Exhibit 10.44
COMMERCIAL LEASE
From the office of:
Xxxxx, Xxxxxxx & Gold
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
1. PARTIES
Sixty-Five Lafayette Road, LLC, a Massachusetts limited liability company,
having an usual place of business at Xxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, LESSOR, does hereby lease to RoweCom, Inc., a Massachusetts corporation
having an usual place of business at 00 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000, LESSEE, which expression shall include the successors, executors,
administrators, and assigns of the LESSOR and the LESSEE, where the context so
admits, the following described premises:
2. DEMISED PREMISES
The demised premises consists of the entire parcel of land containing
approximately 2.94 acres of land together with the building (the "Building") and
all improvements (the "Improvements") thereon (the Land, Building and
Improvements together hereinafter referred to as the "Demised Premises"), being
now known as and numbered 00-00 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxxxxxxxx. The Demised Premises is more particularly described in a copy of
a deed hereto and marked "Exhibit A".
3. SALE/LEASE BACK - CONDITION OF THE DEMISED PREMISES
This Lease has been entered into pursuant to a sale/lease back transaction by
and between the LESSEE, as the Seller of the Demised Premises, and the LESSOR,
as the Purchaser thereof. Because the LESSEE has owned and has occupied, and
continues to occupy, the Demised Premises, the LESSEE is aware of the condition
of the Demised Premises and the LESSEE agrees to lease the Demised Premises in
its present state and condition and will not look to the LESSOR for any repairs,
replacements or renovations thereto prior to the Commencement Date (as
hereinafter defined).
4. TERM
The term (the "Term") shall be for seven (7) years, commencing on the date when
the LESSOR requires record title to the Demised Premises from the LESSEE (the
"Commencement Date") and ending on December 31, 2007.
5. BASE RENT
The LESSEE shall pay to the LESSOR the annual base rent (the "Base Rent") in the
amount of $575,780.00 (41,122 s.f. X $14.00 p/s/f), during each of the first
three (3) years of the Term, the Base Rent to be payable in advance in monthly
installments of $47,975.67 on the first (1st) day of each and every month
commencing on the Commencement Date (which first monthly installment
shall be paid on the Commencement Date and prorated if the Commencement Date
occurs after the first (1st) day of the month) and continuing until December 31,
2003. The annual Base Rent for the fourth (4th) and fifth (5th) years of the
Term shall be in the amount of $585,988.50 (41,122 s.f. x $14.25 p/s/f), the
Base Rent to be payable in advance in monthly installments of $48,832.38,
beginning on January 1, 2004 and continuing until December 31, 2005. The annual
Base Rent for the sixth (6th) and seventh (7th) years of the Term shall be in
the amount of $596,269.00 (41,122 s.f. X $14.50 p/s/f), the Base Rent to be
payable in advance in monthly installments of $49,689.08, beginning on January
1, 2006 and continuing until December 31, 2007. All payments of rent shall be
made by LESSEE to the LESSOR without notice or demand at such place as LESSOR
may from time to time designate. Rent paid after the fifth (5th) day of each
month shall be considered delinquent and, in such event, the LESSEE will pay the
LESSOR as additional rent a sum equal to five percent (5%) of the total monthly
rent due. Any acceptance of rent after the date payment is due shall not be a
waiver of the rights of the LESSOR to require that future payments made in the
manner and at the times herein specified.
6. ADDITIONAL RENT
In addition to the Base Rent, the LESSEE shall begin to pay to the LESSOR
("Additional Rent"), on the first (1st) day of each and every month beginning on
the first (1st) day of January, 2001 and continuing during the balance of the
Term of this Lease. LESSEE shall pay for all costs and expenses incurred or
expected to be incurred by the LESSOR in connection with the Demised Premises
(the "Operating Costs"). The LESSOR shall provide the LESSEE with the amount of
the Operating Costs as soon as practicable after the beginning of each calendar
year, shall estimate the total Operating Costs for the then current year (which
shall be based both on actual experience and anticipated changes) and shall
notify the LESSEE in writing of the LESSEE'S share which shall be payable in
equal monthly installments during the then current year, retroactive to January
1 of the then current year. At such time, the LESSOR shall also determine the
actual Operating Costs for the preceding year and shall provide LESSEE with an
accounting thereof, and in the event that it is determined that the LESSEE has
either overpaid or underpaid during the preceding year, the LESSEE'S payments
each month for the then current year will be decreased proportionally to
reimburse the LESSEE for such overpayment or increased proportionally to
reimburse the LESSOR for such underpayment. The LESSOR, from time to time, and
at any time, during the course of any year, upon presentation of supporting
documentation, may readjust the LESSEE'S monthly payments of additional rent,
such adjustment to take effect beginning as of the first (1st) day of the month
following thirty (30) days written notification by the LESSOR to the LESSEE,
which readjustment shall be based on actual or anticipated changes in a) taxes
and b) Operating Costs for the then current year that were not included in the
original estimate for such year.
Upon the execution of this Lease, the LESSEE shall also pay to the LESSOR one
half (1/2) of the annual premiun for flood insurance (estimated to be $23,000.00
per year) and shall continue to pay one twelfth (1/12th) of the entire annual
premium each month as Additional Rent. In the event that the estimated amount
shall prove to be either too large or too small an appropriate adjustment shall
be made between the parties. After the expiration of one (1) year, provided that
there is no default by the LESSEE under the provisions of this LEASE, the LESSEE
shall not be required to make payments on account of the annual premium for
flood insurance, for a period of six (6) months.
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The parties will cooperate with each other to attempt to secure a reduction in
the flood hazard insurance premium and to secure the best rate, the costs of
such action to be shared by the parties annually.
For purposes of this paragraph, Operating Costs shall include the following
LESSOR'S costs, expenses and charges incurred in connection with the Demised
Premises: a) real estate taxes including betterment assessments, b) insurance
premiums including hazard, liability and rent interruption insurance and, if
required, flood hazard insurance, c) water and sewer use charges (if paid by the
LESSOR,, d) management fees in the amount of seven thousand dollars per
($7,000.00) year; and e) the LESSEE'S proportionate share of any capital
expenditures made by the LESSOR as required under Paragraph 11 of this Lease.
In the event that the LESSEE occupies the Premises for a period which does not
include an entire Year, there shall be an appropriate adjustment made between
the LESSOR and the LESSEE.
LESSEE, upon written notice to LESSOR, shall have the right, at LESSEE'S sole
cost and expense, to examine the LESSOR'S records and computations used to
establish the Operating Costs, such examination to be at least five (5) business
days after receipt of such notice and to be at such reasonable time and place so
as not to unreasonably interfere with the business of the LESSOR. If the
discrepancy exceeds five per cent (5%) in the amount so charged to the LESSEE,
which discrepancy results in an overcharge to LESSEE, then the LESSOR shall pay
the reasonable cost of the LESSEE'S examination. In the event that the LESSEE'S
said examination discloses that there is a discrepancy in the amount of the
Operating Costs charged to the LESSEE, the LESSOR shall immediately repay to the
LESSEE any amount that the LESSEE had been overcharged.
7. SECURITY DEPOSIT DUE UPON EXECUTION
A security deposit in the amount of $200,000.00 shall be paid upon the execution
of this Lease. At the sole option of the LESSOR, the obligation to provide a
security deposit may be satisfied by the LESSEE securing and depositing with the
LESSOR, an irrevocable letter of credit (the "LOC"), issued by a major a Boston
area bank or banking institution, and containing provisions that shall be
satisfactory to the LESSOR. If a LOC is issued and accepted by the LESSOR, the
LESSEE shall have the obligation to insure that the LOC remains in full force
and effect during the Term and the failure to do so, shall be deemed to be a
default under the provisions of this Lease. Provided that the LESSEE has
fulfilled its obligations under this Lease and does not owe the LESSOR any
monies under the provisions of this Lease, the LESSOR, shall return the LOC to
the LESSEE within ten (10) days after such termination. If the LESSEE owes the
LESSOR any such monies which are less than the face amount of the LOC, the
LESSOR, upon payment of such lesser amount by the LESSEE, shall then immediately
return the LOC to LESSEE. In the event that the LESSOR shall agree that the
security deposit may be made in cash instead of by a LOC, the LESSOR and the
LESSEE hereby agree that, in the event of default by the LESSEE under the
provisions of this Lease, the security deposit shall be considered to be prepaid
rent and can thereafter be immediately applied against future rent.
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8. UTILITIES
The LESSEE shall separately pay the cost of all electricity, gas and telephone
charges used on the Demised Premises for any purpose, including heat and air
conditioning, which shall be paid for directly by the LESSEE.
9. USE OF PREMISES
The LESSEE shall use the Demised Premises for any legally permitted general
office and such related purposes as permitted by the Westwood zoning ordinances
and restrictions which may be applicable to the Demised Premises. The LESSOR
makes no representations or warranties as to the Westwood zoning ordinances or
as to any applicable restrictions. No activity on the Demised Premises shall be
conducted in an unlawful, improper, noisy or offensive manner, or contrary to
any applicable law, ordinances, rules, regulations or restrictions. In addition,
the LESSEE shall a) not store any hazardous substances (as defined in all
applicable federal and state laws, ordinances, rules and regulations) on the
Demised Premises except in full compliance with all applicable environmental
laws, rules and regulations and consistent with the LESSEE'S business
operations, b) shall not dump, flush or in any way introduce hazardous
substances or any other toxic substances into the sewage or other waste disposal
systems serving the Demised Premises except in full compliance with all
applicable environmental laws, rules and regulations and consistent with the
LESSEE's business operations, c) shall, if required by any applicable federal
and state laws, ordinances, rules and regulations keep the Demised Premises
equipped with all safety appliances and aids for the handicapped made applicable
to the Demised Premises by its specific use or manner of operations and d) shall
not use or permit any use of the Demised Premises which may invalidate or
increase the premiums for any insurance covering the Demised Premises. If the
LESSEE'S use of the Demised Premises shall result in an increase in the premiums
for any such insurance, the LESSEE shall pay the entire amount of such increase.
10. MAINTENANCE OF AND CONDITION OF THE PREMISES BY LESSEE
The LESSEE shall have the sole responsibility for the entire maintenance, repair
and upkeep of the interior and exterior of the Demised Premises, including
structural repairs but excluding only any structural or systems replacements
which are to be performed by the LESSOR in accordance with Paragraph 11 of this
Lease (for which the LESSEE shall pay its proportionate share as Additional Rent
as provided in Paragraph 6 of this Lease and as computed in Paragraph 11 and
including within such sole responsibility of LESSEE without limitation a) all
plumbing, lighting and other fixtures included within and exclusively serving
the Demised Premises, b) all interior surfaces of doors, windows and walls, c)
all partitions and floors (which repairs are not structural in nature), d) all
heating, air conditioning and other machinery, appliances, utility
installations, pipes, wires, connections, boxes and meters and any and all other
such appliances and accessories, e) the exterior of all components of the
Building including, but not limited to, the roof, exterior walls, exterior
windows and doors and f) all other Improvements including, but not limited to,
the parking areas and walkways. The LESSEE shall also be responsible for the
landscaping and snow removal. The LESSEE shall not be responsible for any damage
caused by or due to the negligence of the LESSOR, its agents, servants or
employees.
In the event of damage to the Demised Premises, the LESSEE shall use the
insurance proceeds to repair such damage.
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The LESSEE fails to keep and maintain the Demised Premises in good condition and
repair, and such failure continues for thirty (30) days after written notice
thereof, except where a shorter period is reasonably required because of an
emergency, the LESSOR, may, in its discretion, enter Demised Premises and make
such repairs and the LESSEE shall pay to the LESSOR, within thirty (30) days
after the LESSOR has provided proof to the LESSEE of payment for such repairs,
the amount so expended together with interest thereon at the rate of ten percent
(10%) per annum.
The LESSEE shall not permit the Demised Premises to be overloaded, damaged,
stripped, or defaced, nor suffer any waste.
The LESSEE may make structural or non-structural alterations or additions
(together the "Alterations") to the Demised Premises without the prior written
consent of the LESSOR so long as such Alterations do not exceed $50,000.00; but
may only make Alterations to the Demised Premises exceeding $50,000.00 if the
LESSEE shall first secure the written consent of the LESSOR, which consent may
not be unreasonably denied, withheld, conditioned or delayed by the LESSOR
provided that a) the LESSEE has provided the LESSOR with complete plans and
specifications, b) the LESSEE has provided the LESSOR with evidence that it has
sufficient funds to complete the renovations, c) the LESSEE shall secure lien
waivers from all contractors and subcontractors, d) the LESSEE shall secure all
necessary permits and approvals, e) the quality and design of the alterations or
additions shall be in keeping with the Building and f) if assent from any
mortgagee is required, such assent shall have been given. All such alterations
which the LESSEE undertakes shall be the LESSEE'S sole responsibility and at the
LESSEE'S sole cost and expense, a) shall be constructed in accordance with the
plans and specifications that have been submitted to and approved by the LESSOR,
b) shall be covered by appropriate insurance, c) shall be properly permitted, d)
shall be made in accordance with all applicable laws, ordinances and
restrictions and e) shall be of quality at least equal to the present
construction. The LESSEE shall not permit any mechanic's liens, or similar
liens, to attach to or to remain upon the Demised Premises for labor and
material furnished to the LESSEE or claimed to have been furnished to the LESSEE
in connection with work of any character performed or claimed to have been
performed at the direction of the LESSEE and the LESSEE shall cause any such
lien to be released of record, or released by providing a bond forthwith,
without cost to the LESSOR. Any alterations or improvements made by the LESSEE
shall become the property of the LESSOR at the termination of occupancy.
11. STRUCTURAL AND SYSTEMS REPLACEMENTS BY LESSOR
The LESSOR shall have the responsibility only for the replacement of all
structural components to the Building and building systems including the
replacement of the HVAC and other such systems and mechanical components and the
resurfacing of the parking and walkway areas which such replacements are
generally treated as capital expenses and amortized over the useful life of the
replacement (the "Landlord Replacements"). In the event of damage by fire and
other casualty fully covered by insurance the LESSOR shall use the insurance
recovered to repair such damage. The LESSEE shall pay, as additional rent, its
proportionate share of the cost or the Landlord Replacements, such share to be
computed in accordance with the following example: if the useful life of a
Landlord Replacement is twenty (20) years, the LESSEE shall pay one twentieth
(1/20 ) of the cost each year beginning in the year such replacement is made and
continuing until the end of the term of this Lease. If the replacement is made
during the course of a year, the payment by the LESSEE shall be apportioned
accordingly.
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If the LESSOR fails to make such Landlord Replacements required and such failure
continues for twenty (20) days after written notice thereof to the LESSOR, the
LESSEE may, unless the LESSOR has already undertaken to cure such failure, cause
such repairs to be made and the LESSOR agrees to pay to the LESSEE, within
thirty (30) days after the LESSEE provides proof of payment for such repairs,
the amount so expended together with interest thereon at the rate of ten percent
(10%) per annum. Any such amounts due from the LESSOR to the LESSEE may not be
offset against the Base Rent or Additional Rent to be paid by the LESSEE to the
LESSOR unless specifically permitted by the LESSOR in writing but there shall be
a fair and appropriate abatement of the Base Rent and the Additional Rent if the
LESSOR fails to make such Landlord Replacements within said twenty (20) days
after written notice. Such abatement shall be based on the portion of the
Demised Premises which is unusable due to the LESSOR'S failure to make such
Landlord Replacements.
12. SIGNAGE
LESSEE shall be be entitled to place signs on the Demised Premises provided that
a) such sign is generally in keeping with other such signs in the area and b) is
in compliance with local ordinances. The cost for LESSEE'S exterior signs, and
the continued maintenance thereof, shall be the LESSEE'S sole responsibility and
cost. The LESSEE shall also be entitled to place signs in the interior of the
Building, at its sole cost and expense.
14. LESSEE'S LIABILITY INSURANCE
The LESSEE shall procure and maintain in force at its expense during the term of
this lease and any extension thereof, comprehensive public liability insurance
with companies licensed to do business in Massachusetts and reasonably
acceptable to the LESSOR. Such coverage shall be adequate to protect against
public liability for damage claims through public use of or arising out of
accidents occurring in or around the Demised Premises, in a minimum amount of no
less than two million dollars ($2,000,000) for each occurrence and in the
minimum amount of three million dollars ($3,000,000) in the aggregate and three
hundred thousand dollars ($300,000) for property damage. All such insurance
policies shall provide coverage for contingent liability of the LESSOR on any
such claims or losses and shall name the LESSOR and the LESSEE, as additional
insureds, as their interests may appear. The LESSEE shall deposit with the
LESSOR certificates for such insurance at or prior to the commencement of the
term, and thereafter within thirty (30) days prior to the expiration of any such
policies. All such insurance shall provide that such policies shall not be
canceled without at least twenty (20) days prior written notice to each insured
and additional insured named therein.
14.1 LESSOR'S INSURANCE
The LESSOR shall procure and obtain in force during the term of this Lease,
insurance covering the Demised Premises insuring against loss by fire and other
casualties as are generally included in the so called "all risk" coverage, in an
amount adequate to rebuild the Building and Improvements, and also providing
such additional coverages that are commonly included in policies insuring
property similar to the Demised Premises including, but not limited to, coverage
for loss of rental income. If required, the LESSOR shall also obtain flood
hazard insurance. The Building and Improvements shall be revauled periodically
for determining the amount of coverage required to
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rebuild same. All such policies shall provide that they shall not be cancelled
without at least twenty (20) days prior written notice to the LESSOR and to the
LESSEE. The LESSOR shall deposit with the LESSEE certificates for such insurance
at or prior to the commencement of the term, and thereafter within thirty (30)
days prior to the exopiration of such policies.
15. ASSIGNMENT AND SUBLETTING
The LESSEE shall not assign this Lease or sublet the whole or any part of the
Premises, or permit the whole or any part of the Premises to be used by any
other party, without having first received the Lessor's prior written consent,
which consent may not be unreasonably withheld, denied, conditioned or delayed
by the LESSOR provided that all of the following conditions are met: a) the
proposed assignee or sublessee (together the "PA") shall be creditworthy and
shall have a financial worth which will enable it to fulfill its obligations
under this Lease or the sublease, as the case may be; b) that the PA shall have
a generally good reputation; c) that the PA shall not use the Premises for any
purpose which shall not be permitted by any law, ordinance, regulation or
restriction or which shall be incompatible with the other tenants in the
Building; and c) that, if required, such assignment shall be approved by a
mortgagee holding a mortgage covering the Demised Premises. A change in the
ownership of the LESSEE or a sale of the LESSEE'S business that results in a
change of control as presently exists shall not constitute an assignment of the
Lease for purposes of this paragraph. In the event that the LESSOR shall consent
to an assignment or subletting, the assignee or sublessee shall assume all of
the obligations of the LESSEE under this Lease and the LESSEE and the guarantor
of the LESSEE'S performance of its obligations under this Lease, if any, shall
continue to remain jointly and severally liable to the LESSOR for the payment of
all rent and for the full performance of the covenants and conditions of this
Lease.
In the event the LESSOR shall approve of any subletting or assignment of this
Lease, for which the rent is increased above the Base Rent as set forth in this
Lease, then one half (1/2) of such increase, after deducting the LESSEE'S
reasonable and necessary costs of procuring such sublessee or assignee, shall be
paid to the LESSOR by the LESSEE, assignee or subtenant on the same dates that
the payment of the Base Rent is due under the provisions of this Lease. Any
failure to make such additional payment shall be considered to be, and shall be
treated the same as, a default in the payment of the Base Rent and Additional
Rent under this Lease.
16. SUBORDINATION TO MORTGAGES
This Lease shall be subject and subordinate to any and all mortgages and other
instruments in the nature of a mortgage (together the "Mortgage"), existing
prior to or placed subsequent to the date of the execution of this Lease. The
LESSEE shall, upon the request of the LESSOR, promptly execute and deliver all
such instruments as may be appropriate to subordinate this Lease, or to confirm
that it is subordinate, to any such Mortgage. The LESSOR shall obtain an
agreement from the holder of any such Mortgage that the LESSEE shall remain
undisturbed under this Lease in the event of foreclosure or transfer of the
Demised Premises by deed in lieu of foreclosure if the LESSEE is not in default
under any of the terms and provisions of this Lease.
17. LESSOR'S ACCESS
The LESSOR or its agents, servants or employees may, at reasonable times, and
upon reasonable prior notice, except in the event of an emergency, enter to view
the Demised Premises and may,
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object to the LESSEE'S obligations to make repairs set forth in Paragraph 10 of
this Lease, make repairs and alterations as the LESSOR should reasonably elect
to do provided that such repairs do not interfere with the LESSEE'S use thereof
and, at any time within twelve (12) months before the expiration of the Term of
this Lease, may show the Demised Premises to others, for the purpose of selling
or renting same, may affix to any suitable part of the Demised Premises a notice
for letting the Demised Premises or a portion or portions thereof, and keep the
same so affixed without hindrance or molestation.
18. INDEMNIFICATION
The LESSEE shall save the LESSOR harmless from and against any and all loss and
damage occasioned by or resulting from LESSEE'S failure to maintain or repair
any portion of the Demised Premises for which it is responsible as set forth in
this Lease or from any nuisance made or suffered on the Demised Premises or from
the negligence of the LESSEE or any of its agents, servants or employees unless
in any or all such instance(s) such loss is caused by the neglect or actions of
the LESSOR
The LESSOR shall save the LESSEE harmless from and against any loss and damage
occasioned by the LESSOR'S negligence or failure to make Landlord repairs for
which the LESSOR is responsible as set forth in this Lease, or from the
negligence of the LESSOR or any of its agents, servants or employees while on
the Demised Premises unless such loss is caused by the neglect or actions of the
LESSEE.
19. FIRE AND CASUALTY
Should a substantial portion of the the Building, be materially damaged by fire
or other casualty, the LESSOR shall repair the damage. If, despite reasonable
efforts of the LESSOR, the Building cannot be restored to a useable condition
within two hundred seventy (270) days after the occurrence of the damage, the
LESSEE, upon written notice to the LESSOR, may elect to terminate this Lease. In
any event, however, during the last one (1) year of the Term of this Lease, the
LESSOR may, in its sole discretion, terminate this Lease, unless the LESSOR and
the LESSEE shall otherwise mutually agree. The Base Rent and the Additional Rent
shall be apportioned (based on the portion of the Demised Premises which is
usable for the LESSEE'S normal business operations after the occurrence of a
casualty) and paid to the date of the termination of this Lease. LESSEE shall
have the right to terminate this Lease unless LESSOR gives written notice to
LESSEE within forty-five (45) days of such fire or other casualty, that LESSOR
intends to restore and reasonable anticipates that such restoration can be
completed within two hundred seventy (270) days after the occurrence of such
damage. When such fire or other casualty renders the Building substantially
unsuitable for its intended use. The LESSEE shall be required to pay the Base
Rent and the Additional Rent and other sums due hereunder only for the portion
of the Demised Premises that is usable for the LESSEE'S normal business
operations after the occurrence of the fire or other casualty until the
reconstruction is substantially complete.
20. EMINENT DOMAIN
If the entire Demised Premises is taken under the power of eminent domain, this
Lease shall terminate as of the date that the LESSOR'S title has been divested
by such taking authority and the Base rent and the Additional Rent shall be
apportioned as of that date.
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In the event that only a portion of the Demised Premises shall be taken, if such
taking is "substantial" as hereinafter defined, the LESSEE may by delivery of
notice in writing to the LESSOR within sixty (60) days following the date on
which a portion of LESSOR's title has been divested by such authority, terminate
this Lease. "Substantial" shall be defined to mean any taking which a) results
in the loss of reasonable access to the entrances of the Demised Premises; b)
results in the loss to the LESSEE of a material portion of the Demised Premises;
or c) results in a substantial and material loss of facilities of the Demised
Premises.
If the LESSEE elects not to terminate this Lease as aforesaid, this Lease shall
be unaffected by such taking except that the rent shall be reduced equitably
based upon the portion of the Demised Premises which is usable after the
LESSOR'S title has been divested by the taking authority. In the event that only
a portion of the Demised Premises shall be taken and this Lease is not
terminated as hereinabove provided, the LESSOR will, with reasonable diligence,
if adequate funds are available to it from the taking authority and permitted to
be so used by any mortgagee, restore the remaining portion of the Demised
Premises as nearly as possible to the same condition as it was prior to the such
taking. If such adequate funds are not available to LESSOR, and LESSOR elects
not to so restore the Property, either party may terminate this Lease upon
written notice to the other.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which the
LESSEE may have for damages or injury to the Demised Premises for any taking by
eminent domain, except for damage to the LESSEE's fixtures, property, or
equipment. LESSEE may make a separate claim for its leasehold interest and
moving expenses.
21. DEFAULT AND BANKRUPTCY
In the event that:
(a) The LESSEE shall default in the payment of any installment of Base Rent,
Additional Rent or other sum due LESSOR as provided herein and such default
shall continue for ten (10) days after written notice from Lessor, provided that
no such written notice shall be required if there shall have been more than two
(2) such defaults within one (1) calendar year; or
(b) The LESSEE shall default in the observance or performance of any other of
the LESSEE'S covenants, agreements, or obligations hereunder and such default
shall not be corrected within sixty (60) days after the receipt of written
notice thereof or if such default cannot reasonable be cured within sixty (60)
days, such additional time as is necessary to effect the cure, provided LESSEE
has and continues to use all due diligence to effect the cure; or
(c) The LESSEE shall be declared a bankrupt or insolvent according to law, or if
any assignment shall be made of LESSEE'S property for the benefit of creditors;
or
(d) If a lien or other involuntary encumbrance in a material sum is filed
against tenant's leasehold and is not discharged or bonded off within sixty (60)
days;
then the LESSOR shall have the right thereafter, while such default continues,
to re-enter and take complete possession of the Demised Premises, to declare the
term of this Lease ended, and remove the LESSEE's effects, without prejudice to
any remedies which might be otherwise used for arrears of rent or other default.
The LESSEE shall remain fully responsible for all rent and other payments which
the LESSOR was entitled to receive during the balance of the term. In such event
the LESSOR agrees to use reasonable efforts to mitigate the LESSEE'S damages
which mitigation
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shall take into account the rents which the LESSOR may thereafter receive from
any reletting of the Demised Premises after deducting all costs associated
therewith. Upon the occurrence of a default by the LESSEE, the LESSOR, without
being under any obligation to do so and without thereby waving such default, may
remedy such default for the account and at the expense of the LESSEE. If the
LESSOR makes any expenditure or incurs any obligations for the payment of money
in and enforcing its rights under this Lease, whether or not suit has been
instituted and including prosecuting and defending any action related thereto,
such sums paid or obligations incurred, including but not limited to reasinable
attorney's fees, with interest at the rate often percent per annum (10%) and
costs, shall be paid to the LESSOR by the LESSEE as Additional Rent.
If any sections of this Lease specify a grace or other period for certain
occurrances, which differ from the periods set forth in this section, the
shorter period shall prevail.
Any and all rights and remedies which the LESSOR may have under this Lease, and
at law and equity, shall be cumulative and shall not be deemed inconsistent with
each other, and two or more of such rights and remedies may be exercised at the
same time against the LESSEE and also, if applicable, against any other assignee
or sublessee insofar as permitted by law.
22. NOTICE
Any notice from the LESSOR to the LESSEE relating to the Demised Premises or to
the occupancy thereof, shall be deemed duly served, if left at the Building
addressed to the LESSEE, or if mailed to the Building, by certified mail, return
receipt requested, postage prepaid, addressed as follows:
RoweCom, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
or at such other address as the LESSEE may from time to time advise in writing.
Any notice from the LESSEE to the LESSOR relating to the Premises or to the
occupancy thereof, shall be deemed duly served, if mailed to the LESSOR by
certified mail, return receipt requested, postage prepaid, addressed to as
follows:
Sixty-Five Lafayette Road, LLC
x/x Xxxxxx Xxxxx
0 Xxxxx Xxxxxx
Xxxxxx, XX 00000
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with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxxxx & Gold
00 Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
with a copy to:
Xxxxxxx Xxxxxxxx
Levco Management Corp.
000 Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxx, XX 00000
or at such other address as the LESSOR may from time to time advise in writing.
Any such notices by the LESSOR to the LESSEE may be made by hand delivery
to the Demised Premises, an officer or appropriate employee of the LESSEE to
sign an instrument acknowledging receipt thereof.
23. ESTOPPEL CERTIFICATES
Each party agrees, at any time, and from time to time, as requested by the other
party, upon not less than ten (10) days prior written notice, to execute and
deliver to the other party a written statement that this Lease has not been
modified, is in full force and effect, certifying the dates when the base rent
and additional rent have been paid, and stating whether or not, to the best
knowledge of the signer, the other party is in default in the performance of any
of that party's obligations under this Lease.
24. FORCE MAJEURE
In any case where either party is required to do any act, the time for the
performance thereof shall be extended by a period equal to any delay caused by
or resulting from Act of God, war, civil commotion, fire or other casualty,
labor difficulties, shortages of labor, materials or equipment, governmental
regulations or other causes beyond such party's reasonable control. This clause
shall not be applicable to any payment of rent or other charges due from the
LESSEE to the LESSOR or to any abatement rights of the LESSEE set forth in this
Lease, unless as otherwise specifically set forth elsewhere in this Lease.
25. HOLDING OVER
Should the LESSEE hold over in possession of the Demised Premises after the
expiration of the Term of this Lease, such holding over shall not be deemed to
renew this Lease or to extend the Term thereof, but this Lease shall continue as
a tenancy from month to month upon the terms and conditions contained therein
except that the monthly Base Rent shall be one hundred fifty percent (150%) of
the Base Rent last payable by the LESSEE.
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26. SURRENDER
The LESSEE shall at the expiration or other termination of this Lease remove all
LESSEE's goods and effects from the Demised Premises (including, without hereby
limiting the generality of the foregoing, all signs and lettering affixed or
painted by the LESSEE, either inside or outside the Demised Premises or the
Building). If the LESSEE has made alterations to the Demised Premises which have
been approved by the LESSOR in writing, the LESSEE shall not be required to
reconfigure the Demised Premises to its configuration prior to such alteration.
The LESSEE shall deliver to LESSOR the Demised Premises and all keys, locks
thereto, and other fixtures connected therewith and all alterations and
additions made to or upon the Demised Premises, in good condition, reasonable
wear and tear and damage by fire or other casualty only excepted. In the event
of the LESSEE's failure to remove any of LESSEE's property from the Demised
Premises, the LESSOR is hereby authorized, without liability to the LESSEE for
loss or damage thereto, and at the sole risk of the LESSEE, to remove and store
any of the property at the LESSEE's sole expense, or to retain same under the
LESSOR's control or to sell at public or private sale, without notice, any or
all of the property not so removed and to apply the net proceeds of such sale to
the payment of any sum due hereunder, or to destroy such property.
27. BUILDING ACCESS
The LESSEE shall have unlimited access to the Demised Premises, provided that
the LESSEE shall in no way obstruct or hinder the rights of others entitled to
access thereto.
28. QUIET ENJOYMENT
The LESSEE, upon payment of all of the Base Rent, Additional Rent and other
amounts which may be due to the LESSOR hereunder and upon the prompt and full
performance of all the terms of this Lease, shall at all times during the Term
thereof, peaceably and quietly enjoy the Demised Premises without any
disturbance from the LESSOR or from any other person claiming through the
LESSOR.
29. RECORDING
The LESSOR and LESSEE agree that either party shall, at the time of the
execution of this Lease, upon the request of the other, execute and deliver a
Notice of Lease, in recordable form, containing such information as is set forth
in the applicable statute.
30. ENTIRE AGREEMENT
This Lease contains the entire and exclusive agreement between the parties
relating to the Demised Premises, and may not be modified except by written
instrument signed by both parties.
31. MISCELLANEOUS PROVISIONS
A. This Lease shall be construed under the laws of the Commonwealth of
Massachusetts. The use of headings is for convenience only.
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B. The LESSOR and the LESSEE, to the extent possible, shall cause each Insurance
policy carried by them to provide that the insurance carrier waives all rights
of recovery by way of subrogation against the other party.
C. LESSEE specifically agrees to look solely to LESSOR'S interest in the
Property for recovery of any judgment from LESSOR, it being specifically agreed
that neither LESSOR nor trustee, beneficiary, agent or partner of LESSOR shall
ever under any circumstances be personally liable for any such judgment or for
the payment of any monetary obligation to LESSEE. The word "LESSOR" as used in
this Lease shall mean only the owner for the time being of the landlord's
interest in this Lease, and in the event of any transfer of the landlord's
interest therein, the transferor shall cease to be liable for and shall be
released from all liability for the performance and observance of any agreements
or conditions on the part of LESSOR to be performed or observed subsequent to
the time of such transfer, it being understood and agreed that from and after
such transfer LESSEE shall look solely to the transferee for the performance and
observance of such agreements and conditions.
D. This Lease may be signed in counterpart.
(THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the said parties hereunto set their hands and seals this
18th day of December, 2000.
LESSOR:
Sixty-Five Lafayette Road, LLC
By: /s/ [ILLEGIBLE]
------------------------------------
Witness /s/ [ILLEGIBLE] Name:
Title: Manager
By: /s/ Xxxxx Xxxxx
------------------------------------
Witness /s/ [ILLEGIBLE] Name: Xxxxx Xxxxx
Title: Manager
LESSER
RoweCom, Inc.
By: /s/ Xxxxxxx Xxxx
------------------------------------
Witness Name: Xxxxxxx Xxxx
Title: President
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