EXHIBIT 10.5
LEASE
1. PARTIES
Independence Park, Inc., a Massachusetts Corporation, whose address is P.O.
Box 1776, Barnstable (Hyannis) Barnstable County Massachusetts 02601,
hereinafter called "Landlord" which expression shall include its successors and
assigns where the context so admits does hereby lease to Excel, Inc., whose
address is 41 Meetinghouse Lane, Sagamore Beach, MA 02652 hereinafter called
"TENANT" which expression shall include its successors where the context so
admits, and the TENANT hereby leases from the Landlord the following described
premises:
2. PREMISES
The "demised premises" consists of certain land with the buildings thereon
known and numbered as Plant 5, Town of Barnstable assessors map 295, Parcel 12,
Barnstable (Hyannis) Barnstable County, Massachusetts described on exhibit A
attached hereto and incorporated herein. The said building is of one (1) story
concrete block construction with rubberized flat roof and contains 26,370 square
feet of floor space inclusive.
3. TERM
The term of this lease shall be five (5) years with one five (5) year
option period.
4. RENT
Lease rates Year Dollar amount/Sq.Ft.
1 $5.60
2 $5.75
3 $6.00
4 $6.50
5 $6.50
OPTION
6 $7.00
7 $7.00 +CPI
8 year 7+CPI
9 year 8+CPI
10 year 9+CPI
All rates are "triple Net"
5. UTILITIES AND REPAIRS
A. Tenant shall pay as they become due, all bills for electricity,
gas and other utilities that are furnished to the demised premises. Landlord
agrees to provide utility service to the premises and operable services for heat
light and water as of the time of commencement of
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the lease. Tenant acknowledges that a sewer installation betterment fee and
sewer user fee will be its responsibility.
In addition to the above, Tenant agrees to pay the paving costs
for asphalt of new parking area, all build-out costs (interior) and sewer hook
up charges.
B. Tenant agrees to keep the Premises, including without limitation
the exterior and structure of all improvements thereon and all heating,
plumbing, electrical, air conditioning, mechanical and other fixtures and
equipment therein in the same order condition and repair as they are in as of
the commencement date or may be put in during the term, reasonable use and wear
and tear excepted, to take good care of all lawns and planted areas and to
provide reasonable landscaping along either side of the entrance drive and to
keep in good repair and clean and neat and free of snow and ice all surface
roadways, walks and parking and loading areas, and to make all repairs and
replacements and to do all other work necessary for the foregoing purposes
whether the same may be ordinary or extraordinary, foreseen or unforeseen. It is
further understood that tenant will keep the premises in suitable tenant-like
and efficient and usable condition considering the nature of the premises and
the use reasonably made thereof, and in good and tenant-like repair.
C. Tenant will make all repairs, alterations additions or
replacements to the premises required by law or ordinance or any order or
regulation of any public authority to keep the premises equipped with all safety
appliances so required; and to comply with the orders and regulations of any
governmental authorities except that tenant may defer compliance so long as the
validity of any such law ordinance order or regulation shall be contested by
tenant in good faith and by appropriate legal proceedings if tenant first gives
the landlord appropriate assurance against loss cost or expenses on account
thereof. Landlord shall make all repairs, alterations, additions or replacements
to the premises required by any law or ordinance or any order or regulation of
any public authority of any violation that exists or occurred prior to
commencement of this lease.
D. Tenant shall upon commencement of this lease assure that all
utilities are in tenants name. Landlord shall deliver the building, including
but not limited to the roof, utility services heating sprinkler, electrical and
plumbing operating and in good order, repair and condition, and free from all
previous tenants.
E. Landlord has agreed that immediately upon the signing hereof, it
shall provide engineering, site work and necessary permits and/or waivers of
Park regulations to provide for a minimum of 40 additional parking spaces at the
rear of the building, to provide a four foot chain link fence to separate said
additional parking areas from those of the current Auburn Wire location, and to
insure that all air-conditioning units are fully functional.
F. Tenant either by itself or through its agents, hereby agrees that
it shall not go onto the roof without the landlord and Building Maintenance
Service Company, Inc.'s written authorization, and any transgressor shall bear
the costs of the damages done to the roof associated with such transgression. If
tenant however requests that any work be done to the roof to allow for needed
additional equipment and/or openings for ventilation ductwork or similar
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purposes the tenant shall request landlord's permission to do so and landlords
permission shall not be unreasonably withheld. It is further understood that
tenant shall consult the installer and manufacturers representative to insure
that the integrity of the roof shall not be impaired. The cost of any such work
so performed on the roof shall be the sole responsibility of the tenant.
6. REAL ESTATE TAXES
Tenant shall pay to landlord as additional rent all real estate taxes
attributable to the demised premises for the term of this lease. Such payment
shall be due within five days prior to the date said taxes are due and payable
without penalty or interest, or within ten days following tenants receipt of
town tax bill whichever is later. Landlord agrees to deliver to the tenant a
copy of the most recent real estate tax bill prior to the execution of this
lease.
7. USE OF LEASED PREMISES
Tenant may use the demised premises for storage, warehousing, manufacturing
office space and related uses.
8. COMPLIANCE WITH LAWS
Tenant agrees that no use of the demised premises will be made which will
constitute a legal nuisance, or be contrary to any law or municipal bylaw or
ordinance in force in the Town of Barnstable. Landlord warrants, to the best of
its knowledge, that the property is in compliance with all applicable government
rule and regulations.
9. FIRE INSURANCE
Tenant shall not permit any use of the demised premises which will make
voidable any insurance on the demised premises. Tenant shall maintain fire and
extended liability in minimum amounts so as to avoid coinsurance in responsible
companies qualified to do business in Massachusetts and in good standing, and
the policies shall be noncancellable without ten days notice to landlord and
Tenant agrees to pay the reasonable cost of said insurance coverage relating to
the term of this lease within thirty days following receipt of the invoices
therefore,
Tenant agrees to maintain fire and extended liability coverage with respect
to its property located in or upon the demised premises and to hold the landlord
harmless of and from any loss, claim or liability resulting from loss or damage
covered by said insurance.
10. ALTERATIONS/ADDITIONS
Tenant shall not make any structural alterations or additions to the
demised premises without landlord's prior written consent, but may make interior
nonstructural alterations. All such nonstructural alterations shall be at
Tenant's expense. Tenant shall not permit any mechanics liens or similar liens
to remain upon the demised premises for labor and materials 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, after
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notice thereof, cause any such lien to be released of record forthwith without
cost to the Landlord.
11. ASSIGNMENT/SUBLEASING
Tenant shall not assign this Lease or sublet the whole or any part of the
demised premises without Landlord's prior written consent which consent shall
not be unreasonably withheld or delayed. Notwithstanding such consent to
subletting Tenant shall remain liable to Landlord for the payment of all rent
and for the full performance of the covenants and conditions of this Lease.
12. LANDLORD'S ACCESS
Landlord or agents of Landlord may, at reasonable times and except for
emergencies, upon at least 24 hours prior written notice, enter to view the
demised premises and to make repairs and alterations as so required herein to
do, and at any time within six (6) months before the expiration of the term may
show the demised premises to others and may affix to suitable part of the
premises, a notice for letting or selling the premises or property of which the
premises are a part and keep the same so affixed without hindrance or
molestation.
13. INDEMNIFICATION AND LIABILITY
Tenant agrees to hold Landlord harmless and indemnified from and against
all bodily and personal injury, losses, claims or damages to any person or
property while in the demised premises (unless occasioned by the act or
negligence of Landlord, its employees, agents, licensees, lessees, or
contractors or by a default by Landlord under this Lease), and from against all
bodily and personal injury, loss, claims, or damage to any person or property
outside of the demised premises, which is wholly occasioned by any act or
negligence of Tenant, its employees, agents, licensees, lessees or contractors,
or by a default by Tenant under this Lease.
14. TENANT'S LIABILITY INSURANCE
To the extent to same is not covered by the insurance provided pursuant to
"9" Tenant shall maintain with respect to the demised premises Comprehensive
public liability insurance in the amount of Five Million ($5,000,000.00) Dollars
in responsible companies qualified to do business in Massachusetts and in good
standing therein insuring the Landlord as well as Tenant against injury to
persons or damage to property as herein provided. Tenant shall deposit with
Landlord certificates for such insurance at or prior to commencement of the
term, and thereafter within ten (10) 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.
15. FIRE CASUALTY/EMINENT DOMAIN
Should a substantial portion of the demised premises be damaged by fire or
other casualty, or be taken be eminent domain, Landlord may elect to terminate
this Lease. With such
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fire, casualty or taking renders the demised premises substantially unsuitable
for their intended use, a just and proportionate abatement of rent shall be
made, and Tenant may elect to terminate this Lease if:
(a) Landlord fails to give written notice within thirty (30) days
of said damage or taking of intention to restore the demised premises, or
(b) Landlord fails to restore the demised premises to a condition
suitable for their intended use within ninety (90) days of said damage or
taking.
Landlord reserves, and Tenant grants to Landlord, all rights which Tenant
may have for damages or injury to the demised premises for taking by eminent
domain, except for damage to Tenant's fixtures, property or equipment and
relocation expenses.
16. DEFAULT AND BANKRUPTCY
In the event that:
(a) Tenant shall fail in the payment of any installment of rent or
other sum herein specified and such default shall continue for fourteen
(14) days after written notice thereof, or
(b) Tenant shall default in the observance or performance of any
other of Tenant's covenants, agreements or obligations hereunder and such
default shall not be corrected within thirty (30) days after written notice
thereof (or, if such default is not capable of being corrected within
thirty (30) days, Tenant shall not have commenced to correct such default
and duly prosecuted the same to completion within thirty (30) days); or
(c) Tenant shall be declared bankrupt or insolvent according to law;
The Landlord shall have the right thereafter, while such default continues, to
re-enter and take complete possession of the demised premises, to declare the
term of this Lease ended, and remove Tenant's effects without prejudice to any
remedies which might be otherwise used for arrears of rent or other default.
Tenant shall indemnify Landlord monthly against all loss of rent and other
payments which Landlord may incur by reason of such termination during the
residue of the term including costs of collection and reasonable attorney's
fees. The foregoing rights are nonexclusive and Landlord may avail itself of
any other right available to it at law or in equity and such rights shall be
cumulative and nonexclusive.
17. NOTICE
Any notice from Landlord to Tenant relating to the demised premises or to
the occupancy thereof, shall be deemed duly served, if mailed registered or
certified mail, return receipt requested, postage prepaid addressed to Tenant at
255 Independence Dr., Hyannis Ma.
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Any notice from Tenant to Landlord relating to the demised premises, shall
be deemed duly served, if mailed to Landlord by registered or certified mail,
return receipt requested, postage prepaid, addressed to Landlord at P.O. Box
1776, Barnstable (Hyannis), Barnstable County, Massachusetts 02601, Attention
Paul Lorusso. All rent and other payments shall be sent to Landlord at such
address.
18. SURRENDER
Tenant shall at the expiration or other termination of this Lease remove
all Tenant's goods and effects from the demised premises. Tenant shall deliver
to Landlord the demised premises and all keys and locks thereto, in the
condition the same are now in, damage by fire, other casualty, taking and
reasonable wear and tear, excepted.
19. SIGNS
Tenant shall have the right to affix signs of reasonable size at the
entrance to the demised premises, and may remove signs upon leaving provided
premises are returned to its condition prior to sign installation. Tenant may
also install a sign on the ladder sign located at the entrance to Perseverance
Way.
20. COSTS
Wherever in this Lease, Landlord or Tenant are required to perform any act
to observe any covenant, in the absence of an express provision to the contrary,
such performance and observance shall be at the cost and expense of the party so
required.
21. QUIET POSSESSION
Landlord warrants that so long as Tenant conforms to the terms and
provisions of this Lease the Tenant shall have full, uninterrupted quiet
possession of the entirety of the demised premises for the use specified in "7"
for the term of this lease and any extensions thereof, Landlord further warrants
that Tenant's quiet possession will remain in full force and effect even should
Landlord mortgage or sell the premises.
22. OPTION TO PURCHASE
Tenant and Landlord agree that after the third year of this lease
agreement, Tenant has the right to purchase the premises for a total price of
$973,000.00. Said option to purchase shall be for the duration of this lease or
any option period hereunder. Landlord agrees to credit the Tenant a total of
$98,000.00 toward the above referenced purchase price at the time Tenant
exercises its option to purchase.
23 OPTION TO BUY OUT REMAINING TERM OF LEASE
Landlord and Tenant agree that at any time after the expiration of three
years from the date of the signing hereof, whether under the initial five year
term hereof, or under any optional lease term granted hereunder, Tenant shall
have the right, upon written notice given to Landlord
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at least thirty days in advance of the end of any lease year to "buy out " of
this lease, by tendering to the Landlord, together with said notice, an amount
of money equal to one additional full year's rent. For purposes of this "buy
out" provision, the amount of money so tendered shall be the same as the total
amount of rent due for the year of the giving of said notice: for example, if
notice of intent to terminate is tendered by Tenant to Landlord in year 4 of
this lease, in addition to the rent due for the remainder of year 4, Tenant
shall pay an additional amount of money equal to the rent due under this lease
for year 4.
Landlord and Tenant agree that Tenant's right to not exercise its five year
option granted hereunder, shall entitle Landlord to "buy out" compensation.
TIME
Time is of the essence of this agreement.
24. Tenant shall be allowed to file a notice of lease at the appropriate
Registry of Deeds.
EXECUTED as a sealed instrument this 27th day of July 1995.
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LANDLORD, Independence Park, Inc.,
By: /s/ Paul Lorusso
______________________________
Paul Lorusso, President
Commonwealth of Massachusetts
Barnstable. SS. 1995
Then personally appeared the said Paul Lorusso as aforesaid and
acknowledged the foregoing instrument to be his free act and Deed.
_______________________________
Notary Public
My commission expires:
TENANT Excel, Inc.,
By: /s/ Robert P. Madonna
______________________________
Commonwealth of Massachusetts
Then personally appeared the said and acknowledged the foregoing to be his
free act and deed.
_______________________________
Notary Public
My commission expires:
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FIRST AMENDMENT TO LEASE
Reference is hereby made to a Lease, dated July 27, 1995, by and between
EXCEL, INC., as tenant, and INDEPENDENCE PARK, INC. as landlord.
The parties to said Lease do hereby agree to amend said lease as follows:
"4. RENT"
The rental amounts payable by tenant in said lease shall be increased,
for the twelve month period beginning November 1, 1995 and ending with the
payment due October 1, 1996, by adding to the Dollar amount /Sq.Ft.
calculation the total sum of $2024.00/per month. Beginning November 1,
1996, the rental shall be paid in accordance with said lease as first
written.
In all other respects said Lease shall remain in full force and effect for
the term thereof.
In witness hereto, the parties do hereunder set their hands and seals this
_____ day of October, 1995.
EXCEL INC. INDEPENDENCE PARK INC.,
/s/ Robert P. Madonna /s/ Paul Lorusso
_______________________________ ____________________________________
Paul Lorusso, President