EXHIBIT 10.9
LEASE AGREEMENT
(Multi-Tenant Office Building, Triple Net)
CENTURY PARK, LLC
(Landlord)
To
PC CONNECTION, INC.
(Tenant)
Century Park
Hudson, New Hampshire
CONTENTS
ARTICLE I LEASED PREMISES; CONSTRUCTION
ARTICLE II TERM OF LEASE
ARTICLE III OPTION TO RENEW
ARTICLE IV RENT;
ARTICLE V SECURITY DEPOSIT;
ARTICLE VI QUIET ENJOYMENT
ARTICLE VII COMMON AREAS OF THE OFFICE BUILDING; MAINTENANCE THEREOF
ARTICLE VIII CONDITION OF LEASED PREMISES; REPAIRS
ARTICLE IX IMPROVEMENTS BY TENANT
ARTICLE X MACHINERY AND EQUIPMENT - TRADE FIXTURES
ARTICLE XI UTILITIES
ARTICLE XII USE OF LEASED PREMISES
ARTICLE XIII HAZARDOUS WASTE OR SUBSTANCES
ARTICLE XIV ASSIGNMENT; SUBLEASING
ARTICLE XV TAXES AND ASSESSMENTS
ARTICLE XVI MECHANIC'S LIEN
ARTICLE XVII EMINENT DOMAIN
ARTICLE XVIII LIABILITY; INDEMNIFICATION
ARTICLE XIX RULES AND REGULATIONS
ARTICLE XX LANDLORD'S INSURANCE
ARTICLE XXI TENANT'S INSURANCE
ARTICLE XXII DESTRUCTION OR DAMAGE
ARTICLE XXIII REPOSSESSION BY LANDLORD
ARTICLE XXIV MORTGAGE LIEN
ARTICLE XXV DEFAULT
ARTICLE XXVI ACCESS TO LEASED PREMISES
ARTICLE XXVII NOTICES
ARTICLE XXVIII SIGNS; EXTERIOR APPEARANCE; PYLON; SIGN
ARTICLE XXIX SHORT FORM RECORDING
ARTICLE XXX NO BROKER
ARTICLE XXXI WARRANTIES AND REPRESENTATIONS OF TENANT
ARTICLE XXXII SUCCESSION
ARTICLE XXXIII WAIVER
ARTICLE XXXIV GOVERNING LAW
ARTICLE XXXV COUNTERPARTS
ARTICLE XXXVI MODIFICATION; ENTIRE AGREEMENT
ARTICLE XXXVII SECTION HEADINGS
ARTICLE XXXVIII SEVERABILITY
ARTICLE XXXIX PARKING
ARTICLE XL INTERPRETATION
-i-
Exhibit A Floor Plans
Exhibit A-2 Legal Description
Exhibit B Tenant's Work
Exhibit C Landlord's Work
Exhibit D Letter of Credit
Exhibit E Credit, Bank and Trade References for Tenant
Exhibit F Rules and Regulations
Exhibit G Collateral Assignment of Lease form
Exhibit H Landlord's Consent to Collateral Assignment of Lease form
-ii-
LEASE dated this 1st day of October, 1997, by and between CENTURY PARK,
LLC, a New Hampshire limited liability company with an address of c/o Oreo
Marketing Corporation, 000 Xxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000 ("Landlord") and
PC CONNECTION, INC., a New Hampshire corporation, with an address of 000 Xxxxx
00 Xxxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000 ("Tenant").
WITNESSETH:
ARTICLE I - LEASED PREMISES; CONSTRUCTION
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, upon and subject to the terms and provisions of this Lease, an area of
approximately Eight Thousand Three Hundred Eighty-Seven (8,387) square feet, as
cross-hatched on the plan attached hereto as Exhibit A-1 (the "Leased
Premises"), which area is a part of an office building or buildings known as
Century Park located upon a lot or parcel of land situated in the Town of
Xxxxxx, County of Hillsborough, New Hampshire, as more particularly described in
Exhibit A-2 attached hereto, together with such additions and extensions as
Landlord may from time to time designate as included within the office building
or buildings (the "Office Building"). This is a "net, net, net lease" and Tenant
shall pay Tenant's Proportionate Share (hereinafter defined) of all expenses
incurred in connection with the operation of the Office Building so that the
Base Rent described in Article IV will be entirely "net" to Landlord, except for
(a) interest and amortization on mortgages encumbering the fee title at any time
and (b) any estate, inheritance, income or personal taxes of Landlord.
1.2 (a) All work performed by Tenant shall be performed at Tenant's sole
risk and in accordance with good construction practices, applicable legal
requirements and insurance requirements. Tenant leases the Lease Premises in an
"as is" condition, excluding Landlord's Work (hereinafter defined) and all
required interior improvements as described in Exhibit B attached hereto,
including, but not limited to, heating, ventilation and air conditioning
("HVAC"), lighting, electrical, plumbing, separate metering for all electrical
and other utilities servicing the Leased Premises, installation of a transformer
and ventilation for the new HVAC unit, design and permits, shall be the sole
responsibility and cost of Tenant (the "Tenant's Work"). The Tenant's Work shall
be installed and constructed in accordance with the provisions of this Lease,
including, but not limited to, Article IX.
(b) Landlord shall purchase and install, at Landlord's sole cost and
expense, one (1) HVAC unit, renovate existing bathrooms and install a new
handicap bathroom as shown on Exhibit C attached hereto ("Landlord's Work").
1.3 For all purposes in this Lease, the term "Tenant's Proportionate
Share" shall mean six and sixty-three hundredths percent (6.63%), which is the
ratio that the gross square feet of the Leased Premises of Eight thousand five
-----
hundred sixty (8,560)
-1-
square feet plus a common area factor of ten percent (10%), totaling Nine
---- --------
thousand four hundred sixteen (9,416) square feet bears to the total rentable
-----
square feet of the Office Building (which is One hundred forty-two-thousand
eighty-nine (142,089)) square feet. Landlord may adjust, at its option, the
Tenant's Proportionate Share in the event that the rentable square feet in the
Office Building changes. In the event of such adjustment, Landlord shall give
Tenant notice in writing of the new Tenant's Proportionate Share which shall
become effective on the first (1st) day of the month following the notice.
ARTICLE II - TERM OF LEASE
2.1 The initial term of this Lease is for a period of one (1) year, which
period will commence on September 1, 1997 (the "Commencement Date") and
terminate on August 31, 1998.
2.2 The term "Lease Year" shall mean each twelve (12) full months
following the first such Lease Year.
2.3 If Tenant holds over after the expiration of this term or any
exercised option term without objection from Landlord, then such holding over
will not extend the term of this Lease, but will create a month-to-month tenancy
under the same conditions as this Lease except that rent shall be paid in the
amount of 200% the base rent set forth in Section 4.1 hereof.
ARTICLE III - OPTION TO RENEW
3.1 Tenant shall have the option to renew the Lease for four (4)
additional terms of one (1) year each. Said options may be exercised by given
notice to Landlord on or before three (3) months prior to expiration of the
then-current term of the Lease of Tenant's intent to exercise the option. As a
condition to the right to renew this Lease for each renewal term, Tenant shall
furnish to Landlord credit, bank and trade references in the form and with the
same or greater financial quality as the references attached hereto as Exhibit
E. If Tenant fails to exercise an option to renew, then all further options
renew expire, and the Lease shall terminate and the end of the then-current
term.
ARTICLE IV - RENT; TENANT'S FINANCIAL CONDITION
4.1 Tenant shall pay Landlord (at the address specified in Article XXVIII
hereof), based upon nine thousand four hundred sixteen (9,416) square feet which
is the gross square feet of the Leased Premises plus a common area factor of ten
----
percent (10%), as base rent for the Leased Premises during the initial term of
this Lease, the sum of Four Dollars and Fifty Cents ($4.50) per square foot,
which is Forty-Two Thousand Three Hundred Seventy-Two Dollars ($42,372) (the
"Base Rent"), payable in
-2-
equal monthly installments of Three Thousand Five Hundred Thirty-One Dollars
($3,531).
4.2 Tenant shall pay Landlord (at the address specified in Article XXVIII
hereof), as "Base Rent" for the Leased Premises for the renewal terms the
following amounts:
(a) The sum of Five Dollars ($5.00) per square foot, Forty-Seven Thousand
Eighty Dollars ($47,080) for the second Lease Year, payable in equal
monthly installments of Three Thousand Nine Hundred Twenty-Three
Dollars and Thirty-Four Cents ($3,923.34);
(b) The sum of Five Dollars and Fifty Cents ($5.50) per square foot,
Fifty-One Thousand Seven Hundred Eighty-Eight Dollars ($51,788) for
the third Lease Year payable in equal monthly installments of Four
Thousand Three Hundred Fifteen Dollars and Sixty-Seven Cents
($4,315.67);
(c) The sum of Six Dollars ($6.00) per square foot, Fifty-Six Thousand
Four Hundred Ninety-Six Dollars ($56,496) for the fourth Lease Year
payable in equal monthly installments of Four Thousand Seven Hundred
Eight Dollars ($4,708); and
(d) The sum of Seven Dollars ($7.00) per square foot, Sixty-Five Thousand
Nine Hundred Twelve Dollars ($65,912) for the fifth Lease Year payable
in equal monthly installments of Five Thousand Four Hundred Ninety-Two
Dollars and Sixty-Seven Cents ($5492.67).
4.3 All rent is payable in advance, without demand, in fixed monthly
installments of one twelfth of the then-current yearly Base Rate on or before
the first day of each and every month during the term hereof. If this lease
begins on any day other than the first (1st) of any calendar month, then the
rent for the first month will be prorated for the number of days in that month
that this lease is effective. A similar proration will be made for the end of
the term.
4.4 The Base Rent and all other sums payable by Tenant hereunder shall be
referred to as "Rent". For further sums payable by Tenant as Rent (sometimes
called "Additional Rent") see Articles VII, VIII, XI, XV and XX.
4.5 It is understood that the Base Rent, Monthly Estimated Common Area
Maintenance Charge, Tenant Proportionate Share of Real Estate Taxes (hereinafter
defined) and Insurance Premiums (hereinafter defined) is payable on or before
the first day of each month without offset or deduction of any nature. In the
event such Rent is not received when due or any check tendered to Landlord is
returned to
-3-
Landlord as uncollectible, Tenant shall pay the applicable service charges set
forth in this Section 4.5, which Landlord and Tenant agree are a fair and
reasonable estimate of the costs to be incurred by Landlord by reason of such
late payment. The service charge for a late payment shall be an amount equal to
five percent (5%) of any installment of rent and other charges past due for more
than five (5) days; provided, however, interest on such past due installment and
late payment charge shall accrue at the rate of eighteen percent (18%) per annum
after the thirtieth (30th) day such installment is past due until paid. The
service charge for a returned check shall be One Hundred Dollars ($100). In no
event shall the aggregate of the interest to be paid by Tenant, plus any other
amounts paid in connection with the transaction evidenced hereby which would
under applicable law be deemed "interest", ever exceed the maximum amount of
interest which, under applicable law, could be lawfully charged to Tenant
hereunder (the "Maximum Rate"). Therefore, none of the terms of this Lease shall
ever be construed to create a contract to pay interest at a rate in excess of
the Maximum Rate, and Tenant shall not be liable for interest in excess of that
determined at the Maximum Rate, and the provisions of this Section shall control
all other provisions of this Lease. If any amount of interest taken or received
by Landlord shall be in excess of the maximum amount of interest which, under
applicable law, could lawfully have been collected under this Lease, then the
excess shall be deemed to have been the result of a mathematical error by
Landlord and Tenant and shall be refunded promptly to Tenant.
4.6 Any payment by Tenant or acceptance by Landlord of an amount less than
that due under the terms hereof will be treated as a payment on account,
regardless of any endorsement appearing on any such check or any statement made
by Tenant to the contrary.
ARTICLE V - SECURITY DEPOSIT; LETTER OF CREDIT
5.1 Upon the execution hereof, and prior to the commencement of the lease
term under Article II hereof, Tenant shall pay to and deposit with Landlord the
sum of Five Thousand Dollars ($5,000), as security for the full and faithful
performance by Tenant of all the terms of this Lease required to be performed by
Tenant, including, but not limited to, the obligations of Tenant under Section
8.5 of this Lease. Landlord may use, apply, or retain the whole or any part of
the money deposited as security hereunder to the extent required for the payment
of any rent and additional rent or other sum(s) as to which Tenant is in default
or for any sum(s) which Landlord may expend or may be required to expend by
reason of Tenant's default in respect of any of the conditions of this Lease,
including, but not limited to, any damages or deficiency in reletting of the
Leased Premises whether such damages or deficiency accrued before or after
summary proceedings or other reentry by Landlord or the failure of Tenant to
comply with the provision of Section 8.5 of this Lease. In the event of
Landlord's sale or lease of the Leased Premises of which the Leased Premises
forms a part, Landlord shall have the right to transfer said security deposit
-4-
to the purchaser or lessee, and Landlord shall thereupon be released from all
liability for the return of such security deposit. In the event of such a
transfer, Tenant shall look solely to said transferee for the return of said
security deposit. Tenant shall not assign or encumber the money deposited as
security without the prior written consent of Landlord, and Tenant agrees that
neither Landlord nor its successors and assigns shall be bound by any such
assignment or encumbrance. Tenant agrees that the money deposited as security
hereunder will not be used to pay the Rent for the last month of the term hereof
without the prior written consent of Landlord. Tenant shall be entitled to
interest at money market rates on the money deposited as security hereunder.
Subject to the terms of this Section, in the event that Tenant shall comply with
all of the terms of this Lease, the money deposited as security hereunder will
be returned to Tenant at the expiration of the term hereof and after delivery of
possession of the Leased Premises to Landlord.
5.2 As a condition to the exercise of the fourth option to renew this
Lease as set forth in Section 3.1 hereof, Tenant shall deliver to Landlord a
Letter of Credit in the form attached hereto as Exhibit D in the amount equal to
four (4) months Base Rent for the fifth Lease Year of this Lease, which Letter
of Credit may be drawn upon by Landlord in the event of a default by Tenant
under the terms of this Lease.
ARTICLE VI - QUIET ENJOYMENT
6.1 Landlord shall put Tenant into possession of the Leased Premises on
the Commencement Date, and Tenant, 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. Notwithstanding the provisions
of the foregoing sentence, Tenant acknowledges that the Office Building and the
surrounding site shall be under renovation, and at various times during the term
of this Lease, and agrees that any such renovation shall not be a violation of
Tenant's right of quiet enjoyment.
ARTICLE VII - COMMON AREAS OF THE OFFICE BUILDING; MAINTENANCE THEREOF
7.1 The term "Common Area" is defined for all purposes of this Lease as
that part of the Office Building intended for the common use of all tenants,
including among other facilities (as such may be applicable to the Office
Building) parking areas, private streets and alleys, landscaping, curbs, loading
areas, sidewalks, lobbies, hallways, lighting facilities, drinking fountains,
meeting rooms, public toilets, and the like but excluding space in buildings
(now or hereafter existing) designed for rental for commercial purposes, as the
same may exist from time to time, and further excluding streets and alleys
maintained by a public authority. Landlord reserves the right to change from
time to time the dimensions and location of the Common Area, as well as the
dimensions, identity and type of any buildings in the Office Building.
-5-
Tenant, its employees and customers, and, when duly authorized pursuant to the
provisions of this Lease, its subtenants, licensees and concessionaires, shall
have the nonexclusive right to use the Common Area as constituted from time to
time. Such use shall be in common with Landlord, other tenants in the Office
Building and other persons permitted by Landlord to use the same, and shall be
subject to such reasonable rules and regulations governing use as Landlord may
from time to time prescribe, including the designation of specific areas within
the Office Building or in reasonable proximity thereto, in which automobiles
owned by Tenant, its employees, subtenants, licensees and concessionaires shall
be parked. Tenant shall not take any action which would interfere with the
rights of other persons to use the Common Area. Landlord may temporarily close
any part of the Common Area for such periods of times as may be necessary to
make repairs or alterations or to prevent the public from obtaining prescriptive
rights. Landlord shall be responsible for the operation, management, and
maintenance of the Common Area, the manner of maintenance and the expenditures
therefor to be in the sole discretion of Landlord.
7.2 (a) In addition to Monthly Rent and any other charges prescribed in
this Lease, Tenant shall pay to Landlord Tenant's Proportionate Share of the
cost of ownership, operation and maintenance of the Common Area (including,
among other costs, those for lighting, management and administrative costs not
to exceed $0.50 per square foot, painting, cleaning, policing, inspecting,
repairing, replacing, and removing of snow and ice from the Common Area, and the
cost of heating, cooling, water, sewer, electricity, fuel oil, natural gas and
other utilities for any lobbies and hallways, and, in the event that the Leased
Premises and other areas of the Office Building which are leased are not
separately metered for utilities, the costs of electricity, heating, cooling and
other utilities servicing the Office Building) which may be incurred by Landlord
in its discretion, including the cost of maintaining and repairing all utility
mains, lines, conduits and other facilities located on, above or under the
Common Area (collectively, the "Common Area Maintenance Charges").
(b) During the first year of this Lease, Tenant will pay Landlord a
"Monthly Estimated Common Area Maintenance Charge" in the amount of One Thousand
Five Hundred Dollars ($1,500), monthly in advance, payable at the same time and
place as the Monthly Rent is payable, except, however, if the Lease Term does
not begin on the first day of a calendar month, Tenant shall pay a pro rata
portion of such sum for such partial month. Landlord shall have the right to
adjust such monthly estimate on an annual basis, pursuant to the following
paragraph.
(c) At the end of each calendar year occurring during the Term of this
Lease (or subsequent to the expiration or other termination of this Lease, if
such occurs on a date other than the last day of a calendar year), Landlord will
give Tenant notice of the total amount paid by Tenant for the relevant calendar
year together with the actual amount of Tenant's Proportionate Share of the
Common Area Maintenance Charges (the "Total Cost") for such calendar year. If
the actual
-6-
amount of Tenant's Proportionate Share of the Total Cost with respect to such
period exceeds the aggregate amount previously paid by Tenant with respect
thereto during such period, Tenant shall pay to Landlord the deficiency within
15 days following notice from Landlord; however, if the aggregate amount
previously paid by Tenant with respect thereto exceeds Tenant's Proportionate
Share of the Total Cost for such period, then, at Landlord's election, such
surplus (net of any amount then owing by Tenant to Landlord) shall be credited
against the next ensuing installment of any such cost due hereunder by Tenant or
against any other amount of Rent owing by Tenant to Landlord hereunder, or
Landlord may remind such net surplus to Tenant. Periodically, during the Term of
this Lease, Landlord shall have the right to estimate Tenant's Proportionate
Share of Common Area Maintenance Charges for the next fiscal period (determined
by Landlord) of the Term of this Lease, whereupon, Tenant shall pay Landlord
such amounts as may be so indicated by Landlord in the same manner as the
Monthly Estimated Common Area Maintenance Charge. Tenant shall have the right,
upon thirty (30) days prior written notice, to inspect Landlord's records
relating to such charges, such right to be limited to one time per year.
7.3 Tenant shall not permit its employees to park in the parking areas
overnight for more than three (3) nights, nor to allow unregistered vehicles to
be parked on the property. Tenant agrees to indemnify Landlord, its employees,
and agents, except the towing operator, and holds each of them harmless from any
and all claims of whatsoever nature which may arise by reason of Landlord's
removal of unauthorized vehicles. Landlord may from time to time substitute for
any parking area other areas reasonably accessible to the tenants of the Office
Building, which areas may be elevated, surface or underground.
ARTICLE VIII - CONDITION OF LEASED PREMISES; REPAIRS
8.1 Subject to the terms of Article I of this Lease, Tenant accepts the
Office 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 Landlord as to such condition, or as to the use that may be made of
such property.
8.2 If the Leased Premises is now, or at any time during the term of this
Lease becomes, a "Public Accommodation" under the Americans with Disabilities
Act of 1990 (the "ADA"), Tenant shall, at its sole expense, subject to the terms
of Article I of this Lease, be responsible for (i) compliance with Title III of
the ADA to the extent that the ADA imposes obligations on the procedure and
design of any alterations to the Leased Premises made by Tenant, and (ii) making
modifications in its policies, practices and procedures in connection with the
operating of Tenant's business. If a failure to make such modifications
constitutes a violation of the ADA, Tenant shall indemnify and hold harmless
Landlord with respect to its failure to comply with the
-7-
foregoing responsibilities. Any work to be performed Tenant pursuant to this
Section 8.2 shall be governed by all the provisions set forth in Section 9.1
below.
8.3 Landlord shall maintain in good repair the structural integrity of the
roof, and exterior walls of the Leased Premises, and the structural beams,
structural columns and other structural parts of the Leased Premises, and the
cost of such amount shall be reimbursed to Landlord as part of the Common Area
Maintenance Charges. Tenant shall keep, during the term hereof, at its own cost
and expense, both the interior of the Leased Premises, excluding the structural
integrity of the roof and exterior walls, in as good condition as the same was
after the completion of Tenant's Work, reasonable wear and tear, taking by
eminent domain and damage due to fire or casualty insured against excepted.
Tenant shall replace, at its own cost and expense, damaged, broken or scratched
window glass, if any, of the same kind and quality, reasonable wear and tear,
taking by eminent domain and damage due to fire or other casualty insured
against excepted. Tenant shall 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. In addition, Tenant shall maintain, repair and replace the
HVAC servicing the Leased Premises and shall maintain a service contract for the
servicing of the HVAC, a copy of which shall be furnished to Landlord, excluding
Landlord's Work.
8.4 Tenant shall take good care of the Leased Premises and keep the same
free from waste at all times. Tenant shall keep the Leased Premises and
sidewalks, service-ways and loading areas adjacent to the Leased Premises neat,
clean and free from dirt or rubbish at all times, and shall store all trash and
garbage within the Leased Premises, arranging for the regular pick-up of such
trash and garbage at Tenant's expense. Removal of garbage and trash shall be
made only in the manner and areas prescribed by Landlord as Tenant is notified.
Tenant shall arrange for the regular pick up of trash and refuse at Tenant's
expense, unless Landlord provides other refuse service, in which case Tenant
shall use such other refuse service and pay the cost of such service as
specified by Landlord. Tenant shall not operate an incinerator or burn trash or
garbage within or outside the Office Building. Tenant shall procure at its sole
expense all permits and licenses required for the transaction of business in the
Leased Premises and otherwise comply with all applicable laws, ordinances, and
governmental regulations affecting the Office Building, including those relating
to Hazardous Waste or Substance (hereinafter defined) now in force or that may
be hereafter enacted or promulgated.
8.5 At the end of the term of this Lease and all exercised renewal terms,
or upon an earlier termination of this Lease, Tenant shall return the Leased
Premises to Landlord in the same condition as the Leased Premises will be upon
the completion of Tenant's Work, ordinary wear and tear excepted, with all
maintenance obligations of Tenant under this Lease having been performed; and
Tenant shall repaint, repair
-8-
holes or damage to walls, replace burned out light bulbs, clean carpets, replace
ceiling tiles and complete any deferred maintenance prior to the time the Lease
Premises are returned to Landlord.
ARTICLE IX - IMPROVEMENTS BY TENANT
9.1 Tenant shall not make or allow to be made any alterations,
installations, additions or improvement in or to the Leased Premises, or place
safes, vaults or any other heavy furniture or equipment within the Leased
Premises, without Landlord prior written consent, which consent shall not be
unreasonably withheld or delayed. Any such alterations, additions or
improvements to the Leased Premises shall be governed by the following terms:
(a) No such alteration, addition or improvement lessens the fair market
value of the Leased Premises or the Office Building and all such improvements
are performed in class and quality at least equal to the original construction
work;
(b) All work for any such alteration, addition or improvement shall be
performed by a contractor reasonably satisfactory to Landlord prior to the
commencement of the work, and Landlord shall approve the construction contract
which shall be between the Tenant and the approved contractor;
(c) Prior to the commencement of work on any such alteration, addition or
improvement, Tenant shall procure, at its own cost and expense, all necessary
permits; furthermore, the plans and specifications covering the same will have
been submitted to and approved by (i) Landlord, (ii) all municipal or other
governmental departments or agencies having jurisdiction over the subject matter
thereof, and (iii) any mortgagee having an interest in or lien upon the Leased
Premises or the Office Building if required by the terms of the mortgage, it
being understood that Landlord will not unreasonably refuse to join in any
application to any such mortgagee or governmental agency to obtain such approval
with respect to any reasonable alteration, addition or improvement;
(d) In carrying out all such alterations, additions and improvements,
Tenant shall comply with the standards, guidelines and specifications imposed by
all municipal or other governmental departments and agencies having jurisdiction
over the same, including without limitation, all building codes;
(e) Prior to the commencement of work on any such alteration, addition or
improvements, Tenant shall have procured and delivered to Landlord the policy of
Builder's Risk insurance hereinafter referred to in Section 21.2 hereof or
additional fire and extended coverage insurance as required by Section 21.3
hereof, whichever is applicable;
-9-
(f) All work shall be completed promptly and in a good and xxxxxxx like
manner and shall be performed in such a manner that no mechanic's, materialmen's
or other similar liens shall attach to Tenant's leasehold estate, and in no
event shall Tenant permit, or be authorized to permit, any such liens or other
claims to be asserted against Landlord or Landlord's rights, estate and interest
with respect to the Leased Premises or the Office Building; and at the
completion of all work Tenant shall obtain waivers of mechanic's and
materialmen's liens from all persons performing work on or on furnished material
to the Leased Premises; and
(g) Any such alteration, addition or improvement made by Tenant pursuant to
the terms hereof shall, at the expiration of the term hereof become and remain
the property of Landlord, provided, however, that Landlord may, at its option
and upon notice to Tenant not less than ninety (90) days prior to such
expiration, require Tenant 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 by eminent domain
and damage due to fire or other casualty insured against excepted.
ARTICLE X - MACHINERY AND EQUIPMENT - TRADE FIXTURES
10.1 All alterations, installations, additions or improvements, other than
moveable furniture and moveable trade fixtures, made by Tenant to the Leased
Premises shall remain upon and be surrendered with the Leased Premises and
become the property of Landlord at the expiration or termination of this Lease
or the termination of Tenant's right to possession of the Leased Premises;
provided, however, that Landlord may require Tenant, at Tenants cost, to remove
any and all of such items that are not building standard within ten (10) days
following the expiration or termination of this Lease, or the termination of
Tenant's right to possession of the Leased Premises. Tenant, at its sole cost
and within ten (10) days following the expiration or termination of this Lease,
shall remove all of Tenant's property from the Leased Premises. Any such
property which may be removed pursuant to the preceding sentence and which is
not so removed prior to the expiration or earlier termination of this Lease may
be removed from the Leased Premises by Landlord and stored for the account of
Tenant; and if Tenant fails to reclaim such property within thirty (30) days
following such expiration or earlier termination of this Lease, then such
property will be deemed to have been abandoned by Tenant, and may be
appropriated, sold, destroyed or otherwise disposed of by Landlord without
notice to Tenant and without obligation to account therefor. Tenant shall pay
to Landlord the cost incurred by Landlord in removing, storing, selling,
destroying or otherwise disposing of any such property.
-10-
ARTICLE XI - UTILITIES
11.1 If the following utilities are, or are to be, separately provided to
the Leased Premises, Tenant shall make arrangements for and pay when due all
charges for gas, oil, electricity, water, light, heat, air conditioning, sewer,
power, telephone and any other services used on or about or supplied to the
Leased Premises and shall indemnify Landlord against any liability on such
account. Landlord shall not be liable for any failure of water supply or
electric current or of any service by any utility; or injury to persons
(including death) or damage to property resulting from steam, gas, electricity,
water, rain or snow which may flow or leak from any part of the Leased Premises
or from any pipes, appliances or plumbing works, on the street or subsurface, or
from any other place; or for interference with light or other easements, unless
caused by Landlord's negligence.
11.2 Tenant shall, at its sole cost and expense, maintain, repair, change
and improve the electrical and other utility systems, including, but not limited
to, the transformers to be installed by Tenant, which are located within the
Leased Premises pursuant to Section 1.2 of this Lease. Any work performed by
Tenant under this Section 11.2 shall be governed by all of the terms contained
in Section 9.1 of this Lease.
ARTICLE XII - USE OF LEASED PREMISES
12.1 Without the prior written consent of Landlord, Tenant may use the
Leased Premises only for the purpose of telephone sales/call center and offices
and for other services and purposes reasonably incident thereto.
12.2 In its use of the Leased Premises, Tenant 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
Town of Xxxxxx, New Hampshire, as now in effect or as hereafter amended.
12.3 Tenant 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
extra-hazardous, nor in such manner as to constitute a nuisance of any kind, nor
for any purpose nor 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. Tenant
shall, immediately upon the discovery of any such unlawful illegal, disreputable
or extra-hazardous 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 extra-hazardous use.
-11-
12.4 Tenant shall procure any licenses or permits required by any use of
the Leased Premises by Tenant.
ARTICLE XIII - HAZARDOUS MATERIAL OR SUBSTANCES
13.1 Tenant shall not (either with or without negligence) cause or permit
the escape, disposal, release of any Hazardous Materials (as said term is
hereafter defined) on, in, upon or under the Property of the Leased Premises.
Tenant shall not allow Tenant to generate, store, use or dispose of such
Hazardous Materials in any manner not sanctioned by law for the generation,
storage, use and disposal of such Hazardous Materials, nor allow to be brought
into the Property any such Hazardous Materials except for use in the ordinary
course of Tenant's business and in compliance with all applicable laws, rules
and regulations. Tenant shall furnish to Landlord prior to Delivery of
Possession the Material Safety Data Sheets ("MSDS") for all Hazardous Materials
to be used by Tenant. No additional Hazardous Materials shall be used by Tenant
until delivery to Landlord of a MSDS pertaining thereto. Hazardous Materials
shall include, without limitation, any material or substance which is (i)
petroleum, (ii) asbestos, (iii) designated as a "hazardous substance" pursuant
to the Federal Water Pollution Control Act, 33 U.S.C. (S)(S) 1251 et seq. (33
U.S.C. (S)(S) 1321) or listed pursuant to (S)(S) 307 of the Federal Water
Pollution control Act (33 U.S.C. (S)(S) 1317), (iv) defined as a "hazardous
waste" pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. (S)(S)
6901 et seq. (42 U.S.C. (S)(S) 6903), (v) defined as a "hazardous substance"
pursuant to the Comprehensive Environmental Response, compensation, and
Liability Act, 42 U.S.C. (S)(S) 9601 et seq. (42 U.S.C. (S)(S) 9601), as
amended, (vi) Superfund Amendment and Reauthorization Act of 1986,42 USC Section
6901 et. seq. (XXXX, amending CERCLA); (vii) New Hampshire RSA 147 and 147-A
-------
and 147-B; (viii) any federal, state or local regulations, rules or orders
issued or promulgated, now or hereafter, under or pursuant to any of the
foregoing or otherwise by any department, agency or other administrative,
regulatory or judicial body; or (ix) defined as "oil" or a "hazardous waste", a
"hazardous substance", a "hazardous material" or a "toxic material" under any
other law, rule or regulation applicable to the Property. If Landlord, any
lender or any governmental agency shall ever require testing to ascertain
whether or not there has been any release of Hazardous Materials, then all cost
of such investigations there shall be borne by Tenant. In addition, Tenant
shall execute estoppel certificates and the like, from time to time, at
Landlord's reasonable request concerning Tenant's best knowledge and belief
regarding the presence of Hazardous Materials on the Leased Premises introduced
or brought onto the Leased Premises by Tenant other than ordinary cleaning
fluids and/or fluids and other material commonly used for offices. In all
events, Tenant shall indemnify and save Landlord harmless from any release,
unlawful presence or unlawful existence of Hazardous Materials on the Leased
Premises. The covenants and indemnity and other provisions set forth in this
Section 13.1 shall survive the expiration or earlier termination of this Lease.
Landlord expressly reserves the right to enter the Leased Premises to perform
regular
-12-
inspections upon reasonable notice to Tenant provided that same does not
interfere with Tenant's use of the Leased Premises.
13.2 Tenant warrants and acknowledges that at no time have funds been
expended from the State of New Hampshire's hazardous waste cleanup hind
established under R.S.A. 147-B with respect to any of Tenant's property located
within New Hampshire which would entitle the State to a so-called superlien
under R.S.A. 147-B:10 III. Tenant also acknowledges same with respect to
similar laws of any other state which liens might possibly affect the Leased
Premises. Tenant shall indemnify Landlord and hold Landlord harmless for any
liability imposed should the provisions of this Section 13.2 be or become
untrue. The provisions of this section will survive the expiration or
termination of this Lease.
13.3 Except for the above ground storage tank for heating oil, to
Landlord's best knowledge, there is no hazardous material stored in, under or
around the Lease Premises or the land on which the Leased Premises are situated,
and that there is no current or threatened governmental action relating to
environmental or hazardous waste cleanup in the Leased Premises.
ARTICLE XIV - ASSIGNMENT; SUBLEASING
14.1 Tenant shall not, voluntarily, by operation of law, or otherwise,
assign, transfer, mortgage, pledge or encumber this Lease or sublease the Leased
Premises or any part thereof, or grant a right to any person other than Tenant,
its employees, agents, servants and invitees to occupy or use the Leased
Premises or any portion thereof, without the express prior written consent of
Landlord; provided, however, Landlord agrees to consent to the collateral
assignment of this Lease in the form attached hereto as Exhibit G to Tenant's
Lender, such consent to be in the form attached hereto as Exhibit H. Any
attempt to do any of the foregoing without such written consent shall be null
and void and of no affect, and shall further constitute a material default under
this Lease. If Tenant so requests Landlord's consent, said request shall be in
writing specifying the duration of said desired sublease or assignment, the date
same is to occur, the exact location of the space affected thereby and the
proposed rentals on a square foot basis chargeable thereunder, and shall be
submitted to Landlord at least sixty (60) days in advance of the date on which
Tenant desires to make such assignment or sublease or allow such occupancy or
use. Upon such request, Landlord may, in its sole discretion, (i) grant such
consent subject to Landlord's approval of the assignee, transferee, subtenant or
mortgagee, or (ii) elect to terminate this Lease, or (iii) suspend this Lease as
to the space to be affected by such assignment, sublease or other event
specified above for the duration specified by Tenant in its notice, in which
event Tenant will be relieved of all obligations hereunder as to such space
during such suspension, including a suspension of the rent hereunder in
proportion to the portion of the Leased Premises affected thereby
-13-
(but after said suspension, if the suspension is not for the full term hereof,
Tenant shall once again become liable hereunder as to the applicable space).
14.2 Tenant shall, despite any permitted assignment or sublease, remain
directly and primarily liable for the performance of all of the covenants,
duties and obligations of Tenant hereunder, and Landlord shall be permitted to
enforce the provisions of this Lease against Tenant or any assignee or subleasee
without demand upon or proceeding in any way against any other person; provided,
however, in the event of an assignment of this Lease with the Landlord's consent
to a new tenant which has financial ability which is the same or greater than
Tenant, which consent shall not be unreasonably withheld by Landlord, Tenant
shall be released from all liability under this Lease.
14.3 Consent by Landlord to a particular assignment or sublease shall not
be deemed a consent to any other subsequent transaction. If this Lease is
assigned or if the Leased Premises are subleased without the permission of
Landlord, then Landlord may nevertheless collect rent from the assignee or
subleasee and apply the net amount collected to the rent payable hereunder, but
no such transaction or collection of rent or application thereof by Landlord
shall be deemed a waiver of any provision hereof or a release of Tenant from the
performance of the obligations of the Tenant hereunder.
14.4 All cash or other proceeds of any assignment, sale or sublease of
Tenants interest in this Lease, whether consented to by Landlord or not, shall
be paid to Landlord notwithstanding the fact that such proceeds exceed the rent
called for hereunder, and Tenant hereby assigns to Landlord all rights it might
have or ever acquire in such proceeds.
ARTICLE XV - TAXES AND ASSESSMENTS
15.1 Tenant shall pay, in addition to Base Rent and other charges, an
amount equal to Tenant's Proportionate Share of "Real Estate Taxes" (hereinafter
defined) and levies and charges and governmental impositions, duties, charges,
betterment assessments and other charges and levies of like kind which are or
may during the term of this Lease be charged, laid, levied or imposed upon or
become a lien or liens upon the Office Building 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 and any and all taxes charged, laid or levied
in addition to the foregoing under or by virtue of any present or future laws,
requirements, rules, orders, directions, ordinances or regulations of the United
States of America, the State of New Hampshire, county of Hillsborough or Town of
Hudson government, or of any other municipal government or lawful authority
whatsoever. All such duties and charges, including Real Estate Taxes, are
referred to herein as "Taxes".
-14-
15.2 "Real Estate Taxes" means 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 Office Building 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. If any betterment assessments are
payable by law in installments, said betterment assessments are deemed payable
not for the period in which the same are assessed but in installments for the
periods in which the installments thereof are payable. Real estate taxes shall
not include any franchise, estate, inheritance, succession, capital levy or
transfer tax of Landlord or any income tax of Landlord.
15.3 Tenant shall pay to Landlord along with each installment of rent, an
amount equal to one-twelfth (1/12th) of Tenant's Proportionate Share of the
Taxes for the current tax year, if the amount thereof is known, or of such taxes
for the prior tax year, if the amount thereof for the current tax year is not
known. Upon receipt by Landlord of the final tax xxxx for any tax year during
the term of this Lease, Landlord shall give Tenant notice of the total amount of
Taxes paid by Landlord for such tax year. If the actual amount of Tenant's
Proportionate Share of the Taxes with respect to such tax year exceeds the
aggregate amount previously paid by Tenant, Tenant shall pay to Landlord the
deficiency within fifteen days following notice from Landlord. If the aggregate
amount previously paid by Tenant with respect thereto exceeds Tenant's
Proportionate Share of the Taxes for such tax year, then, at Landlord's
election, such surplus (net of any amounts then owing by Tenant to Landlord)
shall be credited against the next ensuing installment of any such cost due
hereunder by Tenant. Periodically, during the Term of this Lease, Landlord
shall have the right to estimate Tenant's Proportionate Share of Taxes for the
next tax year (determined by Landlord) of the term of this Lease, whereupon
Tenant shall pay Landlord such revised amount as set forth in the first sentence
of this Section 15.3.
15.4 Tenant shall also punctually pay and discharge all taxes which are or
may during the term of this Lease be charged, laid, levied or imposed upon or
become a lien upon any personal property of Tenant attached to or used in
connection with Tenant's business conducted on the Leased Premises which
personal property constitutes a fixture. Nothing herein contained requires
Tenant to pay any taxes on the rent reserved to Landlord hereunder.
15.5 Landlord, at its option, may, but shall not be obligated to, contest
or review by any appropriate proceedings, and at Landlord's expense, any tax,
charge or other governmental imposition aforementioned which shall not be
contested or reviewed as aforesaid by Tenant, and Tenant shall promptly join
with Landlord in such contest or review if Landlord so requests. Any abatement
in such taxes, less the cost incurred in obtaining the abatement, shall be
reflected in the amount of taxes to be paid by Tenant the following year
pursuant to this Article XV.
-15-
ARTICLE XVI - MECHANIC'S LIEN
16.1 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 or the Office Building arising out of any work performed by or on
behalf of Tenant, Tenant shall cause without delay proper proceedings to be
instituted to test the validity of the lien claimed, and before the end of the
lease term to discharge the same by the posting of bond or otherwise; and during
the pendency of any such proceeding, Tenant shall completely defend and
indemnify Landlord against any such claim or lien and all costs of such
proceedings wherein the validity of such lien is contested by Tenant, and during
the pendency of such proceeding such lien may continue until disposition of such
proceeding, and after disposition thereof, Tenant shall cause said lien to be
released and discharged.
ARTICLE XVII - EMINENT DOMAIN
17.1 If the Leased Premises is lawfully condemned or taken by any public
authority either in its entirety or in such proportion that it is no longer
suitable for the intended use by Tenant, then this Lease will automatically
terminate without further act of either party hereto on the date when possession
of the Leased Premises is taken by such public authority, and each party hereto
will be relieved of any further obligation to the other except that Tenant shall
be liable for and shall promptly pay to Landlord any rent or other payments due
hereunder then in arrears or Landlord shall promptly rebate to Tenant 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 the Leased
Premises is still suitable for its intended use by Tenant, this Lease will
continue in effect in accordance with its terms and a portion of the rent and
other payments due hereunder will 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 will be payable solely
to Landlord without apportionment to Tenant.
ARTICLE XVIII - LIABILITY
18.1 Except for injury or damage caused by the negligence or willful
misconduct of Landlord, its servants or agents, when so proven and adjudicated
in a court of competent jurisdiction, Landlord shall not be liable for any
injury or damage to any person happening on or about the Leased Premises or the
Office Building or for any injury or damage to the Leased Premises or to any
property of Tenant or to any property of any third person, firm, association, or
corporation on or about the Leased Premises or the Office Building. Tenant
shall, except for injury or damage caused as aforesaid, defend (with counsel
reasonably acceptable to Landlord), indemnify and hold Landlord harmless from
and against any and all liability and damages, costs and expenses, including
reasonable attorneys' fees, and from and
-16-
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 happens 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. This indemnity and hold harmless
agreement shall include indemnity against all costs, expenses and liabilities
incurred in or in connection with any such claim or proceeding brought thereon,
in the defense thereof, including attorneys' fees. Tenant shall not settle or
compromise any claim without the prior written consent of Landlord.
18.2 (a) In addition, Tenant agrees to defend with counsel acceptable to
Landlord and indemnify Landlord and hold Landlord harmless from and against all
claims arising from the discharge or other release onto the Leased Property from
the Leased Premises of any Hazardous Material, excluding any discharge of
Hazardous Material to the extent caused by Landlord, its officers, directors,
agents, employees, invitees, licensees or contractors. Tenant shall not settle
or compromise any claim without the consent of Landlord.
(b) Landlord agrees to defend with counsel acceptable to Tenant and
indemnify Tenant and hold Tenant harmless from and against all claims arising
from the discharge or other release onto the Leased Property from the Leased
Premises of any Hazardous Material caused by Landlord, excluding any discharge
of Hazardous Material to the extent caused by Tenant, its officers, directors,
agents, employees, invitees, licensees or contractors. Landlord shall not
settle or compromise any claim against Tenant without the consent of Tenant.
18.3 The obligations and liabilities Tenant hereunder with respect to the
indemnities pursuant to this Article XVIII or under any other provisions of this
Lease, resulting from any claim or other assertion of liability by third parties
(hereinafter "Claim" or collectively, "Claims"), shall be subject to the
following terms and conditions:
(a) The party seeking indemnification (the "Indemnified Party") must give
the other party (the "Indemnifying Party"), notice of any such Claim
promptly after the Indemnified Party receives notice thereof.
(b) The Indemnifying Party shall have the right to undertake, by counsel
or other representatives approved by Landlord, the defense of such
Claim.
(c) In the event that the Indemnifying Party shall elect not to undertake
such defense, or within a reasonable time after notice of any such
Claim from the Indemnified Party shall fail to defend, the
Indemnified Party
-17-
(upon further written notice to the Indemnifying Party) shall have
the right to undertake the defense, compromise or settlement of such
Claim, by counsel or other representatives of its own choosing, on
behalf of and for the account and risk of the Indemnifying Party
(subject to the right of the Indemnifying Party, upon payment of all
fees and costs incurred by the Indemnified Party for defense of such
Claims to assume defense of such Claim at any time prior to
settlement, compromise or final determination thereof).
(d) Anything in this Section 18.3 to the contrary notwithstanding, (i) if
there is a reasonable probability that a Claim may materially and
adversely affect the Indemnified Party other than as a result of
money damages or other money payments, the Indemnified Party shall
have the right, at his own cost and expense, to participate in the
defense, compromise or settlement of the Claim, (ii) the Indemnifying
Party shall not, without the Indemnified Party's written consent,
settle or compromise any Claim or consent to entry of any judgment
which does not include as an unconditional term thereof the giving by
the claimant or the plaintiff to the Indemnified Party of a release
from all liability in respect of such Claim, and (iii) in the event
that the Indemnifying Party undertakes defense of any Claim, the
Indemnified Party, by counsel or other representative of its own
choosing and at its sole cost and expense, shall have the right to
consult with the Indemnifying Party and its counsel or other
representatives concerning such Claim and the Indemnifying Party and
the Indemnified Party and their respective counsel or other
representatives shall cooperate with respect to such Claim.
(e) Notwithstanding any provision herein to the contrary, in the event
that a response is required to a condition, occurrence or other
happening which may impose liability on Landlord within a time period
which does not allow notice to Tenant, Landlord shall have no
obligation to notify Tenant prior to taking any action, and despite
the lack of prior notice to Tenant, Tenant shall remain fully
responsible to Landlord under the terms of this Article XVIII and any
other provisions of this Lease.
18.4 The provisions of this Article XVIII will survive the expiration or
termination of this Lease.
ARTICLE XIX -RULES AND REGULATIONS
19.1 Tenant, its servants, employees, agents, visitors, invitees, and
licensees, shall observe faithfully and comply with the Rules and Regulations
set forth in Exhibit E hereto, and shall abide by and conform to such further
rules and
-18-
regulations as Landlord may from time to time reasonably make, amend or adopt,
after Tenant receives a copy thereof.
ARTICLE XX - LANDLORD'S INSURANCE
20.1 The term "Insurance Premiums" shall mean the total annual insurance
premiums which accrue on all property insurance, boiler insurance, public
liability and property damage insurance, rent insurance, and any other insurance
which, from time to time, may, at Landlord's election, be carried by Landlord
with respect to the Office Building during any applicable calendar year (or
portion thereof) occurring during the term of this Lease; provided, however, in
the event, during any such calendar year, all or any part of such coverage is
written under a "blanket policy" or otherwise in such manner that Landlord was
not charged a specific insurance premium applicable solely to the Office
Building, then in such event, the amount considered to be the Insurance Premium
with respect to such coverage for such calendar year, shall be that amount which
would have been the annual Insurance Premium payable under the rates in effect
on the first day of such applicable calendar year for a separate New Hampshire
Standard Form insurance policy generally providing such type and amount of
coverage (without any deductible amount) with respect to the Office Building
(considering the type of construction and other relevant matters), irrespective
of the fact that Landlord did not actually carry such type policy. In the event
that Tenant's activities in the Leased Premises cause an increase in Landlord's
Insurance Premiums, then such increase due to Tenant's use shall be paid by
Tenant upon demand from Landlord.
20.2 Monthly, during the first year of the term of this Lease, Tenant will
pay to Landlord the Tenant's Proportionate Share of the Insurance Premiums
(which may be estimated by Landlord), monthly in advance, payable at the same
time and place as the Base Rent is payable, except, however, if the Lease Term
does not begin on the first date of a calendar month, Tenant shall pay a pro
rata portion of such sum for such partial month. Landlord shall have the right
to adjust such monthly estimate on an annual basis, pursuant to the following
paragraph hereof.
20.3 At the end of each calendar year occurring during the term of this
Lease (subsequent to the expiration or other termination of this Lease, if such
occurs on a date other than the last day of the calendar year), Landlord shall
give Tenant notice of the total amount paid by Tenant for the relevant calendar
year together with the actual amount of Tenant's Proportionate Share of
Insurance Premiums for such calendar year. If the actual amount of Tenant's
Proportionate Share of the Insurance Premiums with respect to such period
exceeds the aggregate amount previously paid by Tenant with respect thereto
during such period, Tenant shall pay to Landlord the deficiency within fifteen
days following notice from Landlord; however, if the aggregate amount previously
paid by Tenant with respect thereto exceeds Tenant's Proportionate Share of the
Insurance Premiums Cost for such period, then, at
-19-
Landlord's election, such surplus (net of any other amounts then owing by Tenant
to Landlord) shall be credited against the next ensuing installment of any such
cost due hereunder by Tenant. Periodically, during the term of this Lease,
Landlord shall have the right to estimate Tenant's Proportionate Share of
Insurance Premiums for the next fiscal period (determined by Landlord) of the
term of this Lease, whereupon, Tenant shall pay Landlord such amount as may be
so indicated by Landlord.
20.4 In the event of loss, Landlord shall promptly initiate action to
effect a settlement with the insurer. Tenant shall cooperate with Landlord and
any mortgagee in connection with the proceeding and collection of claims, and
shall execute and deliver to Landlord 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 Tenant fails or neglects to so cooperate or
to execute and deliver any such instrument, Landlord may, as the agent or
attorney in fact of Tenant, execute and deliver any such instrument, and Tenant
hereby nominates and appoints Landlord the proper and legal attorney in fact of
Tenant for such purpose, hereby ratifying all that Landlord may lawfully do as
such attorney in fact.
ARTICLE XXI - TENANT'S INSURANCE
21.1 Tenant shall, from the Delivery of 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 own expense comprehensive liability
insurance on the Leased Premises with an insurance company authorized to do
business in New Hampshire and acceptable to Landlord. Such insurance will be
carried in the name of and for the benefit of Tenant and Landlord; will be
written on an "occurrence" basis; and shall provide coverage of at least One
Million Dollars ($1,000,000) in case of death of or injury to one person, Two
Million Dollars ($2,000,000) in case of death of or injury to more than one
person in the same occurrence, and One Million Dollars ($1,000,000) in case of
loss, destruction or damage to property. If applicable, Tenant 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 Landlord as
an additional insured. Tenant shall furnish to Landlord a certificate of such
insurance which must provide that the insurance indicated therein will not be
canceled without at least ten (10) days' written notice to Landlord.
21.2 During any period or periods of construction by Tenant 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
Landlord pursuant to Article IX hereof, Tenant 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 (y) the
-20-
aggregate contract price or prices for the construction of such facilities or
(z) 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 Landlord, and
Lessee shall furnish to Landlord a certificate of such insurance naming Landlord
as an additional insured which shall provide that the insurance indicated
therein shall not be canceled without at least ten (10) days written notice to
Landlord. If such construction by Tenant is of a type to which Builder's Risk
Insurance is not applicable, Tenant shall provide the necessary additional
coverage under the policies referred to in this ARTICLE XXI.
21.3 Tenant shall procure and continue in force during the term hereof,
all-risk insurance which contains fire and extended coverage on a full value,
repair or replacement basis upon facilities, machinery, equipment and
appurtenances constructed, erected or installed on or in the Leased Premises by
Tenant and which have or may become the property of Landlord pursuant hereto.
The policies evidencing such insurance must provide that loss, if any, payable
thereunder will be payable to Landlord and/or Tenant and/or mortgagee of the
Leased Premises or the Office Building as their respective interests may appear,
and all such policies together with evidence of payment of the premiums thereon
will be delivered to Landlord and/or any such mortgagee. All such policies must
be taken in such responsible companies authorized to do business in New
Hampshire as Landlord shall approve (which approval shall not be unreasonably
withheld) and must be in form satisfactory to Landlord. Upon receipt of a copy
of notice of cancellation of any insurance which is the responsibility of Tenant
hereunder, Landlord may pay the premiums necessary to reinstate the same. The
amount so paid will constitute Additional Rent payable by Tenant at the next
rental payment date. Payment of premiums by Landlord will not be deemed a
waiver or release by Landlord of the default by Tenant in failing to pay the
same or of any action which Landlord may take hereunder as a result of such
default. Tenant shall neither violate, nor allow its agents or employees to
violate any of the terms, conditions and provisions of such policies.
21.4 If and to the extent permitted without prejudice to any rights of
Tenant under the applicable insurance policies, Landlord shall be held free and
harmless from liability for loss or damage to personal property of Tenant 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 is the result of the negligence of Landlord,
its employees or agents. This subsection does not impose any added obligation or
expense upon Tenant 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.
-21-
ARTICLE XXII - DESTRUCTION OR DAMAGE
22.1 In the event that the Leased Premises, as it exists at the beginning
of the term hereof, is totally destroyed by fire or other casualty insured
against, or is so damaged that repairs and restoration cannot, in the opinion of
Landlord in its sole discretion, be accomplished within a period of one hundred
eighty (180) days from the date of such destruction or damage, this Lease will
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 ARTICLES XX and XXI hereof, and
except that Tenant shall be liable for and shall promptly pay Landlord any Rent
then in arrears or Landlord shall promptly rebate to Tenant a pro rata portion
of any Rent paid in advance. In the event that the Leased Premises is so
damaged that repairs and restoration can be accomplished within a period of one
hundred eighty (180) days from the date of such destruction or damage, this
Lease will continue in effect in accordance with its terms; such repairs and
restoration will, unless otherwise agreed by Landlord and Tenant, 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 Lease), and until such
repairs and restoration have been accomplished, a portion of the rent will xxxxx
equal to the proportion of the Leased Premises rendered unusable by the damage.
Landlord's obligation to restore, replace or rebuild such facilities will 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. In the event the Leased
Premises may be repaired and/or restored within the aforementioned one hundred
eighty (180) day period, but the cost of such repair or restoration exceeds the
available insurance proceeds, at Landlord's discretion, this Lease will be
terminated in which event the rights and duties of the parties shall be governed
by the first sentence of this Section 22.1. Tenant shall execute and deliver to
Landlord all instruments and documents necessary to evidence the fact that the
right to such insurance proceeds is vested in Landlord. Landlord shall not be
responsible for damage or destruction, partial or total, to or of machinery,
equipment and appurtenances constructed or installed on or in the Leased
Premises by Tenant. Notwithstanding anything contained herein to the contrary,
in the event that the damage to the Leased Premises results from the fault or
negligence of Tenant, its agents, employees, licensees or invitees, Tenant shall
not be entitled to any abatement or reduction of any rent or other sums due
hereunder, and such damage shall be repaired by Tenant, or at Landlord's option
by Landlord at Tenant's expense.
ARTICLE XXIII - REPOSSESSION BY LANDLORD
23.1 At the expiration of this Lease or upon the earlier termination of
this Lease for any cause herein provided for, Tenant shall peaceably and quietly
quit the Leased Premises and deliver possession of the same to Landlord together
with the
-22-
improvements thereon at the beginning of the term hereof and all improvements
constructed thereon by Tenant 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 ARTICLE X hereof. At the time of delivery of possession to Landlord at the
expiration of this Lease any and all machinery, equipment and appurtenances
constructed or installed on or in the Leased Premises by Tenant at its expense
after the beginning of the term hereof, which constitute fixtures and which have
become the property of Landlord pursuant to ARTICLE X hereof will be free and
clear of any mortgage, lien, pledge or other encumbrance or charge.
ARTICLE XXIV - MORTGAGE LIEN
24.1 This Lease and all rights of Tenant hereunder are and will remain
subject and subordinate to the lien of (a) any mortgage(s) constituting a lien
on the Office Building, or any part thereof, at the date hereof, and (b) the
lien of any mortgage(s) 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 Office Building, and (c) any
renewal, modification, consolidation or extension of any mortgage or deed of
trust referred to in clause (a) or (b). Tenant shall, upon demand at any time
or times, execute, acknowledge and deliver to Landlord, any and all instruments
that may be necessary or proper to subordinate this Lease and all rights of
Tenant here under to the lien of any mortgage, deed of trust or other instrument
referred to in clause (b) or clause (c) of the preceding sentence, and, in the
event that Tenant shall fail or neglect to execute, acknowledge and deliver any
such subordination instrument notwithstanding its receipt of a reasonable
subordination, nondisturbance and attornment agreement (see below) from said
mortgagee, Landlord, in addition to any other remedies, may, as the agent or
attorney-in-fact of Tenant, execute acknowledge and deliver the same, and Tenant
hereby nominates, constitutes and appoints Landlord as Tenant's proper legal
attorney-in-fact for such purposes; 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 Tenant is not in default under
the terms of this Lease the mortgagee or trustee, or any person succeeding to
the 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 Tenant hereunder, and (ii) that the proceeds of insurance policies received
by it in settlement of losses under insurance policies held by it will be
applied to the cost of repairs and restoration in those instances in which
Landlord is obligated to repair and restore pursuant to the provisions hereof.
24.2 Tenant shall execute and acknowledge a certificate containing such
information as may be reasonably requested for the benefit of Landlord, any
prospective purchaser or any current or prospective mortgagee of the Office
Building
-23-
within ten (10) days of receipt of same. In the event Tenant fails to deliver
such certificate to Landlord, Tenant irrevocably appoints Landlord as Tenant's
attorney-in-fact to execute the same.
ARTICLE XXV - DEFAULT
25.1 In the event that (a) any installment of Rent or Additional Rent is
not paid within five (5) days after the same is due and payable, or (b) Tenant
defaults in the performance or observance of any other covenant or condition in
this Lease and such default remains unremedied for ten (10) days after written
notice thereof has been given or sent to Tenant by Landlord, or (c) any warranty
or representation made by Tenant herein proves to be false or misleading, or (d)
Tenant or any Guarantor makes an assignment for the benefit of creditors, is
generally not paying its debts as such debts become due, a custodian is
appointed or takes 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 Tenant or any Guarantor for the purpose of enforcing a lien
against such property, commences any proceeding relating to Tenant or any
Guarantor 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 Tenant or any Guarantor
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 Tenant
or any Guarantor by any act indicates its consent to, or acquiescence in, any
such proceeding or the appointment of any receiver or trustee for Tenant or any
Guarantor 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 Tenant's fixtures of
personal property of any nature whatsoever that are located on the Leased
Premises institutes or gives notice of foreclosure against any such property, or
(e) Tenant shall have assigned or sublet the Leased Premises without the prior
written consent of Landlord, or (f) Tenant shall abandon or vacate or shall
commence to abandon or vacate the Leased Premises or any substantial portion of
the Leased Premises or shall remove or attempt to remove, without the prior
written consent of Landlord, all or a substantial portion of Tenant's goods,
wares, equipment, fixtures, furniture, or other personal property, or (g) the
death of any individual Tenant or Guarantor, the dissolution of any corporate
Tenant or Guarantor or the termination of any partnership Tenant or Guarantor,
then, in any of such events, Landlord 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 Landlord's former estate
and expel Tenant and those claiming through or under Tenant and remove their
effects forcibly if necessary, without being deemed guilty in 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
will terminate, and in case of such termination or in case of termination under
the
-24-
provisions of statute by reason of the default of Tenant, Tenant shall remain
and continue liable to Landlord in an amount equal to the total Rent reserved
for the balance of the term plus all additional Rent reserved for the balance of
such term less the net amounts (after deducting the expenses of repair,
renovation or demolition) which Landlord realizes, or with due diligence should
have realized, from the reletting of the Leased Premises, plus all costs
associated with the termination of the Lease, including Landlord's reasonable
attorneys' fees. As used in this Section, the term "Additional Rent" means the
value of all considerations other than Base Rent agreed to be paid or performed
by Tenant hereunder, including, without limiting the generality of the
foregoing, taxes, assessments, maintenance charges, and insurance premiums.
Landlord will have the right from time to time to relet the Leased Premises upon
such terms as it deems fit, and if a sufficient sum is not thus realized to
yield the net rent required under this Lease, Tenant shall satisfy and pay all
deficiencies as they may become due during each month of the remaining term of
this Lease. At Landlord's option, upon any uncured default of Tenant hereunder,
all Rent and Additional Rent due from Tenant under this Lease may be accelerated
and Landlord should be entitled to a judgment therefor immediately. Nothing
herein contained will be deemed to require Landlord to await the date on which
this Lease, or the term hereof, would have expired had there been no default by
Tenant, or no such termination or cancellation. Landlord's rights and remedies
under this Lease are distinct, separate and cumulative remedies, and no one of
them, whether or not exercised by Landlord, will be deemed to be in exclusion of
any of the others herein or by law or equity provided. Nothing contained in this
Section will limit or prejudice the right of Landlord to prove and obtain, in
proceedings involving the bankruptcy or insolvency of, or a composition with
creditors by, Tenant the maximum allowed by any statute or rule of law at the
time in effect.
ARTICLE XXVI - ACCESS TO LEASED PREMISES
26.1 Landlord or its representatives shall have free access to the Leased
Premises at all times in cases of emergency and at reasonable intervals during
normal business hours for the purpose of inspection, or for the purpose of
showing the Leased Premises to prospective purchasers or tenants, or for the
purpose of making repairs which Tenant is obligated to make hereunder but has
failed or refused to make; provided, that (with the exception of emergency
situations), Landlord shall not unreasonably interfere with Tenant's business.
The preceding sentence does not impose upon Landlord any obligation to make
repairs. During the ninety (90) day period preceding the expiration of this
Lease, Landlord may keep affixed to any suitable part of the outside of the
building on the Leased Premises a notice that the Leased Premises is for sale or
rent.
-25-
ARTICLE XXVII - NOTICES
27.1 Any written notice, request or demand required or permitted by this
Lease will, until either party notifies the other in writing of a different
address, be properly given if sent by certified mail, return receipt requested,
or registered first class mail, postage prepaid, or delivery by a nationally
recognized overnight delivery service and addressed as follows:
If to Landlord: Xxxx X. Xxxxxxx, Xx., Manager
Century Park, LLC
c/o Oreo Marketing Corporation
000 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Telecopy: 603/894-1158
With a copy to: Xxxxx X. XxXxxxxx, Esq.
Xxxxxx, Xxxxxxxx & Branch
Professional Association
000 Xxxxxxx Xxxxxx, X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
Telecopy: 603/669-8547
If to Tenant: PC Connection, Inc.
000 Xxxxx 00 Xxxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxxx
ARTICLE XXVIII - SIGNS; EXTERIOR APPEARANCE; PYLON
28.1 Tenant shall not, without Landlord's prior written consent, install
any interior or exterior lighting, decorations, paintings, awning, canopies or
the like; or erect or install any signs, banners, window or door lettering,
placards, decorations or advertising media of any type that can be viewed from
the exterior of the Leased Premises or within common areas of the Office
Building. All signs, banners, lettering, placards, decorations and advertising
media shall be no larger than two hundred square inches in size and shall
conform in all respects to the requirements, if any, of all applicable laws,
codes and ordinances and to the sign criteria established by Landlord for the
Office Building from time to time in the exercise of its sole discretion, and
shall be subject to the prior written approval of Landlord as to construction,
method of attachment, shape, height, lighting, color and general appearance,
which approval shall not be unreasonably withheld. All signs shall be kept in
good condition and in proper operating order at all times. Upon the expiration
or earlier termination of this Lease, Tenant shall remove the sign and restore
the surface to which the sign was attached to its original condition at Tenant's
-26-
expense. In the event Tenant fails to remove the sign within 3 days from
expiration or earlier termination of this Lease, the sign shall become the
property of Landlord without any credit or compensation to Tenant, and Landlord
may, but is not obligated to, remove and store or dispose of the sign and Tenant
shall be liable to Landlord for all costs incurred by Landlord in connection
therewith. Tenant shall indemnify and hold Landlord harmless from all loss,
damage, cost, expense and liability in connection with such removal, storage or
disposal.
28.2 The Office Building has a pylon sign shared by other tenants, and
Tenant, at Tenant's cost and expense, and upon payment of the Pylon Sign Charge
of $500.00, shall have the right, subject however to the written consent of
Landlord, to locate a sign advertising Tenant upon the pylon structure.
Notwithstanding anything herein to the contrary, Landlord shall in all cases
retain the right and power to relocate Tenant's sign located upon such pylon
structure, if any, to another location on such pylon structure, to be determined
by Landlord, in the sole and absolute discretion of Landlord. The cost of
installation, the cost of bringing electrical service to Tenant's sign located
upon the pylon structure, the sign itself and any cost incurred by Landlord in
repairing or maintaining such sign shall all be the sole cost and expense of
Tenant, and Tenant shall indemnify, defend, and hold Landlord harmless with
respect to any claim, charge, expense, or liability for same. Under no
circumstances whatsoever will Tenant be allowed to remove such sign from the
pylon structure without the prior written consent of Landlord. The placement of
any such sign upon the pylon structure, and the design and construction criteria
therefor shall be governed by such rules, regulations and requirements as
Landlord may, from time to time, promulgate. Upon expiration or earlier
termination of this Lease, any sign advertising Tenant upon the pylon structure
(if Landlord elects to erect any such structure) shall remain upon the pylon
structure and be surrendered with the Leased Premises and become the property of
Landlord without credit or compensation to Tenant, unless Landlord requires
removal of such sign, in which event Landlord shall remove the same at Tenant's
expense, and Tenant shall pay to Landlord upon demand, the cost of removing
Tenant's sign from the pylon structure.
ARTICLE XXIX - SHORT FORM RECORDING
29.1 If required by the applicable statute, there shall be recorded in the
Hillsborough County Registry of Deeds a Notice of this Lease that complies in
content and form with New Hampshire RSA Section 477:7-a. Landlord and Tenant
shall execute and deliver a Notice of Lease in such form for such purpose. In
the event of termination, cancellation or assignment of this Lease prior to the
expiration of the term hereof, Landlord and Tenant shall execute and deliver, in
recordable form, an instrument setting forth such termination, cancellation or
assignment.
-27-
ARTICLE XXX - NO BROKER
30. The parties acknowledge that OREO Marketing Corporation represents
Landlord as its broker and that Landlord shall be responsible for any brokerage
fee. The parties covenant that no other broker was involved in any capacity in
bringing about the relationship evidenced by this Lease; and further agree that
if any claim on behalf of any broker or agent is made or upheld, then the party
against or through whom such claim is made shall defend (with counsel reasonably
acceptable to the other party), indemnify and hold the other harmless against
any damages, costs or expenses in any way attributable to such claim, including
without limitation reasonable attorney's fees.
ARTICLE XXXI - WARRANTIES AND REPRESENTATIONS OF TENANT
31.1 Tenant warrants and represents to Landlord that Tenant's entrance
into this Lease does not violate any other contracts, agreements, Leases or any
other arrangements of any nature whatsoever that Tenant has with any third
parties and that Tenant has obtained all necessary corporate authorization to
enter into this Lease.
31.2 If Tenant is a corporation, Tenant represents and warrants to
Landlord that Tenant (i) is a corporation duly organized, validly existing under
the laws of the state of its incorporation and in good standing under the laws
of the state of its incorporation and the laws of the State of New Hampshire,
(ii) has paid all franchise and other taxes, if any, required to maintain the
corporate existence of Tenant, and (iii) is not the subject of voluntary or
involuntary proceedings for the forfeiture of the Articles of Incorporation of
Tenant for its dissolution.
31.3 If Tenant is a partnership or joint venture, Tenant is duly organized
and validly existing under applicable state laws, and this Lease is within
Tenant's powers, has been duly authorized by all requisite action and is not in
contravention of any law or the powers of Tenant's partnership or joint venture
agreement, as the case may be.
Landlord represents and warrants to Tenant that Landlord's entrance
into this Lease does not violate any other contracts, agreements, leases or any
other arrangements of any nature whatsoever that Landlord has with any third
party, and that this Lease is within Landlord's powers and has been duly
authorized by all requisite action.
ARTICLE XXXII - SUCCESSION
32.1 This Lease is binding upon and will inure to the benefit of the
heirs, executors, administrators, successor and permitted assigns of the parties
hereto.
-28-
ARTICLE XXXIII - WAIVER
33.1 Any consent, express or implied, by Landlord to any breach by Tenant
of any covenant or condition of this Lease will not constitute a waiver by
Landlord of any prior or succeeding breach by Tenant of the same or any other
covenant or condition of this Lease. Acceptance by Landlord of rent or other
payment with knowledge of a breach of or default under any condition hereof by
Tenant will not constitute a waiver by Landlord of such breach or default.
ARTICLE XXXIV - GOVERNING LAW
34.1 This Lease will be construed and interpreted in accordance with the
laws of the State of New Hampshire.
ARTICLE XXXV - COUNTERPARTS
35.1 This Lease may be executed in two (2) or more counter-parts, each of
which will be deemed an original and all collectively but one and the same
agreement.
ARTICLE XXXVI - MODIFICATION; ENTIRE AGREEMENT
36.1 This Lease contains and embraces the entire agreement between the
parties hereto and no part of it may be changed, altered, amended, modified,
limited or extended orally or by agreement between the parties unless such
agreement is expressed in writing and signed by Landlord and Tenant or their
respective successors in interest.
ARTICLE XXXVII - SECTION HEADINGS
37.1 The headings at the beginning of each of the Sections in this Lease
are solely for purposes of convenience and identification and are not to be
deemed or construed to be part of this Lease.
ARTICLE XXXIII - SEVERABILITY
38.1 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 will not be affected thereby.
ARTICLE XXXIX - PARKING
39.1 Tenant shall be entitled to park in five (5) undesignated parking
spaces per 1,000 square feet of the Lease Premises in the paved parking lot
surrounding the
-29-
Office Building for the parking of its employees, agents and invitees.
Additional parking may be used by Tenant as available.
39.2 Tenant, its employees, agents and invitees, or any other party
related to Tenant, shall not park or store cars, trucks, trailers or other
vehicles overnight in any of the parking areas surrounding the Office Building
or anywhere else on the Landlord's property.
39.3 Tenant acknowledges that Landlord will be reconstructing and repaving
the parking lot surrounding the Office Building and that its right to specific
parking spaces may be altered by Landlord at Landlord's sole option during such
work.
ARTICLE XL - INTERPRETATION
40.1 The captions of the Articles or Sections of this lease are to assist
the parties in reading this Lease and are not a part of the terms or provisions
of this Lease. Whenever required by the context of this Lease, the singular
shall include the plural and the plural shall include the singular. The
masculine, feminine and neuter genders shall each include the other. In any
provision relating to the conduct, acts or omissions of Tenant, the term
"Tenant" shall include Tenant's agents, employees, contractors, customers,
agents, invitees or successors. In addition, in any provision relating to the
conduct, acts or omissions of Tenant, the term "Tenant" shall also include
others using the Leased Premises with Tenant's permission.
IN WITNESS WHEREOF, the parties execute this Lease as of the day and year
first above written.
CENTURY PARK, LLC
("Landlord")
/s/ Xxxxx X. XxXxxxxx By: /s/ Xxxx X. Xxxxxxx, Xx.
-------------------------- --------------------------------
Witness Xxxx X. Xxxxxxx, Xx., Manager
PC CONNECTION, INC.
("Tenant")
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------- --------------------------------
Witness Xxxxxx X. Xxxxxxxxx , Its Duly
-----------------------
Authorized Manager
-------------------------
-00-
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXXXX
The foregoing instrument was acknowledged before me this 23rd day of
September, 1997, by Xxxx X. Xxxxxxx, Xx., Manager of Century Park, LLC, a New
Hampshire limited liability company, on behalf of said limited liability
company.
/s/ Xxxxx X. XxXxxxxx
--------------------------------------------
Justice of the Peace
My Commission Expires:
----------------------
Notary Seal or Stamp:
[Sign in Black Ink]
STATE/COMMONWEALTH OF
---------------
COUNTY OF
---------------------------
The foregoing instrument was acknowledged before me this 3 day of
September, 1997, by Xxxxxx X. Xxxxxxxxx (name), Adm. Svc. Mgr, (title), of PC
Connection, Inc., a corporation organized under the laws of the
State/Commonwealth of New Hampshire, on behalf of said corporation.
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Justice of the Peace/Notary Public
My Commission Expires: Jan. 22, 2002
--------------
Notary Seal or Stamp:
[Sign in Black Ink]
-31-
Exhibits may be obtained from the Company upon written request.
-32-
