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EXHIBIT 10.74
LEASE
THIS AGREEMENT made and entered into this day of June, 1996, by and between
JEFFREY M. CHASSE, LARRY A. JOHNSON and MICHAEL W. ROCHE, AS TRUSTEES OF CRJ
REALTY TRUST of 69 Hall Road, Sturbridge, MA 01 566 (hereinafter ter referred to
as "Lessor") and SPECTRAN COMMUNICATION FIBER TECHNOLOGIES, INC., of 50 Hall
Road, Sturbridge, Massachusetts, 01566, (hereinafter referred to as "Lessee").
WITNESSETH:
In consideration of the mutual promises and premises hereinafter referenced, it
is agreed by and between the parties hereto as follows:
FIRST
The LESSOR hereby agrees to lease and LESSEE hereby agrees to rent from the
LESSOR for office space incidental to Lessee's business, and for no other
purpose without the written consent of the LESSOR, that certain property
described as follows:
The "LOWER SUITE B" of floor space in the building known as "Hall Road
Professional Center" located at 69 Hall Road, Sturbridge, Massachusetts,
consisting of approximately 950 square feet, as set out in floor plans
designed by LESSEE and incorporated herein by reference; together with the
right to use bathrooms and hallways within the common areas of the lower
level of said building in common with others.
SECOND
LESSOR and LESSEE agree to pay for the costs incurred to complete "Lower Suite
B" in accordance with Exhibit "A", herewith incorporated in this Lease.
THIRD
This Lease shall be for a term commencing JULY 1, 1996, and ending JUNE 30,
1997. Since LESSOR is obligated to perform construction pursuant to Exhibit "A"
and LESSOR agrees to use its best efforts to have the premises ready for
occupancy on or before the scheduled term commencement date, should the LESSOR
not have performed the construction pursuant to Exhibit "A" on or before the
commencement date, except in such delay occurred as a result of damages which
may happen by fire, lightning, earthquakes, or other acts of God, or by
abandonment of work by the employees during a general strike, then the
commencement date shall be on the date upon which the premises are ready for
occupancy. This date shall be no later than August 1, 1996. Should the
commencement date be other than the first day of the month, the LESSEE shall pay
on the first rent payment day the pro rata share of rent for that portion of the
month to the f first day of the following month, as the case may be.
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FOURTH
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The LESSEE shall pay LESSOR total annual rent of $12,000.00, payable in equal
monthly installments of $1,000.00, on the first day of each and every calendar
month during said term.
A. The LESSEE shall have the right and option to extend the term of this lease
beyond June 30, 1997 as a month-to-month tenant, provided however, such right to
extend shall be subject to the following terms and conditions:
1) No default by LESSEE shall exist or occur for the period from the date
of giving notice to the date of commencement of the extended term.
2) This Lease shall be in full force and effect at the date of notice, and
LESSEE shall not then be in default of any obligation under this Lease.
3) Such right of extension shall be exercised by written notice from the
LESSEE to the LESSOR within not more than ninety (90) days nor less than
thirty (30) days prior to the expiration of the then existing term.
4) If a notice is given pursuant to the preceding sub-paragraph, no
further instrument shall be required to be executed and the term of this
Lease shall thereupon be extended, except that said tenancy shall then be
deemed to be a month-to-month tenancy under Massachusetts law.
FIFTH
The LESSEE shall pay all charges for electricity, heat, telephone and other
utility services furnished to the leased premises. LESSEE agrees to utilize
electric power exclusively from Massachusetts Electric Company.
LESSEE acknowledges that electrical metering for the premises will be billed to
LESSOR. Electric bills generated by Massachusetts Electric will include charges
for space occupied by both Dr. Doctor and LESSEE. LESSEE shall pay only their
pro-rata share of the electric bill for usage of LESSEE's space. Prior to
execution of this lease, LESSOR shall furnish to LESSEE copies of the last
twelve (12) months of electric bills incurred by Dr. Doctor. LESSEE agrees that
Dr. Doctor's share of future electric bills shall be determined by taking the
average of said past twelve months of bills incurred by Dr. Doctor and LESSEE
agrees to pay the additional amount over said average as LESSEE's share of
future electric bills. LESSOR shall provide copies of all future electric bills
to LESSEE prior to requesting payment from LESSEE for said additional amount
representing LESSEE's allocable share of usage, which LESSEE agrees to pay as
additional rent under the terms of this Lease.
LESSEE agrees that LESSEE's share of fuel charges for heating from Tasse Fuel
will be determined in similar fashion as the electric bills, as stated above.
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SIXTH
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The LESSEE agrees to utilize no more than six parking spaces on the premises as
designated by LESSOR. On days when Dr. Larry Johnson's office and/or Dr. David
Doctor's office are not being utilized, LESSEE may utilize no more than ten (10)
of said parking spaces on the premises. The LESSOR reserves the right to alter
or vary the size and location of the parking area or spaces, to increase the
parking area, to change the flow of traffic and the arrangement of the parking
area, to mortgage all or any part of the parking and common areas free and clear
of all right, privileges and easements to the LESSEE, provided only, however,
that the LESSOR shall not unreasonably alter or vary the present method of
access to the LESSEE's premises from the street without the written consent of
the LESSEE. LESSOR agrees that it shall not reduce the size of the parking area
by more than ten percent (10%).
SEVENTH
The LESSEE shall pay and be responsible for all of the normal day-to-day repair
and maintenance within the demised premises (excluding structural repairs)
during the term of this Lease and shall maintain the same in good order and
repair as the same is at the commencement of the original term, ordinary wear
and tear excepted. LESSOR will be responsible for maintenance of the common
areas, snow and ice removal, and trash collection on the premises from the
dumpster located thereon. The LESSOR will be responsible for maintaining in good
condition all common areas, building exteriors and the structural integrity of
the demised premises.
All signs placed on the premises by LESSEE shall be paid for by LESSEE and with
the consent of LESSOR.
EIGHTH
Subject to the approval of the LESSOR, which approval shall not be unreasonably
withheld, the LESSEE may make such improvements to the interior and exterior of
the building as the LESSEE deems advisable at LESSEE's sole cost and expense,
provided, however, that LESSEE shall obtain all necessary permits and licenses
therefor, will effect such improvements in a good and workmanlike manner, and
all such improvements affixed to or made a part of the realty shall become the
property of the LESSOR at the expiration of the Lease term, provided, however,
at the written request of the LESSOR, the LESSEE shall, at the expiration of the
term, remove such improvements and restore the premises to their former
condition, all at the sole cost and expense of the LESSEE.
NINTH
The LESSEE shall provide and maintain in full force from the date upon which the
LESSEE first enters the premises for any reason, throughout the term of this
Lease, and thereafter so long as LESSEE is in occupancy of any part of the
premises, a policy of public liability and property damage insurance under which
LESSOR (and such other persons as are in privity of estate with LESSOR as may be
set out in notice from time to time) and LESSEE are named as insured and under
which the insurer agrees to indemnify and hold LESSOR and those in privity of
estate with LESSOR, harmless from and against all costs, expense and/or
liability arising out of or based upon any and
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all claims, accidents, injuries and damages arising from any act, omission or
negligence of LESSEE, or LESSEE's contractors, licensees, agents, servants or
employees, or arising from any accident, injury or damage occurring outside of
the premises but within the building complex, where such accident, damage or
injury results from any act or omission on the part of the LESSEE or LESSEE's
agents or employees or independent contractors. The minimum limits of liability
of such insurance shall be Five Hundred Thousand Dollars ($500,000.00) for
bodily injury (or death) to any one person and One Million Dollars
($1,000,000.00) for bodily injury (or death) to more than one person and Three
Hundred Thousand Dollars ($300,000.00) with respect to damage to property.
LESSEE shall furnish LESSOR with a certificate of insurance evidencing such
coverage at the time of execution of this Lease.
TENTH
The LESSEE shall not sublet or assign its rights to the leased premises or any
part thereof without first obtaining the written consent of the LESSOR. The
LESSEE shall, in the event of subletting or assigning its right to the leased
premises, remain primarily liable on this Lease.
ELEVENTH
In the event that the LESSEE shall file a voluntary petition in bankruptcy or
make an assignment for the benefit of creditors or in the event that a receiver
shall be appointed for the LESSEE, any one of such acts will constitute a breach
of this Lease by the LESSEE and in that occurrence or any such occurrence, the
Lease shall immediately terminate.
TWELFTH
The LESSEE shall not be deemed to be in default hereof in the payment of any
other monies as required by this Agreement unless the LESSOR shall first give to
the LESSEE written notice of such default and the LESSEE fails to cure such
default within the thirty (30) day period following receipt of notice of such
default. In any event, upon such notice as described, and the failure by LESSEE
to cure such default within the prescribed period, the LESSEE shall be deemed to
be in default and shall be subject to the following:
1) The LESSOR shall have the right to immediately terminate this Lease and
relet the premises or any part thereof under any terms and conditions as
the LESSOR shall deem fit, and shall use reasonable efforts to relet.
2) The LESSEE shall be immediately liable to pay LESSOR, in addition to
any indebtedness for rent hereunder and any other monies due hereunder,
the expense of reletting the premises occupied by the LESSEE as well as
the reasonable cost of any attorney's fees as a result of any breach
hereof.
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THIRTEENTH
In the event of the failure on the part of the LESSEE to perform or observe any
of the covenants, terms or conditions imposed upon the LESSEE by this Lease and
the failure to remove and/or cure any breach within thirty (30) days of the
receipt of written notice thereof from the LESSOR pursuant to the terms and
conditions contained herein, then in such event, upon the LESSEE's failure to
cure such breach the LESSEE shall be deemed to be in default and shall be
subject to the provisions of the previous paragraph hereinabove.
FOURTEENTH
A. If the interest of the LESSOR is transferred by conveyance, or should be
taken or repossessed or foreclosed, LESSEE agrees to be bound to the LESSOR's
successor in interest under all of the terms, covenants and conditions of this
Lease for the balance of the term remaining and any extensions or renewals
thereof and LESSEE's attornment hereunder is to be effective and self-operative
without the execution of any further instruments on the part of any parties,
provided however, that LESSEE shall be under no obligation to pay rent to such
successor until the LESSEE has received notice in writing from the LESSOR that
another party has succeeded to the interest of the LESSOR.
B. This Lease shall be subject and subordinate to any and all mortgages, deeds
of trust and other instruments in the nature of mortgages, now or at any time
hereafter placed upon the property of which the leased premises are a part and
LESSEE shall, when requested, promptly execute and deliver such written
instruments as shall be necessary to show subordination of this Lease to said
mortgage, deeds of trust, or other such instruments in the nature of a mortgage.
C. The LESSEE does hereby covenant with the mortgagee in consideration of the
foregoing that, in the event of a foreclosure, the LESSEE will recognize the
mortgagee as its Lessor, for the remainder of the unexpired term of the Lease,
upon the covenants and conditions hereof to be performed and observed by the
LESSEE.
D. As used herein, wherever the context so requires or admits, the word
"mortgagee" shall include any person claiming through or under the mortgagee or
the mortgage, including but not limited to, any purchase at foreclosure sale,
and the word "LESSEE" shall include the LESSEE's successors and assigns.
E. The LESSEE agrees that they will, upon the request of the LESSOR, execute,
acknowledge and deliver any and all instruments which LESSOR may from time to
time desire in order to effect such subordination. As used herein, the term
"mortgage" shall include any modification, consolidation, extension, renewals,
replacement or substitution of any existing or subsequent mortgage on the
property.
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F. The LESSEE acknowledges and agrees that the assignment by the LESSOR of the
LESSOR's interest in this Lease, or in the rent payable under the provisions of
this Lease, whether conditional or otherwise made to the holder of a mortgage
which include the demised premises, shall not be treated as an assumption by
such mortgagee of the obligations and duties of the LESSOR hereunder unless the
mortgagee shall specifically agree with the LESSEE hereunder, and the same shall
not be treated as an assumption by said mortgagee of the LESSOR's obligations
hereunder except under foreclosure and the taking of possession of the demised
premises by the said mortgagee and upon notice by said mortgagee of its
assumption of the duties of such assumption.
FIFTEENTH
A. If the whole or any part of the demised premises shall be taken or condemned
by competent authority for any public or quasi public use, then, and in that
event, the term of this Lease shall cease and terminate from the date when
possession of the portion so taken is required for such use, and without
apportionment of the award to made. The current rental, however, shall be
pro-rated and abated in such case.
B. If the leased premises, or any part thereof, or the whole or any part of the
building of which they are a part, shall be taken by exercise of the power of
eminent domain for any purpose, or shall be destroyed or damaged by fire or
other unavoidable casualty, or shall receive any direct or consequential damage
for which the LESSOR or LESSEE shall be entitled to compensation by reason of
anything lawfully done in pursuance of any public authority, after the execution
hereof and during said term, or any extension or renewal thereof, then this
Lease and said term shall terminate at the option of the LESSOR, and such option
may be exercised in case of any such taking, notwithstanding that the entire
interest of the LESSOR may have been divested by such taking. If this Lease and
said term are not so terminated, then in case of any such taking or destruction
of or damage to the Leased premises, rendering the same or any part thereof
unfit for use and occupancy, a just proportion of the rent hereinbefore
reserved, according to the nature and extent of the injury sustained by the
leased premises, shall be suspended or abated until the leased premises, or in
the case of such taking, what may remain thereof, shall have been put in proper
condition for use and occupancy. The LESSEE hereby assigns to the LESSOR any and
all claims and demands for damages on account of any such taking or for
compensation for anything lawfully done in pursuance of any public authority,
and covenants with the LESSOR that the LESSEE will from time to time execute and
deliver to the LESSOR such further instruments of assignment of any such claims
and demands as the LESSOR shall request.
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SIXTEENTH
Concurrently with the execution of this Lease, the LESSEE shall deposit with the
LESSOR as a security deposit for the faithful performance of the terms and
conditions of this Lease the sum of $1,000.00. Similarly, LESSEE shall deposit
with LESSOR a like sum of $1, 00.00 as last month's rent under this Lease, The
LESSOR shall not be obligated to pay interest on said amounts so deposited or to
apply the deposit on arrears of rent or other charges, but application thereof
for arrears of rent or other damages shall be at the option of the LESSOR.
LESSOR's right to possession for breach of this Lease shall not be affected by
this security deposit. The security deposit shall be returned to the LESSEE when
this Lease is terminated according to its terms, if not applied to the payment
of rent in arrears or other damages suffered by LESSOR as a result of the
LESSEE's breach of the terms and conditions of this Lease.
SEVENTEENTH
This Lease may be modified only by written agreement signed by the LESSOR and
LESSEE.
EIGHTEENTH
This Lease and the covenants, terms and conditions thereof, shall be binding
upon and inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties hereto.
NINETEENTH
If any of the terms or provisions of this Lease or the application thereof to
any person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provisions to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
TWENTIETH
The LESSOR covenants that LESSEE, on paying the rent reserved herein and
performing the covenants and agreements hereof, shall peaceably and quietly
have, hold and enjoy the premises and all rights, easements, appurtenances and
privileges thereunto belonging or in anywise appertaining, during the full term
of this Lease, and any extension or renewal, without hindrance from LESSOR or
any other person.
TWENTY-FIRST
Any notice from LESSOR to LESSEE relating to the leased premises or to the
occupancy thereof shall be deemed duly served if mailed to LESSEE at 50 Hall
Road, Sturbridge, MA 01566, registered or certified mail, return receipt
requested, postage prepaid, addressed to the LESSEE, or to such other address
which LESSEE may from time to time give to LESSOR.
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Any notice from LESSEE to LESSOR relating to the leased premises or to the
occupancy thereof, shall be deemed duly served if mailed to LESSOR by registered
or certified mail, return receipt requested, postage prepaid, addressed to
LESSOR at 69 Hall Road, Sturbridge, MA 01566, or such other address which LESSOR
may from time to time give to LESSEE.
IN WITNESS WHEREOF the parties hereto have caused this instrument to be executed
and their corporate seals, if applicable, to be affixed hereto on the month, day
and year first above written.
Executed in multiple duplicated originals as a sealed instrument, each of which
executed copies shall be deemed to be an original hereof.
Witness:
/s/ Jeffrey M. Chasse
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Jeffrey M. Chasse, Trustee
/s/ Larry A. Johnson
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Larry A. Johnson, Trustee
/s/ Michael W. Roche
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Michael W. Roche, Trustee
SPECTRAN COMMUNICATION FIBER
TECHNOLOGIES, INC.
By: /s/ John E. Chapman
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EXHIBIT "A"
LESSOR and LESSEE AGREE THAT substantial completion and responsibility of
payment for "Lower Suite B" will be apportioned as follows:
LESSOR shall pay for construction and completion of:
1) Providing a second means of egress into the LESSEE's rental space,
including all door fixtures and necessary walkways;
2) Floor coverings (to be mid-grade category)
LESSEE shall pay for construction and completion of:
1) Electrical wiring and installation of lighting fixtures as required
by LESSEE for its business. LESSEE agrees that at the conclusion of
its tenancy, all fixtures will be removed at LESSEE's option and
LESSEE agrees to repair/restore the premises to their former
condition prior to modifications by LESSEE.
LESSEE shall be required to utilize a contractor approved by LESSOR for the
completion of all work that is the responsibility of LESSEE.
The parties agree that, at the conclusion of this tenancy, LESSOR may purchase
from LESSEE all telephone fixtures installed by Nynex for LESSEE at LESSEE's
expense, at a price to be then determined by the parties. If no agreement is
reached, LESSEE agrees to remove said fixtures at LESSEE's cost and restore the
premises to their prior condition.