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EXHIBIT 10.25
CUMMINGS PROPERTIES MANAGEMENT, INC.
STANDARD FORM
COMMERCIAL LEASE - 598331 - DJC - F
In consideration of the covenants herein contained, Cummings Properties
Management, Inc., hereinafter call LESSOR, does hereby lease to MicroFinancial
Incorporated (a MA corp.), 950 Winter Street, Waltham, MA 02154 hereinafter
called LESSEE, the following described premises, hereinafter called the leased
premises: approximately 44,984 square feet at 10-M Commerce Way, Woburn, MA
01801 TO HAVE AND HOLD the leased premises for a term of five (5) years
commencing at noon on December 15, 1998 and ending at noon on December 14, 2003
unless sooner terminated as herein provided. LESSOR and LESSEE now covenant and
agree that the following terms and conditions shall govern this lease during the
term hereof and for such further time as LESSEE shall hold the leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent at the rate of six hundred eighty
seven thousand seven hundred nineteen (687,719.00) U.S. dollars per year, drawn
on a U.S. bank, payable in advance in monthly installments of $57,309.91 on the
first day in each calendar month in advance, the first monthly payment to be
made upon LESSEE's execution of this lease, including payment in advance of
appropriate fractions of a monthly payment for any portion of a month at the
commencement or end of said lease term. All payments shall be made to LESSOR or
agent at 200 West Cummings Park, Woburn, Massachusetts 01801, or at such other
place as LESSOR shall from time to time in writing designate. If the "Cost of
Living" has increased or decreased as shown by the Consumer Price Index (Boston,
Massachusetts, all items, all urban consumers), U.S. Bureau of Labor Statistics,
the amount of base rent due during each calendar year of this lease and any
extensions thereof shall be annually adjusted in proportion to any increase or
decrease in the Index. All such adjustments shall take place with the rent due
on January 1 of each year during the lease term except that the first such
adjustment will take place with the rent due January 1, 2001. The base month
from which to determine the amount of each increase or decrease in the Index
shall be January 1999, which figure shall be compared with the figure for
November 1999, and each November thereafter to determine the percentage increase
or decrease (if any) in the base rent to be paid during the following calendar
year. In the event that the Consumer Price Index as presently computed is
discontinued as a measure of "Cost of Living" changes, any adjustment shall then
be made on the basis of a comparable index then in general use.
2. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in the amount
of sixty thousand (60,000) U.S. dollars upon the execution of this lease by
LESSEE, which shall be held as security for LESSEE's performance as herein
provided and refunded to LESSEE with interest at the simple interest rate of 4%
per annum at the end of this lease, subject to LESSEE's satisfactory compliance
with the conditions hereof. LESSEE may not apply the security deposit to payment
of the last month's rent. In the event of any default or breach of this lease by
LESSEE, LESSOR may immediately apply the security deposit to offset any
outstanding invoice or other payment due to LESSOR, with the balance applied to
outstanding rent. If all or any portion of the security deposit is applied to
cure a default which has not been cured within 7 days
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notice from LESSOR, or breach during the term of the lease, LESSEE shall be
responsible for restoring said deposit forthwith, and failure to do so shall be
considered a substantial default under the lease. LESSEE's failure to remit the
full security deposit or any portion thereof when due shall also constitute a
substantial lease default. Until such time as LESSEE pays the security deposit
and first month's rent, LESSOR may declare this lease null and void for failure
of consideration.
3. USE OF PREMISES. LESSEE shall use the leased premises only for the purpose of
executive and administrative offices and equipment storage.
4. ADDITIONAL RENT. LESSEE shall pay to LESSOR as additional rent a
proportionate share of 36.74% (based on square footage leased by LESSEE as
compared with the total leaseable square footage of the building of which the
leased premises are a part) of any increase in the real estate taxes levied
against the land and building of which the leased premises are a part
(hereinafter called the building ), whether such increase is caused by an
increase in tax rate, or the assessment on the property, or a change in the
method of determining real estate taxes. LESSEE shall make payment within thirty
(30) days of written notice from LESSOR that such increased taxes are payable,
and any additional rent shall be prorated should the lease terminate before the
end of any tax year. The base from which to determine the amount of any increase
in taxes shall be the rate and the assessment in effect as of July 1, 1998. See
Paragraph K of the Rider to Lease.
5. UTILITIES. LESSOR shall provide equipment per LESSOR's building standard
specifications to heat and cool the leased premises 12 months a year. LESSEE
shall pay all charges for utilities used on the leased premises, including
electricity, gas, oil, water and sewer. LESSEE shall pay the utility provider or
LESSOR, as applicable, for all such utility charges as determined by separate
meters serving the leased premises and/or as a proportionate share of the
utility charges for the building if not separately metered. No plumbing,
construction or electrical work of any type shall be done without LESSOR's prior
written approval and LESSEE obtaining the appropriate municipal permit.
6. COMPLIANCE WITH LAWS. LESSEE and LESSOR acknowledge that no trade,
occupation, activity or work shall be conducted in the leased premises or use
made thereof which may be unlawful, improper, noisy, offensive, or contrary to
any applicable statute, regulation, ordinance or bylaw. LESSEE shall keep all
employees working in the leased premises covered by Worker's Compensation
Insurance and shall obtain any licenses and permits necessary for full
compliance with any applicable statute, regulation, ordinance or bylaw.
7. FIRE, CASUALTY, EMINENT DOMAIN. Should a substantial portion of the leased
premises, or of the property of which they are a part, be substantially damaged
by fire or other casualty, or be taken by eminent domain, LESSOR may elect to
terminate this lease with 90 days written notice to LESSEE, and LESSEE has 90
days to vacate. When such fire, casualty, or taking renders the leased premises
substantially unsuitable for their intended use, a just and proportionate
abatement of rent shall be made, and LESSEE may elect to terminate this lease
if: (a) LESSOR fails to give written notice within thirty (30) days of intention
to restore the leased
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premises, or (b) LESSOR fails to restore the leased premises to a condition
substantially suitable for their intended use within ninety (90) days of said
fire, casualty or taking. LESSOR reserves all rights for damages or injury to
the leased premises for any taking by eminent domain, except for damage to
LESSEE's property or equipment.
8. FIRE INSURANCE. LESSEE shall not permit any use of the leased premises which
will adversely affect or make voidable any insurance on the property of which
the leased premises are a part, or on the contents of said property, or which
shall be contrary to any law or regulation from time to time established by the
Insurance Services Office (or successor), local Fire Department, LESSOR's
insurer, or any similar body. LESSEE shall on demand reimburse LESSOR, and all
other tenants, all extra insurance premiums caused by LESSEE's use of the leased
premises. LESSEE shall not vacate the leased premises or permit same to be
unoccupied other than during LESSEE's customary non-business days or hours,
unless LESSEE continues to pay rent and otherwise comply with its obligations of
the lease.
9. MAINTENANCE OF PREMISES. LESSOR will be responsible for all structural
maintenance of the leased premises and for the normal daytime maintenance of all
space heating and cooling equipment, sprinklers, doors, locks, plumbing, and
electrical wiring, but specifically excluding damage caused by the careless,
malicious, willful, or negligent acts of LESSEE or others, chemical, water or
corrosion damage from any source except Lessor's negligence, and maintenance of
any non "building standard" leasehold improvements. LESSEE agrees to maintain at
its expense all other aspects of the leased premises in the same condition as
they are at the commencement of the term or as they may be put in during the
term of this lease, normal wear and tear and damage by fire or other casualty
only excepted, and whenever necessary, to replace light bulbs, plate glass and
other glass therein, acknowledging that the leased premises are now in good
order and the light bulbs and glass whole. LESSEE will properly control or vent
all solvents, degreasers, smoke, odors, etc. and shall not cause the area
surrounding the leased premises to be in anything other than a neat and clean
condition, depositing all waste in appropriate receptacles. LESSEE shall be
solely responsible for any damage to plumbing equipment, sanitary lines, or any
other portion of the building which results from the discharge or use of any
acid or corrosive substance by LESSEE. LESSEE shall not permit the leased
premises to be overloaded, damaged, stripped or defaced, nor suffer any waste,
and will not keep animals within the leased premises. If the leased premises
include any wooden mezzanine type space, the floor capacity of such space is
suitable only for office use, light storage or assembly work. Unless heat is
provided at LESSOR's expense, LESSEE shall maintain sufficient heat to prevent
freezing of pipes or other damage. Any increase in air conditioning equipment or
electrical capacity or any installation or maintenance of equipment which is
necessitated by some specific aspect of LESSEE's use of the leased premises
shall be LESSEE's sole responsibility, at LESSEE's expense and subject to
LESSOR's prior written consent. All maintenance provided by LESSOR shall be
during LESSOR's normal business hours, within a reasonable time after notice by
LESSEE.
10. ALTERATIONS. LESSEE shall not make structural alterations or additions of
any kind to the leased premises, but may make nonstructural alterations provided
LESSOR consents thereto in writing. All such allowed alterations shall be at
LESSEE's expense and shall conform
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with LESSOR's construction specifications. If LESSOR or LESSOR's agent provides
any services or maintenance for LESSEE in connection with such alterations or
otherwise under this lease, any just invoice will be promptly paid. LESSEE shall
not permit any mechanics' liens, or similar liens, to remain upon the leased
premises in connection with work of any character performed or claimed to have
been performed at the direction of LESSEE and shall cause any such lien to be
released or removed forthwith without cost to LESSOR. Any alterations or
additions shall become part of the leased premises and the property of LESSOR.
Any alterations completed by LESSOR or LESSEE shall be LESSOR's "building
standard" unless noted otherwise. LESSOR shall have the right at any time to
change the arrangement of parking areas, stairs, walkways or other common areas
of the building, provided such changes do not materially interfere with LESSEE's
use of the leased premises.
11. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign this lease or sublet or
allow any other firm or individual to occupy the whole or any part of the leased
premises without LESSOR's prior written consent. Notwithstanding such assignment
or subleasing, LESSEE and GUARANTOR shall remain liable to LESSOR for the
payment of all rent and for the full performance of the covenants and conditions
of this lease. LESSEE shall pay LESSOR promptly for reasonable legal and
administrative expenses incurred by LESSOR in connection with any consent
requested hereunder by LESSEE.
12. SUBORDINATION. This lease shall be subject and subordinate to any and all
mortgages and other instruments in the nature of a mortgage, now or at any time
hereafter, and LESSEE shall, when requested, promptly execute and deliver such
written instruments as shall be necessary to show the subordination of this
lease to said mortgages or other such instruments in the nature of a mortgage.
13. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at any reasonable time upon
reasonable notice except in the case of an emergency enter to view the leased
premises, to make repairs and alterations as LESSOR should elect to do for the
leased premises, the common areas or any other portions of the building, to make
repairs which LESSEE is required but has failed to do, and to show the leased
premises to others. LESSOR may only show the leased premises to prospective
lessees within the last 12 months of the lease term.
14. SNOW REMOVAL. The plowing of snow from all roadways and unobstructed parking
areas shall be at the sole expense of LESSOR. The control of snow and ice on all
walkways, steps and loading areas serving the leased premises and all other
areas not readily accessible to plows shall be the sole responsibility of
LESSOR. Notwithstanding the foregoing, however, LESSEE shall hold LESSOR and
OWNER harmless from any and all claims by LESSEE's agents, representatives,
employees, callers or invitees for damage or personal injury resulting in any
way from snow or ice on any area serving the leased premises, except for claims
arising out of LESSOR's negligence.
15. ACCESS AND PARKING. LESSEE shall have the right without additional charge to
use parking facilities provided for the leased premises in common with others
entitled to the use thereof. Said parking areas plus any stairs, corridors,
walkways, elevators or other common
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areas (hereinafter collectively called the common areas) shall in all cases be
considered a part of the leased premises when they are used by LESSEE or
LESSEE's employees, agents, callers or invitees. LESSEE will not obstruct in any
manner any portion of the building or the walkways or approaches to the
building, and will conform to all rules and regulations now or hereafter made by
LESSOR for parking, and for the care, use, or alteration of the building, its
facilities and approaches. LESSEE further warrants that LESSEE will not permit
any employee or visitor to violate this or any other covenant or obligation of
LESSEE. No unattended parking will be permitted between 7:00 PM and 7:00 AM
without LESSOR's prior written approval, and from December 1 through March 31
annually, such parking shall be permitted only in those areas specifically
designated for assigned overnight parking. Unregistered or disabled vehicles, or
storage trailers of any type, may not be parked at any time. LESSOR may tow, at
LESSEE's sole risk and expense, any misparked vehicle belonging to LESSEE or
LESSEE's agents, employees, invitees or callers, at any time. LESSOR shall not
be responsible for providing any security services for the leased premises.
16. LIABILITY. LESSEE shall be solely responsible as between LESSOR and LESSEE
for deaths or personal injuries to all persons whomsoever occurring in or on the
leased premises (including any common areas that are considered part of the
leased premises hereunder) from whatever cause arising, and damage to property
to whomsoever belonging arising out of the use, control, condition or occupation
of the leased premises by LESSEE; and LESSEE agrees to indemnify and save
harmless LESSOR and OWNER from any and all liability, including but not limited
to costs, expenses, damages, causes of action, claims, judgments and attorney's
fees caused by or in any way growing out of any matters aforesaid, except for
death, personal injuries or property damage directly resulting from the sole
negligence of LESSOR, except for personal injuries to LESSOR's employees that
are covered by LESSOR's worker's compensation insurance and that do not arise
out of LESSEE's negligence in any way.
17. INSURANCE. LESSEE will secure and carry at its own expense a commercial
general liability policy insuring LESSEE, LESSOR and OWNER against any claims
based on bodily injury (including death) or property damage arising out of the
condition of the leased premises (including any common areas that are considered
part of the leased premises hereunder) or their use by LESSEE, such policy to
insure LESSEE, LESSOR and OWNER against any claim up to One Million (1,000,000)
Dollars in the case of any one accident involving bodily injury (including
death), and up to One Million (1,000,000) Dollars against any claim for damage
to property. LESSOR and OWNER shall be included in each such policy as
additional insureds using ISO Form CG 20 26 11 85 or some other form approved by
LESSOR. LESSEE will file with LESSOR prior to occupancy certificates and any
applicable riders or endorsements showing that such insurance is in force, and
thereafter will file renewal certificates prior to the expiration of any such
policies. All such insurance certificates shall provide that such policies shall
not be cancelled without at least ten (10) days prior written notice to each
insured. In the event LESSEE shall fail to provide or maintain such insurance at
any time during the term of this lease, then LESSOR may elect to contract for
such insurance at LESSEE's expense.
18. SIGNS. LESSOR authorizes, and LESSEE at LESSEE's expense agrees to erect
promptly upon commencement of this lease, signage for the leased premises in
accordance with
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LESSOR's building standards for style, size, location, etc. LESSEE shall obtain
the prior written consent of LESSOR before erecting any sign on the leased
premises, which consent shall include approval as to size, wording, design and
location. LESSOR may remove and dispose of any sign not approved, erected or
displayed in conformance with this lease.
19. BROKERAGE. LESSEE warrants and represents to LESSOR that LESSEE has dealt
with no broker or third person with respect to this lease except for Brian Hines
of Fallon, Hines & O'Connor, Inc., and LESSEE agrees to indemnify LESSOR against
any brokerage claims arising by virtue of this lease. LESSOR warrants and
represents to LESSEE that LESSOR has employed no exclusive broker or agent in
connection with the letting of the leased premises.
20. DEFAULT AND ACCELERATION OF RENT. In the event that: (a) any assignment for
the benefit of creditors, trust mortgage, receivership or other insolvency
proceeding shall be made or instituted with respect to LESSEE or LESSEE's
property; (b) LESSEE shall default in the observance or performance of any of
LESSEE's covenants, agreements, or obligations hereunder, other than substantial
monetary payments as provided below, and such default shall not be corrected
within ten (10) days after written notice thereof; or (c) LESSEE vacates the
leased premises without continuing to pay rent, then LESSOR shall have the right
thereafter, while such default continues and without demand or further notice,
to re-enter and take possession of the leased premises, to declare the term of
this lease ended, and to remove LESSEE's effects, without being guilty of any
manner of trespass, and without prejudice to any remedies which might be
otherwise used for arrears of rent or other default or breach of the lease. If
LESSEE shall default in the payment of the security deposit, rent, taxes,
substantial invoice from LESSOR or LESSOR's agent for goods and/or services or
other sum herein specified, and such default shall continue for ten (10) days
after written notice thereof, and, because both parties agree that nonpayment of
said sums when due is a substantial breach of the lease, and, because the
payment of rent in monthly installments is for the sole benefit and convenience
of LESSEE, then in addition to the foregoing remedies the entire balance of rent
which is due hereunder shall become immediately due and payable as liquidated
damages. LESSOR, without being under any obligation to do so and without thereby
waiving any default, may remedy same for the account and at the expense of
LESSEE. If LESSOR pays or incurs any obligations for the payment of money in
connection therewith, such sums paid or obligations incurred plus interest and
costs, shall be paid to LESSOR by LESSEE as additional rent. Any sums received
by LESSOR from or on behalf of LESSEE at any time shall be applied first to any
unamortized improvements completed for LESSEE's occupancy, then to offset any
outstanding invoice or other payment due to LESSOR, with the balance applied to
outstanding rent. LESSEE agrees to pay reasonable attorney's fees and/or
administrative costs incurred by LESSOR in enforcing any or all obligations of
LESSEE under this lease at any time. LESSEE shall pay LESSOR interest at the
rate of eighteen (18) percent per annum on any payment from LESSEE to LESSOR
which is past due.
21. NOTICE. Any notice from LESSOR to LESSEE relating to the leased premises or
to the occupancy thereof shall be deemed duly served when left at the leased
premises addressed to LESSEE, or served by constable, and sent to the leased
premises by certified mail, return receipt requested, postage prepaid, addressed
to LESSEE, Attention: Chief Executive Officer. Any
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notice from LESSEE to LESSOR relating to the leased premises or to the occupancy
thereof shall be deemed duly served when served by constable, or delivered to
LESSOR by certified mail, return receipt requested, postage prepaid, addressed
to LESSOR at 200 West Cummings Park, Woburn, MA 01801 or at LESSOR's last
designated address. No oral notice or representation shall have any force or
effect. Time is of the essence in the service of any notice.
22. OCCUPANCY. In the event that LESSEE takes possession of said leased premises
prior to the start of the lease term, LESSEE will perform and observe all of
LESSEE's covenants from the date upon which LESSEE takes possession except the
obligation for the payment of extra rent for any period of less than one month.
LESSEE shall not remove LESSEE's goods or property from the leased premises
other than in the ordinary and usual course of business without continuing to
pay rent or, without having first paid and satisfied LESSOR for all rent which
may become due during the entire term of this lease. In the event that LESSEE
continues to occupy or control all or any part of the leased premises after the
agreed termination of this lease without the written permission of LESSOR, then
LESSEE shall be liable to LESSOR for any and all loss, damages or expenses
incurred by LESSOR, and all other terms of this lease shall continue to apply
except that rent shall be due in full monthly installments at a rate of one
hundred fifty (150) percent of that which would otherwise be due under this
lease, it being understood between the parties that such extended occupancy is
as a tenant at sufferance and is solely for the benefit and convenience of
LESSEE and as such has greater rental value. LESSEE's control or occupancy of
all or any part of the leased premises beyond noon on the last day of any
monthly rental period shall constitute LESSEE's occupancy for an entire
additional month, and increased rent as provided in this section shall be due
and payable immediately in advance. LESSOR's acceptance of any payments from
LESSEE during such extended occupancy shall not alter LESSEE's status as a
tenant at sufferance.
23. FIRE PREVENTION. LESSEE agrees to use every reasonable precaution against
fire and agrees to provide and maintain approved, labeled fire extinguishers,
and complete any other modifications within the leased premises as required or
recommended by the Insurance Services Office (or successor organization), OSHA,
the local Fire Department, or any similar body.
24. OUTSIDE AREA. Any goods, equipment, or things of any type or description
held or stored in any common area without LESSOR's prior written consent shall
be deemed abandoned and may be removed by LESSOR at LESSEE's expense without
notice. LESSEE shall maintain a building standard size dumpster in a location
approved by LESSOR, which dumpster shall be provided and serviced at LESSEE's
expense by whichever disposal firm may from time to time be designated by
LESSOR. Alternatively, if a shared dumpster or compactor is provided by LESSOR,
LESSEE shall pay its proportionate share of any costs associated therewith.
25. ENVIRONMENT. LESSEE will so conduct and operate the leased premises as not
to interfere in any way with the use and enjoyment of other portions of the same
or neighboring buildings by others by reason of odors, smoke, exhaust, smells,
noise, pets, accumulation of garbage or trash, vermin or other pests, or
otherwise, and will as its expense employ a professional pest control service if
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from solvents, degreasers, cutting oils,
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propellants, etc. which may be present at the leased premises. No hazardous
materials or wastes shall be stored, disposed of, or allowed to remain at the
leased premises at any time, and LESSEE shall be solely responsible for any and
all corrosion or other damage associated with the use, storage and/or disposal
of same by LESSEE.
26. RESPONSIBILITY. Subject to Section 16 and 17 above neither LESSOR nor OWNER
shall be held liable to anyone for loss or damage caused in any way by the use,
leakage, seepage or escape of water from any source, or for the cessation of any
service rendered customarily to said premises or buildings, or agreed to by the
terms of this lease, due to any accident, the making of repairs, alterations or
improvements, labor difficulties, weather conditions, mechanical breakdowns,
trouble or scarcity in obtaining fuel, electricity, service or supplies form the
sources from which they are usually obtained for said building, or any cause
beyond LESSOR's immediate control.
27. SURRENDER. LESSEE shall at the termination of this lease remove all of
LESSEE's goods and effects from the leased premises. LESSEE shall deliver to
LESSOR the leased premises and all keys and locks thereto, all fixtures and
equipment connected therewith, and all alterations, additions and improvements
made to or upon the leased premises, whether completed by LESSEE, LESSOR or
others, including but not limited to any offices, partitions, window blinds,
floor coverings (including computer floors), plumbing and plumbing fixtures, air
conditioning equipment and ductwork of any type, exhaust fans or heaters,
burglar alarms, telephone wiring, air or gas distribution piping, compressors,
overhead cranes, hoists, trolleys or conveyors, counters, shelving or signs
attached to walls or floors, all electrical work, including but not limited to
lighting fixtures of any type, wiring, conduit, EMT, transformers, distribution
panels, bus ducts, raceways, outlets and disconnects, and furnishings or
equipment except raised computer floor, uninterrupted power supply and related
equipment which have been bolted, welded, nailed, screwed, glued or otherwise
attached to any wall, floor, ceiling, roof, pavement or ground, or which have
been directly wired to any portion of the electrical system or which have been
plumbed to the water supply, drainage or venting systems serving the leased
premises. LESSEE shall deliver the leased premises sanitized from any chemicals
or other contaminants, and broom clean and in the same condition as they were at
the commencement of this lease or any prior lease between the parties for the
leased premises, or as they were modified during said term with LESSOR's written
consent, reasonable wear and tear and damage by fire or other casualty only
excepted. In the event of LESSEE's failure to remove any of LESSEE's property
from the leased premises upon termination of the lease, LESSOR is hereby
authorized, without liability to LESSEE for loss or damage thereto, and at the
sole risk of LESSEE, to remove and store any such property at LESSEE's expense,
or to retain same under LESSOR's control, or to sell at public or private sale
(without notice), any or all of the property not so removed and to apply the net
proceeds of such sale to the payment of any sum due hereunder, or to destroy
such abandoned property. In no case shall the leased premises be deemed
surrendered to LESSOR until the termination date provided herein or such other
date as may be specified in a written agreement between the parties,
notwithstanding the delivery of any keys to LESSOR.
28. GENERAL. (a) The invalidity or unenforceability of any provision of this
lease shall not affect or render invalid or unenforceable any other provision
hereof. (b) The obligations of
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this lease shall run with the land, and this lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that LESSOR and OWNER shall be liable only for obligations
occurring while lessor, owner, or master lessee of the premises. (c) Any action
or proceeding arising out of the subject matter of this lease shall be brought
by LESSEE within one year after the cause of action has occurred and only in a
court of the Commonwealth of Massachusetts. (d) If LESSOR is acting under or as
agent for any trust or corporation, the obligations of LESSOR shall be binding
upon the trust or corporation, but not upon any trustee, officer, director,
shareholder, or beneficiary of the trust or corporation individually. (e) If
LESSOR is not the owner (OWNER) of the leased premises, LESSOR represents that
said OWNER has agreed to be bound by the terms of this lease unless LESSEE is in
default hereof. (f) This lease is made and delivered in the Commonwealth of
Massachusetts, and shall be interpreted, construed, and enforced in accordance
with the laws thereof. (g) This lease was the result of negotiations between
parties of equal bargaining strength, and when executed by both parties shall
constitute the entire agreement between the parties, superseding all prior oral
and written agreements, representations, statements and negotiations relating in
any way to the subject matter herein. This lease may not be extended or amended
except by written agreement signed by both parties or as otherwise provided
herein, and no other subsequent oral or written representation shall have any
effect hereon. (h) Notwithstanding any other statements herein, LESSOR makes no
warranty, express or implied, concerning the suitability of the leased premises
for LESSEE's intended use. (i) LESSEE agrees that if LESSOR does not deliver
possession of the leased premises as herein provided for any reason, LESSOR
shall not be liable for any damages to LESSEE for such failure, but LESSOR
agrees to use reasonable efforts to deliver possession to LESSEE at the earliest
possible date. A proportionate abatement of rent, excluding the cost of any
amortized improvements to the leased premises, for such time as LESSEE may be
deprived of possession of the leased premises, except where a delay in delivery
is caused in any way by LESSEE, shall be LESSEE's sole remedy. (j) Neither the
submission of this lease form, nor the prospective acceptance of the security
deposit and/or rent shall constitute a reservation of or option for the leased
premises, or an offer to lease, it being expressly understood and agreed that
this lease shall not bind either party in any manner whatsoever until it has
been executed by both parties. (k) LESSEE shall not be entitled to exercise any
option contained herein if LESSEE is at that time in default of any terms or
conditions hereof. (l) Except as otherwise provided herein, LESSOR, OWNER and
LESSEE shall not be liable for any special, incidental, indirect or
consequential damages, including but not limited to lost profits or loss of
business, arising out of or in any manner connected with performance or
nonperformance under this lease, even if any party has knowledge of the
possibility of such damages. (m) The headings in this lease are for convenience
only and shall not be considered part of the terms hereof. (n) No endorsement by
LESSEE on any check shall bind LESSOR in any way. (o) LESSOR and LESSEE hereby
waive any and all rights to a jury trial in any proceeding in any way arising
out of this lease.
29. Removed.
30. WAIVERS, ETC. No consent or waiver, express or implied, by LESSOR, to or of
any breach of any covenant, condition or duty of LESSEE shall be construed as a
consent or waiver to or of any other breach of the same or any other covenant,
condition or duty. If LESSEE is
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several persons, several corporations or a partnership, LESSEE's obligations are
joint or partnership and also several. Unless repugnant to the context, "LESSOR"
and "LESSEE" mean the person or persons, natural or corporate, named above as
LESSOR and as LESSEE respectively, and their respective heirs, executors,
administrators, successors and assigns.
31. Removed.
32. ADDITIONAL PROVISIONS. (Continued on attached rider(s) if necessary.)
- See Attached Rider -
IN WITNESS WHEREOF, LESSOR and LESSEE have hereunto set their hands and
common seals and intend to be legally bound hereby this 3rd day of November,
1998.
LESSOR: CUMMINGS PROPERTIES LESSEE: MICROFINANCIAL INCORPORATED
MANAGEMENT, INC.
By: /s/ Douglas Stephens By: /s/ Richard F. Latour
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Douglas Stephens, Richard F. Latour,
Executive Vice President Executive Vice President, Chief
Operating Officer and Chief
Financial Officer
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[Floor Plan of Leased Premises]
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CUMMINGS PROPERTIES MANAGEMENT, INC.
STANDARD FORM
RIDER TO LEASE
The following additional provisions are incorporated into and made a part of the
attached lease:
A. Upon full execution of the lease, LESSOR shall credit LESSEE's
previously forfeited deposit of $13,408.69 toward the security deposit.
B. LESSOR, at LESSOR's cost, shall modify the leased premises according to
a mutually agreed upon plan and specifications attached hereto within
45 days after full execution of the lease, plan and specifications, and
full payment of the security deposit and December 1998 rent. Said
modifications shall include installation of 2 x 4 Armstrong "second
look" ceiling tiles, parabolic lighting, LESSOR's upgraded level loop
carpet, "Aladdin Marquis" and vinyl composition tile where specified.
If for any reason other than delay requested or caused by LESSEE (which
shall include without limitation any additions and/or changes requested
by LESSEE to the scope of LESSOR's work and any interference by LESSEE
or LESSEE's contractor with LESSOR's work) LESSOR does not
substantially complete, except for punch list items, the leased
premises within said 45-day period, LESSEE shall then be entitled to a
proportionate abatement of rent (if said 45-day period ends on or after
December 1, 1998) on a per diem basis for any unfinished area (only)
until LESSOR substantially completes its work in that area.
C. *The leased premises consists of approximately 44,369 square feet of
ground level space and approximately 615 square feet of mezzanine level
light storage space.
D. *Provided LESSEE is not then in default of this lease or in arrears of
any rent or invoice payment, LESSEE shall have the right to extend this
lease, including all terms, conditions, escalations, etc., for one
additional period of five (5) years ("the extended lease term") by
serving LESSOR with written notice of its desire to so extend the
lease. The time for serving such written notice shall be not more than
12 months or less than 6 months prior to the expiration of the initial
lease term. Time is of the essence.
E. Notwithstanding the provisions of Section 1, annual base rent during
the extended lease term shall be recalculated at 95% of LESSOR's
published annual rent rate as of the commencement of the extended lease
term for similar space. The base month from which to determine the
amount of each "Cost of Living" adjustment during the extended lease
term shall be changed to January 2003, the "comparison" month shall be
changed to November 2003 and the first adjustment during the extended
lease term shall take place with the rent due on January 1, 2004.
Section 1 shall continue to apply in all other respects during the
extended lease term.
F. The base from which to determine the amount of any increase in taxes
during the extended lease term shall be the rate and assessment in effect
as of July 1, 2003.
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G. *The parties acknowledge and agree that, as of the execution of this
lease, the leased premises have not been demised. Accordingly, upon
completion of the modifications provided for herein, LESSOR shall
carefully measure the entire leased premises, and if the size including
common area does not equal the total number of square feet set forth in
the initial paragraph of this lease, LESSOR shall notify LESSEE in
writing of the actual revised square footage and the corresponding
increase or decrease in rent, based on the same rate per square foot
used in this lease.
H. *Whenever LESSOR's or LESSEE's consent, agreement or approval is
required under this lease, said consent, agreement or approval shall
not be unreasonably withheld or delayed.
I. LESSEE acknowledges that a Notice of Activity and Use Limitation
concerning this property limiting residential uses, outdoor play areas and
underground excavation is on record at the Middlesex South Registry of
Deeds, Book 26901, Page 293.
J. *During the initial term of this lease, LESSEE shall have the one-time
right of first lease of approximately 18,462 square feet of additional
space at 10-I Commerce Way, Woburn, Massachusetts, at LESSOR's then
current published rental rate for said space as it becomes available
for lease directly from LESSOR, subject to the right of the current
lessee (if any) to extend or otherwise renegotiate its lease. LESSEE
shall have five (5) days from receipt of notice from LESSOR of said
availability to execute LESSOR's then current standard form lease or
amendment to lease for said additional space. If LESSOR fails to
notify LESSEE of the availability of said space and leases said space
to others, and if LESSEE notifies LESSOR of its desire to lease said
space and immediately executes LESSOR's then current standard form
lease for said space, LESSOR shall then have 60 days to relocate the
other party. If LESSOR fails to relocate the other party within 60
days and execute the new lease or amendment to lease with LESSEE, then
LESSEE may elect, by serving LESSOR written notice within 30 days after
expiration of the relocation period, either (1) to cancel this lease
without penalty or (2) to occupy a similar amount of additional space
on a no-charge basis until such time as LESSOR delivers possession of
10-I Commerce Way. This election of remedies shall be LESSEE's
exclusive remedy for any failure by LESSOR to deliver possession of
10-I Commerce Way or any breach by LESSOR of the provisions of this
paragraph. Time is of the essence.
K. If the real estate taxes on the land, the building or the property are
abated at any time for any year with respect to which LESSEE has paid a
share of such real estate taxes, LESSOR upon receipt of the abatement
shall refund to LESSEE, LESSEE's proportionate share of the net
proceeds of such abatement (the amount of such abatement less all costs
incurred by LESSOR to obtain the same), but in no event more than the
amount paid by LESSEE for such real estate taxes for the year for which
such abatement was granted. Notwithstanding anything to the contrary
in Section 4 of the lease, LESSOR shall pay and shall itself bear all
real estate taxes attributable to any
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improvements made to the land, building or the property after the date
hereof, and such real estate taxes attributable to any improvements shall
not be included in real estate taxes for the purposes of calculations
under said Section 4.
L. LESSEE may use up to a total of 175 unassigned parking spaces in common
with others at any one time in the parking lot serving the building for
LESSEE's employees, agents, contractors, visitors and other business
invitees. LESSEE agrees that its employees, agents and contractors,
other than mobility impaired individuals, shall use only the parking
area located on the north side of the building. The parking area
located on the south side of the building may be used only by LESSEE's
visitors, other business invitees and all mobility impaired individuals.
M. Notwithstanding language to the contrary in Section 9 above, LESSOR, at
LESSOR's expense, shall repair or replace any building components damaged
by any roof leak not caused directly or indirectly by LESSEE or its
agents.
N. *LESSEE's agreement to subordinate this lease to any and all mortgages
and/or other instruments in the nature of a mortgage, now or at any time
in the future, is conditional upon the mortgagee's agreement that LESSEE's
possession will not be disturbed so long as LESSEE is not in default in
the payment of rent or other covenants or obligations hereof.
O. *LESSEE may install and maintain at LESSEE's sole expense an illuminated
exterior sign on the south face of the building in a location to be
designated by LESSOR and in compliance with any and all ordinances,
bylaws, and state and local building codes. In addition, prior to
commencement of installation, LESSEE shall obtain all necessary permits
and LESSOR's written consent as to size, graphics, construction, etc.
P. LESSOR authorizes LESSEE, at LESSEE's sole expense, to use one
double-faced panel of the lighted cluster sign in the landscaped area
on Commerce Way as shown as Panel A on the attached plan. LESSEE shall
supply and install the sign panels at LESSEE's sole expense, with
LESSOR's prior written approval as to content, materials, colors and
graphics. LESSEE shall also be responsible for a proportionate share
of the charge for any repairs to said sign and for obtaining any
necessary permits, licenses and government approvals in connection with
the sign (other than the initial building permit). LESSEE shall also
pay for LESSEE's ongoing use of said sign and for LESSEE's share of
cleaning charges for said sign. LESSOR may elect to terminate LESSEE's
use of said sign for any reason or no reason at all by serving LESSEE
with 15 days prior written notice to that effect at any time during the
term of this lease. LESSOR shall have the right to relocate LESSEE's
sign panels within the same cluster sign at any time during the term of
this lease.
Q. *With respect to any condition existing prior to the commencement of
LESSEE's occupancy under this lease, LESSOR shall hold LESSEE harmless
from any and all suits, judgments, or liabilities, for any "release,"
as defined in Section 101(22) of the
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Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), of any "hazardous substance" as defined in
Section 101(14) of CERCLA, or any petroleum (including crude oil or any
fraction thereof) as a result of any activity on the property of which the
leased premises are a part occurring prior to LESSEE's occupancy and not
caused by LESSEE.
R. LESSOR hereby authorizes LESSEE, at LESSEE's sole cost and expense, to
install one backup generator in a location to be designated by LESSOR.
S. The HVAC equipment used within the leased premises consists of four (4)
25-ton Carrier units model #SOEQ028610DC and eight (8) 300,000 BTU Reznor
in line duct furnaces with sealed combustion.
LESSOR: CUMMINGS PROPERTIES LESSEE: MICROFINANCIAL, INC.
MANAGEMENT, INC.
By: /s/ Douglas Stephens By: /s/ Richard F. Latour
------------------------------- ------------------------
Douglas Stephens, Richard F. Latour,
Executive Vice President Executive Vice President, Chief
Operating Officer and Chief
Financial Officer
Date: November 3, 1998
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