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EXHIBIT 10.09
LEASE
THIS INDENTURE OF LEASE dated as of this 18th day of February, 1998, by
and between FIVE N ASSOCIATES, a New Hampshire general partnership with a
principal place of business at 00 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, (hereinafter called "Lessor"), and SkillSoft Corporation of 0
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxxxxx (hereinafter called "Lessee").
WITNESSETH
SECTION 1
LEASED PREMISES
Lessor hereby leases to Lessee and the Lessee hereby leases from
Lessor, upon and subject to the terms and provisions of this Lease, a portion of
00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx (which portion is sometimes
hereinafter referred to as the "Leased Premises") containing 5,515 gross square
feet on the third floor and cross-hatched on Exhibit A annexed hereto and made a
part hereof.
The Leased Premises shall extend to the exterior faces of exterior
walls or to the building line where there is no wall, or the center line of
those walls separating said Premises from other Leased Premises in 00 Xxxxxxxxxx
Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx, together with the appurtenances specifically
granted in this Lease, but reserving and excepting to Lessor the right to
install, maintain, use, repair and replace pipes, duct work, conduits, utility
lines and wires through hung ceiling space, column space and partitions, in or
beneath the floor slab, or above or below the Leased Premises, or other parts of
00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx, except that Lessor shall not
unreasonably interfere with or interrupt the business operations of Lessee
within the Leased Premises and except where necessary as determined by Lessor's
architect, no pipes, conduits, utility lines or wires installed by Lessor shall
be exposed in the office area of the Leased Premises.
SECTION 2
TERM OF LEASE
2.1 The term of this Lease shall be for a period of three (3)
years, which period shall commence March 1, 1998 and shall end on February 28,
2001.
2.2 In the event Lessee shall hold over after the expiration of
this term, such holding over shall not extend the term of this
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Lease, but shall create a month-to-month tenancy upon all the terms and
conditions of this Lease; provided, however, that during such holdover, monthly
rent during such holdover shall equal 150% of the monthly rent assessed for the
last month of the expired term.
SECTION 3
RENT
3.1 Lessee covenants and agrees to pay Lessor at the place
provided herein for the giving of notice to Lessor, as annual base rent for said
Premises the sum of Thirty Five Thousand Eight Hundred Forty-Seven Dollars and
Fifty Cents ($35,847.50) payable in monthly installments Two Thousand Nine
Hundred Eighty-Seven Dollars and Twenty-Nine Cents ($2,987.29) for each month.
Each monthly installment shall be paid in advance on the FIRST DAY of each and
every calendar month during the term hereof. If the term of this lease shall
begin on a day other than the 1st of a month, the Lessee shall pay a PRO RATA
portion of a month's rent on the day the term commences and thereafter the
Lessee shall pay a succeeding monthly installment on the 1st day of each
succeeding month. Under no circumstances shall Lessee be entitled to withhold
any rent due hereunder or setoff against the same on account of Lessor's
purported failure to perform any of its obligations hereunder.
3.2 Any payment by Lessee or acceptance by Lessor of a lesser
amount than shall be due from Lessee to Lessor shall be treated as a payment on
account. The acceptance by Lessor of a check or payment for a lesser amount with
an endorsement or statement thereon, or upon any letter accompanying such a
check or payment, that such lesser amount is payment in full, shall be given no
effect and Lessor may accept such check or payment without prejudice to any
other rights or remedies which Lessor may have against Lessee.
3.3 Lessee covenants and agrees to pay Lessor at the place
provided herein for the giving of notice to Lessor, as additional rent during
the term hereof Lessee's PRO RATA share, which is hereby defined and agreed as
being 19.626% of the charges, costs and expenses defined in paragraphs 6.3, 7.2,
10.1 and 19.1 of this Lease. Lessee shall pay Lessor such additional rent in
monthly installments coincidental with the monthly base rental payments as set
forth in paragraph 3.1 hereof. Lessee acknowledges that Lessor may adjust, once
every month, the amount of Lessee's monthly installments to cover any difference
between the actual charges, costs and expenses incurred by Lessor and the amount
of the monthly installments paid by Lessee. It is agreed that Lessee's
additional rent in monthly installments shall be One Thousand Six Hundred Eight
Dollars and Fifty-Four Cents ($1,608.54) until notification of further
adjustment in accordance with this Lease. In addition to the foregoing, Lessor
may make assessments for expenses incurred
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which are over and above the monthly installments paid by Lessee, for any period
during the term of this Lease.
3.4 If Lessee shall fail to make payment of any installment of
Base Rent or any Additional Rent after the date when such payment is due, Lessee
shall pay to Lessor, in addition to such installment of Base Rent or such
Additional Rent, as the case may be, as a late charge and as Additional Rent, a
sum equal to two (2%) percent per annum above the then current prime rate
charged by Bank of New Hampshire, Nashua, New Hampshire or its successor of the
amount unpaid computed from the date such payment was due to and including the
date of payment.
SECTION 4
SECURITY DEPOSIT
The Lessee hereby deposits the sum of Two Thousand Nine Hundred
Eighty-Seven Dollars and Twenty-Nine Cents ($2,987.29) with the Lessor, the
receipt of which is hereby acknowledged, as security for the full and faithful
performance by the Lessee of each and every term, covenant and condition of this
Lease. Lessee shall maintain the full amount of the security deposit throughout
the term of this Lease. In the event that the Lessee defaults with respect to
any terms, provisions, covenants and conditions of this Lease, including but not
limited to payment of any rentals, the Lessor may use, apply or retain the whole
or any part of the security so deposited for the payment of any such rentals in
default or for any such sums which Lessor may expend or be required to expend by
reason of the Lessee's default, including any damages or deficiency in the
reletting of the Demised Premises, whether such damages or deficiency may accrue
before or after summary proceedings or other reentry by the Lessor. In the event
that the Lessee shall fully and faithfully comply with all terms, provisions,
covenants and conditions of this Lease, the security or the balance thereof will
be returned to the Lessee after the time fixed as the expiration thereof. The
Lessee shall not be entitled to any interest on the security. In the absence of
evidence satisfactory to the Lessor of any assignment of the right to receive
this security, or the remaining balance thereof, the Lessor may return the
security to the original Lessee, regardless of one or more assignments of the
Lease itself.
Prior to the time when the Lessee shall be entitled to return of the
security deposit, the Lessor shall be entitled to intermingle such deposit with
its own funds and to use such funds for purposes as the Lessor may determine.
In the event of a bona fide sale, subject to this Lease, the Lessor
shall have the right to transfer the security deposit to the vendee for the
benefit of the Lessee, and the Lessor shall be considered released by the Lessee
from all liability for return of
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such sum, and the Lessee agrees to look to the new landlord solely for the
return of the security, and it is agreed that this apply to every transfer or
assignment made of the security to a new landlord.
SECTION 5
QUIET ENJOYMENT
Lessor shall put Lessee into possession of the Leased Premises at the
beginning of the term hereof, and Lessee, upon paying the rent and observing the
other covenants and conditions herein, upon its part to be observed, shall
peaceably and quietly hold and enjoy the Leased Premises.
SECTION 6
COMMON AREAS; MAINTENANCE THEREOF
6.1 Lessor hereby further grants and gives to Lessee, its
customers, business invitees, employees, agents and suppliers, the privilege
during the term of this Lease and any renewal thereof, in common with Lessor,
its successors, assigns and other tenants, and others, of using, for purposes of
ingress and egress and parking, the parking areas and ways developed and to be
developed by the Lessor on or about the Leased Premises, and serving 00
Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx of which the Leased Premises are a
part, provided, however:
A. No officers, employees or agents of Lessee shall park vehicles
of their own overnight on any portions of said parking areas unless verbal
approval is given by Lessor. Lessor agrees to provide suitable and adequate
parking facilities for Lessee's officers, employees or agents which are
reasonably accessible to the Leased Premises;
B. Said rights of ingress and egress and parking shall be subject
to all easements, rights and other claims of record;
C. Lessee shall not obstruct the use of the sidewalks adjacent
to the Leased Premises;
D. Lessee shall not conduct an auction, fire, bankruptcy, going
out of business or similar sale, in the Leased Premises without the prior
written approval of Lessor;
E. Lessee shall not deposit any garbage or refuse on the walkways
or other common areas and shall cause all garbage and refuse to be removed to
trash dumpsters provided by the Lessor;
F. Lessee shall not burn any trash on or near the Leased
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Premises or cause any offensive odors to be emitted from the Leased Premises;
G. Lessee shall not permit or cause to be used on the Leased
Premises any device such as a public address system, neon or excessively bright,
changing, flashing or flickering lights, or any similar devices, the effect of
which shall be visible or audible from the exterior of the Leased Premises;
H. Lessee shall conform to all reasonable rules established by
Lessor and uniformly applied by Lessor relative to the operation and use of 00
Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx;
I. Lessor reserves the right from time to time to close the
common areas in such manner as it shall deem necessary for the maintenance,
operation, replacement or expansion of 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx
Xxxxxxxxx, or to prevent the acquisition of any rights by public or others with
respect thereto, and such interruption shall be done in a manner to reasonably
minimize any business interruption of the Lessee. Under the above circumstances
shall the Lessor not be liable for any interruption of the Lessee's business.
6.2 Lessor agrees to provide reasonably suitable area lighting for
the common areas of 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx, maintenance
of pavement on all parking areas, maintenance of all utilities serving 00
Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx, and generally, all other services
in the nature of maintenance, repairs and/or renovations as are reasonably
required in order to maintain all common areas, and improvements, serving such
common areas, in 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx as a whole.
6.3 Lessee shall pay to Lessor, as additional rent during the term
hereof and as set forth in paragraph 3.3 of this Lease, its PRO RATA share of
the operating costs of the Common Area. "Operating costs" shall mean the total
cost and expense incurred in operating, maintaining and managing 00 Xxxxxxxxxx
Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx and the Common Area, including without
limitation, painting of the building, roof repair, gardening and landscaping,
planting, care of trees and shrubs, repairs, line painting (striping), lighting,
removal of snow, trash, rubbish and other refuse, sanitary control, sweeping,
cleaning, fixing potholes, resurfacing and sealing parking lot, depreciation of
machinery and equipment used in maintenance, and the cost of personnel to
implement such service,s including directing parking and policing the Common
Area.
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SECTION 7
CONDITION OF PREMISES; REPAIRS
7.1 Except as set forth below, Lessee shall accept the building,
improvements and any equipment or fixtures on or in the Leased Premises "as is"
and in their existing condition and agrees that no representation, statement or
warranty, express or implied, has been made by or on behalf of Lessor as to such
condition, or as to the use that may be made of such property in accordance with
all laws, statutes, requirements and permits.
7.2 Lessee shall pay to the Lessor, as additional rent during the
term hereof and set forth in paragraphs 3.3 of this Lease, its pro rata share of
the repair and maintenance costs performed by the Lessor on the heating, air
conditioning, electrical and plumbing systems of the Leased Premises and of the
Common Areas.
7.3 Lessor covenants and agrees that it will maintain in good
repair the exterior walls of the Leased Premises, the structural beams,
structural columns and other structural parts of the Leased Premises. Lessee
covenants and agrees that it will keep, during the term hereof, at its own cost
and expense, the interior of the Leased Premises, in as good condition as the
same was at the commencement of the term hereof, taking by eminent domain and
damage due to fire or casualty insured against excepted. Lessee also agrees to
replace, at its own cost and expense, all window glass of the same kind and
quality, taking by eminent domain and damage due to fire or other casualty
insured against excepted. Lessee further agrees to replace and/or repair, at its
own cost and expense, all light bulbs and lighting fixtures which are damaged,
broken or cease to function during the term hereof, with bulbs or fixtures of
the same kind and quality.
7.4 The Lessee shall not, without written consent of the Lessor,
store any materials, goods or equipment outside the Leased Premises.
7.5 The Lessee shall at its expense make any alterations or
changes in the leased premises which may be necessary to meet the regulations
and standards promulgated and established under the Occupational Safety and
Health Act of 1970.
7.6 With the exception of the removal of the interior wall which
shall be the Lessor's responsibility, during the term of this lease, the Lessee
shall be responsible for any repairs or alterations to the leased premises
deemed necessary by local, state or federal officials, in order to meet
compliance with any changes in local, state or federal regulations during the
term of this lease.
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7.7 During the term of this lease, in the event of a claim brought
under the Americans with Disabilities Act on the Leased Premises, exclusive of
the common area of which Lessee shall pay its pro rata share as described in
Section 6.3 of this Lease, Lessee shall be responsible for ensuring satisfaction
therewith.
SECTION 8
IMPROVEMENTS BY LESSEE
8.1 Lessee may, with the prior written approval of Lessor, make
such alterations, additions or improvements to the Leased Premises, excluding,
however, the exterior of the Leased Premises, as it shall deem necessary or
desirable; provided, however:
A. No such alteration, addition or improvement shall lessen the
fair market value of the Leased Premises;
B. Lessee shall not make any alterations to the structure of the
Leased Premises;
C. Any such alteration, addition or improvement shall be made in
accordance with previously prepared plans and specifications, and if the
estimated cost of such alteration, addition or improvement exceeds One Thousand
Dollars ($1,000.00) such plans and specifications shall have the written
approval of Lessor before any work thereon shall be commenced;
D. That prior to the commencement of work on any such alteration,
addition or improvement, Lessee shall procure, at its own cost and expense, all
necessary permits; furthermore, the plans and specifications covering the same
shall have been submitted to and approved by (i) all municipal or other
governmental departments or agencies having jurisdiction over the subject matter
thereof, and (ii) any mortgagee having an interest in or lien upon the Leased
Premises if required by the terms of the mortgage, it being understood that
Lessor will not unreasonably refuse to join in any application to any such
mortgagee to obtain such approval with respect to any alteration, addition or
improvement;
E. In carrying out all such alterations, additions and
improvements, Lessee agrees to comply with the standards, guidelines and
specifications imposed by all municipal, state and federal departments or other
governmental departments and agencies having jurisdiction over the same,
including without limitation, all building codes, all ADA codes and to construct
all improvements in a workmanlike manner;
F. That prior to the commencement of work on any such alteration,
addition or improvement, the Lessee shall have procured
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and delivered to Lessor the policy of Builder's Risk insurance hereinafter
referred to in Section 18 hereof or additional fire and extended coverage
insurance as required by Section 18 hereof whichever is applicable;
G. That Lessee shall pay the increased premiums, if any, for the
regular insurance coverage of the Leased Premises resulting from any additional
risk during the course of construction or installation of any such alteration,
addition or improvement;
H. Any such alteration, addition or improvement made by Lessee
pursuant to the terms hereof shall, at the expiration of the term hereof or at
the expiration of any renewal term, become and remain the property of Lessor,
provided, however, that Lessor may, at its option and upon notice to Lessee not
less than One Hundred Twenty (120) days prior to such expiration, require Lessee
to remove any such alterations, additions and improvements and to restore the
Leased Premises to their condition as at the beginning of the term hereof,
reasonable wear and tear, taking be eminent domain and damage due to fire or
other casualty insured against excepted.
SECTION 9
MACHINERY AND EQUIPMENT; TRADE FIXTURES
Lessee agrees that all machinery and equipment, and appurtenances
thereto, installed in the Leased Premises by it or by any employee, agent or
subcontractor of Lessee, or by any subtenant of Lessee, which cannot be removed
from the Leased Premises, as determined by Lessor in its sole discretion, shall
be and become part of the realty and shall be and become the property of Lessor
and shall not be removed from the Leased Premises without the written consent of
Lessor. Lessor agrees that (a) all machinery and equipment and appurtenances
thereto, installed in the Leased Premises by Lessee, or by any employee, agent
or subcontractor of Lessee, or by any subtenant of Lessee, which may be removed
from the Leased Premises without permanent and substantial damage to the Leased
Premises, as determined by Lessor in its sole discretion, and (b) all furniture,
furnishings and movable trade fixtures installed in the Leased Premises shall be
deemed to remain personal property and that all such machinery, equipment,
appurtenances, furniture, furnishings and movable trade fixtures of Lessee or of
any employee, agent or subcontractor of subtenant of Lessee, may be removed
prior to the expiration of this Lease or its earlier termination for any cause
herein provided for; but Lessee shall repair any damage occasioned by such
removal and shall restore the Leased Premises to their condition as at the
beginning of the term hereof, taking by eminent domain and damage due to fire or
other casualty insured against excepted. Any such property which may be removed
pursuant to the preceding sentence and which is not so
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removed prior to the expiration or earlier termination of this Lease may be
removed from the Leased Premises by Lessor and stored for the account of Lessee;
and if Lessee shall fail to reclaim such property within thirty (30) days
following such expiration or earlier termination of this Lease, such property
shall be deemed to have been abandoned by Lessee, and may be appropriated, sold,
destroyed or otherwise disposed of by Lessor without notice to Lessee and
without obligation to account therefor. Lessee shall pay to Lessor the cost
incurred by Lessor in removing, storing, selling, destroying or otherwise
disposing of any such property.
SECTION 10
UTILITIES
10.1 Lessee shall make arrangements for and shall pay when due all
charges for gas, electricity, heat, lighting, power, water and sewerage provided
to the Leased Premises and the Common Areas. Lessee shall pay to Lessor, as
additional rent during the term hereof and as set forth in paragraph 3.3 of this
Lease, Lessee's PRO RATA share of the charges for gas, electricity, heat,
lighting, power, water and sewerage, provided to the Leased Premises and Common
Areas Lessee also agrees to pay for its pro rata share of all changes and
improvements in said, water, sewerage, heat and electrical systems required by
governmental authorities having jurisdiction over said services, in the event
that there are changes in the current statutory requirements.
SECTION 11
USE OF PREMISES
11.1 Without the prior written consent of Lessor, Lessee agrees
that it will use the Leased Premises only as a software development facility and
for services and purposes reasonably incident thereto.
11.2 Lessee agrees and acknowledges that for itself, any subtenant
or any assignee, it shall neither occupy nor use the Leased Premises or permit
the same to be occupied or used for any business or use which, under the Zoning
Ordinances of the City of Nashua, New Hampshire, requires a number of parking
spaces which is greater than 19.626% percent of all the parking spaces provided
on the site of 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx. The Lessee
agrees that for itself or any subtenant, it shall use no more than 19.626%
percent of all the parking spaces provided on the site of 00 Xxxxxxxxxx Xxxx
Xxxxx, Xxxxxx, Xxx Xxxxxxxxx.
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11.3 In its use of the Leased Premises, Lessee shall comply with
all statutes, ordinances and regulations applicable to the use thereof,
including, without limiting the generality of the foregoing, the Zoning
Ordinances of the City of Nashua, New Hampshire, as now in effect or as
hereafter amended, and comply with all reasonable insurance requirements. If in
the Lessee's use of the leased premises it engages in any action that would
increase the cost of any insurance on 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx
Xxxxxxxxx possessed by the Lessor, the Lessee shall either pay for any increase
in the cost of such insurance or meet the necessary insurance requirements and
make the necessary improvements to eliminate the insurance cost increase.
11.4 Lessee shall not injure or deface, or commit waste with
respect to the Leased Premises nor occupy or use the Leased Premises, or permit
or suffer any part thereof to be occupied or used, for any unlawful or illegal
business, use or purpose, nor for any business, use or purpose deemed to be
disreputable or high-hazard, nor in such manner as to constitute a nuisance of
any kind, nor for any purpose in any manner in violation of any present or
future laws, rules, requirements, orders, directions, ordinances or regulations
of any governmental or lawful authority including Boards of Fire Underwriters.
Lessee shall, immediately upon the discovery of any such unlawful, illegal,
disreputable or high-hazard use, take, at its own cost and expense, all
necessary steps, legal and equitable, to compel the discontinuance of such use
and to oust and remove the subtenants, occupants or other persons guilty of such
unlawful, illegal, disreputable or high-hazard use.
11.5 Lessee agrees not to use the Leased Premises for the
generation, storage or treatment of hazardous waste, and hereby certifies that
his operations or other use of the Leased Premises will not involve same. For
purposes of this Lease, the term "hazardous waste" shall be defined by
cumulative reference to the following sources as amended from time to time: (1)
The Resource Conservation and Recovery Act of 1976, 42 USC Sections 901 et seq
(RCRA); (2) EPA Federal Regulations promulgated thereunder and codified in 40
C.F.R. Parts 260-265 and Parts 122-124; (3) New Hampshire R.S.A. ch 147 and
147-A; (4) New Hampshire Regulations promulgated thereunder by any agency or
department of state.
11.6 Lessee shall procure any licenses or permits required by any
use of the Leased Premises by Lessee.
SECTION 12
ASSIGNMENT; SUBLEASING
Lessee shall not, without prior written consent of Lessor, assign this
Lease or sublease the Leased Premises, in whole or in
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part. Any assignment or sublease to which Lessor consents in writing shall be on
the express terms and conditions of this Lease.
SECTION 13
ALL RISK INSURANCE
13.1 In addition to the rent heretofore reserved, Lessee shall pay
to Lessor, as additional rent during the term hereof and within ten (10) days
following presentation of invoices thereof, the Lessee's PRO RATA share, which
is hereby defined and agreed as being 19.626% of (a) the real property taxes
upon the land and/or building comprising 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx
Xxxxxxxxx and (b) any assessment, betterment charge or other special levy
against or upon such land and building.
13.2 "Real estate taxes" shall mean all real estate taxes, sewer
taxes and any other charges made by a public authority which upon assessment or
failure of payment become a lien or liens upon the Leased Premises or any part
thereof, or upon any buildings or appurtenances thereto, or any parts thereof,
or which may become due and payable with respect thereto. Real estate taxes
shall not include any franchise, estate, inheritance, succession, capital levy
or transfer tax of Lessor or any income tax of Lessor.
13.3 Lessee shall automatically pay and discharge all taxes which
shall or may during the term of this Lease be charged, laid, levied or imposed
upon or become a lien upon the personal property of Lessee attached to or used
in connection with Lessee's business conducted on the Leased Premises. Nothing
herein contained shall require Lessee to pay any taxes on the rent reserved to
Lessor hereunder.
13.4 Lessee shall have the right to contest or review (in the name
of Lessee, or of Lessor, or both, as Lessee shall elect) by appropriate
proceedings which, if instituted, shall be conducted promptly at Lessee's own
expense free of all expense to Lessor, any tax, charge or other governmental
imposition aforementioned upon condition that before instituting any such
proceeding Lessee shall pay (under protest) such tax, charge or other
governmental imposition aforementioned, or furnish to Lessor a surety company
performance bond in a company acceptable to Lessor or other security
satisfactory to Lessor sufficient to cover the amount of the contested item or
items with interest for the period which such proceedings may reasonably be
expected to take and costs securing the payment of such contested item or items
and all interest and costs in connection therewith when finally determined.
Notwithstanding the furnishing of any such bond or security, Lessee shall pay
all such items before the date when the Leased Premises or any part thereof
would, under applicable law, be forfeited. Lessor shall timely file the annual
inventory required by Chapter
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74:7 of the Revised Statutes Annotated of New Hampshire, the filing of which, by
virtue of Chapter 76:16 of such Revised Statutes Annotated, is a condition
precedent to tax abatement.
13.5 Lessor, at its option, may, but shall not be obligated to,
contest or review by any appropriate proceedings, and at Lessor's expense, any
tax, charge or other governmental imposition aforementioned which shall not be
contested or reviewed as aforesaid by Lessee, and unless Lessee shall promptly
join with Lessor in such contest or review, Lessor shall be entitled to receive
and retain any refund payable by the taxing authorities with respect thereto.
The Lessor shall notify the Lessee promptly of the institution of any such
proceedings.
SECTION 14
MECHANIC'S LIEN
In the event of the filing in the Hillsborough County Registry of Deeds
of any notice of a builder's, supplier's or mechanic's lien on the Leased
Premises arising out of any work performed by or on behalf of Lessee, Lessee
shall cause without delay proper proceedings to be instituted to test the
validity of the lien claimed, and before the end of the term to discharge the
same by the posting of bond or otherwise; and during the pendency of any such
proceeding, Lessee shall completely defend and indemnify Lessor against any such
claim or lien and all costs of such proceedings wherein the validity of such
lien is contested by Lessee, and during the pendency of such proceeding such
lien may continue until disposition of such proceeding, and after disposition
thereof, Lessee shall cause said lien to be released and discharged.
SECTION 15
EMINENT DOMAIN
In the event that the Leased Premises shall be lawfully condemned or
taken by any public authority either in their entirety or in such proportion
that they are no longer suitable for the intended use by Lessee, this Lease
shall automatically terminate without further act of either party hereto on the
date when possession of the Leased Premises shall be taken by such public
authority, and each party hereto shall be relieved of any further obligation to
the other except that Lessee shall be liable for and shall promptly pay to
Lessor any rent or other payments due hereunder then in arrears or the Lessor
shall promptly rebate to Lessee a PRO RATA portion of any rent or other such
payments paid in advance. In the event the proportion of the Leased Premises so
condemned or taken is such that they are still suitable for the intended use by
Lessee, this Lease shall continue in effect in
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accordance with its terms and a portion of the rent and other payments due
hereunder shall xxxxx equal to the proportion of the rental value of the Leased
Premises so condemned or taken. In either of the above events, the award for the
property so condemned or taken shall be payable solely to Lessor except that if
the property so condemned or taken includes in whole or in part (a) the land
thereon at the beginning of the term hereof and (b) machinery, equipment and
appurtenances constructed or installed thereon by Lessee at its expense after
the beginning of the term hereof which would have been removable by Lessee
pursuant to Section 21 hereof, then such award shall be apportioned between
Lessor and Lessee in accordance with the then relative values of the property
described in clause (a) and clause (b) above, so condemned or taken.
SECTION 16
LIABILITY
Except for injury or damage caused by the willful act of Lessor, its
servants or agents, Lessor shall not be liable for any injury or damage to any
person happening on or about the Leased Premises or for any injury or damage to
the Leased Premises or to any property of Lessee or to any property of any third
person, firm, association or corporation on or about the Leased Premises. The
Lessee shall, except for injury or damage caused as aforesaid, defend, indemnify
and save the Lessor harmless from and against any and all liability and damages,
costs and expenses, including reasonable attorney's fees, and from and against
any and all suits, claims and demands of any kind or nature whatsoever, by and
on behalf of any person, firm, association or corporation arising out of or
based upon any incident, occurrence, injury or damage which shall or may happen
on or about the Leased Premises and from and against any matter or thing growing
out of the condition, maintenance, repair, alteration, use, occupation or
operation of the Leased Premises or the installation of any property therein or
the removal of any property therefrom.
SECTION 17
LIABILITY INSURANCE
Lessee shall, from the date on which it takes possession of the Leased
Premises even if such date precedes the commencement of the term hereof and
throughout the term hereof procure and carry at its expense comprehensive
liability insurance on the Leased Premises with an insurance company authorized
to do business in New Hampshire and acceptable to Lessor. Such insurance shall
be carried in the name of and for the benefit of Lessee and Lessor; shall be
written on an "occurrence" basis; and shall provide coverage of at lease One
Million Dollars ($1,000,000) in case of death of or injury to one person, Two
Million Dollars ($2,000,000)
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in case of death of or injury to more than one person in the same occurrence,
and One Hundred Thousand Dollars ($100,000) in case of loss, destruction or
damage to property. If applicable, Lessee shall comply with the requirements of
the Boilers and Unfired Pressure Vessels Law (RSA 157-A), and in such event the
policy or policies referred to above shall contain an endorsement providing
pressure vessels insurance coverage and naming Lessor as an additional insured.
Lessee shall furnish to Lessor a certificate of such insurance which shall
provide that the insurance indicated therein shall not be cancelled without at
least ten (10) days' written notice to Lessor. At the end of the first term of
this Lease and every three (3) years thereafter, Lessee shall increase the
insurance coverages provided herein if requested to do so by Lessor to such
amounts which are then adequate to protect against increases in insurance awards
whether caused by inflation or otherwise. Lessee shall also maintain insurance
for all glass and all signs installed in the Leased Premises.
SECTION 18
BUILDER'S RISK INSURANCE
During any period or periods of construction by Lessee on the Leased
Premises, the construction of which (a) is of a type to which Builder's Risk
insurance is applicable and (b) requires the advance written approval of Lessor
pursuant to Section 8(F) hereof, Lessee shall obtain and maintain in effect
standard Builder's Risk insurance written on a completed value basis, including
extended coverage, and utilizing a maximum value at date of completion not less
than the greater of (a) the aggregate contract price or prices for the
construction of such facilities or (b) the amount which may be required by a
mortgagee which is financing such construction. Such insurance shall be obtained
from an insurance company authorized to do business in New Hampshire and
acceptable to Lessor, and there shall be furnished to Lessor a certificate of
such insurance which shall provide that the insurance indicated therein shall
not be cancelled without at least ten (10) days' written notice to Lessor. If
such construction by Lessee is of a type to which Builder's Risk insurance is
not applicable, Lessee shall provide the necessary additional coverage under the
policies referred to herein.
SECTION 19
SPECIAL FORM PROPERTY INSURANCE
19.1 Lessor shall procure and continue in force during the term
hereof Special Form Property insurance upon the facilities constructed, erected
or installed on the Leased Premises by Lessor on a full value, repair or
replacement basis. In accordance with
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paragraph 3.3 of this Lease, Lessee shall reimburse Lessor for Lessee's pro RATA
share of the premiums paid for such insurance as additional rent.
19.2 During the term hereof, Lessee shall procure and continue in
force insurance which contains all risk coverage on a full value, repair or
replacement basis upon machinery, equipment and appurtenances constructed ,
erected or installed on or in the Leased Premises by Lessee and which have or
may be the property of Lessor pursuant hereto. The policies evidencing such
insurance shall provide that loss, if any, payable thereunder shall be payable
to Lessor and/or Lessee and/or mortgagee of the Leased Premises as their
respective interests may appear, and all such policies together with evidence of
payment of the premiums thereon shall be delivered to Lessor and/or any such
mortgagee. All such policies shall be taken in such responsible companies
authorized to do business in New Hampshire as Lessor shall approve (which
approval shall not be unreasonably withheld) and shall be in form satisfactory
to the Lessor. Upon receipt of a copy of notice of cancellation of any insurance
which is the responsibility of Lessee hereunder, Lessor may pay the premiums
necessary to reinstate the same. The amount so paid shall constitute additional
rent payable by Lessee at the next rental payment date. Payment of premiums by
Lessor shall not be deemed a waiver or release by Lessor of the default by
Lessee in failing to pay the same or of any action which Lessor may take
hereunder as a result of such default. Lessee shall not violate, nor permit any
person, firm, association or corporation to violate, any of the terms,
conditions and provisions of such policies. In the event of loss, Lessor shall
promptly initiate action to effect a settlement with the insurer, Lessee shall
cooperate with Lessor and any mortgagee in connection with the proceeding and
collection of claims, and shall execute and deliver to Lessor such proofs of
loss, releases and other instruments as may be necessary to settle any such
claims and obtain the proceeds thereof, and in the event Lessee shall fail or
neglect so to cooperate or to execute and deliver any such instrument Lessor
may, as the agent or attorney in fact of Lessee, execute and deliver any such
instrument, and Lessee here by nominates and appoints Lessor the proper and
legal attorney in fact of Lessee for such purpose, hereby ratifying all that
Lessor may lawfully do as such attorney in fact.
19.3 If and to the extent permitted without prejudice to any rights
of Lessor under the applicable insurance policies, Lessee shall be held free and
harmless from liability for loss or damage to the Leased Premises by fire, the
extended coverage perils, sprinkler leakage, vandalism and malicious mischief if
and to the extent actually insured against, whether or not such loss or damage
be the result of the negligence of Lessee, its employees or agents. This
subsection does not impose any added obligation or expense upon Lessor nor
require that it carry any insurance of any kind and
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is to be construed only as a limitation upon the rights of the insurance
carriers to subrogation.
19.4 If and to the extent permitted without prejudice to any rights
of the Lessee under the applicable insurance policies, Lessor shall be held free
and harmless from liability for loss or damage to personal property of Lessee in
the Leased Premises by fire, the extended coverage perils, sprinkler leakage,
vandalism and malicious mischief if and to the extent actually insured against,
whether or not such loss or damage be the result of the negligence of Lessor,
their employees or agents. This subsection does not impose any added obligation
or expense upon Lessee nor require that it carry any insurance of any kind and
is to be construed only as a limitation upon the rights of the insurance
carriers to subrogation.
SECTION 20
DESTRUCTION OR DAMAGE
In the event that the Leased Premises shall be totally destroyed by
fire or other casualty insured against, or shall be so damaged that repairs and
restoration cannot, in the opinion of Lessor in its sole discretion, be
accomplished within a period of one hundred twenty (120) days from the date of
such destruction or damage, this Lease shall automatically terminate without
further act of either party hereto, and each party shall be relieved of any
further obligation to the other except for the rights and obligations of the
parties under Sections 18 and 19 hereof, and except that Lessee shall be liable
for and shall promptly pay Lessor any rent then in arrears or Lessor shall
promptly rebate to Lessee a PRO RATA portion of any rent paid in advance. In the
event such facilities shall be so damaged that repairs and restoration can be
accomplished within a period of one hundred twenty (120) days from the date of
such destruction or damage, this Lease shall continue in effect in accordance
with its terms; such repairs and restoration shall, unless otherwise agreed by
Lessor and Lessee, be performed as closely as practicable to the original
specifications (utilizing therefor the proceeds of the insurance applicable
thereto without any apportionment thereof for damages to the leasehold interest
created by this Indenture), and until such repairs and restoration have been
accomplished a portion of the rent shall xxxxx equal to the proportion of the
Leased Premises rendered unusable by the damage. It is understood that Lessor's
obligation to restore, replace or rebuild such facilities shall not exceed in
amount the sum of the insurance proceeds paid to it and/or released to it by any
mortgagee with which settlement was made. Lessee agrees to execute and deliver
to Lessor all instruments and documents necessary to evidence the fact that the
right to such insurance proceeds is vested in Lessor. Lessor shall
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notify Lessee within fifteen (15) days of such casualties whether or not the
Lessor will repair the Leased Premises.
SECTION 21
REPOSSESSION BY LESSOR
At the expiration of this Lease or upon the earlier termination of this
Lease for any cause herein provided for, Lessee shall peaceably and quietly quit
the Leased Premises and deliver possession of the same to Lessor together in
good working condition and in a state of repair and readiness for the same use,
with the facilities thereon at the beginning of the term hereof and all
facilities constructed thereon by Lessee which are not removed pursuant to the
terms hereof and all machinery, equipment and appurtenances installed therein
which have become part of the Leased Premises, or which are not to be removed
pursuant to Section 9 hereof. Lessee covenants and agrees that at the time of
delivery of possession to Lessor at the expiration of this Lease any and all
machinery, equipment and appurtenances constructed or installed on or in the
Leased Premises by Lessee at its expense after the beginning of the term hereof
and which have become the property of Lessor pursuant to Section 9 hereof shall
be free and clear of any mortgage, lien, pledge or other encumbrance or charge.
SECTION 22
MORTGAGE LIEN
Lessee agrees that this Lease and all rights of Lessee hereunder are
and shall be subject and subordinate to the lien of (a) any mortgage or deed of
trust constituting a first lien on the Leased Premises, or any part thereof, at
the date hereof, and (b) the lien of any mortgage or deed of trust hereafter
executed to a person, bank, trust company, insurance company or other recognized
lending institution to provide permanent financing or refinancing of the
facilities on the Leased Premises, and (c) any renewal, modification,
consolidation or extension of any mortgage or deed of trust referred to in
clause (a) or (b), and Lessee shall, upon demand at any time or times, execute,
acknowledge and deliver to Lessor without any expense to the Lessor, any an all
instruments that may be necessary or proper to subordinate this Lease and all
rights of Lessee hereunder to the lien of any mortgage, deed of trust or other
instrument referred to in clause (b) or clause (c) of the preceding sentence;
provided, however, that the subordination of this Lease shall be conditioned
upon the execution and delivery by the mortgagee or trustee of an agreement (i)
that so long as Lessee is not in default under the terms of this Indenture the
mortgagee or trustee, or any person succeeding to the
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rights of the mortgagee or trustee, or any purchaser at a foreclosure sale under
said mortgage or deed of trust, shall not disturb the peaceful possession of
Lessee hereunder, and (ii) that the proceeds of insurance policies held by it
will be applied to the cost of repairs and restoration in those instances in
which Lessor is obligated to repair and restore pursuant to the provisions
hereof.
SECTION 23
DEFAULT
In the event (i) any installment of rent or additional rent shall not
be paid within ten (10) days after it's due date; or (ii) failure to remove snow
and ice from sidewalks, stairs and dock area adjacent to the Leased Premises for
more than 48 hours after such snow or ice appears; or (iii) Lessee defaults in
the performance or observance of any other covenant or condition in this
Indenture and such default remains unremedied for twenty (20) days after written
notice thereof has been given to Lessee by Lessor; or (iv) any warranty or
representation made by Lessee herein proves to be false or misleading; or (v)
Lessee makes an assignment for the benefit of creditors, is generally not paying
its debts as such debts become due, a custodian was appointed or took possession
of its assets other than a trustee, receiver or agent appointed or authorized to
take charge of less than substantially all of the property of Lessee for the
purpose of enforcing a lien against such property, commences any proceeding
relating to Lessee or any substantial part of its property arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction whether now or hereafter in effect, or there is commenced against
Lessee any such proceeding which remains undismissed for a period of sixty (60)
days, or any order approving the petition in any such proceeding is entered, or
Lessee by any act indicates its consent to, or acquiescence in, any such
proceeding or the appointment of any receiver or trustee for Lessee or any
substantial part of its property, or suffers any such receivership or
trusteeship to continue undischarged for a period of sixty (60) days, or any
party holding a security interest in any of Lessee's fixtures or personal
property of any nature whatsoever that are located on the Leased Premises
institutes or gives notice of foreclosure against any such property, then, in
any of such events, Lessor may immediately or at any time thereafter and without
demand or notice enter upon the Leased Premises or any part thereof in the name
of the whole and repossess the same as of Lessor's former estate and expel
Lessee and those claiming through or under Lessee and remove their effects
forcibly if necessary, 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 such entry this Lease shall
terminate, and
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Lessee covenants that, in case of such termination or in case of termination
under the provisions of statute by reason of the default of Lessee, Lessee shall
remain and continue liable to Lessor in an amount equal to the total rent
reserved for the balance of the term plus all additional rent reserved for the
balance of the term hereof less the net amounts (after deducting the expenses of
repair, renovation or demolition) which Lessor realizes, or with due diligence
should have realized from the reletting of the Leased Premises, plus all costs
associated with the correction of the default or the termination of the Lease,
including Lessor's reasonable attorney's fees. As used in this Section, the term
"additional rent" means the value of all considerations other than rent agreed
to be paid or performed by Lessee hereunder, including, without limiting the
generality of the foregoing, taxes, assessments, maintenance charges and
insurance premiums. Lessor shall have the right from time to time to relet the
Leased Premises upon such terms as they may deem fit, and if a sufficient sum
shall not be thus realized to yield the net rent required under this Lease,
Lessee agrees to satisfy and pay all deficiencies as they may become due during
each month of the remaining term of this Lease. Nothing herein contained shall
be deemed to require Lessor to await the date whereon this Lease, or the term
hereof, would have expired had there been no default by Lessee, or no such
termination or cancellation. Lessee expressly waives service of any notice of
intention to reenter and waives any and all right to recover or regain
possession of the Leased Premises, or to reinstate or redeem this Lease as may
be permitted or provided for by or under any statute or law now or hereafter in
force and effect. The rights and remedies given to Lessor in this Lease are
distinct, separate and cumulative remedies, and no one of them, whether or not
exercised by Lessor, shall be deemed to be in exclusion of any of the others
herein or by law or equity provided. Nothing contained in this Section shall
limit or prejudice the right of Lessor to prove and obtain, in proceedings
involving the bankruptcy or insolvency of, or a composition with creditors by,
Lessee the maximum allowed by any statute or rule of law at the time in effect.
SECTION 24
ACCESS TO PREMISES
Lessor or its representatives shall have free access to the Leased
Premises at reasonable intervals during normal business hours for the purpose of
inspection, or for the purpose of showing the Premises to prospective purchasers
or tenants, or for the purpose of making repairs which Lessee is obligated to
make hereunder but has failed or refused to make. The preceding sentence does
not impose upon Lessor any obligation to make repairs. During the One Hundred
Twenty (120) days next preceding the expiration of this Lease, Lessor may keep
affixed to any
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suitable part of the outside of the building on the Leased Premises a notice
that the Leased Premises are for sale or rent.
SECTION 25
NOTICES
Any written notice, request or demand required or permitted by this
Indenture shall, until either party shall notify the other in writing of a
different address, be properly given if hand delivered or sent by certified or
registered first class mail, postage prepaid, and addressed as follows:
If to Lessor: FIVE N ASSOCIATES
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
If to Lessee: SKILLSOFT CORPORATION
00 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
SECTION 26
SIGNS; EXTERIOR APPEARANCE
Lessee may advertise its presence in the Leased Premises, provided,
however, that the signage shall conform to the ordinances of the City of Nashua
and shall be placed on the sign fronting the Xxxxxxx Turnpike.
Lessor shall have the prior right to approve the signage to be placed by Lessee.
SECTION 27
OPTION TO RENEW
Provided Lessee be not at the time in default in the payment of the
rent or in the performance of any of its obligations hereunder, the Lessee, upon
not less than one hundred twenty (120) days notice in writing to Lessor, may
renew this Lease for one (1) additional term of three (3) years. Such renewal
shall be upon all of the terms and conditions of this Lease except that there
shall be no further option of renewal following the last renewal term and the
rent for the renewal term shall be as set forth in Section 28 hereof.
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SECTION 28
RENT FOR RENEWAL TERM
28.1 If the first option to renew shall be exercised, the base
monthly rent during such renewal term shall be an amount determined by
multiplying the monthly rent of Two Thousand Nine Hundred Eighty-Seven Dollars
and Twenty-Nine Cents ($2,987.29) by a fraction, the numerator of which shall be
the Price Index on the first of the month closest to the expiration of the
original term hereof, and the denominator of which shall be the Price Index as
of the month prior to the beginning of the term hereof; PROVIDED, HOWEVER, that
if such fraction is one or less the base monthly rent shall be Two Thousand Nine
Hundred Eighty-Seven Dollars and Twenty-Nine Cents ($2,987.29).
28.2 As used in this paragraph, the term "Price Index" means (i)
the "Consumers' Price Index - For all urban consumers, U.S. City Average, All
Items, (1982-84 = 100) (referred to as CPI-U)" published by the Bureau of Labor
Statistics of the United States Department of Labor, or (ii) if the publication
of such Consumers' Price Index shall be discontinued, the comparable index most
closely reflecting diminution of the real value of the base rent herein provided
for. In the event of a change in the base rent for the Price Index, the
numerator of the fraction referred to above, shall be appropriately adjusted to
reflect continued use of the 1982-84 base in the case of the Consumers' Price
Index or in the case of such comparable index, the continued use of the base
period in effect at the time of its adoption for use hereunder. At the request
of either party hereto, the other from time to time shall execute an appropriate
instrument supplemental to this Indenture evidencing the then current monthly
rent payable by the Lessee hereunder.
SECTION 29
SHORT FORM RECORDING
The parties covenant and agree that, if required by the applicable
statutes, there shall be recorded in the Hillsborough County Registry of Deeds a
notice of this Lease that complies in content and form with the New Hampshire
statutes, and that they will execute and deliver a Notice of Lease in such form
for such purpose. The parties further covenant and agree that, in the event of
termination, cancellation or assignment of this Lease prior to the expiration of
the term hereof, they will execute and deliver, in recordable form, an
instrument setting forth such termination, cancellation or assignment.
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SECTION 30
SUCCESSION
This Indenture shall be binding upon and inure to the benefit of the
heirs, executors, administrators, successors and permitted assigns of the
parties hereto.
SECTION 31
WAIVER
Any consent, express or implied, by Lessor to any breach by Lessee of
any covenant or condition of this Lease shall not constitute a waiver by the
Lessor of any prior or succeeding breach by Lessee of the same or any other
covenant or condition of this Lease. Acceptance by Lessor of rent or other
payment with knowledge of a breach of or default under any term hereof by Lessee
shall not constitute a waiver of Lessor by such breach or default.
SECTION 32
GOVERNING LAW
This Indenture shall be construed and interpreted in accordance with
the laws of the State of New Hampshire.
SECTION 33
FORCE MAJEURE
Except as expressly provided herein, there shall be no abatement,
diminution or reduction of the rent or other charges payable by the Lessee
hereunder based upon, or claimed as a result of, any act of God, act of the
public enemy, governmental action, or other casualty, cause or happening beyond
the control of the parties hereto.
SECTION 34
COUNTERPARTS
This Indenture may be executed in two (2) or more counterparts, each of
which shall be deemed an original and all collectively but one and the same
instrument.
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SECTION 35
MODIFICATION; ENTIRE AGREEMENT
This Lease contains and embraces the entire agreement between the
parties hereto and neither it nor any part of it may be changed, altered,
amended, modified, limited or extended orally or by agreement between the
parties unless such agreement be expressed in writing and signed by Lessor and
Lessee or their respective successors in interest.
SECTION 36
SECTION HEADINGS
The headings at the beginning of each of the Sections hereof are solely
for purposes of convenience and identification and are not to be deemed or
construed to be part of this Lease.
SECTION 37
SEVERABILITY
If any term, clause or provision of this Lease is judged to be invalid
and/or unenforceable, the validity and/or enforceability of any other term,
clause or provision in this Lease shall not be affected thereby.
SECTION 38
DEFINITION AND LIABILITY OF LESSOR
The term "Lessor" as used in this Lease means only the owner or
mortgagee in possession for the time being of the building in which the Leased
Premises are located or the owner of a leasehold interest in said building
and/or the land thereunder (or the Managing Agent of any such owner or
mortgagee) so that in the event of sale of said building or leasehold interest
or an assignment of this Lease or a demise of said building and/or land, Lessor
shall be and hereby is entirely freed and relieved of all obligations of Lessor
subsequently accruing.
It is specifically understood and agreed that there shall be no
personal liability of Lessor (nor Lessor's agent, if any) in respect to any of
the covenants, conditions or provisions of this Lease. In the event of breach or
default by Lessor, of any of its obligations under this Lease, Lessee shall look
solely to the equity of the Lessor in 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx
Xxxxxxxxx for the satisfaction of Lessee's remedies.
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SECTION 39
BROKERAGE
Each of the parties represents and warrants that there are no claims
for brokerage commissions or finder's fees with respect to this Lease or the
negotiation hereof except as set forth in this section. The parties further
agree to indemnify the other against, hold harmless from, all liabilities
arising from any such claim (including without limitation, the cost of attorney
fees in connection therewith) except; the broker for this Lease is Tamposi --
Xxxx Real Estate Group, Inc. whose fee shall be paid by the Landlord.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture of
Lease to be executed as of the day and year first above written.
FIVE N ASSOCIATES
/S/ Xxxxxx X. Xxxxxxxxx /S/ Q. Xxxxx Xxxx
-------------------------- -------------------------------
Witness Q. Xxxxx Xxxx, Managing Partner
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
/S/ Xxxxxx X. Xxxxxxxx /S/ Xxxxxxx X. Xxxxx
-------------------------- -------------------------------
Witness Lessee
PERSONAL GUARANTEE
In consideration of the execution of this Lease by the Lessor and for
other valuable consideration, the undersigned hereby issues his/her personal
guarantee for the faithful performance of all terms and conditions of this Lease
and accepts full responsibility that all obligations of the Lessee, including
the prompt payment of all rental and other charges recited herein, shall be made
when due and that in the event of any default of Lessee, the undersigned shall
reimburse and indemnify the Lessor for all costs and expenses incurred to
correct any such default. The undersigned agrees that the Lessor may proceed
directly against him/her for such payments owed or for such activity to be
performed without proceeding in the first instance against the Lessee or any
other obligor or guarantor of the Lessee as recited herein. The above provision
will be effective for a period of 1 1/2 years (8/31/99).
/S/ Xxxxxx X. Xxxxxxxx /S/ Xxxxxxx X. Xxxxx
-------------------------- -------------------------------
Witness Lessee
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SECOND SUPPLEMENTAL AGREEMENT
SECOND SUPPLEMENTAL AGREEMENT dated as of the 31st day of August,
1999, to the Lease dated February 18, 1998 and the First Supplemental Agreement
dated October 26, 1998, by and between FIVE N ASSOCIATES of 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxxxxxx (Lessor) and SKILLSOFT CORPORATION, of 00 Xxxxxxxxxx Xxxx
Xxxxx, Xxxxxx, Xxx Xxxxxxxxx (Xxxxxx).
WHEREAS the Lessor and the Lessee desire to amend the Lease,
effective upon the execution of this agreement, as follows:
Section 1 -- Leased Premises - The Leased premises shall also include
4,686 square feet of space on the second floor.
Section 3.1 - The base annual rent shall be changed to One Hundred
Thousand One Hundred Forty Five Dollars ($100,145.00) payable in monthly
installments of Eight Thousand Three Hundred Forty-Five and 41/100 Dollars
($8,345.41) with the fist monthly installment of base rent commencing October 1,
1999.
Section 3.3 - The Lessee's pro-rata share shall be changed to
52.263%. and the base annual rent shall be changed to One Thousand One Hundred
Forty Five ($100,145) payable in monthly installments of Eight Thousand Three
Hundred Forty Five and 41/100 Dollars ($8,345,41) with the first monthly
installment of base rent commencing on October 1, 1999.
Section 11.2 - The parking space percentage shall be changed to
52.263%.
Section 13.1 - The Lessee's pro rata share of real estate taxes shall
be changed to 52.263%.
Section 40 - Right of First Refusal to Lease - The Lessee's right of
first refusal shall be changed to be the remaining 5,314 square feet of space on
the second floor of the building.
Additional Provision - The Lessor, at its expense, shall perform its
fit-up work which shall include the construction of the demising wall, the
construction of a hallway and entry door to the common electrical room, the
replacement of all damaged ceiling tiles, shampooing the common area carpet,
cleaning of bathrooms, cleaning or relamping the light fixtures and the removal
of the soda vending machine. Lessor shall also patch and paint the leased
premises and the Lessee shall be responsible for 50% of the cost, which is
estimated to be $1,200.00.
Except as hereinabove amended, all of the provisions of the above
mentioned Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Second Supplemental
Agreement to be executed as of the day and year first above written.
FIVE N ASSOCIATES
/s/ Q. Xxxxx Xxxx
-------------------------------------- ----------------------------------
Witness Q. Xxxxx Xxxx, Managing Partner
SKILLSOFT CORPORATION
/s/ Xxxx Buttarini /s/ Xxxxxxx X. Xxxxx
--------------------------------------- -----------------------------------
Witness Xxxxxxx X. Xxxxx, President & CEO
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THIRD SUPPLEMENTAL AGREEMENT
THIRD SUPPLEMENTAL AGREEMENT dated as of the 14th day of September, 1999,
to the Lease dated February 18, 1998 and the First Supplemental Agreement dated
October 26, 1998 and the Second Supplemental Agreement dated August 31, 1999, by
and between FIVE N ASSOCIATES of 00 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx
(Lessor) and SKILLSOFT CORPORATION, of 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx
Xxxxxxxxx (Xxxxxx).
WHEREAS the Lessor and the Lessee desire to amend the Lease, effective
October 1, 1999, as follows:
Section 1 - Leased Premises - The Leased premises shall also include an
additional 810 square feet of space on the second floor.
Section 3.1 - The annual base rent shall be changed to One Hundred Six
Thousand Two Hundred Twenty ($106,220.00) payable in monthly installments of
Eight Thousand Eight Hundred Fifty One and 66/00 Dollars ($8,851.66) with the
first such monthly installment of base rent commencing October 1, 1999.
Section 3.3 - The Lessee's pro-rata share shall be changed to 55.146% and
the Lessee's additional monthly rent shall be changed to Four Thousand Five
Hundred Nineteen and 66/00 Dollars ($4,519.66), with the first such monthly
installment of additional rent, commencing on October 1, 1999.
Section 11.2 - The parking space percentage shall be changed to 55.146%.
Section 13.1 - The Lessee's pro rata share of real estate taxes shall be
changed to 55.146%.
Section 28.1 - The rental amount used to calculate the rent for the renewal
term shall be changed to Eight Thousand Eight Hundred Fifty One and 66/00
Dollars ($8,851.66).
Section 40 - Right of First Refusal to Lease - The Lessee's right of first
refusal shall be changed to be the remaining 4,504 square feet of space on the
second floor of the building.
Additional Provision - The Lessor, at it's expense, shall perform it's fit
up work which shall include the construction of the relocated demising wall, the
construction of the relocated hallway to back stairway, the replacement of all
damaged ceiling tiles and the cleaning or relamping the light fixtures.
Except as hereinabove amended, all of the provisions of the above mentioned
Lease and Supplemental Agreements shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Third Supplemental
Agreement to be executed as of the day and year first above written.
FIVE N ASSOCIATES
/s/ Xxxxxx X. Xxxxxxxxx /s/ Q. Xxxxx Xxxx
----------------------------------- --------------------------------------
Witness Q. Xxxxx Xxxx, Managing Partner
SKILLSOFT CORPORATION
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxxx X. Xxxxx
----------------------------------- --------------------------------------
Witness Xxxxxxx X. Xxxxx, President & CEO
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FOURTH SUPPLEMENTAL AGREEMENT
FOURTH SUPPLEMENTAL AGREEMENT dated as of the 1st day of May, 2000, to the
Lease dated February 18, 1998, the First Supplemental Agreement dated October
26, 1998, the Second Supplemental Agreement dated August 31, 1999, and the Third
Supplemental Agreement dated September 14, 1999, by and between FIVE N
ASSOCIATES of 00 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx (Lessor) and SKILLSOFT
CORPORATION, of 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx (Xxxxxx).
WHEREAS the Lessor and the Lessee desire to amend the Lease, effective
April 15, 2000, as follows:
Section 1 - Leased Premises - The Leased premises shall include an
additional 4,504 square feet of space which is the remaining space on the second
floor and an additional 2,100 square feet of space on the southwest corner of
the first floor.
Section 3.1 - The annual base rent shall be changed to One Hundred Fifty
Five Thousand Seven Hundred Fifty Dollars ($155,750.50) payable in monthly
installments of Twelve Thousand Nine Hundred Seventy Nine and 16/00 Dollars
($12,979.16) with the first such monthly installment of base rent commencing May
1, 2000.
Section 3.3 - The Lessee's pro-rata share shall be changed to 78.647% and
the Lessee's additional monthly rent shall be changed to Six Thousand Four
Hundred Forty Five and 83/00 Dollars ($6,445.83), with the first such monthly
installment of additional rent commencing on May 1, 2000.
Section 11.2 - The parking space percentage shall be changed to 78.647%.
Section 13.1 - The Lessee's pro rata share of real estate taxes shall be
changed to 78.647%.
Section 28.1 - The rental amount used to calculate the rent for the renewal
term shall be changed to One Hundred Fifty Five Thousand Seven Hundred Fifty
Dollars ($155,750.00).
Section 40 - Right of First Refusal to Lease - The Lessee's right of first
refusal to lease additional space shall be changed to be the adjacent space on
the first floor when it becomes available for lease (currently leased by Mentec,
Inc.).
Except as hereinabove amended, all of the provisions of the above mentioned
Lease and all Supplemental Agreements shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Fourth Supplemental
Agreement to be executed as of the day and year first above written.
FIVE N ASSOCIATES
/s/ Xxxxxx X. Xxxxxxxxx /s/ Q. Xxxxx Xxxx
----------------------------------- --------------------------------------
Witness Q. Xxxxx Xxxx, Managing Partner
SKILLSOFT CORPORATION
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxxx X. Xxxxx
----------------------------------- --------------------------------------
Witness Xxxxxxx X. Xxxxx, President & CEO
28
FIFTH SUPPLEMENTAL AGREEMENT
FIFTH SUPPLEMENTAL AGREEMENT dated as of the 29th day of September 2000, to
the Lease dated February 18, 1998, the First Supplemental Agreement dated
October 26, 1998, the Second Supplemental Agreement dated August 31, 1999, the
Third Supplemental Agreement dated September 14, 1999 and the Fourth
Supplemental Agreement dated May 1, 2000, by and between FIVE N ASSOCIATES of 00
Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx (Lessor) and SKILLSOFT CORPORATION, of 00
Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx (Xxxxxx).
WHEREAS the Lessor and the Lessee desire to amend the Lease, effective
September 1, 2000, as follows:
Section 27 - Option to Renew - The Lessee shall have an additional three
year renewal term which is above and beyond the original three year renewal term
called for in this section.
Except as hereinabove amended, all of the provisions of the above mentioned
Lease and all Supplemental Agreements shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Fifth Supplemental
Agreement to be executed as of the day and year first above written.
FIVE N ASSOCIATES
/s/ Xxxxxxx X. [Illegible] /s/ Q. Xxxxx Xxxx
----------------------------------- --------------------------------------
Witness Q. Xxxxx Xxxx, Managing Partner
SKILLSOFT CORPORATION
/s/ Xxxxxx XxxXxxxxx /s/ Xxxxxx X. XxXxxxxx
----------------------------------- --------------------------------------
Witness Xxxxxxx X. Xxxxx, President & CEO
