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THIS LEASE AGREEMENT made this 17th day of April, 1997, by and between
Michael A. Howland, as Trustee of the Hownat Trust, u/d/t dated March 31st, 1993
recorded in the Middlesex North Registry of Deeds, in Book 6398, Page 342,
having an address care of Howland Development Corporation, 155 West Street,
Wilmington, Massachusetts 01887 (hereinafter with their successors and assigns
called the "Lessor") and Centennial Technologies, Inc. a Delaware Corporation,
having a principal place of business at 37 Manning Road, Billerica,
Massachusetts 01821 (hereinafter with its successors and permitted assigns
called the "Lessee")
ARTICLE I
PREMISES
Section I. In consideration of the rents and covenants herein contained on
the part of the Lessee to be paid, performed and observed, the Lessor hereby
leases to the Lessee and the Lessee hereby leases from the Lessor, subject to
the terms and provisions hereinafter set forth, certain premises (hereinafter
called the "demised premises") consisting of approximately 34,084 square feet of
floor area, in the building commonly known as 7 Lopez Road (the "Building")
thereon and situated at 7 Lopez Road, Wilmington, Massachusetts, on the Land
described in Exhibit A attached hereto (the "Land"), a copy of a plan of the
demised premises being attached hereto as Exhibit B; together with the
non-exclusive right to use, in common with others from time to time lawfully
entitled thereto, the common areas of the Building, one hundred and fifty (150)
parking spaces located in the parking areas on the Land, as same may exist from
time to time, for parking purposes only, and the driveways and walkways on the
Land, as same may exist from time to time, for roadway and walkway purposes
only.
Section 2. The demised premises are leased subject to the reservation to
the Lessor of the roof and exterior walls of the demised premises and of the
Building, and subject to the Lessor's reservation of the right (without thereby
assuming the obligation) to install, maintain, use, repair and replace (in such
manner as to reduce to a minimum to the extent reasonably practicable the
interference with Lessee's use of the demised premises) all pipes, ducts, wires,
meters, utility lines and the like which are in the reasonable judgement of the
Lessor, required to be in the demised premises. The Lessor reserves the right to
alter, increase and relocate such parking areas, driveways and walkways from
time to time and any common facilities with the Building. The Lessor reserves
the right to make additions to the Building and to erect additional buildings
and structures on the Land.
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ARTICLE II
Term and Commencement
Section 1. TO HAVE TO HOLD the demised premises for an original term (the
"Original Term") of sixty (60) months from the Commencement Date (as said term
is hereinafter defined) unless sooner terminated as herein provided. The
Commencement Date shall be May 1, 1997 (the "Commencement Date").
Section 2. Intentionally Deleted
ARTICLE III
RENT
Section 1. YIELDING AND PAYING an annual base rent during the Original Term
hereof in the mount of One Million One Hundred Thousand Seven Hundred Thirty and
00/100ths (S1,107,730.00) Dollars per annum (the "Annual BASE RENT").
ANNUAL BASE RENT SCHEDULE
PERIOD $/PER SF ANNUAL BASE RENT MONTHLY RENT
------ -------- ---------------- ------------
Year 1 $ 6.00 $ 204,504 $17,042.00
Year 2 $ 6.25 $ 213,025 $17,752.08
Year 3 $ 6.50 S 221,546 $18,462.16
Year 4 $ 6.75 $ 230,067 $19,172.25
Year 5 $ 7.00 $ 238,588 $19,882.33
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TOTAL .............................$1,107,730
Section 2. All such rent including said Annual Base Rent as it may be
adjusted together with any such sum or amount hereunder designated as
Additional Rent (as defined hereinafter) shall be paid as and when the same
shall become due without offset, deduction or demand. All such rent shall be
payable in advance on the first day of each calendar month during the term
hereof commencing on the Commencement Date. If the Commencement Date is other
than the first day of a calendar month, Annual Base Rent for the first
incomplete month, pro-rated at the rate set forth above, shall be paid on the
Commencement
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Date. During the Original Term, the Annual Base Rent shall be paid in sixty (60)
monthly installments, per the above listed schedule. All references in this
Lease to the ",Annual Base Rent" shall, with respect to the Original Term, mean
an amount equal to a particular period's monthly base rent multiplied by twelve
(12).
Section 3. Lessee covenants and agrees to pay as follows:
(a) In addition to any charges pursuant to Article XVII, Section 4, if any
installment of Annual Base Rent or Additional Rent payable hereunder is not paid
after ten (10) days of when due, Lessee shall pay Lessor, on demand, a late
charge equal to five (5%) percent of the amount of any such Annual Base Rent or
Additional Rent payment as Additional Rent hereunder.
(b) If Lessor shall pay any monies or incur any reasonable expenses,
including without limitation reasonable attorney's fees, in connection with any
failure by Lessee to pay Annual Base Rent or Additional Rent as and when same
shall become due and payable, the amounts so paid or incurred by Lessor shall be
considered Additional Rent, payable by Lessee within ten (10) days of written
demand for payment and may be collected or enforced in the same manner as Annual
Base Rent and Additional Rent.
Section 4. The Lessee shall pay, as Additional Rent hereunder, during the
Original Term hereof and any extension or renewal thereof, the greater of
either: (i) Lessee's Pro Rata Share (as defined in Article XX hereof) of any and
all real estate taxes and betterments and other assessments (ordinary and
extraordinary), water rents, sewer and other charges which shall be imposed,
assessed or levied upon the Building and the Land or (ii) $1.00 per square foot
(i.e. $34,084) per annum. In addition, the Lessee shall pay one hundred (100%)
percent of real estate taxes, betterments and other assessments due to any
alterations or improvements made by the Lessee to the demised premises. All such
rent shall be payable in advance on the first day of each calendar month during
the Original Term hereof, and any extension or renewal thereof, commencing on
the Commencement Date in equal monthly installments in the amount of Two
Thousand Eight Hundred Forty and 33/100ths Dollars ($2,840.33). Lessor reserves
the right, during the Original Term and any extension or renewal thereof, to
adjust such monthly installment, from time to time, if the actual costs for such
expense increases.
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If this Lease shall commence on a date other than the first day of a tax
year, or terminate on a date other than the last day of a tax year, the Lessee
for that tax year shall pay to the Lessor only such portion of such Additional
Rent for the whole tax year as shall be proportionate to the portion of the tax
year contained within the term of this Lease.
Section 5. The term "real estate taxes" shall mean all taxes and special
assessments of every kind and nature assessed by a governmental authority, on
the Land or the Building which the Lessor shall become obligated to pay because
of or in connection with the ownership, leasing and operation of the Land or
Building. The foregoing provisions are predicated upon the present system of
taxation in the Commonwealth of Massachusetts. If taxes upon rentals or
otherwise pertaining to the demised premises shall be substituted, in whole or
in part, for the present ad valorem real estate taxes or assessed in addition
thereto, then Lessee's obligation to pay such taxes shall be based upon such
substituted taxes, to the extent to which the same shall be a substitute for
present ad valorem real estate taxes, together with such additional taxes, and
such substitute or additional taxes shall be deemed to be included within the
term "real estate taxes". Except as hereinabove provided: nothing herein
contained shall otherwise require or be construed to require Lessee to reimburse
Lessor for any inheritance, estate, succession, transfer, gift, franchise,
income or earnings, profit, excess profit tax, capital stock, capital levy or
corporate or other similar tax which is or may be imposed upon Lessor or upon
Lessor's business.
Section 6. During the Original Term and any extensions or renewals
thereof, Lessee shall pay to Lessor, as Additional Rent, the greater of either:
(i) Lessee's Pro Rata Share (as defined in Article XX hereof) of the costs paid
or incurred by Lessor in connection with maintaining and repairing the Building,
and any additions to the Building and in maintaining and repairing the Land (the
"common area maintenance expenses" or the "CAM" expenses) or (ii) $.30 per
square foot (i.e. $10,225.20) per annum. All such Additional Rent shall be
payable in advance on the first day of each calendar month during the Original
Term hereof, and any extension or renewal thereof, commencing on the
Commencement Date in equal monthly installments in the amount of Eight Hundred
Fifty Two and 10/100ths Dollars ($852.10). Lessor reserves the right, during the
Original Term and any extension or renewal thereof, to adjust such monthly
installment, from time to time, if the actual costs for such CAM expenses
increase.
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Section 7. For the purposes of this Lease, CAM expenses are defined as
those direct expenses necessary to operate, repair and maintain the Building and
the Land in a manner deemed reasonable and for the best interests of the tenants
in the Building, including but not limited to, the costs for the following
items:
(A) operating and cleaning the common areas and for removing snow, ice and
debris from the parking areas and the roof;
(B) replacing paving, striping, curbs, walkways, landscaping, common and
public lighting facilities in the Building and the area immediately
adjacent thereto;
(c) electricity for lighting the common and public areas;
(D) maintenance, repair and upkeep of the roofing system; mechanical,
electrical, plumbing and gas systems; fire alarm and sprinkler
equipment;
(E) maintaining and repairing all drainage, sewage and / or septic system
and utility facilities and equipment on the land whether above or
underground;
(F) maintenance, repair and upkeep of the lobbies, hallways and other
common and public areas of the Building and the Land.
Section 8. For the purposes of this Lease, CAM expenses shall not include
costs for replacement of foundations, beams, girders, mullions, and exterior
walls of the demised premises or Building, except where such repairs are
required by reason of or any act or negligence of the Lessee, its employees,
agents, licensees, suppliers, contractors, invitees or guests (the "Structural
Repairs"); expenses for which Lessor is reimbursed or indemnified (either by an
insurer, condemnor, tenant or otherwise); expenses incurred in leasing or
procuring tenants (including, without limitation, lease commissions, advertising
expenses and expenses of renovating space for tenants); legal expenses arising
out of the construction, operation, use, occupation or maintenance of the
Building or the enforcement of the provisions of any agreements affecting the
Building; interest or amortization payments on any mortgage or mortgages; the
cost of any work or services performed for or facilities furnished to a lessee
at the lessee's cost; the cost of correcting defects (latent or otherwise) in
the construction of the Building or the costs associated with any environmental
contamination remediation incurred as a result of any such contamination proven
to be on the Land prior to the Lease Commencement Date ("Pre-existing
Environmental Conditions"). Nothing contained in this provision shall operate
to reduce either the Lessee's or the Lessor's obligations with respect to
so-called 'environmental matters' as such obligations are further delineated in
Article XXIV herein.
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Section 9. During the Original Term and any extensions or renewals thereof,
Lessee shall pay Lessor, as Additional Rent hereunder, the greater of either:
(i) Lessee's Pro Rata Share (as defined in Article XX hereof) of Lessor's cost
of the following insurance on the Building and the Land: fire and extended
coverage insurance and such other insurance covering all hazards included within
customary "all risk" coverage, including without limitation insurance covering
fire, lightning, vandalism, malicious mischief, and sprinkler leakage, said
insurance to be on a full value, repair, or replacement bases, as determined by
Lessor's mortgagee and Lessors costs, for comprehensive liability insurance
indemnifying the Lessor against all claims and demands for any injury to persons
or property which may be claimed to have occurred in or upon the Building or the
Land in such amounts as Lessor shall from time to time determine or (ii) $. 10
per square foot (i.e. $3,408.40) per annum. All such Additional Rent shall be
payable in advance on the first day of each calendar month during the Original
Term hereof, and any extension or renewal thereof, commencing on the
Commencement Date in equal monthly installments in the amount of Two Hundred
Eighty Four and 03/100ths Dollars ($284.03). Lessor reserves the right, during
the Original Term and any extension or renewal thereof, to adjust such monthly
installment, from time to time, if the actual costs for such CAM expenses
increase. In addition, notwithstanding the foregoing, Lessee shall pay as
Additional Rent, one hundred (100%) percent of Lessor's cost of any insurance
with respect to the Building or the Land which is attributable solely to
Lessee's particular use of the demised premises.
Section 10. This is, and is intended to be. a TRIPLE NET LEASE, and
accordingly, except as expressly otherwise provided for herein, all charges,
assessments and impositions made upon the Land and the Building and all costs,
expenses and other obligations paid or incurred by Lessor of any kind or nature
whatsoever in insuring, maintaining and / or repairing the demised premises or
the Building or the Land or any additions to the Building, (other than the costs
of maintaining or repairing the interior of space leased to others or available
for lease to others and other than the Structural Repairs set forth in Section 8
hereof) shall be included in Lessor's costs of which Lessee is obligated to pay
a pro rata share or the entirety, as the case may be, as provided hereinabove.
Section 11. All payments of Base Rent and Additional Rent hereunder shall
be mailed without offset or deduction and without previous demand therefore and
if other than cash payable to the order of Lessor at 155 West Street,
Wilmington, Massachusetts 01887, or otherwise as Lessor may notify Lessee from
time to time.
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Section 12. Lessee hereby acknowledges and agrees that it will take
possession of the demised space in "as is" condition with all faults, except for
any such Pre-existing Environmental Conditions.
Section 13. Lessor acknowledges receipt from Lessee of One Hundred Forty
Thousand Three Hundred Twelve 47/100ths ($140,312.47) Dollars paid concurrently
with the execution hereof. The same represents the following:
(a) first months Base Rent and Additional Rent: $21,018.47
(b) three months security deposit: $71,576.40
(c) last two months Base Rent and Additional Rent: $47,717.60
Said [$71,576.40] security deposit shall be held by Lessor without interest
during the Original Term hereof, and any extensions or renewals thereof, and for
so long thereafter as Lessee is in possession of the demised premises or has
unsatisfied obligations hereunder to Lessor which deposit the Lessor may apply
from time to time against delinquent outstanding obligations of Lessee
hereunder. Lessee shall have no right to require the Lessor to apply said
security deposit, nor shall Lessee be entitled to credit the same against rents
or other sums payable hereunder. If and to the extent that the Lessor makes use
of all or any portion of said security deposit in accordance with the terms
hereof, the sum so applied by Lessor shall be restored to the security deposit
by Lessee upon notice from Lessor, and failure to pay to Lessor the amount to be
so restored shall be a default hereunder giving rise to all of the Lessor's
rights and remedies applicable to a default in the payment of rent.
Section 14. If, at the appropriate time period for the application of its
Rent Credit, as hereinafter defined, the Lessee is not in default of any of the
terms or provisions of this Lease, then the Lessee shall be entitled to apply
said Rent Credit as described below. The total Rent Credit available to Lessee
to be used as credit against its monthly Base and Additional Rent is Thirty Nine
Thousand Two Hundred Seventy and 00/100ths ($39,270.00) Dollars (the "Rent
Credit"). Said Rent Credit shall be applied as follows: Nineteen Thousand Six
Hundred Thirty Five and 00/100ths Dollars shall be credited towards the then due
and payable monthly Base and Additional Rent for each of the months of May 1998
and June 1998, respectively.
ARTICLE IV
COVENANTS
Lessee covenants and agrees as follows:
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(a) To pay when due the said Annual Base Rent and Additional Rent at the
times and in the manner set forth herein;
(b) To procure any and all licenses and permits required for any use to
be made of the demised premises by Lessee; to keep the demised premises equipped
with all safety appliances required by law or ordinances because of any
use of the demised premises by Lessee and to make any alterations or changes
which may be necessary to meet the obligations and standards promulgated
under the Occupational Safety and Health Act of 1970 which are related to
Lessee's use and occupation of the demised premises;
(c) To pay promptly when due the entire cost of any work to the demised
premises undertaken by Lessee so that said premises shall at all times be free
of liens for labor and materials, to procure all necessary permits before
undertaking such work, to do all of such work in a good and workmanlike manner
employing new materials of good quality and complying with all governmental and
insurance requirements and to save Lessor harmless and indemnified from any and
all injury, loss, claims or damage to any person or property occasioned by or
growing out of such work including, without limitation, reasonable attorneys'
fees if so requested by Lessor. Lessee shall take over Lessor's defense in any
action related to work undertaken by Lessee on the demised premises;
(d) To permit Lessor and anyone claiming under Lessor at reasonable times
and upon reasonable notice to enter into and examine the demised premises and to
show the demised premises to prospective purchasers or tenants provided that
Lessor shall not thereby unreasonably interfere with the conduct of Lessee's
business, to permit Lessor to enter said premises to make such repairs,
improvements, alterations or additions thereto as may be required in order to
comply with the requirements of any public authority having jurisdiction over
the demised premises, or as may be required of Lessor under the terms of this
Lease, provided that such entry shall not unreasonably interfere with the
conduct of Lessee's business; and to permit the affixing to any suitable part of
the demised premises a reasonable notice for letting or selling the demised
premises or the Building; to permit Lessor to enter the demised premises at any
time to make emergency repairs;
(e) To pay when due any and all State, Federal or local taxes based
upon Lessee's use or occupation of the demised premises or pertaining to
Lessee's personal property or resulting from any permitted alteration,
additions or improvements made by Lessee to the demised premises;
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(f) To comply with any rules, regulations or recommendations of the
National Board of Fire Underwriters, any rating bureau, or any similar
association performing such function, and any insurance company insuring the
demised premises with respect to the demised premises and/or Lessee's use and
occupation thereof;
(g) To keep the demised premises adequately heated for the protection of
the plumbing therein;
(h) To permit no waste with respect to the demised premises;
(i) To permit no storage of materials outside of the demised premises,
except for such temporary storage as may be required for reasonable periods of
time due to unforeseen circumstances or emergencies;
(j) To comply with such reasonable rules and regulations now or hereafter
made by Lessor for and with respect to the care and use of the Building, the
Land and their facilities and approaches, it being understood that Lessor shall
not be liable to Lessee for the failure of any other tenants of the Building to
conform to such rules and regulations; and
(k) Not to do or suffer to be done, or to keep, or to suffer to be kept, or
admit to do anything in, upon or about the demised premises which may prevent
the obtaining of any insurance on the Building, the Land or the demised premises
or which may make void or voidable any insurance on the Building, the Land or
the demised premises.
ARTICLE
USE OF DEMISED PREMISES
Section 1. The Lessee shall have the right to use the demised premises for
office use, manufacturing, research and development and for equipment storage
and handling and for no other purposes whatsoever, but in no event shall Lessee
conduct at the demised premises any use or do anything which is offensive,
constitutes a nuisance or violates any provisions of any zoning, building or
other applicable laws, ordinances or regulations.
Section 2. Lessee further agrees to conform to the following provisions
during the entire term of this Lease or any extensions thereof.
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(a) Lessee shall not permit any auction, fire, going-out-of business, or
bankruptcy sales or any retail sales whatsoever to be conducted with the demised
premises, without the prior written consent of the Lessor, which shall not be
unreasonably witheld;
(b) Lessee shall not use the sidewalks, parking areas or other outside
areas for advertising or business purposes or otherwise obstruct the same,
without the prior written consent of the Lessor, which shall not be unreasonably
witheld;
(c) Lessee shall be responsible for maintaining its own exterior trash
receptacle and for all trash removal. The location of said receptacle shall be
subject to Lessor's approval which shall not be unreasonably withheld; Lessee
shall keep the area around said trash receptacle neat, clean and free of all
refuse and the like;
(d) Lessee shall take whatever measures are necessary to insure that
floor load limitations are not exceeded in the demised premises;
(e) Lessee shall not cause any offensive odors or loud noise (including,
but without limitation, the use of loudspeakers), nor take nor permit any action
which constitutes a nuisance or menace to any other occupant of other premises
in the Building and in no event shall any loud noises or offensive odors be
emitted from the demised premises; and
(f) No merchandise or advertising materials shall be placed in windows nor
be visible from the demised premises.
ARTICLE VI
REPAIRS AND ALTERATIONS
Section 1. The Lessee shall keep the demised premises in a neat, clean,
sanitary condition and in good order and repair and in good working condition,
including all electrical, plumbing, gas, sprinkler, alarm and or other equipment
within or serving the demised premises (including without limitation the
maintenance, repair and/or replacement of the HVAC system serving the demised
premises), loading doors, entrance doors, all fixtures, interior walls, floors,
ceilings, signs (including exterior signs where permitted), interior bulb and
ballast replacements, and all interior building appliances and similar equipment
and the exterior and the interior portions of all windows, window frames, doors,
door frames, overhead doors and all other glass or plate glass thereon. In
connection
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therewith, and without limiting Lessee's obligations hereunder, Lessee shall
perform the maintenance as set forth on the HVAC maintenance schedule attached
hereto as Exhibit D and made a part hereof.
Section 2. The Lessor shall, at its expense, promptly after receipt of
written notice from the Lessee, make any necessary Structural Repairs to the
Building or the demised premises, except where such repairs are required by
reason of any act or negligence or omission on the part of the Lessee, its
employees, agents, licensees, suppliers, contractors, guests or invitees. The
Lessor shall commence repairs to be made by it as promptly as practical after
the receipt of such notice provided, however, that the Lessor (without limiting
Section 14 of Article XXII hereof), shall not be liable for a delay in
commencement of the making of such repairs or for a delay or failure to complete
such repairs where such delay or failure is attributable to strikes or other
labor conditions, inability or difficulty in obtaining materials or services,
wars, delays due to the weather, other cause beyond the reasonable control of
the Lessor.
Section 3. The Lessor shall be responsible for the maintenance of the grass
and shrubs on the Land and shall be responsible for maintaining, repairing and
lighting of common areas of the building and maintaining, repairing, lighting
and removing snow, ice and debris from the parking areas and driveways on the
Land. The Lessee shall be responsible for the removal of snow and ice from the
walkways, steps and loading door areas adjacent to its demised space and shall
pay 100% of the costs associated with the same. The Lessee shall pay 100% of the
costs for the items listed m this Section if the necessity to repair the same is
due to the willful or negligent acts of the Lessee
Section 4. All costs paid or incurred by Lessor in performing any of its
obligations under this Article VI (except for Structural Repairs or exceptions
set forth in Section 2 hereof and Article III, Section 8) shall be included in
Lessee's CAM charge as set forth in Article III, Sections 6,7, and 8.
Section 5. The Lessee shall at the expiration or earlier termination of
this Lease remove its goods and effects and peaceably yield up the demised
premises, clean and in the same order, repair and condition as at the
Commencement Date of the term hereof, reasonable wear and tear excepted
(provided good maintenance practices are employed), except for repairs which the
Lessor agrees to make as herein provided and except for damage by fire or
insured casualty, and Lessee shall promptly repair any injury done to the
demised premises, the Building or the Land by the installation or removal of the
Lessee's fixtures or other property
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Section 6. The Lessee shall have the right at its expense to make
alterations, improvements or additions to the interior of the demised premises,
provided that:
(a) No such alteration. addition or improvement shall lessen the fair
market value of the demised premises or the Building and any such alteration,
addition or improvement shall be done in accordance with all applicable law, in
a good and workmanlike manner with good quality materials and shall not impair
the safety of the structure of the Building;
(b) Any such alteration, addition, or improvement shall be made in
accordance with previously prepared plans and specifications, and such plans and
specifications, and such plans and specifications must have the written approval
of the Lessor before any work thereon shall be commenced. Lessor's consent shall
not be unreasonably withheld:
(c) Prior to the commencement of work on any such alteration, addition, or
improvement, the plans and specification covering the same shall have been
submitted to and approved by:
1. All municipal or other governmental departments or agencies having
jurisdiction over the subject matter thereof, and
2. Any mortgagee having an interest in or lien upon the Building or
the Land, if required by the terms of the mortgage, it being understood that
the Lessor will join in any application to any such mortgagee to obtain such
approval with respect to any alteration, addition, or improvement which the
Lessor shall have approved under subparagraph (b) above; and
(d) The Lessee shall pay the increased premium, if any, for the insurance
coverage of the demised premises or the Building resulting from any additional
risk during the course of construction or installation of any such alteration,
addition or improvement or resulting from such alteration, addition or
improvement;
All additions, improvements and fixtures (other than the usual trade
fixtures, furniture and equipment installed by the Lessee which may be removed
from the demised premises without injury thereto) which may be made or
installed by either the Lessor or the Lessee and which are attached to a floor,
wall or ceiling, including any linoleum or other floor covering of similar
character, shall remain upon the demised premises, and at the expiration or
earlier termination of this Lease shall be surrendered with the demised premises
as a part thereof.
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Any trade fixtures furniture and equipment owned by the Lessee which may
be removed from the demised premises without injury thereto shall remain the
property of the Lessee and shall be removed by the Lessee from the demised
premises without injury thereto prior to the expiration or earlier termination
of this Lease. In the event Lessee fails to remove said fixtures, furniture
and/or equipment prior to the expiration or earlier termination of this Lease,
they shall be deemed abandoned and may be disposed of by lessor in any way it
sees fit, and Lessor shall not be liable for disposal;
(e) Not withstanding anything contained in the foregoing to the contrary,
Lessee shall not, without the prior written consent of Lessor, make any
alteration to the demised premises which would (i) increase the amount of
electrical, HVAC or other utility consumption by Lessee; (ii) delay completion
of the demised premises or any other part of the Building; or (iii) affect any
mechanical, electrical, HVAC, sewer, septic or other utility system serving
the demised premises or the Building or the capacity thereof to serve other
occupants or lessees in the Building; and
(f) Lessor shall have the right to match any offer of any other qualified
and duly licensed party for such work and if it matches any such offer, to
perform such work based on the offer which it matches.
Section 7. Without limiting Lessee's obligations in this Lease or
elsewhere, Lessee shall promptly, after notice from the Lessor, repair at its
sole expense, any damage to the exterior of the demised premises, the Building
or to the utilities serving the demised premises (including the HVAC system), or
to the Land (including, without limitation, the paring areas, driveways,
walkways, and grass and shrubs located on the Land) caused by any act or the
negligence of the Lessee, its agents, licensees, suppliers, contractors or
guests.
Section 8. It is understood that Lessor's obligations under this Article
are subject to the provisions and limitations set forth in Articles XV and XVI.
ARTICLE VII
UTILITIES
The Lessee shall pay when due all charges for utility services provided to
the demised premises including, without limitation, electricity, gas, water,
sewer, telephone, and the cost of fuel to heat or air condition said demised
premises. If
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any of the utilities consumed by the demised premises are not metered separately
from that consumed by the remainder of the Building, or any portion thereof,
then the Lessee shall pay to Lessor, upon being billed therefor by Lessor,
Lessee's Pro-Rata Share of the aforesaid. The aforementioned share is based on
the assumption that utilities serving the demised premises will be used only for
ordinary office use. If any of the utilities consumed in the demised premises
are for other purposes or in excessive quantities or if Lessee's heating and/or
cooling requirements are materially greater than that of other tenants or
prospective tenants, then Lessee shall pay to Lessor, on demand from time to
time, charges for said additional utility use, as reasonably estimated by
lessor. If not installed at the Commencement Date, Lessor reserves the right to
install separate utility meters to measure utility consumption in the demised
premises. The cost of such meters and the cost of installation, repair,
maintenance and replacement of all meters serving the demised premises shall be
borne by Lessee. Lessee shall not overload the electrical wiring or electrical
panels within or serving the demised premises and will install at its own
expense, but only after obtaining Lessor's prior written approval, any
additional electrical wiring or panels which may be required in connection with
Lessee's Apparatus. Except for Lessor's negligence, the Lessor shall not be
liable for any interruption of electricity, gas, water, telephone, sewage and/or
septic system or other utility service supplied to the demised premises and
Lessor reserves the right to stop any service or utility to the demised
premises, when in Lessor's judgement it is deemed necessary by reason of
accident, emergency, repair work, or otherwise. No such interruption or stoppage
of utility service shall be deemed to be an eviction of the Lessee or relieve
Lessee from any of the Lessee's obligations under this Lease.
ARTICLE VIII
INDEMNITY AND PUBLIC LIABILITY INSURANCE
Section 1. From and after the Commencement date and until this Lease shall
be terminated, the Lessee shall assume exclusive control of the demised
premises, and all tort liabilities arising out of the control or occupancy
thereof and shall save the Lessor harmless and indemnified from all injury,
loss, claims or damage of whatever nature to any person or property in or about
the demised premises, the Building and/or the Land arising from any act,
omission or negligence of the Lessee or Lessee's subtenants or concessionaires
or the employees, agents, contractors, suppliers, licensees, invitees, or
customers of any of the foregoing or other wise resulting from Lessee's use,
maintenance and occupancy of the demised premises or anything or facility kept
or used thereon provided such injury, loss, claims or damage are not caused by
the negligent acts
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or omissions of Lessor or Lessor's other tenants, employees, agents,
contractors, suppliers, licensees, invitees or customers. Upon request of
Lessor, the Lessee shall take over Lessor's defense in any action related to
such matter for which Lessee has agreed to indemnify Lessor. The provisions
hereof shalt survive expiration or termination of this Lease.
Section 2. Lessee agrees to maintain in full force during the term hereof
and any extensions thereof a policy of comprehensive general liability and
property damage insurance under which the Lessor is named as additional
insured. Lessee will also name as additional insureds under each policy each
person or entity in privity of estate with the Lessor (including, without
limitation, each mortgagee with respect to the Land and Improvements) as Lessor
may require from time to time by written notice. Each such policy shall be
non-cancelable with respect to the Lessor and Lessor's designees without ten
(10) days prior written notice to Lessor and a duplicate original or certificate
thereof shall be delivered to Lessor. The limits of liability of such insurance
shall be not less than One Million and No/100ths ($1,000.000.00) Dollars for
injury (or death) to any one person and Five Hundred Thousand and No/100ths
($500,000.00) Dollars with respect to damage to property.
Section 3. Neither the Lessor nor any agent or employee of the Lessor shall
be liable for any loss or damage to the person or property of the Lessee or of
any subtenant or concessionaire, or of any employee, customer, licensee,
invitee, contractor or supplier, or guest of any of the foregoing, except where
such damage is attributable to the negligent acts or omissions of the Lessor,
its agents or employees. Without in any way limiting the generality of the
foregoing and except where any such damage is caused by the negligent acts or
omissions of the Lessor, its agents, contractors, suppliers or employees, the
Lessor, its agents or employees shall not be liable in any event, for any such
damage resulting:
(a) from the interruption to business resulting from theft, fire,
explosion, falling plaster, steam, gas, electricity, water, rain or snow or
leaks from any part of said demised premises or from the pipes, appliances or
plumbing or from dampness or any other cause;
(b) from any hidden defect in, under or upon the demised premises, the
building or the Land, except any such Pre-existing Environmental Condition;
and/or
(c) from acts or omissions of persons occupying adjacent premises or
otherwise entitled to use the Building and/or Land.
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Section 4. Lessor shall not be liable to Lessee for any compensation or
reduction of rent by reason of inconvenience or annoyance or for loss of
business arising from power losses or shortages or from the necessity of
Lessor's entering the demised premises for any of the purposes in this Lease
authorized, or for repairing the demised premises or any portions of the
Building or Land in accordance herewith, nor shall any such entry, interruption
or similar event give rise to a claim in Lessee's favor that such event
constitutes actual or constructive, total or partial, eviction from the demised
premises. Nothing contained herein shall be deemed to exonerate Lessor from its
own negligent acts or omissions.
ARTICLE IX
FIRE AND EXTENDED COVERAGE INSURANCE
Section 1. The Lessee shall not be named as insured under any fire or
extended coverage insurance on the demised premises or the Building nor have
any right to participate in the adjustment of loss or to receive insurance
proceeds.
Section 2. The Lessee shall, at its own expense, maintain fire and
comprehensive casualty insurance of adequate amounts with respect to its own
fixtures, merchandise, equipment and other property contained in the demised
premises, it being understood that all merchandise, furniture, fixtures, effects
and property of every kind of the Lessee which may be in the demised premises,
or the Building or on the Land shall be at the sole risk and hazard of the
Lessee.
ARTICLE X
SIGNS
All Lessee's signs shall conform to the rules and regulations of the Town
of Wilmington and any applicable law, rule, ordinance or code governing the
area in which the Building is located and shall be simple and dignified in
appearance and constructed of durable materials and shall be installed at
Lessee's sole expense. Lessee shall maintain and keep in good repair any signs
erected by it. Lessee shall be responsible for any repairs to the demised
premises or the Building related to the erection of said signs. Any signs which
Lessee may desire to erect shall first be approved in writing by Lessor which
consent shall not be unreasonably withheld or delayed. Lessee shall remove all
of its signs upon expiration of the term or earlier termination and shall
promptly repair any damage related to the erection or removal of said signs.
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ARTICLE XI
ASSIGNMENT OR SUBLETTING
The Lessee shall not assign nor permit any assignment by mortgage,
operation of law or otherwise of this Lease nor underlet any portion of the
demised premises nor permit the occupation of the whole or any part thereof by
another by license or otherwise without the prior written consent of the
Lessor, which consent shall not be ureasonably witheld. No consent by the
Lessor to an assignment, sublease or other indulgence or favor at any time
granted by the Lessor to Lessee or to anyone claiming under the Lessee, nor
acceptance of rent from or otherwise dealing with, anyone claiming under the
Lessee, shall be deemed to constitute any consent to any further assignment,
sublease or otherwise or relieve the Lessee from its obligations under this
Lease and Lessee hereby guarantees the prompt and timely payment of all rent,
additional rent and other charges hereunder. It shall be a condition of the
validity of any such assignment or underletting that the assignee or sublessee
agrees directly with Lessor by written instrument in form satisfactory to
Lessor to be bound by all the obligations of the Lessee hereunder, including
without limitation the obligation to pay rent and other amounts provided for
under this Lease and the covenant against further assignment and subletting.
Any transfer or assignment of any of the stock or other equity interest in
Lessee shall be deemed to constitute an assignment barred by this Article XI
(except that the provisions of this sentence shall not apply to the original
Lessee hereunder, namely Centennial Technologies, Inc.).
In any case where Lessor consents to an assignment of this Lease, Lessor
shall be entitled to receive One Hundred percent (100%) of all amounts received
by Lessee in connection with such assignment (unless such assignment is made in
connection with a sale of all or substantially all of the assets of Lessee's, in
which case Lessor shall not be entitled participate in such proceeds). Further,
in the event of any subletting of the demised premises, Lessor shall be entitled
to receive One Hundred percent (100%) of all Subleasing Overages (as said term
is hereinafter defined). As used herein, the term "Subleasing Overages" shall
mean, for each period in question, all amounts received by Lessee in excess of
Annual Base Rent and Additional Rent reserved under this Lease attributable to
the space sublet (including, without limitation, all lump sum payments made in
connection therewith). Subleasing Overages shall not include the price paid to
Lessee for equipment or personal property transferred to the assignee or
subtenant in connection with such transaction. In computing Subleasing Overages
or the amount due Lessor under this Paragraph upon as assignment of this Lease,
Lessee shall be entitled to deduct (a) leasing commissions paid by Lessee in
connection with any such sublease or assignment and (b) actual out of pocket
costs paid by
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Lessee for improvements required to be made to the demised premises by, and at
the expense of, Lessee in order to initially prepare the demised premises for
use by any such sublessee or assignee pursuant to the terms of such sublease or
assignment.
ARTICLE XII
SUBORDINATION
Section 1. The Lessee shall from time to time, within ten (10) days written
demand of Lessor, either (as demanded by Lessor) subordinate this Lease or make
this Lease superior to any existing and/or future Mortgage heretofore or
hereafter placed upon the Land and to any renewal modification, replacement or
extension of such Mortgage, and to any and all advances made or to be made
thereunder, provided that said Mortgagee enter into an agreement with Lessee by
the terms of which the Mortgagee under said Mortgage will agree that in the
event of foreclosure thereof, said Mortgagee will not disturb the possession of
the Lessee under the lease so long as the Lessee is not in default hereunder and
the Lessee will agree to recognize the holder of such Mortgage as the Lessor in
such event, which agreement shall be made expressly binding upon the successors
and assigns of the Lessee, and the Mortgagee and upon anyone purchasing said
demised premises or Building at any foreclosure sale. Notwithstanding the
foregoing, if requested by Lessor or a Mortgagee of the demised premises, Lessee
agrees to promptly execute a Subordination and Attornment Agreement
substantially in the form attached hereto as Exhibit E and failure to execute
such an agreement promptly upon request shall be a default under this Lease. The
Lessee and the Lessor agree to execute and deliver any instruments necessary, to
carry out the agreements in this Section contained. Any such Mortgage to which
this Lease shall be subordinated or be made superior may contain such other
terms, provisions and conditions as the Mortgagee deems usual or customary. The
Lessee hereby irrevocably appoints the Lessor and any successor or assign its
attorney-in-fact (which appointment is coupled with an interest) to execute and
deliver any such instrument of subordination for and on behalf of the Lessee and
its successors and assigns
Section 2. If any Mortgagee elects, by written notice given to the Lessee,
to have this lease and the interest of the Lessee hereunder superior to any such
Mortgage then this lease and the interest of the Lessee hereunder shall be
deemed superior to any such Mortgage whether this lease was executed before or
after such Mortgage.
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Section 3. Lessee will upon request by Lessor or any Mortgagee, from time
to time, execute and deliver to such party (a) an "Estoppel Letter", so-called
in form satisfactory to each party and/or (b) a copy of every notice of default
delivered by Lessee to Lessor at the same time and in the same manner as to
Lessor and/or (c) an agreement consenting to an assignment of this lease to such
party and acknowledging such assignment.
Section 4. For purposes hereof the term "Mortgage" shall mean any real
estate mortgages, ground leases, deeds of trust, security agreements or
indentures affecting the Land or Building, the term "Mortgagee" shall include
the holder of any such real estate mortgage, any ground lessor or any trustees
or holders of any such security agreements or indentures.
ARTICLE XIII
SELF HELP
If the Lessee shall default in the performance or observance of any
agreement or condition in this Lease contained on its part to be performed or
observed, and shall not cure such default with thirty (30) days after written
notice from Lessor specifying the default (or, if said default cannot
reasonably be expected to be cured within such thirty (30) day period, shall
not within said period commence to cure such default and thereafter prosecute
the curing of such default to completion with due diligence, Lessor may, at its
option, without waiving any claim for breach of agreement, at any time
thereafter cure such default for the account of Lessee, and make all necessary
payments in connection therewith, including but not limiting the same to
reasonable counsel fees, costs or charges of or in connection with any legal
action which may have been brought, and any amount paid by Lessor in so doing
shall be deemed paid for the account of Lessee and Lessee agrees to reimburse
Lessor therefor with interest thereon at Twelve percent (12%) per annum, such
sums payable by Lessee to Lessor to be deemed per additional rent provided that
Lessor may cure any such default as aforesaid prior to the expiration of any
waiting or cure period but after Lessor has exerted best efforts to give actual
notice (by telephone or otherwise) if the curing of such default prior to the
expiration of said waiting or cure period is reasonably necessary to protect the
real estate or Lessor's interest therein, or to prevent injury or damage to
persons or property.
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ARTICLE XIV
WAIVER OF SUBROGATION
Lessor and Lessee each hereby release the other from any and all liability
or responsibility to the other (or anyone claiming through or under them by way
of subrogation or otherwise) for any loss or damage to the demised premises or
property thereon against which the waiving party is protected by insurance (but
only to the extent that the waiving party is actually indemnified to such
insurance), even if such loss or damage shall have been caused by the fault or
negligence of the other party, or anyone for whom such party may be responsible,
provided, however, that this release shall be applicable and in force and effect
only with respect to loss or damage occurring during such time as the releasor's
policies shall contain a clause or endorsement to the effect that any such
release shall not adversely affect or impair said policies or prejudice the
right of the releasor to recover thereunder. Lessor and Lessee each hereby agree
that it shall cause such a clause or endorsement to be included in its insurance
policies with respect to the demised premises, if available, and, if necessary,
pay an additional premium that may be charged therefore.
ARTICLE XV
DAMAGE BY FIRE, ETC.
Section 1. If the demised premises or the Building shall be damaged or
destroyed by fire, windstorm or any other insured casualty, the Lessee shall
immediately give notice, thereof to the Lessor and unless this Lease is
terminated as hereinafter provided, the Lessor, at his own expense, shall repair
or rebuild the same so as to restore the demised premises to substantially the
same condition they were in immediately prior to such damage or destruction,
subject, however, to zoning and building laws then in existence, provided that
the Lessor shall not be responsible for any delay in such repair or
reconstruction which may result from any cause beyond its reasonable control,
and provided further that Lessor shall not be required to expend more than the
net amount of insurance proceeds, if any received, by Lessor for such purposes
it being understood that the application of insurance proceeds is subject to the
right of any first mortgagee of the demised premises. Notwithstanding the
foregoing, if Lessor does not repair or rebuild the demised premises so as to
restore the demised premises to substantially the same condition they were in
immediately prior to the destruction, within One Hundred Eighty days (180)
following the date of such damage or destruction, then Lessee may elect to
cancel this Lease upon notice to Lessor.
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Section 2. If either the demised premises or the Building shall be damaged
or destroyed to the extent of twenty-five percent (25%) or more on a square
footage basis by any cause (whether insured against by the Lessor or not), the
Lessor may elect by written notice to Lessee either to terminate this Lease
or to repair or rebuild on the conditions set forth in Section 1.
Section 3. If the demised premises or the Building shall, within the last
year of the original term of this lease or the last year of the extended term
hereof, be damaged or destroyed by any cause to such an extent that the same
cannot reasonably be expected to be restored to substantially the same condition
as prior to such damage or destruction within ninety (90) days from the time
that such repair or restoration would be commenced, then shall have the right to
terminate this Lease by notice to given within sixty (60) days after the
occurrence of such damage or destruction.
Section 4. In the event that the demised premises or Building is damaged or
destroyed by any cause, then, unless this Lease is terminated as provided above,
the Lessee at its own expense and proceeding with all reasonable dispatch, shall
repair or replace its trade fixtures, equipment, signs or other property
installed by or belonging to Lessee which shall be damaged or destroyed.
Section 5. If this Lease is not terminated as above provided, then, from
and after such damage which is material and until demised premises are restored
as above provided, the rent reserved hereunder shall abate either wholly or
proportionately according to the nature and extent of the injury.
ARTICLE XVI
EMINENT DOMAIN
Section 1. If, as a result of any taking by eminent domain, which shall be
deemed to include a voluntary conveyance in lieu of a taking, the total floor
area remaining in the demised premises shall be reduced to less than
seventy-five percent (75%) of the total floor area in the demised premises at
the commencement of the term hereof, then at the election of either party,
exercisable by written notice given to the other within ninety (90) days after
the date of the filing of the notice of such taking, this lease may be
terminated as of the date when the Lessee is required to vacate the demised
premises or the portion thereof so taken notwithstanding that the entire
interest of the Lessor may have been divested by such taking, and if following
any such taking either party does not terminate the
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lease, then the Lessor, at the Lessor's expense, but only to the extent of the
award actually received by the Lessor for any such taking (subject to the rights
of any first mortgagee of the demise premises) and proceeding with all
reasonable dispatch (but not later than three (3) months) shall do such work as
may be required to put what may remain of the demised premises in proper
condition for the conduct of the Lessee's business and the Lessee, at the
Lessee's expense (but only to the extent of the award actually received by the
Lessee for any such taking) and proceeding with all reasonable dispatch, shall
make such alterations, repairs and replacements of the trade fixtures,
equipment, signs or other property installed by or belonging to the Lessee as
may be necessary to put the remainder of the demised premises in proper
condition for the Lessee's business. From and after the date on which the Lessee
is required to vacate the portion of the demised premises so taken, a just
proportion of the rent reserved herein according to the nature and extent of the
taking of the demised premises shall be abated until the demised premises are
restored to such condition that the Lessee can commence business therein and
provided such restoration is completed with three (3) months of the date of such
taking, and from and after the date on which the Lessor shall restore the
demised premises in the manner above provided the rent shall be reduced in the
proportion that the floor area of the portion of the demised premises so taken
bears to the floor area of the demised premises at the commencement of the term
hereof.
Section 2. In the event of a taking as defined herein, of twenty-five
percent (25%) or more of the Land or the Building and even though such taking
leaves at least fifty percent (50%) or more of the floor area of the demised
premises remaining, either party shall nonetheless have the right to terminate
this Lease by notifying the other party of their election to terminate within
ninety (90) days after the final determination of the amount of the award or to
permit Lessor to restore any part of the demised premises so remaining and in
the case of such restoration the rent shall be abated to the extent provided
above.
Section 3. The Lessor reserves and excepts all rights to damages to the
Land, the Building, the demised premises and the leasehold hereby created, or
awards with respect thereto, then or thereafter accruing by reason of any taking
by eminent domain or by reason of anything lawfully done or required by any
public authority, and the Lessee grants to the Lessor all the Lessee's rights,
if any, to such damages except with respect to the value of its personal
property and its relocation expenses, which may be compensable by a separate
award and shall execute and deliver to the Lessor such further instruments of
assignment thereof as the Lessor may from time to time request.
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ARTICLE XVI
DEFAULT
Section l. This Lease is made on the condition that if the Lessee shall
fail to perform an any obligation hereunder and such failure shall continue for
ten (10) days after written notice of such default in the case of payment of
Annual Base Rent, Additional Rent, or in payment of any other sums due under
this Lease or for thirty (30) days after written notice of default (which
said notice shall specify the nature of said default) in the case of any other
obligation (or, if said default cannot reasonably be expected to be cured
within such thirty (30) day period, Lessee shall not within such thirty (30) day
period promptly commence to cure such default and thereafter prosecute the
curing of such default to completion with due diligence) or if the estate hereby
created shall be taken on execution or other process of law, or if the Lessee
shall be declared bankrupt or insolvent according to law, or if the Lessee shall
make or offer to make, in or out of bankruptcy, a composition with the Lessee's
creditors, or if the Lessee shall make an assignment for the benefit of its
creditors, as if the Lessee shall commit any act of bankruptcy, or if a
receiver, trustee or other officer shall be appointed to take charge of all or
any substantial part of the Lessee's property by a court, or if a petition
shall be filed by or an "arrangement" under the Bankruptcy Code or under any
other provisions of the Bankruptcy Code or any successor or similar State or
Federal statute or regulation not or hereafter in effect, and the same, if filed
against but not by Lessee, shall not be dismissed within thirty (30) days after
the date on which it is filed, then and in any' of the said cases,
notwithstanding any prior waivers or consent, the Lessor lawfully may, in
addition to and not in derogation of any remedies for any preceding breach of
covenant, immediately or at any time thereafter and without prior demand or
prior notice (i) terminate this lease by notice in writing forthwith, or on a
date stated in said notice, (2) with or without process of law (forcibly, if
necessary) enter into and upon the demised premises or any part thereof in the
name of the whole and repossess the same as of the Lessor's former estate, and
(3) expel the Lessee and those claiming through or under the Lessee and remove
its and their effects, without being deemed guilty of any manner of trespass
and without prejudice to any remedies which might otherwise be used for arrears
of rent or preceding breach of covenant, and upon entry as aforesaid this Lease
shall terminate, the Lessee hereby waiving all statutory rights, and in such
case of such termination or termination by reason of default on the part of the
Lessee, the Lessee shall at the election of the Lessor, which election may be
changed at any time:
(a) pay to the Lessor in equal monthly installments, in advance, sums equal
to the aggregate rent herein provided for or, if the demised premises have
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been relet, sums equal to the excess of the aggregate rent herein provided for
over the sums actually received by the Lessor from such reletting as well as any
reasonable expenses incurred by the Lessor as a consequence of such default or
in such reletting including, but not limited to, reasonable attorneys' fees,
brokers' fees, and expenses of repairing and putting the demised premises in
good order and condition and preparing the same for re-rental. Such sums being
payable as liquidated damages for the unexpired term hereof; or
(b) pay to the Lessor as damages a sum which at the time of such
determination or at the time to which installments of liquidated damages shall
have been paid represents the amount by which the then rental value of the
demised premises is less than the aggregate rent herein provided for the residue
of the term and pay from time to time to the Lessor, upon demand, such
additional sums as are equal to the excess, if any, of the aforesaid rental
value of the demised premises over the rent actually received by Lessor for the
premises for the period from such termination, or from the time to which
installments of liquidated damages shall have been paid; or from the time to
which these additional sums may have been paid by Lessee under this paragraph
whichever the case may be, to the time for which the Lessor may specify in its
demand hereunder (but in no event to the time later than the expiration of the
term hereof), plus, in any case, reasonable expenses of the Lessor by way of
reasonable attorneys' fees or otherwise, in connection with such default; or
(c) indemnify the Lessor against loss of the aggregate rent herein provided
for from the time of such termination or from the time to which installments of
liquidated damages shall have been paid to the expiration of this term hereof as
above set forth, plus, in any case, reasonable expenses of the Lessor by way of
attorneys fees, or otherwise, in connection with such default.
For the purposes of this Article, the phrase "aggregate rent" as used
herein, shall include the Annual Base Rent as adjusted from time to time, and
all Additional Rent payable hereunder.
In the event of a default by the Lessee as above provided, if the Lessor
shall elect not to terminate this Lease, it may relet the demised premises or
any part or parts thereof in the name of either the Lessor or the Lessee, for a
term or terms which may, at the Lessor's option, extend beyond the balance of
the term of this Lease and may remove and store the Lessee's effects at the
Lessee's expense, and the Lessee agrees that in the event of such reletting the
Lessee shall pay Lessor any deficiency between the aggregate rent to be paid
hereunder and the net amount of the rents collected during such reletting as
well as any expenses reasonably incurred by the Lessor as a consequence of such
default or in such reletting,
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including but not limited to, reasonable attorneys' fees, brokers' fees and
expenses of repairing and putting the demised premises in good order and
preparing the same for re-rental. Such deficiency shall be paid in monthly
installments upon statements rendered by the Lessor to the Lessee.
Section 2. All rights and remedies which the Lessor may have under this
Lease shall be cumulative and shall not be deemed inconsistent with each other,
and any two or more of such rights and remedies may be exercised at the same
time insofar as permitted by law.
Section 3. The Lessor shall not be deemed to be in default hereunder unless
its default shall continue for thirty (30) days or such additional time as is
reasonably required to correct its default, after written notice thereof has
been given by the Lessee to the Lessor specifying the nature of the alleged
default. In no event shall Lessor be liable for consequential or incidental
damages, nor shall damages exceed the reasonable costs of performing the
obligations of Lessor hereunder.
Section 4. Any payment of Annual Base Rent or Additional Rent payable
hereunder not paid after ten (10) days of when due shall, at the option of
Lessor, bear interest at a rate equal to three (3%) percent over the prime rate
in effect from time to time at the First National Bank of Boston (but in no
event higher than the maximum rate permitted pursuant to Law) from the due date
thereof forthwith upon demand by Lessor.
Section 5. All costs or expenses incurred by or on behalf of Lessor
(including without limitation attorney's fees and expenses) in enforcing
Lessor's rights hereunder shall be considered additional rent and be payable to
Lessor upon Lessor's demand thereon.
ARTICLE XVIII
NOTICES
Any notice, request, demand or other communication required or permitted by
this Lease shall, until either party notifies the other in writing of a
different address in accordance herewith, be deemed to be duly given if in
writing and sent by registered or certified first class mail, postage prepaid,
return receipt requested addressed as follows:
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If to LESSOR:
Howland Development Company
c/o David P. Spada, Esq.
155 West Street
Wilmington, MA 01887
If to Lessee:
Centennial Technologies, Inc.
37 Manning Road,
Billerica, Massachusetts 01821
ARTICLE XIX
BROKERAGE
Lessor and Lessee each warrants and represents to the other that it has not
dealt with any broker in connection with this Lease or the demised premises,
except only Cushman & Wakefield of 101 Arch Street, Boston, Massachusetts and
The Stubblebine Company of 45 Walden Street, Concord, Massachusetts (the
"Brokers"). Lessee hereby agrees to pay the Brokers Thirty Nine Thousand Two
Hundred Seventy and 00/100ths Dollars as the full Lease brokerage commission
(the "Commission"). Said Commission shall be split between the Brokers on a
fifty percent (50%) basis to each, respectively. Said Commission shall be paid
upon Lease execution by both parties hereto. Lessor and Lessee each agrees to
defend, indemnify and hold the other harmless from and against any and all
claims for brokerage fees and commissions (except with respect to the
above-named Brokers) by any broker claiming to have dealt with it in connection
with this Lease.
ARTICLE XX
TERM "LESSEE'S PRO-RATA SHARE"
Lessee and Lessor hereby agree that the total leasable square footage for
the demised premises is 34,084 square feet and the total leasable square footage
of the Building at the Commencement Date is 68,168 square feet. As used in this
Lease the term "Lessee's Pro-Rata Share" shall mean Fifty percent (50%) of the
respective item, so long as there are no additions to the Building. If any
additions
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are made to the Building, then such term shall mean a fraction of the respective
item, the numerator of which fraction shall be the then total leasable square
footage of the demised premises and the denominator of which shall be the then
total leasable square footage of floor area of the Building.
Section 1. Intentionally Deleted
Section 2. Intentionally Deleted
ARTICLE XXII
MISCELLANEOUS PROVISIONS
Section 1. No consent or waiver, express or implied, by the Lessor to or of
any breach in the performance by the Lessee of its agreements hereunder shall
be construed as a consent or waiver to or of any other breach in the
performance by the Lessee of the same or any other covenant or agreement. No
acceptance by the Lessor of any rent or other payment hereunder, even with
the knowledge of any such breach, shall be deemed a waiver thereof nor shall any
acceptance of rent or other such payment in a lesser amount than is herein
required to be paid by the Lessee regardless of any endorsement on any check or
any statement in any letter accompanying the payment of the same be construed as
an accord and satisfaction or in any manner other than as a payment on account
by the Lessee. No reference in this Lease to any sublessee, licensee or
concessionaire, or acceptance by the Lessor from other than the Lessee of any
payment due hereunder shall be construed a consent by the Lessor to any
assignment or subletting by the Lessee, or give the Lessee any right to permit
another to occupy any portion of the demised premises, except as herein
expressly provided. No waiver by the Lessor in respect to any other tenant shall
constitute a waiver with respect to any other tenant. Failure on the part of the
Lessor to complain of any action or non-action on the part of the Lessee or to
declare the Lessee in default, no matter how long such failure may continue
shall not be deemed to be a waiver by the Lessor of any of its rights hereunder.
Section 2. In no case shall mention of specific instances under a more
general provision be construed to limit the generality of said provisions.
Section 3. The delivery of keys to Lessor or any employees of Lessor or the
Lessor's agent or any employee thereof shall not operate at a termination of
this Lease or a surrender of the demised premises.
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Section 4. If the Lessee continues to occupy the demised premises after the
termination hereof, it shall have no more rights than a tenant by sufferance,
but shall be liable for one hundred and fifty (150%) percent of the aggregate
rental as above determined during such occupancy, and shall be liable for any
loss or expense due to such holding over. Nothing in this section shall be
construed to permit such holding over.
Section 5. If any provision of this Lease or the application thereof to any
person or circumstance shall be to any extent invalid or unenforceable the
remainder of this Lease and the application to persons or circumstances other
than those as to which it is invalid or unenforceable shall not be affected
thereby and each term and provision of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
Section 6. Lessor agrees that upon Lessee's paying the rent and performing
and observing the agreements conditions and other provisions on its part to be
performed and observed, Lessee shall and may peaceably and quietly have, hold
and enjoy the demised premises during the term of this Lease and any extension
thereof without any manner of hindrance or molestation from Lessor or anyone
claiming under Lessor, subject, however, to the terms and provisions of this
Lease.
Section 7. The conditions and agreements in this Lease contained to be kept
and performed by the parties hereto shall be binding upon and inure to the
benefit of said respective parties, their legal representatives, successors and
assigns, and the same shall be construed as covenants running with the land.
Wherever in this Lease reference is made to either of the parties, it shall be
held to include and apply to the successors and assigns of such party as if
in each so expressed, unless the context requires otherwise and regardless of
the number or gender of such party, provided however, that the term "Lessor" as
used in this Lease means only the owner for the time being of the Land, so that
in the event of any sale or sales of the Land and demised premises or of this
Lease, the Lessor shall be and hereby is entirely released of all covenants and
obligations of the Lessor hereunder, except for those defaults or for the
negligent acts or omissions of Lessor, its agents, employees or contractors,
occurring at the time of Lessor's ownership of the demised premises.
Section 8. This Lease shall constitute the only agreement between the
parties relative to the demised premises and no oral statements and no prior
written matter no specifically incorporated herein shall be of any force or
effect. In entering into this Lease, the Lessee relies solely upon the
representations and
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agreements contained herein. This agreement shall not be modified, except by
writing executed by both parties.
Section 9. All provisions in this Lease dealing with indemnity and the
like by the Lessee of the Lessor shall be deemed to be modified in each case by
the insertion in the appropriate place of the language "except as otherwise
provided in Massachusetts General Laws Ter.Ed.C. 186, Section 15.
Section 10. The section and article headings throughout this instrument are
for convenience and reference only and shall in no way be held to limit,
define or describe the scope or intent of this Lease or in any way affect this
Lease.
Section 11. If the Lessor shall at any time be an individual, joint
venture, tenancy in common, joint tenancy, firm or partnership (general or
limited), or a trust or trustees of a trust, it is specifically understood and
agreed that there shall be no personal liability of any individual or any joint
venture, tenant, partner (general or limited), trustee, shareholder, beneficiary
or holder of a beneficial interest under any of the provisions hereof or arising
out of the use or occupation of the demised premises by Lessee. The obligations
of Lessor shall in all events be binding upon Lessor's equity in the Building
and Land only, all in accordance herewith, it is further understood and agreed
that the liability of any party who is a Lessor (whether the original lessor or
any successor Lessor) shall be limited to defaults occurring or arising during
the period for which such party shall have been a Lessor, and such party shall
not be liable for default occurring or arising at any time before such party
obtained its interest as Lessor or after such party disposed of its interest as
Lessor. Lessee agrees that it shall look solely to the Lessor's interest in the
Land and Building for satisfaction of any liability of Lessor in respect of this
lease and will not seek recourse against any other assets of Lessor for such
satisfaction, it being understood that each agreement, obligation and liability
of Lessor under this lease or otherwise is made, entered into and incurred on
the express condition that Lessee's only recourse under this lease or otherwise
or in the event of a default by Lessor under any such agreement or obligation or
in the event of any liability of Lessor hereunder or otherwise, shall be
limited solely to Lessor's interest in the Land and Building.
Section 12. In the event that prior to the Commencement Date any actual or
proposed holder of a first mortgage on the Building or Land shall demand that
this lease be modified or amended in any respect (other than those provisions
relating to rental, term, size or location of the demised premises and provided
that such modification shall in no event increase any of the Lessee's costs or
liabilities or obligations) and if Lessee shall fail to so modify or amend this
lease within fifteen (15) days after such demand, Lessee shall be deemed in
default under this
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Lease. Lessee agrees to give within ten (10) days of written request such
reasonable statements and certificates as may be requested by Lessor in
connection with a mortgage closing or the sale of the Building or Land, or any
portion thereof.
Section 13. This Lease shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts.
Section 14. In any case where either party hereto is required to do any
act, delays caused by or resulting from Acts of God, war, civil commotion, fire
flood or other casualty, labor difficulties, shortages of labor, materials or
equipment, government regulations, unusually severe weather, or other causes
beyond such party's reasonable control shall not be counted in determining the
time during which work shall be completed, whether such time be designated by a
fixed date, a fixed time, "promptly" or "a reasonable time", and such time shall
be deemed to be extended by the period of such delay. For the purpose hereof,
inability to pay normal charges incurred in connection with performance of an
obligation hereunder (including, without limitation, payment of annual base rent
or additional rent hereunder) does not constitute a cause beyond such party's
reasonable control.
Section 15. Lessee shall provide Lessor with annual certified financial
statements within sixty (60) days after the close of Lessee's fiscal year.
Section 16. Lessee shall not record this Lease, but upon request of either
party, both parties shall execute and deliver a notice of Lease, in form
satisfactory to Lessor and appropriate for recording, the costs of such notice
shall be born by the requesting party.
ARTICLE XXIII
PROHIBITION OF LESSEE ABANDONMENT
At all times during the Original Term, and any extension or renewal
thereof, Lessee agrees (i) to keep the demised premises adequately heated to the
extent necessary to prevent the pipes from freezing and to prevent
deterioration of the demised premises; (ii) to keep the demised premises
adequately secure as to prevent the entry of unauthorized persons; and (iii) to
fully and completely occupy the demised premises.
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ARTICLE XXIV
COMPLIANCE WITH ENVIRONMENTAL LAWS
Section 1. (a) Lessee shall not generate, store, dispose of, release, emit,
or otherwise handle or use any Hazardous Substances (as hereafter defined) in,
upon, under, within, on or from the demised premises, the building or the Land
except in compliance with an applicable Environmental Laws (as hereafter
defined).
(b) Lessee shall provide directly to Lessor copies of all
notices and documents filed with any Governmental Authority pursuant to the
Legal Requirements (including, without limitation, the Environmental Laws) with
regard to a release or threat of release of Hazardous Substances, provided,
however, that any confidential information provided to a Governmental Authority
which may be provided to Lessor shall be maintained as confidential by Lessor.
A copy of any notice or document from a Governmental Authority received by
Lessee alleging non-compliance with, or liability under a matter covered by
any of the Environmental Laws and involving the demised premises, the Building
or the Land shall be forwarded promptly to Lessor by Lessee. It is agreed and
understood that wherever used in this Lease, the term "Legal Requirements" shall
be deemed to include, without limitation, the Environmental Laws.
(c) Lessee shall at all times, at its own expense, maintain and
preserve secondary containment incidental to the storage of Hazardous
Substances on the demised premises, the Building or the Land to the extent
required by Environmental Laws and all Legal Requirements.
(d) Lessee shall maintain full, complete and current files of
all Material Safety Data Sheets ("MSDS") materials to the extent required by
Environmental Laws.
(e) Lessee will promptly inform Lessor of any release or threat
of release of Hazardous Substances. Except as required by law, Lessee shall not
submit to the Massachusetts Department of Environmental Protection ("DEP") or
any Governmental Authority any report or other information related to the
demised premises, the Building or the Land without furnishing a copy to the
Lessor at least 48 hours in advance of such submission, except in the case of
emergency or other direction by DEP or any Governmental Authority in which case
Lessee shall use reasonable efforts to furnish such copy to the Lessor in
advance as promptly as practicable and in any event within 48 hours after the
submission to DEP or any Governmental Authority.
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(f) Lessee shall, at its own expense, remove, clean up, remedy
and dispose of (in compliance with all applicable Legal Requirements) all
Hazardous Substances generated or released by Lessee or its officers,
directors, employees, contractors, servants, invitees or agents during the Term
of this Lease (or during such term as Lessee is in occupancy or possession of
any part of the demised premises, Building or Land) at or from the demised
premises, the Building and the Land in compliance with all Environmental Laws
and further, shall remove, clean up, remedy and dispose of all Hazardous
Substances located at, upon, under, within or in the demised premises, the
Building or the Land generated by or resulting from its operations, activities
or processes during the Term of this Lease (or such other periods of time as
Lessee may be in occupancy or in possession of the demised premises or any
portion of the Land or building), in compliance with all Environmental Laws. In
performing its obligations hereunder, Lessee shall use best efforts to avoid
interference with the use and enjoyment of the Building and the Land by other
tenants and occupants thereof. The provisions hereof shall survive expiration or
termination of this Lease.
Section 2. Lessee shall indemnify, defend and save harmless Lessor, its
officers, directors, employees, contractors, servants, invitees and agents from
and against all loss, costs, damages, claims, proceedings, demands, liabilities,
penalties, fines and expenses, including without limitation, reasonable fees and
costs for attorneys' fees, consultants fees, litigation costs and clean-up
costs (hereinafter collectively referred to as "Liability") asserted against or
incurred by Lessor, its officers, directors, employees, contractors, servants or
agents at any time by reason of or arising out of any (i) release or threat of
release of any Hazardous Substance at, in, upon, under, or from the demised
premises, the Building or the Land where such release or threat of release is
the result of or alleged to result from the acts or omissions of Lessee or its
agents, servants, employees, independent contractors or invitees, or (ii) any
violation or alleged violation of any Environmental Laws governing Hazardous
Substances, provided that any act, omission, event or circumstance giving rise
to such Liability or cleanup obligations occurred during the Lease Term (or any
such other periods of time as Lessee shall be in occupancy or in possession of
any portion of the demised premises, the Land or the Building). The indemnities
set forth in this Section shall survive expiration or termination of this Lease.
Section 3. In addition to the requirements set forth above, Lessee shall,
within ten (10) days of receipt, provide to Lessor copies of any inspection or
other reports, correspondence, documentation, orders, citations, notices,
directives, or suits from or by any Governmental Authority or insurer regarding
non-compliance with or potential or actual violation of Environmental Laws.
Lessor hereby
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expressly reserves the right to enter the demised premises and all other
portions of the Building and the Land in order to perform inspections and
testing of the air, soil and groundwater for the presence or existence of
Hazardous Substances.
Section 4. To the best of Lessor's knowledge, the Land and the Building are
free of any Hazardous Substances. Lessor hereby agrees to indemnify and hold
Lessee harmless from and against any and all "Remediation Costs" (as hereafter
defined) sustained or incurred by Lessee in the event that Lessee is required by
any state or federal agency to effect a remediation of any Hazardous Substances
(a) which may be located on the Land and the Building as of the date of this
Lease or (b) which Lessor its agents, employees, contractors or its invitees
(but not other tenants in the Building or the Land) may discharge onto the Land
or Building subsequent to the date hereof, unless such Hazardous Substances are
present or released as the result of the acts or omissions of Lessee or any of
Lessee's agents, servants, employees, contractors or invitees. As used herein,
the term "Remediation Costs" shall mean the cost of remediation and clean-up of
the Hazardous Substances which Lessee may incur as the result of any order of
the DEP, the U.S. Environmental Protection Agency or any State or Federal
Court of competent jurisdiction requiring that Lessee effect a remediation of
any Hazardous Substances.
Section 5. As used herein, the term "Hazardous Substances" shall mean and
include, without limitation, any material or substance which is (I) petroleum;
(ii) asbestos, (iii) designated as "hazardous substance" pursuant to Section 311
of the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq. (33 U.S.C.
1321) or listed in 307 of the Federal Water Pollution Control Act (33 U.S.C.
1317); (iv) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq. (42 U.S.C. 6903);
(v) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
9601 et seq. (42 U.S.C. 9601), as amended and regulations promulgated
thereunder; or (vi) defined as "oil" or a "hazardous waste," a "hazardous
substance", a "hazardous material" or a "toxic material" under any other law,
rule or regulation applicable to the Property, including, without limitation,
Chapter 21E of the Massachusetts General Laws, as amended and the regulations
promulgated thereunder. As used herein, the term "Environmental Laws" shall
mean, without limitation, each and every law, rule, order, statute or regulation
described above in Section 5, together with (I) any amendments thereto, or
regulations promulgated thereunder, and (ii) any other laws pertaining to the
protection of the environment or governing the use, release, storage or
generation of Hazardous Substances, whether now existing or hereafter enacted or
promulgated.
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ARTICLE XXV
COMMENCEMENT CONSTRUCTION
Section 1. The parties have signed an outline plan, together with detailed
written specifications, identified as Exhibit C, a copy of which is attached
hereto, describing the improvements to be provided and installed in the demised
premises by Lessor at its sole expense.
Section 2. Intentionally Deleted.
Section 3. Intentionally Deleted.
Section 4. If Lessor shall be unable to give possession of the demised
premises on the scheduled Commencement Date because the demised premises are not
completed and/or ready for occupancy, or if repairs, improvements or decorations
of the demised premises or of the Building are not completed, Lessor shall not
be subject to any liability for such failure nor will such failure affect the
validity of this Lease or (except as provided in Section 3 of this Article
XXV), Lessee's obligation to pay rent beginning on the Commencement Date.
ARTICLE XXVI
ADA COMPLIANCE
Lessor shall be responsible for compliance with Title III of the Americans
with Disabilities Act and the regulations thereunder (hereinafter collectively
called the "ADA") insofar as it relates to Lessor's work as described in Exhibit
C (the "Lessor's Work"). Lessor shall be solely responsible for any failure of
the Lessor's Work to comply with the ADA and shall be solely responsible for
costs (including judgements), fines, penalties and reasonable attorneys' fees
relating to any failure of Lessor's Work to comply with the ADA.
Lessee shall be responsible for compliance with the ADA as to all matters
which relate to the conduct of Lessee's particular business, Lessee's particular
manner of use of the demised premises and Land and any alterations or additions
to or with respect to the demised Premises or Land made by Lessee.
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ARTICLE XXVII
OPTION TO EXTEND
Lessee shall have the right and option, which said option and right shall
not be severed from this Lease or separately assigned, mortgage or transferred,
to extend the Original Term for five (5) additional years (the "Extension
Period") provided that (a) Lessee shall give Lessor notice of Lessee's exercise
of such option at least nine (9) full calendar months prior to the expiration of
the Original Term, and (b) no default of Lessee (after expiration of applicable
notice and cure periods, if any) shall exist at the time of giving each
applicable notice and (c) the original Lessee named herein is occupying the
entire demised premises both at the time of giving the applicable notice and at
the time of commencement of such Extension Period. Except for the amount of
Annual Base Rent (which is to be determined as hereinafter provided), all the
terms, covenants, conditions, provisions and agreements in the Lease contained
shall be applicable to the additional period through which the Term of this
Lease shall be extended as aforesaid, except that there shall be no further
options to extend the Term nor shall Lessor be obligated to make or pay for any
improvements to the demised premises nor pay any inducement payments of any kind
or nature. Nothing contained in this paragraph shall be deemed or construed to
limit Lessor's obligation to maintain and repair the Building and the Land as
provided in this Lease. If Lessee shall give notice of its exercise of each such
option to extend in the manner and within the time period provided aforesaid,
the Term of this Lease shall be extended upon the giving of such notice without
the requirement of any further attention on the part of either Lessor or Lessee.
Lessor thereby reserves the right, exercisable by Lessor in its sole
discretion, to waive (in writing) any condition precedent set forth in clauses
(a), (b) or (c) above.
If Lessee shall fail to give timely notice of the exercise of such option
as aforesaid or if any of the conditions set forth above are not satisfied as
and when specified herein, Lessee shall have no right to extend the Term of this
Lease, time being of the essence of the foregoing provisions. Any termination of
this Lease Agreement shall terminate the rights hereby granted Lessee.
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The monthly installment of Annual Base Rent payable for each twelve (12)
month period during the Extension Period shall be determined as follows:
PERIOD $/PER SF ANNUAL BASE RENT MONTHLY RENT
------ -------- ---------------- ------------
Year 6 $ 7.30 $ 248,813 $ 20,734.43
Year 7 $ 7.60 $ 259,038 $ 21,586.53
Year 8 $ 7.90 $ 269,263 $ 22,438.63
Year 9 $ 8.20 $ 279,488 $ 23,290.73
Year 10 $ 8.50 $ 289,714 $ 24,142.83
---------
TOTAL ...........................$1,346,316
ARTICLE XXVIII
ADDITIONAL PROVISIONS
Section 1: Exhibit A - Land
Exhibit B - Plan of Demised Premises
Exhibit C - Lessee's Plans and Specifications and
Description of Lessor's Work
Exhibit D - INTENTIONALLY DELETED
Exhibit E - Subordination and Attornment Agreement
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EXECUTED under seal as of the day and year first above written.
LESSOR:
/s/ William R. Yettman
-------------------------------------------
Michael A. Howland, as Trustee of
the Hownat Trust, but not individually.
LESSEE:
/s/ Eugene Bullis
------------------------------------
Title: Chief Financial Officer
------------------------------
Its duly authorized representative
------------------------------------
Witness
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