EXHIBIT 10.2
WITNESS this lease hereby made on the 16th day of February, 1994 by and
between HILLSIDE ASSOCIATES, a co-partnership, having it place of business at
100 Ring Road West, Garden City, New York 11530 hereinafter known as the
Landlord which expression shall include its heirs, successors and assigns and
COMPUTER TELEPHONE CORP. having its place of business at 360 Second Avenue,
Waltham, Massachusetts, a Massachusetts corporation, hereinafter known as the
Tenant, which expression shall include its successors and assigns.
1. Premises and Use: The Landlord hereby leases to the Tenant the
premises described as follows: Approximately Nineteen Thousand Five Hundred
and Eighty Two Square Feet (19,582 SF) of space as shown on the annexed sketch
in the building known as Tech Center 128, Building #1, 360 Second Avenue,
Waltham, Massachusetts, and Two Thousand (2,000) Square Feet of outside
storage space to be fenced by the Tenant, together with the use in common with
other Tenants in the building of outside parking and yard areas in the land on
which the leased premises are situated for the parking of automobiles and
trucks. Parking or storage of office trailers in the lot is prohibited. Tech
Center 128, Building #1 is located on Lot B-1 as shown in plan entitled "Plan
of Land in Waltham, Massachusetts owned by Bear Hill Industrial Development
Trust, scale 1 inch equals 40 feet, October 5, 1960 survey by MacCarthy
Engineering Service, Inc., Natick, Mass.", recorded with the Middlesex South
Registry of Deeds as Plan 1851 of 1960, and a portion of Lot B, which lot is
shown on a plan entitled "Plan of Land in Waltham, Massachusetts owned by Bear
Hill Industrial Development Trust, scale 1 inch equals 100 feet, March 17th,
1959, Plan by MacCarthy Engineering Service, Inc., Natick, Mass.", recorded
with said deeds as Plan 1157 of 1959. The premises may be used by the Tenant
for offices, manufacturing, engineering and warehousing or other lawful
purposes.
2. Term:
(a) The initial term of this Lease shall be for period of five (5)
years, commencing on the Commencement Date and ending at midnight on the last
day of the month in which the fifth anniversary of the Commencement Date (the
"Expiration Date") takes place.
(b) Tenant shall have one (1) option to extend the term of this Lease
from the dates upon which it would otherwise expire for one (1) renewal period
of five (5) years. If Tenant: elects to exercise said option, it shall do so
by giving notice of such election to Landlord at any time on or before the
date which is 180 days before the expiration of the Term of this Lease, as to
which time, time shall be of the essence. The term of the extended period
shall be upon the same terms and conditions as are in effect hereunder
immediately preceding the commencement of the extended period, except that the
rent for the extended period shall be at 95% of the then current market rate.
(c) The renewal option contained in subsection (b) above shall be
effective only if this Lease is in force and effect on the day prior to the
effective date of the renewal and no default by Tenant is existing under this
Lease on the date the renewal option is exercised and on the date the renewal
term begins. The Tenant will provide a renewal notice in accordance with
subsection (b) above the Landlord and Tenant will further evidence the
acceptance of the renewal term by executing a lease renewal document which
will describe the terms of such lease extension.
3. Basic Rent: The basic rent for the premises shall be the sum of One
Hundred Twenty Seven Thousand Two Hundred and Eighty Three and 00/100
($127,283.00) Dollars per annum, payable in advance in equal monthly
installments of Ten Thousand Six Hundred and Six and 92/500 ($10,606.92)
Dollars on the first day of each and every month of the Lease term at the
office of the Landlord as stated in Paragraph 30 of this Lease.
If the lease term should commence and end on any day except that first
day of the calendar month, then the first and the last monthly rent
installment shall be pro rated for the portion of the calendar month covered
by the Lease term.
4. Real Estate Taxes and Betterments: (a) The Tenant agrees to pay to
the Landlord, as additional rent, nineteen and thirty nine one hundredths
(19.39%) Percent of the real estate taxes and betterments and other municipal
assessments, on the lot and building in which the leased premises are
situated. The real estate taxes shall be payable in advance on a monthly
basis for the lease period covered by same. The basic rent and the
betterments and municipal assessments shall be paid upon submission of a bill.
The Landlord shall submit to the Tenant an invoice accompanied by a copy of
the Real Estate Tax Bill, Bill for Betterments and/or municipal assessments
which bill will be conclusive evidence of those charges. The current annual
Real Estate Tax is $157,590.00 from July to June which computes to $2,546.39
per month.
(b) Both the Landlord and the Tenant shall have the right to apply for
real estate tax abatement. In the event that Landlord elects to file a claim
for real estate tax abatement .or the entire building, Tenant shall pay its
proportionate share of any expenses incurred and shall share in any refund or
adjustment accordingly. In the event that a portion of the expenses incurred
are for the tax period subsequent to the expiration of the term or extended
term of this Lease, the Tenant shall be excused from the prorata portion of
the expense and accordingly shall not share in any refund or adjustment for
said period.
5. Utilities: (a) The Tenant's demised premises shall be directly
metered for electrical service. The tenant shall pay directly to the utility
company for said service.
(b) Water and sewerage and gas service for the premises are not
separately metered. The Tenant shall pay its proportionate share of water
charges (and sewer charges, should such be instituted) and gas charges for the
Building as additional rent within thirty (30) days following receipt by it of
the Landlord's bill for such charges. The Landlord reserves the right to
install a sub-meter for the purpose of measuring the Tenant's water and gas
consumption.
6. Repairs, Maintenance and Operation of the Premises: The Landlord
shall be responsible for the structural repairs, exterior repairs and roof
surface repairs as well as repairs to the parking lot. All repairs which are
the responsibility of the Landlord and shall be made promptly and at the
earliest possible opportunity.
The Landlord shall not be responsible for any repairs or replacements to
the premises caused by the willful acts or negligence of the Tenant, its
agents, employees, invitees or licensees, nor shall the Landlord be
responsible for any repairs or replacements caused by vandalism or malicious
mischief caused by the Tenant, its agents, employees, invitees or licensees.
The Tenant shall be responsible for all maintenance, repairs or
replacements to the premises not hereinbefore stated as the Landlord's
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obligation. The Tenant agrees either by its employees, servants or agents or
by executing contracts with acceptable service companies to furnish regular
maintenance of the heating, ventilating and air conditioning equipment
furnished by the Landlord or by others for the leased premises, any equipment
that is under warranty, that warranty will be assigned to the Tenant.
The Tenant shall keep its premises, including the driveway and yard
abutting same neat and clean, free of ice and snow and maintain appropriate
trash collection and removal services. The Landlord shall arrange snow and
ice removal service and landscaping maintenance. The Tenant agrees to pay to
the Landlord nineteen and thirty nine one hundredths (19.39%) Percent of the
cost for snow and ice removal and landscaping maintenance as additional rent.
The Landlord shall submit to the Tenant an invoice accompanied by a copy of
the snow and ice bill or landscaping bill which bill will be considered
evidence of these charges.
7. Alterations: The Tenant shall make no alterations or additions to
the premises nor replace buildings equipment, except in accordance with plans
and specifications theretofore first approved in writing by the Landlord.
Tenant agrees to pay promptly, when due, the entire cost of any work done on
the premises by Tenant, its agents, employees or contractors and not to cause
or permit any liens for labor or materials performed or furnished in
connection therewith to attach to the premises and within thirty days to
discharge or cause the discharge or cancellation of any such liens which may
so attach, whether or not such liens are proper and justified.
8. Insurance: (a) The Tenant agrees to pay to the Landlord, as
additional rent, in advance monthly, on the first day of each and every month,
one-twelfth (1/12) of nineteen and thirty nine one hundredths (19.39%) Percent
of the annual insurance premiums for the Landlord's fire and extended
insurance coverage for the building including vandalism and malicious mischief
in which the leased premises are situated. Said insurance shall also include
loss of rental value for a twelve month period for said building together with
comprehensive general liability coverage insuring the Landlord's risks in the
following amounts: One Million Dollars per claim for bodily injury, Three
Million Dollars per accident for bodily injury, One Million Dollars for
property damage. The additional rent due pursuant to this paragraph shall be
calculated on the basis of the most recent insurance premiums charged with
reference to insurance coverage on the building. Should the premium charges
change, an adjustment is to be made with reference to the additional rent
charged herein to reflect the change. The current annual insurance premium
for the entire building covering a period from April 1, 1992 to March 31, 1993
is $24,700.00. The Landlord shall furnish a copy of the insurance premium
bills to the Tenant at the beginning of each year.
(b) The Tenant agrees, at its own expense, to carry comprehensive
general liability insurance concerning same for the premises and to add the
Landlord's name and that of Omnibus Management, Ltd., as managing agent to the
policy as additional insured in the following amounts: One Million Dollars per
claim for bodily injury, Three Millions per accident for bodily injury, One
Million Dollars property damage. Should the Tenant fail to provide the
aforesaid insurance coverage or to pay the premiums therefor, the Landlord at
its option, may obtain said coverage, pay the premiums therefor and the Tenant
shall promptly reimburse the Landlord as additional rent, for the premium
costs for said insurance coverage.
(c) All insurance policies which are to be provided and the premiums
therefore in accordance with the terms of this clause, shall be placed with
insurance carriers qualified to do business in Massachusetts, subject to the
reasonable approval of the Landlord and the institution holding the first
mortgage on the premises.
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(d) Tenant shall assume risk of damage or loss to any of the Tenant's
fixtures, goods, inventory, equipment, furniture or other property which may
be on the premises.
(e) In the event that there is vandalism and/or malicious mischief
committed on the premises, the Landlord shall make available to the Tenant,
all insurance proceeds that it receives with regard to the claims made by it
with regard to the above mentioned insured hazards provided that the Tenant
has made all necessary repairs to the premises to eliminate the damages caused
by an vandalism or malicious mischief.
(f) The Landlord shall make available to the Tenant for inspection all
of its insurance policies covering the premises.
9. Fire Protection: Tenant agrees to maintain approved, labelled fire
extinguishers within the leased premises as recommended by the New England
Fire Insurance Rating Association for protection credit. Tenant agrees not to
obstruct the fire sprinkler system in any way and to comply in all reasonable
ways with fire prevention requests of City officials, the insurance company
insuring the premises and the Landlord.
10. Indemnification:
(a) The Tenant agrees to and shall hold and save harmless and indemnify
the Landlord and its employees, agents, contractors, invitees and other
persons designated by Landlord from and for any and all payments, expenses,
costs, attorney fees and from and for any and all claims and liability for
losses or damage to property or injuries to persons occasioned wholly or in
part by or resulting from any negligent or intentional or willful acts or
omissions by the Tenant or the Tenant's agents, employees, guests, licensees,
invitees, subtenants, assignees or successors.
(b) The Landlord shall indemnify and hold harmless Tenant and its
agents, employees, contractors and invitees for all losses, costs and expenses
(including reasonable attorney's fees), settlement payments, and all
liabilities, damages, or fines paid, incurred or suffered by Tenant (i) by
reason of any breach, violation and/or nonperformance by Landlord or
Landlord's employees, agents, licensees, invitees or visitors, of any
covenants or provision of this Lease; and/or (ii) .rom any other cause due to
the negligence or intentional act or omission of Landlord and/or Landlord's
contractors, servants, employees, agents, licensees and/or invitees.
11. Inability to Repair or Provide Service: Landlord shall not be
liable to Tenant for any damages, consequential or otherwise reduction of rent
by reason of inconvenience, annoyance or loss of business arising from the
necessity of Landlord's entering the premises for any purpose authorized in
this lease or for repairing the premises or any portion of the building;
however, the necessity may occur, subject to Tenant's security regulations as
stated in Paragraph 16. If the Landlord is prevented or delayed from making
any repairs, alterations or improvements, furnishing services or performing
any covenant under this lease by reason of any cause beyond Landlord's
controls, Landlord shall not be liable for, nor shall Tenant be entitled to
any reduction of rent.
12. Assignment or Sublet: The Tenant shall not have the right to assign
this lease or sublet the premises in whole or in part without the written
approval of the Landlord which approval will not be unreasonably withheld or
delayed. If there has been an assignment of this lease or a subletting of the
premises in whole or in part, the Tenant shall, however, remain liable for the
performance of all the covenants and conditions which it is obligated to so
perform under this lease. In lieu of consenting to an assignment of this
Lease or a subletting of the premises in whole or in part, the Landlord
reserves the right to terminate this Lease and enter into a Lease with another
prospective Tenant or Tenants.
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The Landlord acknowledges and approves Comm-Tract as a subtenant of
Computer Telephone.
13. Signs: The Tenant shall have the right to erect signs on the
outside of the premises subject to the review and prior approval of the
Landlord and subject to the Tenant's compliance with all applicable laws
governing sign erection.
14. Surrender: At the termination of this lease, the Tenant shall
peacefully yield up the demised premises and all additions thereto in good
order, repair and condition, first removing all goods and effects except those
of the Landlord and leaving the premises clean and tenantable, excepting,
however, reasonable wear and tear damage which the Landlord is obligated to
repair and damage not caused by the negligence of the Tenant, its agents,
employees, invitees or licensees. All fixtures, machinery and equipment which
may, at any time, be brought upon and permanently installed in the premises
may not be removed without the written approval of the landlord. The Tenant
shall have the right to remove all other machinery, equipment and/or fixtures
provided repairs are made for damages caused by such removal by the Tenant and
the Tenant will restore the premises to the same condition that existed prior
to the removal of the machinery, equipment and/or fixtures, reasonable wear
and tear excepted.
15. Misuse and Compliance with all Government Laws Orders, Ordinances
and Regulations: (a) The Tenant agrees not to damage, deface, strip, overload
or waste the premises as described in Clause 1, nor to permit on said premises
any flammable fluids or chemicals or any nuisance or the emission therefrom of
any objectionable noise or odor, nor to permit the use thereof for any purpose
other than the Tenant's business, nor any use thereof which is improper,
offensive, contrary to law or ordinance, or liable to render necessary any
alterations or additions to the building, or liable to invalidate or increase
the premises for any insurance on the building unless Tenant pays such
increased premiums on its contents. The Tenant agrees to comply with all
governmental laws, orders, rules and ordinances and regulations which affect
the premises and to promptly remove or correct any violations affecting the
premises cited by the governmental body or agency except for those caused by
the initial construction of the premises.
(b) Prohibition Against Hazardous Waste - As used in this paragraph, the
terms "Hazardous Waste", "Hazardous Materials" or "Oil" shall be defined as
provided in Section 2 of Chapter 21C, Section 2 of Chapter 21D and Section 2
of Chapter 21E of the General Laws of Massachusetts, and the regulations
promulgated thereunder, as such laws and regulations may be amended from time
to time. As of January 21, 1984, such terms were defined in such laws as
follows:
"Hazardous Waste", a waste or combination of wastes, which because of
its quantity, concentration, or physical, chemical or infectious
characteristics may cause, or significantly contribute to an increase in
mortality or any increase in serious irreversible, or incapacitating
reversible illness or pose a substantial present or potential hazard to human
health safety or welfare or to the environment, when improperly treated,
stored, transported, used, disposed of, or otherwise managed, however not to
include solid or dissolved material in domestic sewage, or solid or dissolved
materials in irrigation return flows or industrial discharges which are point
sources subject to permits under Section 402 of the Federal Water Pollution
Control act of 1967 as amended, or source, special nuclear, or by-product
material as defined by the Atomic Energy Acts of 1954;
"Hazardous Material", material including but not limited to, any
material, in whatever form, which because of its quantity, concentration,
chemical, corrosive, flammable, reactive, toxic, infectious, or radioactive
characteristics, either separately or in combination with any substance
constitutes a present or potential threat to human health, safety, welfare, or
to the environment, when improperly stored, treated, transported, disposed of,
used, or otherwise managed.
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The term shall not include oil. The term shall also include all those
substances which are included under 42 USC 9601(14), but it is not limited to
those substances;
"Oil", insoluble or partially soluble oils of any kind of origin or in
any form, including, without limitation, crude or fuel oils, lube oil or
sludge, asphalt, insoluble or partially insoluble derivatives of mineral,
animal or vegetable oils. The term shall not include waste oil, and shall not
include those substances which are included in 42 USE Section 9601(14).
(1) Tenant shall not use, maintain, generate or bring on the demised
premises, the Building or the Lot or transport or dispose of on or from the
demised premises, the Building or the Lot (whether through the sewer or septic
system or into the ground or by removal off-site or otherwise) any Hazardous
Waste, Hazardous Material, Oil or radioactive material; and Tenant shall
prevent any agent, servant, employee, contractor, supplier, guest, visitor,
customer or invitee of Tenant, and of such parties, and any other party
claiming under Tenant, from using, maintaining, generating or bringing to the
demised premises, the Building or the Lot or transporting or disposing of, on
or from the demised premises, the Building or the Lot (whether through the
sewer or septic systems or into the ground or by removal off site or
otherwise) any Hazardous Waste, Hazardous Material, Oil or radioactive
material.
(2) Tenant shall deliver to Landlord, within ten (10) days after Tenant
receives same, copies of all letters, inquiries, summons, subpoenas,
complaints, restraining orders and any other written communication received by
Tenant, and written notice of any oral communication received by Tenant, and
written or oral communication related to Tenant's compliance or noncompliance,
or the compliance or noncompliance of any activities being conducted on or
from the demised premises, with any laws, orders, regulations and the like to
any governmental authorities or any public body relating to Hazardous Waste,
Hazardous Material, Oil or radioactive material.
(3) Tenant shall be solely responsible for becoming informed of any
amendments made from time to time to the laws and regulations referred to in
this paragraph of this Lease; and Landlord shall not be obligated to notify
Tenant of any of said amendments.
(4) Any breach of the provisions of this paragraph shall be deemed to be
a breach and default of a material obligation of Tenant under this Lease, and
Landlord shall have with respect thereto all remedies provided in this Lease
for defaults of Tenant.
16. Access: The Tenant agrees to permit the Landlord or the Landlord's
agent to examine the premises at reasonable times during usual business hours,
subject to Tenant's reasonable security requirements, and if the Landlord
shall so elect, to allow the Landlord, at the expense of the Landlord, to make
any repairs or additions the Landlord may deem necessary which additions shall
not interfere with the Tenant's use of the premises and at the expense of the
Tenant, to remove any alterations, additions, signs, awnings, aerials or flag
poles or the like, not consented to in writing according to the terms of this
Lease and to show the premises during Tenant's normal and usual business
hours; and without interfering with Tenant's use of the premises at any
reasonable time to prospective purchasers and tenants and to keep affixed to
any suitable part of the premises during the six months proceeding the
expiration of the term as described in Clause 2 or any extension thereof
appropriate notices for letting or selling.
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17. Enforcement: Both the Tenant and the Landlord agree to pay each
others expenses including reasonable attorney fees incurred in enforcing any
obligations of this Lease which are violated by the other party provided that
either party has given, to the other, written notice of such violation and
that the party to whom the notice was directed has not rectified said
violation within thirty (30) days after such notice provided however if
correction has been commenced within said thirty (30) day period and the other
obligated would have made such correction completing the work with all due
diligence, it shall not be deemed a violation. If said violation be for
non-payment of the basic or additional rent, then and in that event, this
clause shall be applicable if said violation has not been rectified within
fourteen (14) days of such written notice.
18. Tenant to Enforce: The Tenant agrees not to permit any employee,
servant or agent of the Tenant to violate any covenant or obligation of the
Tenant herein set forth.
19. Destruction by Fire or Other Casualty: It is further agreed by and
between the parties hereto that in case the said premises or a substantial
pa,t thereof shall, during the initial term or any extended term, be destroyed
or rendered unusable by fire or other casualty so that a substantial part
thereof, which shall consist of more than twenty (20%) percent of same, be
destroyed or rendered unusable for Tenant's purposes during the initial term
or any extended term of this lease, then, and in such case, the rent payable
hereunder or a just and proportionate part thereof in accordance with the
nature and extent of the injury sustained, shall be abated until the said
premises shall have been reconstructed to substantially as good a condition as
before. If said damages should cause the premises to be rendered reasonably
unfit for use and habitation, then and in that event, the Landlord shall have
the option, within thirty (30) days after the occurrence of said damages, to
terminate this lease. Moreover, if said damages should cause the premises to
be rendered reasonably unfit for use and habitation, then, in that event, the
Tenant shall have the option to terminate this lease within thirty (30) days
after the occurrence of said damages provided the Landlord does not elect, by
written notice to the Tenant given within the aforementioned thirty (30) day
period, to repair or restore the premises. In the event that the Landlord
elects to repair or restore, the Tenant may terminate this lease if such
repair or restoration is not accomplished within twenty-six (26) weeks of the
occurrence of said damages, provided said Tenant makes this election in
writing within ten (10) days subsequent to the passing of the aforementioned
twenty-six (26) week period.
20. Eminent Domain: (a) If the whole of the demised premises shall be
taken by condemnation proceedings or right of eminent domain then, and in that
event, the terms of this.lease shall terminate and end as of the date when the
possession of the demised premises shall be required for such use and purpose
and the parties shall be released from further obligations hereunder.
(b) If only part of the demised premises shall be taken by condemnation
proceedings or right of eminent domain, then, and in that event, the term of
this lease shall terminate and end as of the date when the possession of the
demised premises shall be required for such use and purpose. This clause
shall only be applicable if the premises become unusable and the Landlord
elects not to replace, rebuild or restore the premises in accordance with
sub-paragraph C of this paragraph.
(c) If only part of the demised premises, including common areas, shall
be taken by condemnation proceedings or right of eminent domain, then, and in
that event, the rent shall abate in proportion to the value of the loss of use
of the Tenant, but with the right of the Landlord to replace, rebuild and to
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restore the original use of the demised premises by replacing or rebuilding
even though such replacing or rebuilding shall require the relocation of same
in the building in which these premises are situated. It is expressly
understood, however, that in the event any taking by condemnation or eminent
domain shall leave the demised premises not reasonably suitable for the
conduct of Tenant's business in the sole determination of Tenant, Tenant my at
its option, terminate this lease. If only part of the demised premises shall
be taken by condemnation proceedings or right of eminent domain, then, in that
event, the rent shall abate in proportion to the value of use to the Tenant
but with the right of the Landlord to replace, rebuild and restore the
original use of the demised premises by replacing or rebuilding, even though
such replacing or rebuilding shall require the relocation of same. It is
expressly understood, however, that in the event any taking by condemnation or
eminent domain shall leave the demised premises not reasonably suitable for
the conduct of Tenant's business is the sole determination of Tenant, Tenant
may, at its option, terminate this lease.
(d) Nothing in this lease shall be deemed or construed to prevent the
Tenant from interposing and prosecuting in any condemnation proceeding, a
claim for the value of the fixtures and improvements installed in or made to
the premises by the Tenant, or the Tenant's relocation or any other costs or
damages imposed upon or suffered by the Tenant on account of the
aforementioned condemnation.
21. Default and Bankruptcy: (a) In the event of any failure of Tenant
to pay any rent due hereunder, including additional rent, within fourteen (14)
days after written notice of such default has been given to Tenant or any
failure to perform any other of the terms, conditions or covenants of this
lease to be observed or performed by Tenant for more than.thirty (30) days
after written notice of such default shall be given to Tenant or if Tenant
shall have declared bankruptcy or insolvency or filed any debtor proceedings
or if there shall have been taken against Tenant, and the Tenant shall have
not applied to a court of competent jurisdiction within thirty (30) days and
shall not have had the same discontinued or terminated within ninety (90) days
subsequent to said filing in any court pursuant to any statute either of the
United States or of any State, a petition of bankruptcy or insolvency or for
reorganization or for the appointment of a receiver of trustee of all or any
part of Tenant's property, or if Tenant makes an assignment for the benefit of
creditors or petitions for or enters into an arrangement or if Tenant shall
abandon the demised premises or suffer this lease to be taken under any writ
of execution, then Landlord, in addition to any and all other rights or
remedies it may have, shall have the immediate right of re-entry and may
remove all persons and property from the demised premises and such property
may be removed and stored in a public warehouse or elsewhere at the cost of
and for the account of Tenant all without service of notice or resort to legal
process and all without being deemed guilty of trespass or becoming liable for
any loss which may be occasioned thereby.
(b) Should Landlord elect to re-enter as herein provided or should it
take possession pursuant to legal proceedings or pursuant to any notice
provided by law, it may either terminate this lease or may, from time to time,
without terminating this lease, make such alterations and repairs as may be
necessary to relet the demised premises and relet said demised premises or any
part thereof for such term or terms and at such rental or rentals and upon
such other terms and conditions as Landlord in its discretion deemed
advisable. Upon each such reletting, all rentals received by the Landlord
from such reletting shall be applied in the order set forth below:
(1) To the payment of any indebtedness, other than rent due hereunder
from Tenant to Landlord.
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(2) To the payment of any costs and expenses of such reletting including
brokerage fees, attorney's fees and costs of such alterations and repairs.
(3) To the payment of rent due and unpaid hereunder.
(4) The balance, if any, shall be held by Landlord and applied in
payment of future rents or expenses if the same may become due and payable in
accordance with the order set forth above.
If such rentals received from such reletting during any month shall be less
than the amount to be paid during that month by Tenant pursuant to this lease,
then Tenant shall pay to Landlord any such deficiency, said deficiency to be
calculated and paid monthly. No such re-entry or taking possession of the
demised premises by Landlord shall be construed as an election on its part to
terminate this lease unless a written notice of such intention shall be given
to Tenant or unless the termination of this lease shall be decreed by a court
of competent jurisdiction.
(c) Notwithstanding any such reletting without termination, Landlord
may, at any time thereafter, elect to terminate this lease for such previous
breach. Should Landlord at any time terminate this lease for any breach, in
addition to any other remedies it may have, it may recover from Tenant all
damages it may incur by reason of such breach including the cost of recovering
the demised premises reasonable attorney's fees and including the worth at the
time of such termination of the excess, if any, of the amount of rent,
including additional rent, reserved in this lease for the remainder of the
stated term, all of which amounts shall be immediately due and payable by
Tenant to the Landlord.
22. Subordination: The Tenant hereby agrees that its rights under this
lease shall be subordinate to any and all mortgages existing on or hereinafter
placed from time to time on said premises and the Tenant further agrees to
execute any and all documents relating to said subordination to be recorded in
the applicable Registry of Deeds or Mortgages when requested to do so by the
Landlord. The Tenant further appoints the Landlord, as its attorney in fact
to execute any such document on its behalf.
23. Financial Statement of Tenant: The Tenant will furnish to the
Landlord, a copy of its annual financial report.
24. Tenant's Certificates: The Tenant agrees at any time, and from time
to time, upon not less than ten (10) days prior written request by the
Landlord, to execute, acknowledge and deliver to the Landlord, a statement in
writing that this lease is unmodified and in full force and effect (or if
there should have been modification that the same are in full force and effect
as modified and stating such modifications) and that the Landlord is not in
default in accordance with the terms and conditions thereof and the dates to
which basic rent and other rent or charges have been paid in advance if any;
it being intended that any such statement or certificate delivered pursuant to
this clause, may be relied upon by any prospective purchaser of the premises
or mortgagee or assignee of any mortgagee with regard to the demised premises.
25. Landlord's Right to Remedy Tenant's Default: If the Tenant fails to
pay for, maintain or deliver any insurance policies which it is obligated to
so pay, maintain and deliver to should fail to make any other payment or
perform any other act on its part to be made or performed as provided for in
this Lease, then the Landlord may, but shall not be obligated to do so and
without waiving or releasing the Tenant from any obligations of the Tenant
under this Lease contained, pay for and/or effect any such insurance coverage,
make any other payment or perform any other act on the part of the Tenant to
be performed as in this lease provided in such manner and to such extent as
the Landlord may deem desirable and may exercise any such rights to pay
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necessary and incidental costs and expenses, employ counsel and incur and pay
reasonable attorney's fees. All sums so paid by the Landlord and all
necessary and incidental costs and expenses in connection with the performance
of any such act by the Landlord together with interest thereon at the prime
rate of the Bank of Boston chargeable to its customers for unsecured loans,
plus an additional two (2%) percent per annum from the date of the making of
such expenditure by the Landlord, shall be deemed additional rent hereunder
and, except as otherwise in this Lease expressly provided, shall be payable to
the Landlord on demand or at the option of the Landlord may be added to any
additional rent than due or thereafter becoming due under this Lease and the
Tenant covenants to pay such sum or sums with interest as aforementioned and
the Landlord shall have in addition to any other right or remedy of the
Landlord the same rights and remedies in the event of the non-payment thereof
by the Tenant as in the case of default by the Tenant in the payment of the
basic rent.
26. Improvements to the Leased Premises: The Landlord agrees to make
alterations to the leased premises as shown on Exhibits A and B attached. The
Tenant is given the right, during the course of the construction of those
improvements contemplated by this Lease, to have access to the premises for
the purpose of inspecting same during normal business hours.
27. Landlord's Warranties: The Landlord represents that it is the fee
owner of the premises described in this Lease; that it has the capacity to
lease the premises to the Tenant and to deliver the premises with all
improvements contemplated in this Lease to the Tenant and that at all times
during which the Tenant is in compliance with its covenants and obligations in
accordance with this Lease, the Tenant may quietly enjoy said premises for the
purpose contemplated hereby during the original term or any extended term of
this Lease.
28. Holding Over: Upon the expiration or other termination of the Term
of this Lease, Tenant shall quit and surrender to Landlord the Leased
Premises. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of this Lease. If the last day of
the Term of this Lease or renewal thereof, falls on Sunday, this Lease shall
expire at noon on the preceding Saturday unless it be a legal holiday in which
case it shall expire at noon on the preceding business day. Should Tenant
hold over in possession of the Leased Premises after the expiration of this
Lease, by operation of law or otherwise, such holding over shall not be deemed
to extend the Term or renew this Lease; but the tenancy thereafter shall
continue as a tenancy from month to month, cancelable by either party with
thirty (30) days' prior written notice, upon the same terms and conditions
herein contained, except for the monthly rent which shall increase to two
hundred (150%) percent of the Basic Annual Rent and all other reimbursable
expense immediately payable preceding the expiration date.
29. Brokerage: The parties agree and represent to each other that
Neelon Associates of 255 Bear Hill Road, Waltham, Massachusetts 02154 and
Lynch, Murphy, Walsh and Partners, 1 Financial Center, Boston, Massachusetts
02111, are the sole brokers which brought about this transaction. The
Landlord agrees to pay to said brokers, all commissions due to it in
accordance with a separate agreement. The Tenant agrees to indemnify the
Landlord against said Landlord for commissions for this transaction, which
claims may be brought by any other brokers or parties claiming to have dealt
with the Tenant.
30. Notices: Any notices, requests or demands under this Lease to or
from any Landlord or the Tenant shall be in writing and shall be given by
Certified or Registered Mail, Postage Prepaid, Return Receipt Requested, and
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shall be deemed given as on the date received by or attempted to be delivered
to the party address and shall be addressed to the Landlord at 100 Ring Road
West, Garden City, New York 11530, or at such other addresses as the Landlord
may, in writing, furnish to the Tenant and addressed to the Tenant at 360
Second Avenue, Waltham, Massachusetts or at such other addresses as the Tenant
may, in writing furnish to the Landlord.
31. Failure to Insist Upon Strict Performance: The failure of the
Landlord to insist upon the strict performance by the Tenant of any one of the
terms, covenants or conditions of this Lease or to exercise any option herein
conferred, in any one or more instances, shall not be construed as a waiver or
relinquishment for the future of any such terms, covenants, conditions or
options, but the same shall continue and remain in full force and effect. The
receipt by the Landlord of rent with knowledge of the breach of any covenant
herein contained shall not be deemed a waiver of such breach. No provisions
of this Lease shall be deemed to have been waived by Landlord, unless such
waiver be in writing, signed by the Landlord or its successors or assigns
during the term hereby granted and no agreement to accept a surrender of this
Lease or of said premises shall be valid unless the same be in writing and
subscribed by the Landlord.
32. Limits of Landlord's Liability: In the event of a breach by the
Landlord or its successors or assigns for any covenants or conditions of this
Lease, the Tenant shall look solely to the equity of the Landlord in the
premises for the satisfaction of its remedies.
33. Merger and Succession: This Lease contains all of the agreements of
the parties heretofore made and the covenants and agreements herein contained
shall bind and inure to the benefit of the Landlord, its heirs, successors and
assigns and to the Tenant, its successors and assigns.
IN WITNESS WHEREFORE, the parties hereto by their duly authorized
officers or representatives have hereunto set their hands and day and year
first above written.
HILLSIDE ASSOCIATES
By: /s/ Fredric Oliver
COMPUTER TELEPHONE CORP.
By: /s/ John D. Pittenger
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