EXHIBIT 10.9
LEASE
This Lease (this "Lease") made as of the 30th day of September, 1995
by and between Fidelity Properties, Inc., a Massachusetts corporation of 7
Water Street, Boston, Massachusetts (hereinafter referred to as "Landlord"),
as successor-by-merger to CON-DEV Management Co., Inc., and Armatron
International, Inc., a Massachusetts corporation, of Two Main Street,
Melrose, Massachusetts (hereinafter referred to as "Tenant").
RECITALS
WHEREAS CON-DEV Management Co., Inc. (the "Original Landlord") and the
Tenant entered into a certain lease dated as of March 1, 1992, which lease
demised certain space at the building known as and numbered Two Main Street,
Melrose, Massachusetts to the Tenant subject to and with the benefit of the
terms, covenants, conditions and provisions of said lease, and which lease
was amended by First Amendment (the "First Amendment") dated July 29, 1994
(as so amended, the "Original Lease"); and
WHEREAS the Original Landlord and the Tenant entered into a certain Tenancy
at Will Agreement dated as of March 1, 1992 (the "TAW"), which TAW demised
certain space at the building known as and numbered Two Main Street,
Melrose, Massachusetts and the building known as and numbered 1080 Main
Street, Malden, Massachusetts and Landlord; and
WHEREAS Landlord and Tenant now wish to terminate the TAW and vacate the
space in the Two Main Street building which remains occupied by Tenant
pursuant to the TAW to the space occupied by the Tenant pursuant to the
Lease such that all space occupied by Tenant will be governed by the Lease;
and
WHEREAS the TAW was terminated as to the 1080 Main Street building by notice
given by Tenant to Landlord, and Tenant's rights to occupy said premises
have thereby been terminated; and
WHEREAS the Landlord and the Tenant now wish to amend certain provisions of
the Original Lease.
WITNESSETH THAT:
In consideration of the mutual covenants herein set forth to be paid,
performed and observed, the parties hereto agree as follows:
1. Leased Premises. Landlord hereby leases to Tenant approximately
89,949 square feet of floor area consisting of approximately 70,263 square
feet of first floor warehouse space, approximately 7,754 square feet of
first floor office space, and approximately 11,932 square feet of second
floor office space for use by Tenant and its current affiliated companies,
including toilet facilities accessible to both office and warehouse space in
a certain building which is located partially in Melrose and partially in
Malden, Massachusetts, known as and numbered Two Main Street, Melrose,
Massachusetts (the "Building"), as well as parking facilities for forty (40)
automobiles or more as may be reasonably necessary and reasonably available
in Landlord's sole judgment (the "Leased Premises"). The Leased Premises
are a portion of the premises conveyed by A R T Corp., an affiliated of
Tenant, to Original Landlord by deed dated September 30, 1986, which
premises contain approximately 13.26 acres of land with the buildings and
improvements thereon, as more particularly described in said deed (the
"Conveyed Premises"). At the outset of the term of this Lease, the Leased
Premises will consist of the area marked by cross-hatching on Exhibit A
attached hereto and made a part hereof. Landlord reserves the right from
time to time (i) to enter the Leased Premises to inspect the same, (ii) to
show the Leased Premises to other, (iii) to use (and repair, maintain and
replace, in Landlord's sole discretion, except as required to be repaired,
maintained and replaced by Landlord in Section 6(b) below) those portions of
the Building components, systems and structural elements which are located
within the Leased Premises and which serve (a) the Building as a whole or
(b) any portion of the Building or the Conveyed Premises which are not
included in the Leased Premises, including without limitation, any utilities
and any security or public safety systems such as sprinkler systems and
emergency lighting systems and (iv) otherwise to exercise its rights
hereunder. It is understood by the parties hereto that the Leased Premises
are being leased to Tenant in an "as is" condition, except as set forth in
Section 6(b) below, and at no time shall the Landlord be required to install
a new roof or repair or replace any portion of the present roof on the
Leased Premises, or, except as set forth in Section 6(b) below, to repair,
replace or rebuild the Leased Premises or any structural components or any
systems, or any other portion of the Leased Premises or the Building or
utility lines serving the same.
2. Term: Option to Extend. The term of this Lease commences on
October 1, 1995 (the "Commencement Date") and expires on September 30, 2000
(the "Term Expiration Date"), unless sooner terminated as herein provided.
This lease shall supersede the previous Leases between Landlord and Tenant
dated September 30, 1986 and May 1, 1987 (together with the Original Lease,
the "Prior Leases") and shall superseded the Original Lease and the TAW, all
of which Prior Leases and TAW shall be deemed terminated as of the
Commencement Date; provided, however, that notwithstanding the foregoing, if
Tenant has not surrendered by portion of the Building which is not included
in the Leased Premises under this Lease on or before October 15, 1995, then
the provisions of the Prior Leases and said TAW, as the case may be,
regarding (a) additional fees to be paid upon failure to surrender and (b)
all other default and remedy provisions thereof shall apply and remain in
full force and effect and said failure to surrender shall constitute a
default under this Lease.
3. Earlier Termination of Lease. Landlord and Tenant shall have
certain rights to terminate this Lease in advance of the expiration of the
term hereof by giving written notice of termination to the other party at
least six (6) months prior to any anniversary of the Commencement Date of
this Lease, upon which notice the term of this Lease shall expire on the
next succeeding anniversary date from which such 6-month period was
measured. If any such notice of termination is given by Tenant, such notice
shall be accompanied by a payment to Landlord as Additional Rent hereunder
of an amount equal to three (3) months' Fixed Rent for the whole of the
Leased Premises at the rate of $3.50 per square foot as liquidated damages
for such early termination.
4. Rent. Tenant shall pay the following rent which shall be
absolutely net (except as otherwise provided herein) to Landlord:
(a) Tenant shall pay Fixed Rent during the term of this Lease at the
annual rate for each square foot of rented space, which space, both parties
agree, consists of 89,949 square feet, of (a) $0 per square foot for the
period from October 1, 1995 through December 31, 1995; (b) $3.25 per square
foot for the period from January 1, 1996 through September 30, 1996; and (c)
$3.50 per square foot for the period from October 1, 1996 through
September 30, 2000.
All Fixed Rent shall be paid in equal monthly installments of 1/12 of
the annual rate then applicable from time to time in advance on or before
the first day of each calendar month, and proportionately with respect to
any calendar month in which the term of this Lease may begin or end.
(b) Tenant shall pay to Landlord as Additional Rent the following:
(i) forty percent (40%) of all real estate taxes, including,
without limitation, all public, special or betterment assessments, water and
sewer charges and other governmental levies, imposed against the Building,
prorated with respect to any portion of a fiscal year in which the term of
this Lease begins or ends. Such payments shall be due and payable within
fifteen (15) days after Tenant shall have received a copy of a tax bill
evidencing such taxes; provided, however, that Tenant shall not be obligated
to pay such percentage of taxes more than ten (10) days in advance of when
such payment is due to the governmental authority:
(ii) forty percent (40%) of all utility and energy charges for
the Building (unless separately metered in which case Tenant shall pay one
hundred percent (100%) of all utility and energy charges which are
separately metered and billed to Tenant directly by the utility or energy
company); and
(iii) forty percent (40%) of all expenses necessary or
appropriate in connection with the ordinary repair, replacement, operation
and maintenance of the Building or any structural components or systems
(provided that any capital expenditure shall be amortized over a period of
five (5) years) and utility lines serving the same (or one hundred percent
(100%) of such repair, replacement, operation, maintenance or utility line
cost if said costs benefit only the Leased Premises), except (w) any repair,
operation or maintenance cost for the Building which does not benefit the
Leased Premises in any manner directly or indirectly, (x) any interest and
amortization on mortgages encumbering the fee title at any time, (y) any
estate, inheritance, income or other personal taxes of Landlord, and (z) the
initial repair or replacement of the roof over the Leased Premises as may
occur in accordance with Section 6(b) below.
(iv) one hundred percent of all costs and expenses incurred by
the Landlord for repairs, operation, maintenance and other obligations which
Tenant is required to perform hereunder but which is performed by Landlord
in Landlord's discretion, after reasonable prior written notice except that
no notice is required in an emergency.
Notwithstanding any other provision of this Lease to the contrary,
Tenant shall also pay as Additional Rent forty percent (40%) of all costs
and expenses related to snow plowing, landscaping, and maintenance and
repair of the grounds of the Conveyed Premises: provided, however, that if
in the exercise of its reasonable judgment, Tenant determines by obtaining
binding written bids for work from reputable and bonded service companies
that landscaping or snow plowing can be conducted at a cost equal to eighty-
five percent (85%) or less of the cost being charged to Landlord for their
services, and Tenant provides said bids to Landlord, Landlord shall only
charge Tenant Additional Rent for such services based upon the lower cost
set forth in said bids. If any such bid is more than eighty-five percent
(85%) of the cost being charged to Landlord, Landlord shall have no
obligation to adjust Additional Rent for such services.
Although no Fixed Rent is due from October 1, 1995 through December
31, 1995, Additional Rent shall be due and payable during said period.
Fixed Rent and Additional Rent are together sometimes referred to
hereinafter as "Rent."
Landlord reserves the right to install meters to separately meter the
utility and energy charges for the Leased Premises for the purpose of
determining Tenant's proportionate share more accurately.
5. Insurance. Tenant shall procure, keep in force and pay for (i)
so-called "contents and improvements" property insurance insuring all of
Tenant's Property, as defined in Section 6(c) below, and (ii) comprehensive
public liability (including without limitation, contractual liability and
so-called fire legal liability) insurance insuring Landlord and Tenant
against all claims and demands for injury or death of persons or damage to
property which may be claimed to have occurred upon the Leased Premises, in
amounts which shall at all times be not less than $1,000,000 for injury or
death of one person in a single accident, $3,000,000 for injury or death of
more than one person in a single accident, and $1,000,000 for damages to
property in a single accident, or such higher amounts, if procurable, as may
be reasonably required by Landlord and customarily carried by responsible,
similarly situated tenants in the locality of the Leased Premises. Landlord
shall be named as an additional insured on all of Tenant's insurance
policies required herein.
Such insurance shall be effected with responsible insurers under valid
and enforceable policies which may not be canceled without at least ten (10)
days prior written notice to each insured named therein. At or prior to the
commencement of the term of this Lease, and thereafter not less than five
(5) days after the expiration date of each expiring policy, original copies
or certificates of the policies required hereunder, setting forth in full
the provisions thereof, together with satisfactory evidence of the payment
of all premiums then due therefor, shall be delivered by Tenant to Landlord
and shall, upon request of Landlord, also be delivered by Tenant to the
holder of any mortgage affecting the Leased Premises. Tenant shall not
acquire as insured under any insurance carried on the Leased Premises by
Landlord any right to participate in the adjustment of loss or to receive
insurance proceeds and agree upon request promptly to endorse and deliver to
Landlord any checks or other instruments in payment of loss in which Tenant
is name as payee.
With respect to property loss or damage only, each party hereby
releases the other from any and all liability to such party or anyone
claiming through such party by way of subrogation or otherwise for any loss
or damage to property, caused by fire or any other perils insured in
policies of insurance covering such property, even if such loss or damage
shall have been caused by the fault or negligence of the other party, or
anyone for whom such other party may be responsible, provided, however, that
this release shall be applicable and in force only with respect to loss or
damage occurring, during such times as the releasor's policies shall contain
a clause or endorsement to the effect that any such release shall not
adversely affect or impair said policies or prejudice the right of this
releasor to recover thereunder and then only to the extent of the insurance
proceeds payable under such policies. Tenant agrees that it will include
such a clause or endorsement in all insurance policies required to be
obtained by Tenant hereunder, and Landlord agrees that it will include such
a clause or endorsement in all insurance policies which it may carry which
cover the Building.
6. Maintenance of Leased Premises.
(a) Tenant shall, at its sole cost and expense, maintain, repair and
replace the Leased Premises (including without limitation, those portions of
the structural, mechanical, heating, plumbing, air conditioning and
electrical components and systems of the Building excluding the roof, which
serve only the Leased Premises), and utility lines serving only the Leased
Premises if not maintained by a utility company, in the same condition as
they are in at the commencement of the term of this Lease or as they may be
put in thereafter, damage by fire and other casualty only excepted. Tenant
also shall pay all costs associated with damage to any portion of the
Building or Building components and systems caused by Tenant's failure to
maintain and repair as required.
(b) Landlord shall only be obligated to maintain, repair and replace
those Building components and systems which serve both (i) a portion of the
Leased Premises and (ii) other portions of the Building which are not part
of the Leased Premises, all of which costs (other than replacement costs)
shall be included as an expense to be included in Section 4(b)(ii) upon
which Additional Rent will be calculated hereunder, and all of which
replacement costs will only be so included in section 4(b)(ii) if the
replaced Building component, system or portion thereof is located within or
benefits the Leased Premises; provided, however, that Landlord shall not be
obligated to conduct any maintenance, repair or replacement relating to any
eminent domain taking or any casualty (each of which shall be governed by
Section 13 hereof) or any roof (except as set forth below in this Section
6(b)(1) below) or other structural maintenance, repair or replacement.
Notwithstanding the foregoing and any other provision of this Lease to the
contrary, (1) Landlord shall have no obligation to maintain, repair or
replace the roof and other portions of the Building structure, except that
Landlord agrees that it shall either repair the current roof over the Leased
Premises portion of the Building so as to render the same watertight or
install a new roof thereon, which repair or installation shall be commenced
by the Commencement Date and may be suspended or terminated by Landlord if
Tenant defaults under this Lease; and (2) if Landlord has repaired the
current roof or installed a new roof pursuant to Subsection 6(b)(1) above,
then such initial repair or installation shall not be included in
determining Additional Rent as aforesaid, and thereafter Landlord shall be
obligated to repair and maintain the same during the term hereof, and such
on-going repair and maintenance obligation shall be included in determining
Additional Rent as aforesaid. Landlord agrees that during the roof repair
contemplated hereunder Landlord shall not unreasonably interfere with
Tenant's operations, and Tenant agrees to cooperated with Landlord to the
extent reasonably necessary in order to effectuate said roof repair.
(c) All merchandise, furniture, fixtures, effects and property of
every kind, nature and description owned by or leased by Tenant and located
on the Leased Premises (the "Tenant's Property") shall be at the sole risk
and hazard of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage or
bursting of water pipes, steam pipes or other pipes, by theft or from any
other cause, no part of any resulting loss is to be charged to or be borne
by Landlord.
7. Assignment, Subletting, Etc. Tenant shall not assign or sublet
this Lease or the Leased Premises or permit any other party to use the
Leased Premises in whole or in part without first obtaining on each occasion
the consent in writing of Landlord, which consent may be denied at the sole
discretion of Landlord. No such assignment, subletting or use shall in any
way impair the continuing primary liability of Tenant hereunder, and no
consent to any assigning, subletting or use in a particular instance shall
be deemed to be a waiver of the obligation to obtain the Landlord's approval
in the case of any other assignment, subletting or use.
8. Compliance with Law. Tenant shall, at its sole cost and expense,
conform to and comply with all federal, sate and municipal laws, including
without limitation, all laws relating to health, safety, disposal of
hazardous wastes and regulations promulgated thereunder, and all
requirements of any public body or officers having jurisdiction of the
Leased Premises and all requirements or regulations of any Board of Fire
Underwriters or insurance company insuring the Leased Premises at the time
with respect to the care, maintenance, use and alteration of the Leased
Premises. To the extent that any failure to comply with such laws,
requirements and regulations relates to the Building as a whole rather than
to the Leased Premises alone or to the operations of the Tenant alone, then
if Landlord incurs costs, in its sole discretion, in order to so comply,
such costs shall be included as an expense in Section 4(b)(ii) in
determining the amount upon which Additional Rent will be calculated
hereunder. Upon any violation of such laws or regulations, Landlord shall
have the right to immediately terminate this Lease.
9. Alterations and Additions. Tenant shall not make any structural
alterations or additions to the Leased Premises unless Landlord consents
thereto in writing, and all such allowed alterations or additions shall be
at Tenant's expense and shall be of good and workmanlike quality. Tenant
shall at no time permit any mechanics' liens, or similar liens, to remain
upon the Leased Premises for labor and material furnished to Tenant or
claimed to have been furnished to Tenant in connection with work of any
character performed or claimed to have been performed at the direction of
Tenant and shall cause any such lien to be released of record forthwith
without cost to Landlord. Any alterations or additions made by Tenant at
its expense and directly related in the nature of a trade fixture to
functions carried on in the Leased Premises by Tenant may be removed by
Tenant thereafter, so long as Tenant restores the Leased Premises to their
condition prior to making such alterations or additions and provided that
Tenant is not then in default under this Lease, and all other equipment,
fixtures and alterations and additions made by Tenant shall be removed if so
requested by Landlord within a reasonable time on or after the expiration or
other termination of this Lease.
10. Use of Leased Premises. Subject to the provisions of this Lease,
Tenant may use the office portion of the Leased Premises only for general
office use and may use the warehouse portion of the Lease Premises only for
light manufacturing and general warehouse purposes to store the products of
Tenant or any affiliated companies of Tenant. The Leased Premises may not
be used to store hazardous substances of any kind, except that the warehouse
portion of the Leased Premises may be used to store cutting oil, waste oil,
paint and paint thinner, all of which shall be used, stored and disposed of
in accordance with all federal, state and local laws and regulations. Other
than as set forth in the preceding sentence, Tenant shall not cause or
permit any hazardous substances to be brought upon, kept or used in or about
the Leased Premises by Tenant, its agents, employees, contractors, invitees
or affiliates.
If Tenant breaches the obligations stated in the preceding paragraph,
or if the presence of hazardous substances on the Leased Premises caused or
permitted by Tenant or Tenant's agents, employees, contractors, invitees or
affiliates since September 30, 1986 results in, or has resulted in,
contamination of the Leased Premises, or contamination of any of the
Conveyed Premises or any other property owned by Landlord or any affiliate
of Landlord (together with the Conveyed Premises, the "Other Property"), or
if contamination of the Leased Premises or Other Property by hazardous
substances otherwise occurs, or has occurred since September 30, 1986, for
which Tenant or Tenant's agents, employees, contractors, invitees or
affiliates is legally liable to Landlord for damage resulting therefrom,
then Tenant shall indemnify, defend and hold Landlord harmless from any and
all claims, judgments, damages, penalties, fines, costs, liabilities or
losses (including, without limitation, diminution in value of the Leased
Premises or Other Property, damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Leased Premises or Other
Property, damages arising from any adverse impact on marketing of space, and
sums paid in settlement of claims, attorneys' fees, consultant fees and
expert fees) which arise or arose (i) after September 30, 1986, (ii) during
the term of this Lease or after the term of the Lease as a result of
contamination which occurs or occurred after September 30, 1986 or during
the term of this Lease and which was cause or permitted by Tenant or
Tenant's agents, employees, contractors, invitees or affiliates. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal or restoration work required by any federal,
state or local governmental agency or political subdivision because of
hazardous substances present in the soil or groundwater on or under the
Leased Premises or the Other Property, but excludes all costs relating to
hazardous substances which were present prior to September 30, 1986.
Without limiting the foregoing, if the presence of any hazardous substances
on the Leased Premises caused or permitted by Tenant or Tenant's agents,
employees, contractors, invitees or affiliates results in any contamination
of the Leased Premises or Other Property or resulted in any contamination of
the Leased Premises or Other Property after September 30, 1986, Tenant shall
promptly take all actions at its sole expense as are necessary to return the
Leased Premises to the condition existing prior to the introduction of any
such hazardous substances to the Leased Premises; provided that Landlord's
approval of such actions shall first be obtained. The foregoing indemnity
shall survive the expiration or earlier termination of this Lease. This
indemnification shall exclude any asbestos located at the Leased Premises
prior to September 30, 1986, but shall not exclude any matters which relate
to, are caused by, or derive from the disturbance, during the term of this
Lease, of such (pre-September 30, 1986) asbestos by the Tenant or Tenant's
agents, employees, contractors, invitees or affiliates.
The term "hazardous substances" as used in this section means (i) any
"hazardous substance" or "hazardous waste" under any federal, state or local
statute, regulation or ordinance including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. 9601, et seq.) and/or the Resource Conservation and Recovery Act (42
U.S.C. 6901, et seq.); (ii) any material which is toxic, explosive,
corrosive, flammable, radioactive, carcinogenic, mutagenic or otherwise
hazardous and is regulated by any government authority, agent, department,
commission, board, agency or instrumentality of the United States,
Commonwealth of Massachusetts or any political subdivision thereof or
municipality; (iii) any gasoline, diesel fuel or other petroleum
hydrocarbons; or (iv) any polychlorinated biphenyls or asbestos.
Each of Landlord and Tenant hereby represents that it has no actual
knowledge of any contamination of the Leased Premises or the Other Property
with hazardous substances, which was caused or permitted by Tenant or
Tenant's agents, employees, contractors, invitees or affiliates, and which
occurred after September 30, 1986.
In no event shall any use be made of the Leased Premises which will be
unlawful, improper, noisy or offensive, or contrary to any law (as set forth
in Section 8) or which will make voidable any insurance on the Leased
Premises or which will cause an increase in insurance premiums unless such
increase is paid in full (not pro rata) by Tenant. Tenant shall comply with
all reasonable rules and regulations imposed by Landlord or its managing
agents or designees for use and occupancy of the Leased Premises, provided
that Tenant shall have been given notice thereof.
11. Indemnification and Liability. Tenant will defend, indemnify and
hold Landlord harmless against all liabilities, claims, costs, damages and
other expenses, including without limitation reasonable attorneys' fees,
which may be imposed upon, incurred by or asserted against Landlord by
reason of Landlord's enforcing its rights and protecting its interests under
this Agreement and by reason of any of the following occurring during the
term of this Lease:
(a) any negligence on the part of Tenant or its agents,
contractors, licensees or invitees:
(b) any failure on the part of Tenant to perform or comply with
any covenant required to be performed or complied with by Tenant under this
Lease:
(c) any injury to person (including without limitation employees
and guests of Tenant) or loss of or damage to property sustained or
occurring on the Leased Premises on account of or based upon the act,
omission, fault, negligence or misconduct of any person whomsoever other
than Landlord and those persons for whose conduct Landlord is legally
responsible; or
(d) any injury to person or loss of or damage to property
sustained or occurring in connection with Landlord's removal of Tenant's
Property or the property of others upon tenant's failure to vacate the
Leased Premises whether or not such injury, loss or damage occurs on the
Conveyed Property.
12. Surrender. Tenant shall at the expiration or other termination
of this Lease remove all Tenant's Property from the Leased Premises and
deliver the Leased Premises to Landlord in broom clean condition, free of
all Tenant's Property and in the same condition as they are in at the
commencement of the term of this Lease or as they may be put in thereafter,
reasonable wear and tear and damage by fire or other casualty only excepted.
If, on the date on which this Lease expires or otherwise terminates, Tenant
shall fail to vacate the Leased Premises and to remove from the Leased
Premises all of Tenant's Property and to deliver the Leased Premises in said
condition and free of all of Tenant's Property, Tenant shall pay to Landlord
an additional fee at an annual rate of $4.00 per square foot of space not so
vacated for each day during the first month of such failure and an
additional fee at an annual rate of $12.00 per square foot per day
thereafter for each day Tenant fails to so vacate and/or remove.
13. Eminent Domain or Casualty.
(a) In the event that the Leased Premises or over 20,000 square
feet thereof shall be taken by any public authority or for any public use,
or shall be destroyed or damaged by fire or casualty or any other cause, or
by the action of any public authority, and Landlord elects, in its sole
discretion, not to repair or otherwise restore the Leased Premises, then
this Lease may be terminated at the election of Landlord notwithstanding any
other provisions of this Lease. Such election shall be made by the giving
of written notice by Landlord to Tenant with six (6) months after such
taking, damage or destruction. If any portion of the Leased Premises is
taken, destroyed or damaged, and Landlord does not elect, in its sole
discretion to repair or otherwise restore the Leased Premises, and does not
elect to terminate this Lease as provided above, Tenant shall have the right
to vacate such taken, destroyed or damaged space and remove all of Tenant's
Property therefrom, and when such vacating and removal is complete, the Rent
payable by Tenant hereunder shall be abated with respect to those portions
of the Leased Premises. If greater than 20,000 square feet of the Leased
Premises is taken, destroyed or damaged, and Landlord does not elect, in its
sole discretion, to repair or otherwise restore the Leased Premises and has
not elected to terminate this Lease within said six-month period, then
Tenant shall have the right to terminate this Lease upon six months' notice,
during which six-month period Tenant shall have the right to vacate such
space and remove all of Tenant's Property from such portions of the Leased
Premises so taken, damaged or destroyed, and when such vacating and removal
is completed, the Rent payable by Tenant hereunder shall be abated with
respect to those portions of the Leased Premises. Notwithstanding any
provisions of this Lease to the contrary, in no event shall Landlord be
obligated upon an eminent domain taking or casualty to repair or rebuild the
Leased Premises, the roof, any systems, components or structural elements of
the Building or any other portion of the Leased Premises or the Building or
the utility lines serving the same.
(b) Irrespective of the form in which recovery may be had by
law, all rights to damages or compensation shall belong to Landlord in all
cases. Tenant hereby grants to Landlord all Tenant's rights to such damages
and compensation, and covenants to deliver such further assignments thereof
as Landlord may from time to time repair.
14. (Intentionally omitted).
15. Default. If (a) Tenant shall default in the performance of any
of its obligations set forth in this Lease relating to the payment of money
and if such default shall continue for ten(10) days after written notice
from Landlord to Tenant designating such default; or (b) for a period of
thirty (30) days after written notice from Landlord to Tenant specifying any
other default or defaults, Tenant has not commenced diligently to correct
the default or defaults so specified or has not thereafter diligently
pursued such correction to completion; or (c) any assignment shall be made
by Tenant or any guarantor of Tenant's obligations hereunder for the benefit
of creditors; or (d) Tenant's leasehold interest shall be taken on
execution; or (e) a petition is filed by Tenant for adjudication as a
bankrupt, or for reorganization or an arrangement under any provision of any
bankruptcy or insolvency law as then in force and effect; or (f) any
involuntary petition under any of the provisions of any such bankruptcy or
insolvency law is filed against Tenant and such involuntary petition is not
dismissed within thirty (30) days thereafter; then, and in any of such
cases, Landlord may lawfully, immediately or at any time thereafter, and
without further notice or demand, and without prejudice to any and all other
remedies provided or recognized by applicable law, including without
limitation, remedies which might otherwise be used for arrears of rent or
other default, declare the term of this Lease ended and undertake
appropriate proceedings to take complete possession of the Leased Premises
and to remove all goods and effects of Tenant therefrom at Tenant's expense
and without liability for loss or damage to Tenant's property. Tenant
shall, in case of any such termination forthwith pay to Landlord as damages
a sum equal to the amount by which the rent and other payment called for
hereunder for the remainder of the term of this Lease exceed the fair rental
value of the Leased Premises for said period, and in addition thereto will
furthermore promptly indemnify Landlord during said period against all loss
of such rent and other payments which Landlord may incur by reason of such
termination, however caused, first deducting any damages paid as above
provided. If Tenant shall default, after notice thereof, in the observance
or performance of any conditions or covenants on Tenant's part to be
observed or performed under or by virtue of any of the provisions in any
part of this Lease, Landlord, 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 Tenant. If Landlord makes any expenditures or
incurs any obligations for the payment of money in connection with any such
default, including but not limited to reasonable attorneys' fees in
instituting, prosecuting or defending any action or proceeding, such sums
paid or obligations incurred shall be paid to Landlord by Tenant as
Additional Rent (notwithstanding that the terms of this Lease may have
ended). In the event that any payment of rent or any other sum due
hereunder is not made within five (5) days of the date due, Tenant shall pay
a later charge equal to two percent (2%) of the amount of such payment with
respect to each month (or portion thereof) during which such payment remains
outstanding.
16. Building Alteration. It is understood by both parties that
Landlord may be performing work on the Building, including without
limitation, the roof of the Building during the Term of this Lease.
Landlord may make any and all alterations and additions to the Building as
it deems necessary or desirable. However, during such work Landlord shall
not unreasonably, materially interfere with the business of tenant.
17. Miscellaneous.
(a) Any consent or permission by Landlord to any act or
omission which otherwise would be a breach of any covenant or condition
herein, shall not in any way be held or construed (unless expressly so
declared) to operate so as to impair the continuing obligation of any
covenant or condition herein, or otherwise, except as to the specific
instance, operate to permit similar acts or omissions. Any acceptance of
rent by Landlord hereunder shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the ability of the
Landlord to evict the Tenant or to exercise any other rights it may have
under this Lease or the law.
(b) Tenant shall at the request of Landlord, and within fifteen
(15) days of any and all such requests from time to time, (i) execute and
deliver to Landlord a subordination of this Lease to any mortgage placed
upon the Leased Premises by Landlord, and Tenant agrees to recognize any
holder of such a mortgage or any other person acquiring title to the Leased
Premises as Landlord, and (ii) execute and deliver to Landlord a certificate
which acknowledges tenancy and possession of the Leased Premises and recites
any other facts relating to this Lease and the payments made hereunder which
a mortgagee, lender, purchaser or prospective purchaser may require, which
certificate shall be addressed to such party if so requested. Tenant agrees
to execute and deliver any appropriate instruments necessary to carry out
the terms in this Section contained. Any such mortgage to which this Lease
shall be subordinated may contain such terms,. provisions and conditions as
the mortgagee deems usual or customary.
(c) The agreements and conditions in this Lease contained to be
performed and observed by Tenant shall be binding upon tenant and its
successors and assigns and shall enure to the benefit of Landlord and its
successors and assigns, and the agreements and conditions in this Lease
contained on the part of Landlord to be performed and observed by Landlord,
shall be binding upon Landlord and its successors and assigns and shall
enure to the benefit of Tenant and its successors and assigns (subject to
the provisions of Section 7). Tenant agrees that the Landlord named herein
and any subsequent landlord shall be liable hereunder only for obligations
occurring while owner of the Leased Premises. No holder of a mortgage of
the Landlord's interest shall be deemed to be the owner of the Leased
Premises until such holder shall have acquired indefeasible title to the
Leased Premises.
(d) Tenant shall no longer arrange for security for the whole
Building, and shall, in Tenant's discretion, arrange for security for the
Leased Premises with no obligation on the part of Landlord to contribute any
portion of the costs thereof and Tenant shall not make any deductions from
Rent therefor.
(e) All notices to Landlord shall be addressed to Landlord at 7
Water Street, Boston, Massachusetts 02109, Attention: Mr. Francis Crocetti,
Senior Vice President, with a copy to Anne L. Gero, Esq., Senior Legal
Counsel, FMR Corp., 82 Devonshire Street, Boston, MA 02109 and with a copy
to Michael F. Burke, Esq., Peabody & Arnold, 50 Rowes Wharf, Boston,
Massachusetts 02110, or to such other place as may be designated by written
notice to Tenant; and all notices to Tenant shall be addressed to Tenant at
the Leased Premises, Attention: Mr. Charles Housman, with a copy to Elliot
Englander, Esq., Englander, Finks, Ross & Cohen, 55 summer Street, Boston,
Massachusetts 02110, or to such other place as may be designated by written
notice to Landlord. All notices shall be sent to the respective party by
registered or certified mail, postage prepaid. Unless otherwise directed in
writing, all rents and other payments shall be payable to Landlord at the
Landlord's address as above stated.
EXECUTED as a sealed instrument on the day and year first above
written.
LANDLORD:
Fidelity Properties, Inc.
TENANT:
Armatron International, Inc.
By: /s/ Charles J. Housman, Pres.
By: /s/ Charles J. Housman, Treas.