accepted accounting principles, consistently
applied (as applied to commercial real estate) in accordance with the
anticipated useful life of such item (as reasonably determined by LESSOR);
6. Overhead and profit increments paid to LESSOR or to subsidiaries or
affiliates of LESSOR for goods and/or services in the building to the extent the
same exceeds the cost of such goods and/or services rendered by unaffiliated
third parties on a competitive basis;
7. Advertising and promotional expenditures, and the costs of acquiring and
installing signs in or on the building identifying the owner of the building;
8. Interest, principal, points and fees on debts or amortization on any
mortgage or mortgages or any other debt instrument encumbering the building;
9. Any costs associated with gift taxes, excise taxes, profit taxes or
capital levies;
10. Costs incurred in connection with upgrading the building to comply with
handicap, hazardous material, fire and safety codes which were in effect prior
to the date of the lease or which become effective after lease commencement;
11. Tax penalties incurred as a result of LESSOR's negligence, inability or
unwillingness to make payments when due, not attributable to LESSEE's failure to
make payments to LESSOR for such items in accordance with the lease;
12. Any and all costs arising from the presence of hazardous materials or
substances (as defined by applicable Federal, Massachusetts and local laws) now
or hereafter pertaining to the building ("Hazardous Substances") in or about the
building including, without limitation, Hazardous Substances in the ground,
water, or soil;
13. Costs to repair defects in the construction of improvements described
in Exhibit B. or defects in the building structure.
14. LESSOR's general corporate overhead and general and administrative
expenses except as contained and allowed in the 5% Management Fee per provision
in Clause 6.B., above.
15. Costs of any items for which LESSOR is reimbursed by insurance, or
otherwise compensated by parties other than LESSEE's of the building;
16. Any legal fees associated with the sale or refinancing of the building;
17. Costs for any separate utility meters LESSOR may install in the
building, unless the installation is required by a utility company or
governmental entity.
18. Costs for construction in compliance, or penalties assessed for
non-compliance with the Americans with Disabilities Act of 1990 (42. U.S.C.
1281-1283).
