COMMERCIAL LEASE
THIS INDENTURE OF LEASE made this 23 day of March 1998 by
and between MARELD COMPANY, INC., a New Hampshire Corporation,
having a usual place of business at 400 Amherst St., Suite 202,
Nashua, NH 03063 (hereinafter designated as the LESSOR ) and
AMERICAN ELECTROMEDICS CORPORATION, a New Hampshire Corporation,
having a usual place of business at 13 Columbia Drive, Suite 18,
Amherst, NH 03031 (hereinafter designated as the LESSEE ).
WITNESSETH:
1. PREMISES. In consideration of the rent and covenants
herein reserved and contained on the part of the Lessee to be
paid, performed or observed, and subject to the conditions
hereinafter set forth, the Lessor does hereby demise and lease
unto the Lessee certain premises (hereinafter Premises )
consisting of approximately 7,800 square feet in the building
(hereinafter Building ) known as 13 Columbia Drive, Amherst, New
Hampshire. The Premises are commonly known as Building #2, Units
#5, #6, #201, and #202 and are more particularly described in
Exhibit A attached hereto and incorporated herein.
2. APPURTENANT RIGHTS AND RESERVATIONS. Lessee shall
have, as appurtenant to the Premises, the nonexclusive right to
use, and permit its invitees to use in common with others, common
parking facilities and other interior and exterior common areas.
Such appurtenant rights shall always be subject to rules and
regulations from time to time established by Lessor and to the
right of Lessor to designate and change from time to time such
common areas and facilities, provided same shall not unreasonably
impair or restrict ingress or egress to the Premises.
3. TERM. Subject to the conditions herein stated, the
Lessee shall hold the said Premises for a term of three (3) years
and one half month commencing on May 15, 1998 (hereinafter the
"Commencement Date") and terminating on May 31, 2001 (hereinafter
the "Expiration Date"). If the space is not delivered by May 15,
1998, the rent will be abated until it is delivered.
4. RENT PAYABLE BY LESSEE. Lessee covenants and agrees to
pay Lessor yearly and every year during the term of this Lease,
without demand, set-off, or any deduction whatsoever except as
otherwise provided herein;
(a) a BASE RENT of $45,935.70 per year payable on the first
day of each month in advance in equal monthly
installments of $3,827.98.
(b) such other amounts as shall become due and payable
under the provisions of this Lease as ADDITIONAL RENT
as hereinafter provided in Section 5.
Rent for any fraction of a month at the commencement or
expiration of the Term of this Lease shall be prorated.
5. ADDITIONAL RENT PAYABLE BY LESSEE. In addition to the
Base Rent set forth in Section 4 above, the Lessee shall
beginning with the Lease Year (as hereinafter defined) commencing
on the first anniversary of the Commencement Date and every year
thereafter pay as additional rent ("Additional Rent") its pro-
rata share of any increase in Common Costs and Real Estate Taxes
(as hereinafter defined) over such costs incurred by Lessor
during the Base Year (as hereinafter defined). The Lessor shall,
from time to time, furnish the Lessee with a statement, certified
as correct by the Lessor, setting forth the Common Costs and Real
Estate Taxes for the current year, and the Additional Rent to be
paid. Within fifteen (15) days of receipt of such statement, the
Lessee shall pay the Additional Rent shown to be due for the
period prior to the date of such statement, and thereafter shall
pay the monthly Additional Rent shown on such statement at the
times specified for the payment of Base Rent. Lessor shall act
in good faith to furnish Lessee with such statement within thirty
(30) days of the expiration of the year that the Common Costs
were incurred, and, with respect to Real Estate Taxes, within 30
days of the end of the fiscal year. Notwithstanding that the
Base Year may not be a calendar year (January 1 December 31),
Lessor may at any time during the Term elect to bill such
Additional Rent on a calendar year basis so long as there is
proper pro-ration between Lease Year and the calendar year. For
purposes of this Lease the following definitions shall apply:
Pro-rata Share: "Pro-Rata Share" means a fraction of the
numerator of which is 7,800 (Lessee's Gross Rentable Area) and
the denominator of which is 89,600 (Gross Rentable are of the
Building).
Lease Year: "Lease Year" means the twelve month period
beginning on the Commencement Date and each twelve month period
thereafter.
Base Year: "Base Year" means the first lease year of the
Term commencing on the Commencement Date and ending one year
thereafter, except that with respect to real estate taxes it
means the fiscal year April 1, 1998 to March 31, 1999.
Common Costs: "Common Costs" means the sum of all costs and
expenses of every nature and description paid or incurred by
Lessor for the repair and maintenance of the Building common
areas, (excluding capital improvements and replacements)
including but not limited to:
(a) cleaning, operation, maintenance and repair of the
interior and exterior of all common areas, and all systems and
facilities servicing the Common Areas, including but not limited
to electrical systems, water and sewer systems, HVAC systems,
sprinkler systems, fire alarm systems, security alarm systems,
elevator, snow removal, trash and refuse collection and removal,
landscaping and lawn mowing, paving repairs and restriping of the
parking areas, plus
(b) service of all utilities servicing the Common Areas;
including but not limited to electricity, gas, water and sewer,
plus
(c) the maintenance of all insurance (including, but not
limited to fire, broad form extended coverage, rent, water risk,
liability, products liability, flood, etc.) covering the Office
Building, the improvements, the Common Areas and every other
facility or property used or required or deemed necessary in
connection with any of them, plus
(d) fifteen percent (15%) of all costs set forth in the
foregoing subparagraphs (a), (b), and (c) to cover Lessor's
administrative and overhead costs.
Real Estate Taxes: Real Estate Taxes means the sum of all
real property taxes and assessments assessed against the land and
the Building of which the Premises are a part, including, but not
limited to, betterments, water and sewer assessments and other
taxes or levies levied or assessed in lieu of or as a substitute
for real property taxes less the Lessee's share of any abatements
after costs that the Lessor may receive. The Lessor is not
obligated to file for an abatement.
6. BUSINESS TAXES AND TAXES UPON IMPROVEMENTS. Lessee
shall pay all business taxes or other similar rates and taxes
which may be levied or imposed upon the business carried on in
the demised premises only, all other rates and taxes which are or
may be payable by Lessee as tenant and occupant in the demised
premises only and any and all taxes that may be levied upon the
improvements. If by law, regulation or otherwise, such business
taxes or other similar rates and taxes or taxes upon improvements
are made payable by landlords or proprietors, or if the mode of
collecting such taxes be so altered as to make Lessor liable
therefor instead of Lessee, Lessee shall repay to Lessor within
seven (7) days after demand upon Lessee that amount of the charge
imposed on Lessor as a result of such change, and shall save
Lessor harmless from any costs or expense in respect thereof, all
subject, however, to the provisions of this Lease with respect to
each party's obligation for said charges.
7. USE. It is understood and the Lessee so agrees that
the Premises shall be utilized only for the purpose of the
manufacture, repair and storage of electronic medical equipment
and related office uses.
8. RULES AND REGULATIONS. Lessee shall at all times
comply with, and cause its invitees, agents, guests, employees
and licensees to comply with, any Rules and Regulations which may
be promulgated by Lessor.
9. LESSOR'S RIGHT TO PLACE, ETC. UTILITY FACILITIES, ETC.
The Lessor reserves the right to place, maintain, repair and
replace such utility facilities or lines, pipes, wires and the
like, over, upon and through the Premises as may be necessary or
advisable for the servicing of the Premises or the Building;
provided, however, the Lessee's use of the Premises shall be
interfered with only temporarily during such servicing. Such
interference shall not materially interfere with the Lessee's
normal business operations.
10. LESSEE'S INSTALLATION OF SEPARATE METERS. The Lessee
shall maintain its own public utility meters and facilities which
are to be used to provide and measure utilities for appliance
operations of the business. All charges under the separate
meters will be billed directly to the Lessee by the public
utilities servicing the meters.
11. MAINTENANCE OF PARKING AREA/SNOW REMOVAL. The Lessor
shall maintain and keep clean the parking area and shall remove
snow therefrom with reasonable dispatch when required.
Reasonable piling of snow shall be permitted. Lessee shall be
responsible to clean and remove snow from the walkways, entrances
and rear exits of the Premises. The Lessor shall provide
adequate lighting for the parking area from 6:00 A.M. through
6:00 P.M.
12. LESSEE'S COVENANTS. In addition to all other covenants
and agreements of the Lessee contained in this lease, the Lessee
covenants and agrees at all times during the term hereof, and for
any further time as it shall hold the Premises or any part
thereof to:
(a) pay when due all rent provided for herein;
(b) procure any authorizations or licenses required for
Lessee's use of the Premises;
(c) make all necessary non-capital repairs to or
replacements for the interior of the Premises and to keep the
same in as good order, repair and condition as the same are in at
the commencement of the term or may be put in thereafter
(reasonable wear and tear and damage by fire excepted);
(d) install and operate machines and mechanical equipment
in such a manner as to prevent vibrations and noise outside the
Premises;
(e) keep the Premises equipped with all safety appliances
required by law or ordinance or any regulation of any public
authority for the particular use of the Premises by the Lessee
and make all repairs, alterations, replacements, or additions so
required;
(f) use the septic, sewage or other waste disposal system
only for disposal of human waste and not dump, flush, or in any
way, introduce any hazardous, toxic or chemical substances into
said waste disposal system or use it in such a manner which would
damage, impair or cause accelerated deterioration;
(g) permit the Lessor or its agents to enter at reasonable
times upon reasonable prior notice to view the Premises and, if
the Lessee has failed to, make repairs, within three days after
notice to make repairs, or alterations necessary for the
preservation and safety thereof;
(h) permit the Lessor to show the Premises to others at any
time within one hundred twenty days (120) before the expiration
of the term so long as the Lessor does not materially interfere
with the Lessee's operation;
(i) remove its goods and effects and those of all persons
claiming under it at the termination or expiration of this Lease
and peaceably yield up said Premises and all additions thereto to
the Lessor, leaving the same clean and in such repair, order and
condition as in at the commencement of the term or as may be put
in during the continuancy thereof, (excepting only such
alterations as are made or authorized by the Lessor, or from
reasonable wear and tear and damage by fire);
(j) not generate, store or dispose of hazardous, toxic or
chemical substances in or on the Premises;
(k) not permit the emission from the Premises of any
objectionable noise or odor;
(l) not carry on any business or occupation which shall be
unlawful, or contrary to any law or ordinance in force for the
term of the Lease;
(m) not do any act or thing upon the Premises (other than
in its normal conduct of business) which will make it uninsurable
against fire or which is liable to increase the premium for fire
insurance on the Building;
(n) Tenant will be responsible to remove snow and ice on
front walkways and immediately in front of overhead door
entrances.
13. LESSOR'S RESPONSIBILITY FOR MAINTENANCE. The Lessor
covenants and agrees to keep in good order and repair, the roof,
exterior wall (but not including plate or other glass unless the
same be damaged by fire), foundations and structure of the
Premises and all utility entrances exterior to the premises,
excepting for damage caused by any act or negligence of the
Lessee or other person or persons for which it is legally
responsible.
14. LESSEE'S RESPONSIBILITIES FOR MAINTENANCE.
(a) The Lessee covenants and agrees to keep in good order,
condition and repair (excepting for reasonable wear and tear and
damage by fire) the exterior and interior portions of all doors,
windows and plate glass, all plumbing and heating fixtures,
interior walls, floors, ceilings and the wiring and electrical
fixtures and equipment within the Premises. The Lessee agrees to
replace immediately all glass and glass windows in the Premises
with glass of the same quality as that which may become injured
or broken, unless damaged or broken by fire. If the Lessee shall
not within three (3) days after written notice by Lessor of
repairs to be made by the Lessee, commence to make such repairs
and complete same within a reasonable time, the Lessor may make
such repairs and the expense thereof shall constitute a debt by
the Lessee payable as Additional Rent, with interest Payable to
Lessor at the maximum legal rate.
(b) HVAC: Lessee shall maintain and perform non-capital
repairs to the HVAC system and keep the same in good working
order and condition during the Term and, in furtherance thereof,
Lessee shall, on or before the commencement of the Term, enter
into and maintain a service agreement with a reputable and
experienced service company to perform regular maintenance
(including, but not limited to, changing filters, oiling,
lubricating and replacement of all belts and pulleys) and to make
repairs to the HVAC system, with the obligation of said company
to examine such equipment no less frequently than quarterly.
Lessor shall be responsible for all major capital repairs and
replacements.
15. TENANT'S PROPERTY. All furnishings, fixtures,
equipment, effects and property of every kind, nature and
description of Lessee, and of all persons claiming, by, through
or under Lessee, shall be kept on the Premises or Building at the
sole risk of the Lessee; and if the whole or any part thereof
shall be destroyed or damaged by fire, water or other casualty
(including the bursting or leakage of water pipes, steam pipes or
other pipes, or by theft or from any other cause), such damage or
destruction shall be Lessee's responsibility.
16. HAZARDOUS MATERIALS. Lessee shall not (either with or
without negligence) by its actions or those of its contractors,
employees, servants, agents, licensees or invitees (i) cause or
permit the escape, disposal or release of any biologically or
chemically active or other hazardous substances or materials (ii)
store or use such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the
industry for the storage and use of such substances or materials,
nor allow to be brought into the Premises or the Building or onto
the land on which the Building is situated any such materials or
substances except to use in the ordinary course of Lessee's
business, and then only after written notice is given to Lessor
of the identity of such substances or materials. Without
limitations, hazardous substances and materials shall include
those described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ( CERCLA ), 42
U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., and any
applicable state or local laws and the regulations adopted under
these acts. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any
release of hazardous materials, then Lessee shall upon demand
reimburse Lessor for the reasonable costs thereof if, and only to
the extent, such requirement applies to the Premises and it is
determined that Lessee or any of its agents, employees, servants
or contractors caused the release of hazardous substances or
materials. In addition, Lessee shall execute affidavits,
representations, certifications and the like from time to time at
Lessor's request concerning Lessee's best knowledge and belief
regarding the presence of hazardous substances or materials on
the Premises. Lessee shall indemnify Lessor to the extent and
manner set forth in Section 22 of this Lease on account of any
release of hazardous materials if caused by Lessee or persons
acting under Lessee. The within covenants shall survive the
expiration or earlier termination of the Lease term.
17. SIGNS. Lessor shall at its expense place Lessee's name
(or its d/b/a as Lessor may approve) on the Pylon Sign
Directory in front of the Building. Lessee may at its expense
paint or place a directory sign on its entry door, subject to the
reasonable approval of Lessor as to design, material, color and
other aesthetic qualities. Except as stated above, Lessee shall
not without Lessor s prior written consent (a) paint or place any
signs on the Premises or anywhere on or in the Building which is
or are visible from outside the Premises, or (b) place any
curtains, blinds, shades, awnings, aerials or flagpoles or the
like, in the Premises or anywhere on or in the Building which is
or are visible from outside the Premises. Any sign placed or
painted by Lessee with Lessor s approval shall comply with any
applicable ordinances of the Town of Amherst.
18. FLOOR LOAD, HEAVY MACHINERY. Lessee shall not place a
load upon any floor in the Premises exceeding the load per square
foot of floor of area which such floor was designed to carry and
which is allowed by law. Lessor reserves the right to prescribe
the weight and position of all business machines and mechanical
equipment (including safes or vaults) or as to distribute the
weight in a safe and reasonable manner. Lessee shall not move
any safe, vault, heavy machinery or heavy equipment in such a
manner as to jeopardize or threaten the safety or well-being of
the Building, other tenants or the public. Any moving of such
heavy machinery or equipment shall be done by licensed
professionals in compliance with applicable law and at such times
as Lessor shall require for the safety and convenience of the
Building's occupants.
19. ALTERATIONS AND/OR ADDITIONS. The Lessee shall not
make structural alterations or additions to the Premises, but may
make non-structural alterations provided the Lessor consents
thereto in writing, such consent not to be unreasonably withheld.
All such allowed alterations shall be at Lessee's expense and
shall be in quality at least equal to the present construction.
Lessee shall not permit any mechanic's lien or similar liens to
remain upon the Premises for labor and materials furnished to
Lessee in connection with work of any character performed or
claimed to have been performed at the direction of the Lessee and
shall cause any such lien to be released of record forthwith
without cost to the Lessor. Any alterations or improvements made
by the Lessee shall become the property of the Lessor at the
termination of the occupancy as provided therein, except for
ordinary removable trade fixtures. At the conclusion of the
lease term, the Lessor reserves the right to require the Lessee
to remove any alterations that it made during the lease term.
20. LESSEE'S LIABILITY INSURANCE. The Lessee shall
maintain with respect to the leased premises and the property of
which the leased premises are a part comprehensive public
liability insurance in the amount of $1,000,000 with property
damage insurance in limits of $500,000 in responsible companies
qualified to do business in New Hampshire and in good standing
therein, insuring the Lessor as well as Lessee against injury to
persons or damage to property as provided. The Lessee shall
deposit with the Lessor certificates for such insurance at or
prior to the commencement of the term, and thereafter within
thirty (30) days prior to the expiration of any such policies.
All such insurance certificates shall provide that such policies
shall not be canceled without at least ten (10) days prior
written notice to each insured named therein.
21. DESTRUCTION BY FIRE.
21.01 DUTY TO REPAIR. If the Premises should be
damaged during the Term by fire or other casualty covered by the
usual extended coverage carried by Lessor, Lessor shall (except
as hereinafter provided) repair the Premises.
21.02 RIGHT TO TERMINATE. If, however, the Premises or
the Building of which the Premises are a part should be damaged
or destroyed:
(a) by fire or other casualty covered by the usual extended
coverage carried by Lessor (i) to the extent of thirty (30%)
percent or more of the cost of replacement of either the Premises
or the Building, or (ii) so that thirty percent (30%) or more of
the Gross Leasable Area contained in either thereof shall be
rendered untenantable; or
(b) by any casualty other than those covered by standard
fire and extended coverage insurance policies; or
(c) the Premises shall be damaged in whole or in part
during the last year of the term; or
(d) if Lessor s insurer shall refuse, for any reason, to
settle a covered claim; or
(e) if any Mortgagee shall require that the insurance
recovery arising from the damage or destruction be applied
against the principal balance due on such Mortgage; then, in any
such event, Lessor may, at its option, either terminate this
lease or elect to repair the Premises. Lessor shall notify
Lessee as to its election within ninety (90) days after the
occurrence of the damage in the event of an uninsured casualty.
If Lessor elects to terminate this Lease, the term hereof shall
end at the end of the calendar month in which such election is
made. If Lessor does not elect to terminate this Lease, then
Lessor shall perform such repairs and rebuilding as is necessary
to provide Lessee with the same or nearly the same demised
premises as was delivered at the commencement of the Lease (or as
altered during the term by mutual consent); and the term shall
continue without interruption and this Lease shall remain in full
force and effect. If the Premises are not repaired within one
hundred eighty days after casualty, Lessee will have the option
to terminate this lease.
21.03 RENT ABATEMENT. If this Lease is not terminated as
above provided, then from and after such damage and until the
Premises are restored as above provided, the rent reserved herein
shall abate, either wholly or proportionately, according to the
extent that the Premises have been rendered untenantable by such
damage or destruction.
22. INDEMNIFICATION AND LIABILITY. Lessee shall save
harmless and indemnify Lessor from any liability for injury,
loss, accident, or damage to any person or property, and from any
claims, actions, proceedings and expenses and costs in connection
therewith, including without limitation reasonable counsel fees
(i) arising from the omission, fault, willful act, negligence, or
other misconduct of Lessee or its employees, servants, agents,
licensees or invitees or from any use made or occurrence on or
about the Premises. Lessee shall also indemnify and hold Lessor
harmless from and against any losses, costs, damages or claims of
whatever nature, arising out of or in connection with the
compliance requirements set forth in the Americans with
Disabilities Act of 1990, Title III, relating to Lessee's design,
renovations, alteration and/or construction of the Premises.
23. LESSOR'S ACCESS. The Lessor or agents of the Lessor
may, at reasonable times, enter to view the Premises and may
remove placards and signs not approved and affixed as herein
provided, and make repairs and alterations as Lessor should elect
to do subject to paragraph 14 excepting those repairs necessary
to protect the building or people from damage and may show the
Premises to others at any time within one hundred twenty (120)
days before the expiration of the term.
24. SUBORDINATION. This Lease shall be subject and
subordinate to any and all mortgages, deeds of trust and other
instruments in the nature of a mortgage, now or at any time
hereafter, a lien or liens on the property of which the Premises
are a part. Lessee shall upon request promptly execute and
deliver such written instruments as shall be necessary to show
the subordination of this Lease to said mortgages, deeds of trust
or other such instruments in the nature of a mortgage, provided
that in the instruments of subordination, the mortgagee or
trustee or assignee shall agree that so long as the Lessee shall
not be in default of the Lease, the Lessee shall not be disturbed
in the quiet enjoyment of the Premises.
25. DEFAULT AND BANKRUPTCY. In the event that:
(a) the Lessee shall default in the payment of any
installment of rent or other sum herein specified and such
default shall continue for five (5) days after written notice
thereof; or
(b) the Lessee shall default in the observance or
performance of any other of the Lessee's covenants, agreements,
or obligations hereunder and such default shall not be corrected
within twenty (20) days after written notice theretofor.
(c) the Lessee shall be declared bankrupt or insolvent
according to law, or, if any assignment shall be made of Lessee's
property for the benefit of creditors, then the Lessor shall have
the right thereafter, while such default continues, to re-enter
and take complete possession of the Premises, to declare the Term
of this Lease ended, and remove the Lessee's effects without
prejudice to any remedies which might be otherwise used for
arrears of rent or other default. The Lessee shall indemnify the
Lessor against all loss of rent and other payments which the
Lessor may incur by reason of such termination during the residue
of the term. If the Lessee shall default, after reasonable
notice thereof, in the observance or performance of any
conditions or covenants or Lessee's part to be observed or
performed under or by virtue of any of the provisions in any
article of this lease, the Lessor, without being under any
obligation to do so and without thereby waiving such default, may
remedy such default for the account and at the expense of the
Lessee. If the Lessor makes any expenditures or incurs any
obligations for the payment of money in connection therewith,
including but not limited to reasonable attorney's fees, in
instituting, prosecuting or defending any action or legal
proceeding, such sums paid or obligations incurred, with interest
at the rate of eighteen percent (18%) per annum and costs, shall
be paid to the Lessor by the Lessee as damages for Lessee's
breach.
26. NOTICE TO PARTIES. Any notice from the Lessor to the
Lessee relating to the Premises or to the occupancy thereof
(including but not limited to any notice of default or
termination pursuant to Section 24, or any legal process relating
thereto for possession or for rent due), shall be deemed duly
served, if mailed to the Premises, to the attention of the
President, registered or certified mail, return receipt
requested, postage prepaid, addressed to the Lessee.
Any notice from the Lessee to the Lessor relating to the
Premises or to the occupancy thereof, shall be deemed duly
served, if mailed to the Lessor by registered or certified mail,
return receipt requested, postage prepaid, at 400 Amherst St.,
Suite 202, Nashua, NH 03063.
27. LIMITATION OF LIABILITY. In the event Lessor shall
default in the performance of its obligations hereunder, Lessee
shall look only to Lessor's then equity interest in the Building
for the satisfaction of any judgement; and in no event shall
Lessor be liable for any consequential damages. In the event of
any sale of the Premises or Lessor s assignment of this Lease,
the Lessor shall be and hereby is entirely released and
discharged from any and all further liability and obligations of
the Lessor hereunder, except for such thereof as may have
theretofore accrued.
28. SURRENDER. The Lessee shall at the expiration or other
termination of this Lease remove all Lessee's goods and effects
from the Premises, including, without hereby limiting the
generality of the foregoing, all signs and lettering affixed or
painted by the Lessee, either inside or outside the Premises.
Lessee shall deliver to the Lessor the Premises and all keys,
locks thereto, and other fixtures connected therewith and all
alterations and additions made to or upon the leased premises, in
good condition, damage by fire or other casualty only excepted.
In the event of the Lessee's failure to remove any of Lessee's
property from the Premises, Lessor is hereby authorized, without
liability to Lessee for loss or damage thereto, and at the sole
risk of Lessee, to remove and store any of the property at
Lessee's expense, or to retain same under Lessor s control or to
sell at public or private sale without notice any or all of the
property not so removed and to apply the net proceeds of such
sale to the payment of any sum due hereunder, or to destroy such
property.
29. LESSOR'S FAILURE TO ACT UPON LESSEE'S BREACH. The
failure of the Lessor to insist in any one or more instances upon
a strict performance or observance of any of the terms,
provisions or covenants of the Lease or to exercise any right
therein contained shall not be construed or deemed to be a waiver
or relinquishment for the future of such terms, provisions,
covenant or right; but the same shall continue and remain in full
force and effect. Receipt by the Lessor of rent with knowledge
of the breach of any provision of the foregoing Lease shall not
be deemed a waiver of such breach.
30. SERVICES PROVIDED BY LESSOR. With respect to any
services to be furnished to Lessee, the Lessor shall in no event
be liable for failure or delay to furnish the same when prevented
from so doing by war, strikes, labor difficulties, lockouts,
breakdown, accident, order or regulation of governmental
authority, failure of supply, or inability by exercise of
reasonable diligence, to obtain supplies, parts or employees
necessary to perform such services, or for any cause beyond
Lessor s reasonable control, or of any cause due to any act or
neglect on the part of the Lessee or its servants, agents,
employees, licensees or any person claiming by, through or under
the Lessee.
31. ASSIGNMENT, SUBLETTING. Lessee shall not assign,
mortgage, pledge, or otherwise encumber this Lease or sublet the
Premises (or any portion thereof) without first obtaining the
written consent of the Lessor. Notwithstanding any assignment or
subletting hereunder, Lessee shall continue to be liable for the
performance and/or observance of the covenants, agreements,
terms, and provisions of this Lease. If the Lessee is a
corporation or a trust, the sale or transfer at any time during
the term of this Lease of more than fifty percent (50%) of the
corporate stock or of the beneficial interest of the trust shall
be deemed an assignment of the Lease requiring Lessor s prior
written consent.
32. CERTIFICATE OF ESTOPPEL. The Lessee shall, at the
request of the Lessor, provide to whomsoever the Lessor shall
name, a Certificate of Estoppel regarding the terms, covenants,
and conditions of the Lease.
33. MARGINAL HEADINGS. The marginal headings appearing in
this Lease are for purposes of easy reference and shall not be
considered a part of this Lease or in any way to modify, to
amend, or to affect the provisions thereof.
34. ENTIRE AGREEMENT. This Lease and any exhibit attached
hereto and forming a part hereof sets forth all of the covenants,
promises, agreements, conditions and understandings between
Lessor and Lessee concerning the Premises and there are no
covenants, promises, agreements, conditions or understandings,
either oral or written, between them other than herein set forth.
No subsequent alteration, amendment, change or addition to the
Lease shall be binding upon Lessor or Lessee unless reduced to
writing and signed by them.
35. HEIRS, EXECUTORS, ETC. The covenants, conditions and
agreements contained in this Lease shall bind and enure to the
benefit of Lessor and Lessee and their respective heirs,
distributees, executors, administrators, successors and assigns,
except as otherwise provided in this Lease.
36. REPRESENTATION AS TO BROKERS. Lessee materially
warrants and represents to Lessor that it has dealt with no
broker or agent in connection with this transaction other than
Hirsch & Company, Inc. and Lessee agrees to indemnify and hold
Lessor harmless from and against any cost, liability or damage
including reasonable attorney's fees and expenses) incurred by
Lessor arising from a claim by any person or firm other than
Hirsch & Company, Inc. alleging entitlement to a broker's
commission or finder s fee for the rental of the Premises.
37. JOINT AND SEVERAL LIABILITY. If Lessee shall at any
time comprise or include more than one person, firm, corporation
or entity, the liability of each thereof shall be joint and
several.
38. GOVERNING LAW. This Lease shall be construed and
interpreted in accordance with the laws of the State of New
Hampshire.
39. PREPARATORY WORK
(a) Lessor shall perform in a diligent, workmanlike manner
at its sole cost and expense the renovation of the Premises in
accordance with the specifications set forth in Exhibit B
attached hereto.
(b) Lessee shall perform in a diligent, workmanlike manner
at its sole cost and expense the renovation of the Premises in
accordance with the specifications set forth in Exhibit C
attached hereto.
(c) In connection with the plans and construction
referenced in Exhibits B and C, Lessor and Lessee hereby
authorize the other to rely upon the approval and other actions
on such party's behalf by the construction representative
designated hereafter. The following persons are designated
construction representatives for the purposes of this Section 39:
For Lessor: Tim Paige
Telephone: 603-886-7300
Fax: 603-880-7176
For Lessee: Debra Doyon
Telephone: 880-6300
Fax: 880-8977
40. RECORDING. Lessee shall not record this Lease in any
Registry of Deeds or public registration office. Any recording
of this Lease shall constitute a material breach by Lessee,
entitling Lessor, at its election, to immediately terminate this
Lease.
41. COMPLIANCE WITH ADA. If the Premises are now, or at
any time during the Lease Term become a Public Accommodation
under the Americans with Disabilities Act of 1990 (hereinafter
"ADA"), Lessee shall at its sole expense be responsible for (a)
compliance with Title III of the ADA to the extent that the ADA
imposes obligations on the procedure and design of any
alterations to the Premises made by Lessee, including but not
limited to partitions, furnishings, doors, door frames and all
accessories thereof, and (b) drawing and implementing
modifications in its policies, practices and procedures in
connection with the operation of Lessee's business and occupancy
of the Premises. If Lessee fails to comply with its obligations
hereunder and such noncompliance constitutes a violation of the
ADA, Lessee shall indemnify and hold harmless Lessor from and
against all claims, expenses or liability suffered or incurred by
Lessor resulting therefrom.
42. SECURITY DEPOSIT. Coincidental with the execution of
this Lease, Lessee shall deliver to Lessor a security deposit in
the amount of $3,827.98 which shall be held in security for
Lessee's full, faithful and diligent performance under this
Lease. Said deposit shall be non-interest bearing and shall be
refunded to Lessee at the expiration of the Lease, subject to
Lessee's satisfactory compliance with the terms and conditions
hereof.
43. OPTION TO EXTEND LEASE Lessee shall have the option to
extend the term of the Lease for one additional term of three (3)
years provided that: (a) Lessee is not in default (beyond the
expiration of any grace period granted herein for the curing of
same) under any of the terms and conditions of the Lease at the
time it elects to extend the term and at the commencement of the
Extension Term, and (b) Lessee has given Lessor written notice of
its election to extend the term no later than six months prior to
the Expiration Date of the Lease. In the event that Lessee shall
extend the term as aforesaid, such extension shall be upon the
same terms and conditions as set forth herein, except that no
further right to extend shall be deemed to be included, and
except for the Base Rent, which shall be determined as
hereinafter set forth.
The Base Rent during the Extension Term shall be the Base
Rent in effect during the last year of the Term or the "Market
Rent" (as hereinafter defined), whichever is greater. The term
"Market Rent" shall mean the rent being charged for comparable
existing space at the time the extension option is exercised, as
reasonably determined by the Lessor. Lessor shall send a written
notice to Lessee specifying the rent for the extension term
within thirty (30) days of its receipt of Lessee's exercise of
option to extend. Lessee shall be deemed to have rejected the
new rent level if it has not sent Lessor a notice approving the
same within ten (10) days of receipt of Lessor s notice. In the
event Lessee disapproves the new rent level, then Market Rent
shall be determined as follows:
Each party shall within ten (10) days of Lessee's
disapproval appoint an arbitrator to act on its behalf, which
person shall be a real estate broker or other person experienced
in the appraisal or management of real estate within the Nashua
metropolitan area. If the two arbitrators are unable to reach
agreement within ten (10) days after their appointment, then the
two arbitrators shall appoint a third arbitrator and the decision
by a majority of the arbitrators shall be binding upon the
parties. Each party shall each bear the cost of the arbitrators
selected by it and shall jointly bear the cost of any third
arbitrator. In the event the arbitrators have failed to
establish "Market Rent" by the commencement of the Extension
Term, Lessee shall pay at the rental rate proposed by Lessor in
its notice to Lessee, with a prompt adjustment between the
parties retroactive to the commencement date of the Extension
Term in the event such arbitration results in a reduction of the
rental rate. Under no circumstances shall the Base Rent during
the Extension Term be less than the Base Rent in effect during
the last year of the Term.
IN WITNESS WHEREOF, the parties have caused this Lease to be
executed by their respective authorized representatives the day
and year first written above.
LESSOR:
MARELD COMPANY, INC.
By: /s/ Eliot W. Denalut
/s/ Patricia Stark Rice -------------------------
--------------------------- Eliot W. Denalut, III
Witness Its duly authorized:
President
LESSEE:
AMERICAN ELECTROMEDICS CORP.
By: /s/ Michael T. Pieniazek
/s/ Debra A. Illegible -------------------------
-------------------------- Michael T. Pieniazek
Witness Its duly authorized:
President
EXHIBIT A
Diagram of Floor Plan of 13 Columbia Dr., Unit #5 & 6
First Floor, Unit #201 & 202 Second Floor
Date 2-17-98 Final
EXHIBIT B
LESSOR'S CONSTRUCTION
American Electromedics
13 Columbia Drive
Amherst, NH
A. PARTITIONS
----------
1. INTERIOR WALLS New partitions will be constructed using
3-5/8" metal studs with 5/8" gypsum board applied to each
side. Walls will be finished with dry wall tape and joint
compound. Partitions will be constructed and finished to
the underside of the ceiling.
Partitions which are not finished on both sides (shop area)
will receive gypsum board on the unfinished side.
2. PARTITION LAYOUT The partitions will be laid out in
accordance with the attached plan.
B. CEILING
-------
1. TYPE The ceiling in the office area (except where there is
presently a sheetrocked ceiling) will consist of a 2' x 4'
suspended system utilizing acoustical tiles (Armstrong
Cortega or equal) installed in a metal grid. As necessary,
the existing ceiling grid will be repaired, cleaned or
painted. All ceiling tiles will be replaced.
C. HEATING, VENTILATING, AIR CONDITIONING
--------------------------------------
1. SYSTEM The existing HVAC systems will be utilized. The air
conditioning units in the first floor offices will be
replaced. The Lessor will install a two ton roof top air
conditioning unit to cool the first floor kitchen area and
new office. The Lessor will add electric baseboard heat for
the kitchen area and new first floor office. On the second
floor, the Lessor will make any necessary repairs to the
existing systems prior to lease commencement so that it is
in good working order.
2. BALANCING The Lessor will make all required modifications to
the HVAC system to provide the lessee space with reasonably
acceptable air quality and comfort levels. Additionally,
the HVAC system will be adjusted so that proper balancing of
the lessee space may be achieved.
D. TELEPHONE/COMPUTERS
-------------------
1. It will be the lessee's responsibility to install its own
telephone system and computer cable. Lessor will make
reasonable efforts to coordinate with lessee's contractor.
E. LIGHTING
--------
1. TYPE Lighting will consist of 2' x 4' four tube fluorescent
lamp fixtures with acrylic prismatic type lens. The
existing fixtures will be cleaned and, if necessary,
repaired.
2. QUANTITY The number of fixtures is anticipated to be one (1)
fixture for every 125 square feet.
3. SWITCHING All enclosed spaces will have a single wall
mounted switch to control the fixtures within the space.
F. FLOOR COVERINGS
---------------
1. TYPE The office areas will receive new carpet -Encounter #26
"Waterfall". At the option of the Lessor, carpet
installation will be either direct glue-down over existing
floor slab or tackless installation over pad.
The floors in the kitchen area and restrooms will be tiled
with vct tile. The tile will be Awesome #10", color #580.
Vinyl cove base will be installed throughout suite. The
base will be Mercer #204.
G. DOORS
-----
1. TYPE Office Doors: The existing doors will be utilized
throughout the suite. The new doors in the office area will
be replaced with doors similar to the ones currently in the
space.
Fire Doors: The three doors between the office/kitchen areas
and the production area will be fire-rated steel doors.
Appropriate hardware will be provided.
2. QUANTITY As shown on attached floor plan.
3. HARDWARE All door hardware will be passage type of a lever
style.
4. EXIT DOOR (Unit 202) -Once the Lessor is able to install a
new exit door in for the tenant in Units 7 and 8, it will
remove the existing door at the top of the staircase and
will either remove or secure the door at the foot of the
staircase leading in to Units 7 and 8.
H. PAINTING
--------
1. PARTITION All partitions within the demised space will
receive two finish coats of latex paint, eggshell finish.
The paint used with be Muralo Superfinish ; the color will
be "Coral White" #16. Prior to painting, all partitions
will be patched as required.
2. DOORS The three metal fire doors will be painted with Muralo
oil based, semi-gloss paint; the color will be Coral White
#16.
I. FIRE PROTECTION
---------------
1. EMERGENCY LIGHTS, EXIT SIGNAGE, etc. -Will be provided as
required by building codes.
J. KITCHEN
-------
1. A five foot base cabinet with laminated countertop and
stainless steel sink and faucet will be installed when shown
on floor plan.
K. REST ROOMS
----------
1. Existing restrooms on the second floor will be thoroughly
cleaned. If the fixtures cannot be cleaned, they will be
replaced.
2. The existing mens room on the first floor will be removed.
The ladies room on the first floor will be modified as shown
on the attached floorplan.
L. STAIRCASE INTO SHOP AREA
------------------------
-The Lessor will construct the staircase shown on the attached
plan from the rear of unit 201 to the shop floor.
EXHIBIT C
LESSEE'S CONSTRUCTION
The Lessee will be responsible for the wiring of its
telephones and computers.