STANDARD COMMERCIAL LEASE
SECTION 1 - PARTIES
Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx Company, LESSOR, which expression shall
include their heirs, successors and assigns where the context so admits, does
hereby lease to IntelliLink, Inc., LESSEE.
SECTION 2 - PREMISES
LESSEE, which expression shall include its successors, executors,
administrators and assigns where the context so admits, does hereby lease the
following described Premises: Suite Number 0006 on the lower level of Nashua
Office Park, Xxx Xxxx Xxxxxxxxx, Xxxxxx, XX 00000, consisting of
approximately 717 square feet of space as outlined on Exhibit "A" of this
Lease, which also includes a 15% common area factor, together with the right
to use in common, with others entitled thereto, the hallways, stairways and
elevators, necessary for access to said Xxxxxxxx and lavatories nearest
thereto.
SECTION 3 - TERM
The term of this Lease shall be for two (2) years, commencing on March 15,
1992, or the Commencement Date (defined below), whichever is later, and
terminating two (2) years immediately thereafter, unless sooner terminated as
herein provided.
SECTION 4 - COMMENCEMENT DATE
The Commencement Date of the term of this Lease shall be the earlier of (a)
the day following the date on which the Premises are ready for occupancy, or
(b) the day LESSEE takes occupancy of the Premises. The Premises shall be
deemed ready for occupancy on the first day as of which XXXXXX'S work has been
completed except for items of work (and, if applicable, adjustment and fixtures)
which can be completed after occupancy has been taken, without causing undue
interference with XXXXXX'S use of the Premises (i.e., so-called "punch list"
items) and LESSEE has been given notice thereof. LESSOR shall complete as soon
as conditions permit, all "punch list" items and LESSEE shall afford LESSOR
access to the Premises for such purposes.
Notwithstanding the foregoing, if LESSEE'S personnel shall occupy all or any
part of the Premises for the conduct of its business prior to the
Commencement Date as determined pursuant to the preceding paragraph, such
date of occupancy shall, for all intents and purposes of this Lease, be the
Commencement Date.
XXXXXX and XXXXXX agree to execute a Supplemental Agreement setting forth the
actual Occupancy and Term Dates, once the same have been established.
SECTION 5 - RENT
The LESSEE agrees to pay to LESSOR, without deduction or offset, rent at the
rate of SIX THOUSAND FOUR HUNDRED FIFTY-THREE AND 00/100 ($6,453.00) Dollars
annually, payable in advance on the first day of each month, in equal monthly
installments of FIVE HUNDRED THIRTY-SEVEN AND 75/100 ($537.75) Dollars, and
at that rate for any fraction of a month at the beginning of the term.
SECTION 5A - RENT COMMENCEMENT DATE
The payment of rental shall commence on the Commencement Date.
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SECTION 6 - ABATEMENT OF RENT
It is understood and agreed that if for any reason whatsoever, the LESSOR
does not deliver possession of the Premises according to the terms of this
Lease, the rent shall be abated until such date as possession of the Premises
is rendered by the LESSOR. In no event shall the LESSOR, its agents or
employees be liable in damages for failure to deliver possession under the
terms of this Lease, except for willful failure to do so.
SECTION 7 - SECURITY DEPOSIT
Upon the execution of this Lease by XXXXXX, LESSEE shall pay to LESSOR, the
amount of FIVE HUNDRED THIRTY-SEVEN AND 75/100 ($537.75) Dollars, which shall
be held as security for LESSEE'S performance as herein provided. Said
Security Deposit shall be refunded to LESSEE at the end of this Lease,
subject to XXXXXX'S satisfactory compliance with the conditions herein
contained and set forth.
SECTION B - ADDITIONAL RENT
In accordance with the following, XXXXXX shall under the terms, conditions
and provisions hereinafter provided, pay to LESSOR as additional rent, the
following:
REAL ESTATE TAXES
1. If real estate taxes upon the land and buildings (the "Property"), of
which the Premises are a part, for any tax year exceed the real estate base
tax amount, whether by reason of an increase in either the tax rate or the
assessed valuation or both, LESSEE shall pay to LESSOR as additional rent
within ten (10) days after billing therefor, an amount equal to the product
of (a) such excess over the base taxes and (b) the following fraction:
Square Footage of Lessee's Premises
--------------------------------------------
Aggregate of All the Rentable Square Footage
(whether or not rented or improved within the entire building)
Effective April 1, 1993, LESSEE shall pay monthly, at the time when Rent
payments are due hereunder, an amount equal to one-twelfth (1/12th) of the
total of annual real estate taxes (as estimated by XXXXXX) due from LESSEE
to LESSOR pursuant to this Subsection 8.1. Promptly after the determination
by any taxing authority of real estate taxes upon the Building for each tax
year, LESSOR shall make a determination of the real estate taxes allocated
to the Premises, and if the aforesaid payments theretofore made for such
tax year by XXXXXX exceed the real estate taxes allocated to the Premises,
such overpayment shall be credited against the payments thereafter to be
made by LESSEE pursuant to this paragraph; and if the real estate taxes
allocated to the Premises for such tax year are greater than such payments
theretofore made on account for such tax year, LESSEE shall within ten (10)
days of written notice from the LESSOR make a suitable payment to LESSOR.
Xerox copies of tax bills submitted by XXXXXX with any such statement shall
be conclusive evidence of the amount of real estate taxes charged, assessed
or imposed. After the full assessment year, the initial monthly payment on
account of the real estate taxes allocated to the Premises shall
be replaced each year by a payment which is one-twelfth (1/12th) of
the real estate taxes allocated to the Premises for the immediately
preceding tax year.
2. For the purposes of this clause, the term "Tax Year" shall mean
the twelve month period commencing on April 1st (or any month as it
may apply and/or change for the city, town or municipality tax period)
immediately preceding the Commencement Date and each twelve month
period thereafter during the term of this Lease.
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3. It is agreed by both parties that the Base Year as it applies to taxes
for this Lease shall be April 1, 1992 - March 31, 1993.
4. If any abatement, refund or rebate shall be subsequently made for any
tax year, an appropriate adjustment shall be made in the amount payable
from, or paid by LESSEE to LESSOR on account of said real estate taxes,
after deducting the LESSOR'S expenses reasonably incurred in obtaining such
abatement, refund or rebate and provided there is no existing default of
LESSEE. The provisions of this subsection shall not, however, be
applicable to the base tax assessment as originally levied.
5. If some method or type of taxation replaces the current method of
assessment of real estate taxes, or the type thereof, XXXXXX agrees that it
shall pay an equitable share of the same computation herein provided, to
the end that XXXXXX'S share thereof shall be to the maximum extent
practicable, comparable to that which LESSEE would bear under the foregoing
provisions.
6. If a tax (other than a Federal or State net income tax) is assessed on
account of the rents or other charges payable by LESSEE to the LESSOR under
this Lease, XXXXXX agrees to pay the same within ten (10) days after
billing therefor, unless applicable law prohibits the payment of such tax
by XXXXXX. LESSOR shall have the same rights and remedies for non-payment
by LESSEE of any such amounts due on account of such taxes as XXXXXX has
hereunder, for the failure of LESSEE to pay rent as provided for in Section
23 of this Lease.
OPERATING EXPENSES
7. The following is a list of all such items of operating expenditures as
are within the meaning of "Operating Expenses" hereinafter set forth. If,
in any calendar year of the term of this Lease, LESSOR'S Operating Expenses
exceed Operating Expenses for the calendar year 1992, LESSEE shall after
notice as hereinafter provided, pay to LESSOR as additional rent, an amount
equal to (a) the product of such excess and (b) a fraction involving the
same numerator and denominator as is provided for in Sub-section 8.1 of
this Lease.
8. The expression "Operating Expenses" as used herein, shall mean the
aggregate cost or expenses reasonably incurred by LESSOR with respect to
the operation, administration, cleaning, repair, maintenance and management
of the Property, including without limitation, those items enumerated
hereinafter. If during any portion of the calendar year for which
Operating Expenses are being computed, less than 93% of the building's
rentable area was occupied by tenants, actual Operating Expenses incurred
shall be reasonably extrapolated by LESSOR on an item by item basis to the
estimated operating expenses that would have been incurred if the building
were at least 93% occupied for such year, and such extrapolated amounts
shall for the purposes hereof, be deemed to be the Operating Expenses for
such year.
9. Effective January 1, 1993, XXXXXX shall pay monthly, at the time when
Rent payments are due hereunder, an amount equal to one-twelfth (1/12th) of
the total annual Operating Expenses (as estimated by XXXXXX) due from
LESSEE to LESSOR pursuant to Subsection 8.7 of this Lease.
Promptly after the end of each calendar year thereafter, LESSOR shall
make a determination of LESSEE'S share of such Operating Expenses; and
if the aforesaid payments theretofore made for such period by LESSEE
exceed XXXXXX'S share, such overpayment shall be credited against the
payments thereafter to be made by LESSEE pursuant to this Paragraph;
and if LESSEE'S share is greater than such payments theretofore made
on account for such period, LESSEE shall within thirty (30) days of
written notice from the LESSOR make a suitable payment to LESSOR.
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The initial monthly payment on account of the Operating Expense Charge
shall be replaced after XXXXXX'S determination of LESSEE'S share thereof
for the preceding accounting period by a payment which is one-twelfth
(1/12th) of LESSEE'S actual share thereof for the immediately preceding
period, with adjustments as appropriate where such preceding period is less
than a full twelve-month period. LESSOR shall have the same rights and
remedies for non-payment by LESSEE of any such amounts due on account of
such Operating Expenses as XXXXXX has hereunder, for the failure of LESSEE
to pay rent as provided for in Section 23 of this Lease.
10. Without limitation, Operating Expenses shall include:
a. All expenses incurred by LESSOR or LESSOR'S agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social
security, unemployment and similar taxes, worker's compensation insurance,
disability benefits, pensions, hospitalization, retirement plans and group
insurance, uniforms and working clothes and the cleaning thereof, and
expenses imposed on LESSOR or LESSOR'S agents pursuant to any collective
bargaining agreement for the services of employees of LESSOR or LESSOR'S
agents in connection with the operation, repair, maintenance, cleaning,
management and protection of the Property, and its mechanical systems
including, without limitation, day and night supervisors, property manager,
accountants, bookkeepers, janitors, carpenters, engineers, mechanics,
electricians and plumbers and personnel engaged in supervision of any of
the persons mentioned above; provided that, if any such employee is also
employed on other properties of LESSOR, such compensation shall be suitably
prorated among the Property and such other properties.
b. The cost of services, utilities, materials and supplies furnished or
used in the operation, repair, maintenance, cleaning, management and
protection of the Property.
c. The cost of replacements for tools and other similar equipment used in
the repair, maintenance, cleaning and protection of the Property; provided
that, in the case of any such equipment used jointly on other properties of
LESSOR, such costs shall be suitably prorated among the Property and such
other properties.
d. Where the Property is managed by LESSOR or an affiliate of LESSOR, a
sum equal to the amounts customarily charged by management firms in the
Nashua area for similar properties whether or not actually paid, or where
otherwise managed, the amounts accrued for management, together with
amounts accrued for legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in connection with
services rendered for securing or renewing leases and for matters not
related to the normal administration and operation of the building.
e. Premiums for insurance against damage or loss to the building from
such hazards as shall from time to time be generally required by
institutional mortgagors in the Nashua area for similar
properties, including, but not by way of limitation, insurance
covering loss of rent attributable to any such hazards, and public
liability insurance.
f. Cost for electricity, water and sewer use charges, and other
utilities supplied to the Property and not paid for directly by XXXXXX.
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g. Betterment assessments, provided the same are apportioned equally over
the longest period permitted by law.
h. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
i. Any capital expenditure made by XXXXXX during the term of this
Lease, the total cost of which is not properly includable in Operating
Expenses for the operating year in which it was made, shall nevertheless be
included in such Operating Expenses for the operating year in which it was
made, and Operating Expenses for each succeeding operating year shall
include the annual charge-off of such capital expenditure. Annual
charge-off shall be determined by dividing the original capital expenditure
plus an interest factor, reasonably determined by XXXXXX, as being the
interest rate then being charged for long-term mortgages by institutional
lenders on "like" properties within the locality in which the building is
located, by the number of years of useful life of the capital expenditure,
and the useful life shall be determined reasonably by XXXXXX in accordance
with generally accepted accounting principles and practices in effect at
the time of making such expenditure.
SECTION 9 - USE
The LESSEE shall use the Premises only for the purpose of general offices.
SECTION 10 - COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in the
Premises or use made thereof which will be unlawful, improper, noisy or
offensive, or contrary to any law or any municipal by-law or ordinance in force
in the city or town in which the Premises is situated.
SECTION 11 - FIRE INSURANCE
The LESSEE shall not permit any use of the Premises which will make voidable
any insurance on the Property of which the Premises are a part, or on the
contents of said Property, which shall be contrary to any law or regulation
from time to time established by the New England Fire Insurance Rating
Association, or any similar body succeeding to its powers. The LESSEE shall,
on demand, reimburse the LESSOR and all other tenants, all extra insurance
premiums caused by LESSEE'S misuse of the Premises.
SECTION 12 - UTILITIES
The LESSOR shall provide and shall pay for all LESSEE'S water and sewer use
charges and reasonable heating and air-conditioning during the normal heating
and cooling season between the hours of 8:00 A.M. and 6:00 P.M., during normal
business days. The normal cooling season shall be from April 15th to October
1st of any given year. Normal business days are all days except Saturday,
Sunday, New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day,
Christmas Day (and the following day when any such day occurs on Sunday) and
such other days as LESSOR presently or in the future recognizes as holidays
for LESSOR'S general office staff. In addition, XXXXXX agrees to furnish
elevator service and to light passageways and stairways during business
hours, and to furnish such cleaning service as is customary in similar
buildings in said city or town, all subject to interruption due to any
accident, to the making of repairs, alterations or improvements, to labor
difficulties, to trouble in obtaining fuel, electricity, service or supplies
from the sources from which they are usually obtained for said building, or
to causes beyond
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LESSOR'S control. If LESSEE shall require air-conditioning, heating or
ventilation outside the hours and days above specified, LESSOR shall furnish
such service and LESSEE shall pay therefor such charges as may from time to time
be in effect. In the event LESSEE introduces into the Premises personnel or
equipment which overloads the capacity of the building system or in any other
way interferes with the system's ability to perform adequately its proper
functions, supplementary systems may if and as needed at LESSOR'S option, be
provided by XXXXXX, at LESSEE'S expense.
SECTION 13 - ELECTRICAL
LESSOR shall purchase and receive electric current for the Premises directly
from the public utility company serving the building and LESSEE shall permit
LESSOR'S existing wires, risers, conduits and other electrical equipment of
LESSOR to be used for such purposes. LESSOR shall not in any way be liable or
responsible to LESSEE for any loss or damage or expense which LESSEE may sustain
or incur if, during the term of this Lease, either the quantity or character of
electric current is changed or electric current is no longer available or
suitable for LESSEE'S requirements due to a factor or cause beyond LESSOR'S
control. LESSOR at LESSEE'S expense, shall purchase and install all lamps,
tubes, bulbs, starters and ballasts.
Section 13 of this Lease shall apply until such time as LESSOR separately meters
LESSEE'S suite. Thereupon, LESSEE shall be responsible to purchase its own
light and plug electric.
SECTION 14 - ADDITIONAL CHARGES
Should LESSEE fail to pay when due, any sums under this Lease designated as an
additional charge, LESSOR shall have the same rights and remedies as XXXXXX has
hereunder, for failure to pay rent as provided for in Section 23 of this Lease.
SECTION 15 - MAINTENANCE OF PREMISES
The LESSEE agrees to maintain the Premises in the same condition as existed at
the commencement of the term or as they may be improved during the term of this
Lease, reasonable wear and tear, damage by fire and other casualty only
excepted, and whenever necessary, to replace plate glass and other glass
therein, acknowledging that the Premises are now in good order and the glass
whole. The LESSEE shall not permit the Premises to be overloaded, damaged,
stripped, or defaced, nor suffer any waste. XXXXXX shall obtain written consent
of LESSOR before erecting any sign on the Premises. LESSEE shall be responsible
for the cost of repairs which may be made necessary by reason of damage to
common areas in the building by LESSEE, LESSEE'S independent contractors, or
XXXXXX'S invitees. If repairs are required to be made by LESSEE pursuant to the
terms hereof, LESSOR may demand that LESSEE make the same forthwith, and if
LESSEE refuses or neglects to commence such repairs and complete the same with
reasonable dispatch after such demand, LESSOR may (but shall not be required to)
make or cause such repairs to be made and shall not be responsible to LESSEE
for any loss or damage that may occur to LESSEE'S stock or business by reason
thereof. If XXXXXX makes or causes such repairs to be made, XXXXXX agrees that
LESSEE shall forthwith on demand, pay to LESSOR the cost thereof as an
additional charge.
SECTION 16 - ALTERATIONS
The LESSEE shall not make any structural alterations or additions to the
Premises, but may make non-structural alterations provided the LESSOR
consents thereto in writing, which consent shall not be unreasonably withheld
or delayed. All such allowed alterations shall be at LESSEE'S
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sole cost and expense and shall be of such quality at least equal to the present
construction. LESSEE shall not permit any mechanics' liens, or similar liens,
to remain upon the Premises for labor and material furnished to LESSEE or
claimed to have been furnished to LESSEE in connection with work or any
character performed or claimed to have been performed at the direction of LESSEE
and shall cause any such lien to be released of record forthwith without cost to
LESSOR. Any alterations or improvements made by the LESSEE shall become the
property of the LESSOR at the termination of occupancy as provided herein.
SECTION 17 - LESSOR'S LIABILITY
XXXXXX specifically agrees to look solely to XXXXXX'S then equity interest in
the Property at the time owned, for recovery of any judgment from XXXXXX; it
being specifically agreed that neither XXXXXX (original or successor) nor anyone
claiming under the LESSOR, shall ever be personally liable for any such
judgment, or for the payment of any monetary obligation to LESSEE.
LESSOR being self-insured for Comprehensive General Liability, XXXXXX would look
to LESSOR to maintain sufficient equity to satisfy its obligations not to exceed
amounts equal to those required of LESSEE for such coverage and evidence of
same.
SECTION 18 - LESSOR'S SERVICES
With respect to any services to be furnished by LESSOR to LESSEE, LESSOR shall
in no event be liable for failure to furnish the same when prevented from doing
so by strike, lockout, breakdown, accident, order or regulation of or by any
governmental authority, or failure of supply, or inability by the exercise of
reasonable diligence to obtain supplies, parts or employees necessary to furnish
such services, or because of war or other emergency, or for any cause due to any
act or neglect of LESSEE or LESSEE'S servants, agents, employees, licensees or
any person claiming by, through or under XXXXXX.
SECTION 19 - DAMAGES
In no event shall LESSOR ever be liable to LESSEE for any indirect or
consequential damages suffered by LESSEE from whatever cause.
SECTION 20 - LESSEE'S LIABILITY INSURANCE
The LESSEE shall maintain with respect to the Premises and the Property of which
the Premises are a part, comprehensive public liability insurance in the amounts
of $1,000,000.00/$1,000,000.00, with property damage insurance in limits of
$1,000,000.00, in responsible companies qualified to do business in New
Hampshire and in good standing therein, insuring the LESSOR as well as the
LESSEE against injury to persons or damage to property as provided. The LESSEE
shall deposit with the LESSOR, prior to the Commencement Date of the term of
this Lease, certificates for such insurance, and thereafter within thirty (30)
days prior to the expiration of any such policies. All such insurance
certificates shall provide that such policies shall not be cancelled without at
least ten (10) days prior written notice to each insured named therein.
SECTION 21 - INSURABLE DAMAGES
LESSOR shall not be liable for any damage insurable by LESSEE to LESSEE'S
fixtures, merchandise or property regardless of cause and LESSEE hereby
releases LESSOR from same. LESSEE shall not be liable for any damage
insurable by XXXXXX to the Premises, regardless of cause and LESSOR hereby
releases LESSEE from same.
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SECTION 22 - FIRE, CASUALTY, EMINENT DOMAIN
Should a substantial portion of the Premises, or of the Property of which the
Premises are a part, be damaged by fire or other casualty, or be taken by
eminent domain, the LESSOR may elect to terminate this Lease. When such fire,
casualty, or taking renders the Premises substantially unsuitable for LESSEE'S
intended use, a just and proportionate abatement of rent shall be made, and the
LESSEE may elect to terminate this Lease if: (a) the LESSOR fails to give
written notice within ninety (90) days of its intention to restore the Premises,
or (b) the LESSOR fails to restore the Premises to a condition substantially
suitable for LESSEE'S intended use within one hundred twenty (120) days of said
fire, casualty or taking. The LESSOR reserves, and the LESSEE grants to the
LESSOR, all rights which the LESSEE may have for damages or injury to the
Premises for any taking by eminent domain, except for damage to LESSEE'S
fixtures, property or equipment.
SECTION 23 - DEFAULT, BANKRUPTCY
If at any time subsequent to the date of this Lease, any one or more of the
following events (herein referred to as a default of LESSEE) shall occur: (a)
LESSEE shall fail to pay the installment of rent, escalation charge or other
charges hereunder when due, and such failure shall continue for three (3)
full business days after notice has been given to LESSEE from LESSOR; (b)
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 thirty (30) days after such notice thereof; (c)
LESSEE shall be declared bankrupt or insolvent according to law; or (d) if
any assignment shall be made of LESSEE'S property for the benefit of
creditors, then the LESSOR shall have the right thereafter, while such
default continues, to re-enter and take complete possession of the Premises,
to declare the term of this Lease ended, and to 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 indemnify the LESSOR against all
loss of rent and other payments which the LESSOR may incur by reason of such
termination during the remainder of the term. If the LESSEE should default,
after reasonable notice thereof, in the observance or performance of any
conditions or covenants on LESSEE'S part to be observed or performed under or
by virtue of any of the provisions in any section of this Lease, the LESSOR,
without being under any obligation to do so and without thereby waiving such
default, may remedy such default for the account and at the expense of the
LESSEE. If the LESSOR makes any expenditures or incurs any obligations for
the payment of money in connection therewith, including but not limited to
reasonable attorney's fees in instituting, prosecuting or defending any
action or proceeding, any such sums paid or obligations incurred, shall
accrue interest at the rate of eighteen percent (18%) per annum, and all
costs shall be paid to the LESSOR by the LESSEE, as additional rent.
SECTION 24 - NOTICE
Any notice from the LESSOR to the LESSEE relating to the Premises or to the
occupancy thereof, shall be deemed duly served if addressed to the LESSEE and
left at the Premises, or if addressed to the LESSEE and mailed to the Premises
by registered or certified mail, return receipt requested, postage prepaid.
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 at
Braintree Hill Office Park, 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000, or
to such other address as the LESSOR may from time to time advise in writing.
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SECTION 25 - SURRENDER
The LESSEE shall at the expiration or other termination of this Lease, remove
all LESSEE'S goods and effects from the Premises (including without hereby
limiting the generality of the foregoing, all signs and lettering affixed or
painted by the LESSEE, either inside or outside of the Premises). LESSEE shall
deliver to LESSOR, the Premises and all keys, locks thereto and other fixtures
connected therewith and all alterations and additions made to or upon the
Premises, in the same condition as they were at the Commencement Date of the
term of this Lease, or as they were put in during the term hereof, reasonable
wear and tear and damage by fire or other casualty only excepted. In the event
of LESSEE'S failure to remove any of LESSEE'S property from the Premises, LESSOR
is hereby authorized without liability to LESSEE for loss or damage thereto, and
at the sole risk of LESSEE, to remove and store any of the property at LESSEE'S
expense, or to retain same under XXXXXX'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.
SECTION 26 - HOLDING OVER
Any holding over by LESSEE after the expiration of the term of this Lease shall
be treated as a daily Tenancy At Sufferance, at a rate equal to two (2) times
the rent plus escalation charges and other charges herein provided (prorated on
a daily basis) and shall otherwise be on the same terms and conditions as set
forth in this Lease, where the same may be applicable.
SECTION 27 - RIGHT TO MOVE
The LESSOR reserves the right to move the LESSEE and if LESSOR so requests,
LESSEE shall vacate the Premises and relinquish its right with respect to the
same, provided that LESSOR provides to LESSEE, space within the complex commonly
known as Nashua Office Park, Nashua, NH.
Such space shall be reasonably comparable in size, layout, finish and utility to
the existing Premises, and further provided that LESSOR shall, at its sole cost
and expense, move the LESSEE and its removable property from the Premises to
such new space in such a manner as will minimize, to the greatest extent
practicable, undue interference with the business or operations of LESSEE. Any
such space shall from and after such relocation, be treated as the Premises
demised under this Lease, and shall be occupied by LESSEE under the same terms,
provisions and conditions as are set forth in this Lease.
SECTION 28 - RULES AND REGULATIONS
The LESSEE will observe and comply with the Rules and Regulations as attached
hereto and made a part hereof, including revisions and additions as the LESSOR
may from time to time institute.
SECTION 29 - NOT TO INVALIDATE
If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to the extent be invalid or unenforceable,
the remainder of this Lease, or the application of such term of provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected hereby, and each term and provision of
this Lease shall be valid and enforced to the fullest extent permitted by law.
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SECTION 30 - QUIET ENJOYMENT
XXXXXX, subject to the terms and provisions of this Lease, on payment of the
rent and escalation charges and observing, keeping and performing all of the
other terms and provisions of this Lease on LESSEE'S part to be observed, kept
and performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the term hereof, without hindrance or ejection by any
persons lawfully claiming under LESSOR to have title to the Premises superior to
LESSOR.
SECTION 31 - ASSIGNMENT AND SUBLETTING
The LESSEE shall not assign or sublet the whole or any portion of the Premises
without LESSOR'S prior written consent, which consent shall be at the sole
discretion of LESSOR. Any increase in the rent resulting from the permitted
subletting will be due and payable to the LESSOR. The foregoing restrictions
shall not be applicable to any assignment of this Lease or a subletting of the
Premises by LESSEE to a subsidiary wholly-owned by LESSEE, or controlling
operation, the stock in which is wholly-owned by the stockholders of LESSEE. It
shall be a condition of the validity of any assignment, whether with the consent
of XXXXXX or to a subsidiary or controlling corporation, that the assignee
agrees directly with XXXXXX, to be bound by all the obligations of LESSEE
hereunder including, without limitation, the covenant against further assignment
and subletting. No assignment or subletting shall relieve LESSEE from its
obligations hereunder and LESSEE shall remain fully and primarily liable
therefor. If this Lease shall be assigned, or if the Premises or any portion
thereof shall be sublet or occupied by anyone other than LESSEE, LESSOR may, at
any time and from time to time, collect rent and other charges from the
assignee, sublessee or occupant, and apply the net amount collected to the rent
and other charges herein reserved, but no such assignment, subletting, occupancy
or collection shall be deemed a waiver of this covenant, or the acceptance of
the assignee, sublessee or occupant as a lessee, or a release of LESSEE or any
successor from obtaining the express consent in writing of XXXXXX, to any
further assignment or subletting. No assignment or subletting and no use of the
Premises by a subsidiary wholly-owned by LESSEE or controlling corporation of
LESSEE shall affect permitted uses.
Notwithstanding the provisions of the above, any proposed assignee or sublessee
submitted to the LESSOR for approval must have the same or greater financial
strength as LESSEE. If XXXXXX shall request permission to assign this Lease or
sublet the Premises or any part thereof to any person other than a subsidiary
wholly-owned by LESSEE or controlling corporation, the stock of which is
wholly-owned by the stockholders of LESSEE, LESSEE shall, together with such
request for consent thereto, inform LESSOR of the rental and other amounts to be
paid by such assignee or sublessee, the term of any subletting and the financial
information required by LESSOR to make the determination required by the first
sentence of this paragraph.
LESSOR shall have the right to terminate this Lease, provided that LESSOR shall
exercise such right within forty-five (45) days of its receipt of LESSEE'S
request for such consent and provided further, that LESSEE shall
have the right to withdraw its request for such consent within fifteen
(15) days after its receipt of such notice from LESSOR, in which event
such notice of termination shall become null and void. If this Lease
shall be terminated pursuant to the provisions of the immediately preceding
sentence, such termination shall become effective upon the last day of the
calendar month next following XXXXXX'S giving notice of termination. Upon
XXXXXX'S vacating the Premises in accordance with this Lease, LESSOR shall
refund all unearned rent and other payments made by LESSEE.
Page 11
SECTION 32 - SUBORDINATE
This Lease shall be subject and subordinate to any and all mortgages, deeds of
trust and other instruments in the nature of a mortgage, now or at any time
hereafter, a lien or liens on the Property of which the Premises are a part and
the LESSEE shall, when requested, promptly execute and deliver such written
instruments as shall be necessary to show the subordination of this Lease to
said mortgages, deeds of trust or other such instruments in the nature of
mortgage, and LESSEE hereby appoints such holder as XXXXXX'S attorney-in-fact to
execute such subordination agreement upon default of LESSEE in complying with
such holder's request.
SECTION 33 - LESSOR'S ACCESS
The LESSOR or agents of the LESSOR may, at reasonable times, enter to view the
Premises and may remove placards and signs not approved and affixed as herein
provided, and make repairs and alterations as LESSOR should elect to do and may
show the Premises to others, and at any time within three (3) months prior to
the expiration of the term, may affix to any suitable part of the Premises a
notice for letting or selling the Premises or Property of which the Premises are
a part and keep the same so affixed without hindrance or molestation.
SECTION 34 - INDEMNIFICATION AND LIABILITY
The LESSEE shall save the LESSOR harmless from all loss and damage occasioned by
the use or escape of water or by the bursting of pipes, as well as from any
claim or damage resulting from neglect in not removing snow and ice from the
roof of the building or from the sidewalks bordering upon the Premises so
leased, or by any nuisance made or suffered on the Premises, unless such loss is
caused by the negligence of the LESSOR. The removal of snow and ice from the
sidewalks bordering upon the Premises shall be the LESSOR'S responsibility.
SECTION 35 - LESSEE'S RISK
To the maximum extent this agreement may be made effective according to law,
XXXXXX agrees to use and occupy the Premises and to use such other portions of
the building as LESSEE is herein given the right to use at LESSEE'S own risk;
and LESSOR shall have no responsibility or liability for any loss of or damage
to LESSEE'S removable property. The provisions of this section shall be
applicable from and after the execution of this Lease and until the end of the
term of this Lease, and during such further period as LESSEE may use or be in
occupancy of any part of the Premises or of the building.
SECTION 36 - INJURY CAUSED BY THIRD PARTY
To the maximum extent this agreement may be made effective according to law,
XXXXXX agrees that LESSOR shall not be responsible or liable to LESSEE or to
those claiming by, through or under LESSEE, for any loss or damage that may be
occasioned by or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connecting with the Premises
or any part of the Property or otherwise.
SECTION 37 - LESSEE'S REMOVABLE PROPERTY
All articles of personal property and all business fixtures, machinery and
equipment and furniture owned or installed by LESSEE solely at its expense in
the Premises (LESSEE'S removable property) shall remain the property of the
LESSEE and may be removed by LESSEE at any time prior to the expiration of
this Lease, provided that LESSEE, at its expense, shall repair any damage to
the building caused by such removal or installation.
Page 12
SECTION 38 - WAIVER
Failure on the part of LESSOR or LESSEE to complain of any action or non-action
on the part of the other, no matter how long the same may continue, shall never
be a waiver by XXXXXX or XXXXXX, respectively, of any of the other's rights
hereunder. Further, no waiver at any time of any of the provisions hereof by
LESSOR or LESSEE shall be construed as a waiver of any of the other provisions
hereof, and a waiver at any time of any of the provisions shall not be construed
as a waiver at any subsequent time of the same provisions. The consent or
approval of LESSOR or LESSEE to or of any action by the other requiring such
consent or approval shall not be construed to waive or render unnecessary
LESSOR'S or LESSEE'S consent or approval to or of any subsequent similar act by
the other.
No payment by XXXXXX, or acceptance by XXXXXX, of a lesser amount than shall be
due from LESSEE to LESSOR shall be treated otherwise than as a payment on
account. The acceptance by LESSOR of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and LESSOR
may accept such check without prejudice to any other rights or remedies which
LESSOR may have against XXXXXX.
SECTION 39 - CONTINGENCY
In addition, notwithstanding anything contained herein to the contrary, it is
hereby understood and agreed that this Lease Agreement is contingent upon the
existing tenant in the Building who has a Right of First Refusal on the Premises
demised hereunder refusing said space. In the event said existing tenant does
not refuse such space and elects to lease same, this Lease Agreement shall
become null and void and of no further force or effect.
SECTION 40 - LESSEE'S RIGHT TO EXPAND
In the event LESSEE has not been in default of any of the terms, conditions and
covenants of this Lease Agreement and any Amendments made hereto during the term
hereof, LESSEE shall have the right, to lease additional space from the LESSOR
within Nashua Office Park, Nashua, NH, subject to availability and further
subject, but not limited to, the following terms and conditions:
1. XXXXXX'S additional space requirement must be a minimum of 717 square
feet (hereinafter referred to as the "Expansion Space").
2. LESSEE must notify LESSOR in writing of its additional space
requirements no less than thirty (30) days prior to the date LESSEE desires
such Expansion Space.
3. XXXXXX must occupy said Expansion Space and the Premises demised
hereunder for a term of no less than two (2) years.
4. Rent for said Expansion Space shall be at the then current market rent
rate. Notwithstanding the foregoing, in the event the term of this Lease
is extended pursuant to Subsection 3 hereinabove, then rent for the
Expansion Space and the Premises demised hereunder shall be adjusted to
reflect the then current market rent rate effective on the commencement
date of such extended term.
It is hereby agreed between the parties that immediately following XXXXXX'S
receipt of LESSEE'S notice indicating its desire to lease Expansion Space,
and once such Expansion Space has been located by LESSOR, LESSOR AND LESSEE
shall enter into a mutually acceptable Amendment to this Lease setting forth
the terms and provisions set forth hereinabove.
Page 13
SECTION 41 - LESSEE'S RIGHT OF TERMINATION
In the event LESSEE desires to lease from LESSOR Expansion Space pursuant to the
terms and conditions described in Section 40 hereinabove, and in the event
LESSOR is unable to provide such Expansion Space due to unavailability of such
Expansion Space within Nashua Office Park, then LESSEE shall have the right to
terminate this Lease exercisable only after the first (1st) full year of the
term of this Lease, provided XXXXXX gives LESSOR ninety (90) days prior written
notice.
Notwithstanding the foregoing, in the event the LESSEE exercises the
aforementioned termination right, Rent, Additional Rent, and all other charges
will be due and payable until the later of (i) the date LESSEE fully vacates the
Premises or (ii) the date which is ninety (90) days following XXXXXX'S receipt
of LESSEE'S notice.
SECTION 42 - FINANCIAL INFORMATION
It is hereby agreed that prior to the execution of this document by XXXXXX,
LESSEE shall furnish to LESSOR, a financial statement, credit reference or
similar documentation certifying LESSEE'S financial standing.
SECTION 43 - WHEN LEASE BECOMES BINDING
The submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for the Premises,
and this document shall become effective and binding only upon the execution and
delivery thereof by both XXXXXX and XXXXXX, regardless of any written or verbal
representation of any agent, manager or other employee of LESSOR to the
contrary. All negotiations, consideration, representations and understandings
between LESSOR and LESSEE are incorporated herein and this Lease expressly
supercedes any proposals or other written documents relating hereto. This Lease
may be modified or altered only by written agreement between XXXXXX and XXXXXX,
and no act or omission of any employee or agent of LESSOR shall alter, change or
modify any of the provisions thereof.
IN WITNESS WHEREOF, the LESSOR and XXXXXX have hereunto set their hands and
common seals this 2nd day of March, 1992.
XXXXXX Xxxxxx X. Xxxxxxx d/b/a
The Xxxxxxx Company
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
------------------------------ -------------------------------
WITNESS By Xxxxxxx X. Xxxxxx
Its Senior Vice President
Authorized Agent
LESSEE IntelliLink, Inc.
/s/ [ILLEGIBLE] /s/ A.K. Xxxxxxx
------------------------------ -------------------------------
WITNESS By A.K. Xxxxxxx
Its President
Duly Authorized
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF NORFOLK )
March 2, 1992.
Then personally appeared Xxxxxxx X. Xxxxxx to me known to be the individual
who acknowledged himself to be the Senior Vice President/Authorized Agent of The
Xxxxxxx Company, LESSOR, and that he, as such, being authorized to do so,
executed the foregoing instrument and acknowledged the execution thereof to be
his free act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at
Norfolk County, Braintree, Massachusetts, this 2nd day of March, 1992.
/s/ [ILLEGIBLE]
-----------------------------
Notary Public
My commission expires: 7/2/93
STATE OF MASSACHUSETTS )
) SS.
COUNTY OF MIDDLESEX )
2/21/92, 1992.
Then personally appeared A.K. Xxxxxxx to me known to be the individual who
acknowledged himself to be the President of IntelliLink, Inc., XXXXXX, and
that he, as such, being authorized to do so, executed the foregoing
instrument and acknowledged the execution thereof to be his free act and deed
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at
Middlesex County, Concord, Massachusetts this 21st day of February, 1992.
/s/ [ILLEGIBLE]
--------------------------------
Notary Public
My Commission expires: 4/13/95
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by any
LESSEE, nor shall they be used for any purpose other than ingress and egress to
and from the Premises. LESSOR shall keep the sidewalks and curbs directly in
front of said Xxxxxxxx, clean and free from ice and snow.
2. No awnings or other projections shall be attached to the outside walls of
the building without the prior written consent of the LESSOR. No curtains,
blinds, shades or screens shall be attached to, hung in, or used in connection
with, any window or door of the Premises, without the prior written consent of
the LESSOR. Any such awnings, projections, curtains, blinds, shades, screens or
other fixtures used by LESSEE (if given the prior written consent of the LESSOR
for such use), shall be of a quality, type, design and color, attached in a
manner approved by the LESSOR.
3. A building directory will be maintained in the main lobby of the building
at the expense of the LESSOR and the number of such listings shall be at the
sole discretion of the LESSOR. No sign, advertisement, notice or other
lettering shall be exhibited, inscribed, painted or affixed by any LESSEE on any
part of the outside or inside of the Premises or building, without the prior
written consent of the LESSOR. In the event of violation of the foregoing by
any LESSEE, LESSOR may remove same without any liability and may charge the
expense incurred by such removal to any LESSEES violating this rule. Interior
signs on doors and directory tablet shall be inscribed, painted or affixed for
each LESSEE, at LESSEE'S expense and shall be of a size, color and style
acceptable to the LESSOR.
4. The sashes, sash doors, skylights, windows and doors that reflect or admit
light and air into the halls, passageways or other public places in the building
shall not be covered or obstructed by any LESSEE, nor shall any bottles, parcels
or other articles be placed on the windowsills.
5. No show cases or other articles shall be put in front of, or affixed to any
part of the exterior of the building, nor placed in the halls, corridors,
vestibules or fire escapes, without the prior written consent of the LESSOR.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuses of the fixtures shall be borne by the LESSEE
who, or whose servants, employees, agents, visitors, or licensees, shall have
caused same.
7. No LESSEE shall mark, paint, drill into, or in any way deface any part of
the Premises or the building of which they form a part. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
LESSOR, and as the LESSOR may direct. No LESSEE shall lay linoleum, or other
similar floor covering, so that the same shall come in contact with the floor of
the Premises, and, if linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt shall be first affixed to the
floor by a paste or other material, soluble in water, the use of cement or other
similar adhesive material being expressly prohibited.
8. No bicycles, vehicles or animals of any kind shall be brought in or kept
about the Premises, and no cooking shall be done or permitted by LESSEE on said
Premises. No LESSEE shall cause or permit any unusual or objectionable odors
to be produced upon or permeate from the Premises.
Page 2
9. No space in the building, except as provided in individual Leases, shall be
used for manufacturing, for the storage of merchandise, or for the sale of
merchandise, goods or property of any kind at auction.
10. No LESSEE shall make, or permit to be made, any unsettling or disturbing
noises or disturb or interfere with occupants of this or neighboring buildings
or premises' or those having business with them, whether by the use of any
musical instrument, radio, talking machine, unmusical noise, whistling, singing,
or in any other way. No LESSEE shall throw anything out of doors, windows,
skylights or down the passageways.
11. No LESSEE, nor any of LESSEE'S servants, employees, agents, visitors or
licensees, shall at any time bring or keep upon the Premises any flammable,
combustible or explosive fluid, chemical and substance.
12. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any LESSEE, nor shall any changes be made in existing locks
or the mechanism thereof. Each LESSEE must, upon the termination of his
tenancy, return to the LESSOR, all keys for stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such LESSEE, and in the event of
the loss of any keys so furnished, such LESSEE shall pay the LESSOR the cost
thereof.
13. All removals, or the carrying in or out of any safes, freight, furniture or
bulky matter of any description must take place during the hours which the
LESSOR or its agents may determine from time to time. The LESSOR reserves the
right to inspect all freight to be brought into the building and to exclude from
the building, all freight which violates any of these Rules and Regulations or
the Lease of which these Rules and Regulations are a part.
14. No LESSEE shall occupy or permit any portion of the Premises leased to him
to be occupied for the possession, storage, manufacture or sale of liquor,
narcotics, or dope, or as a xxxxxx or manicure shop.
15. LESSOR shall have the right to prohibit any advertising by any LESSEE
which, in XXXXXX'S opinion, tends to impair the reputation of the building or
its desirability as a building for offices, and upon written notice from LESSOR,
LESSEE shall refrain from or discontinue such advertising. LESSEE shall not use
the name of the building or its owner in any advertising without the express
written consent of the LESSOR.
16. No LESSEE shall install or permit the installation or use of any machines
dispensing goods for sale, including without limitation, foods, beverages,
cigarettes or cigars. No food or beverage shall be carried in the public halls
and elevators of the buildings, except in closed containers.
17. The Premises shall not be used for lodging or sleeping or for any immoral
or illegal purpose.
18. Canvassing, soliciting and peddling in the building is prohibited and each
LESSEE shall cooperate to prevent the same by notifying the LESSOR. LESSOR
reserves the right to inspect any parcel or package being removed from the
building by XXXXXX, its employees, representatives and business invitees.
19. There shall not be used in any space or in the public halls of any
building, either by a LESSEE or by jobbers or others in the delivery of or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
EXHIBIT "A"
Floor Plan
[GRAPHIC OF FLOOR PLAN]
EXHIBIT "B"
Description of LESSOR'S Work
LESSOR shall construct LESSEE'S Premises in accordance with a mutually agreed
upon floor plan.
THE XXXXXXX COMPANY
STANDARD FORM OF COMMERCIAL LEASE
SUBMISSION NOT AN OPTION
THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND NEGOTIATION DOES NOT CONSTITUTE
AN OFFER TO LEASE, A RESERVATION OF, OR OPTION FOR THE PREMISES AND SHALL VEST
NO RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR THROUGH TENANT SHALL
HAVE THE RIGHTS TO THE PREMISES AS SET FORTH HEREIN AND THIS LEASE BECOMES
EFFECTIVE AS A LEASE ONLY UPON EXECUTION, ACKNOWLEDGEMENT AND DELIVERY THEREOF
BY LANDLORD AND TENANT, REGARDLESS OF ANY WRITTEN OR VERBAL REPRESENTATION OF
ANY AGENT, MANAGER OR EMPLOYEE OF LANDLORD TO THE CONTRARY.
TABLE OF CONTENTS
SECTION PAGE
------- ----
SECTION 1 - PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . -1-
SECTION 2 - PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . -1-
SECTION 3 - TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
SECTION 3A - ADJUSTMENT OF TERM. . . . . . . . . . . . . . . . . . . . -1-
SECTION 4 - COMMENCEMENT DATE. . . . . . . . . . . . . . . . . . . . . -1-
SECTION 5 - RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
SECTION 5A - RENT COMMENCEMENT DATE. . . . . . . . . . . . . . . . . . -2-
SECTION 6 - ABATEMENT OF RENT. . . . . . . . . . . . . . . . . . . . . -2-
SECTION 7 - SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . -2-
SECTION 8 - ADDITIONAL RENT. . . . . . . . . . . . . . . . . . . . . . -2-
Real Estate Taxes. . . . . . . . . . . . . . . . . . . . . . . -2-
Operating Expenses . . . . . . . . . . . . . . . . . . . . . . -3-
SECTION 9 - USE . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
SECTION 10 - COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . -6-
SECTION 11 - FIRE INSURANCE. . . . . . . . . . . . . . . . . . . . . . -6-
SECTION 12 - UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . -6-
SECTION 13 - ELECTRICAL. . . . . . . . . . . . . . . . . . . . . . . . -7-
SECTION 14 - ADDITIONAL CHARGES. . . . . . . . . . . . . . . . . . . . -7-
SECTION 15 - MAINTENANCE OF PREMISES . . . . . . . . . . . . . . . . . -7-
SECTION 16 - ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . -7-
SECTION 17 - LESSOR'S LIABILITY. . . . . . . . . . . . . . . . . . . . -8-
SECTION 18 - LESSOR'S SERVICES . . . . . . . . . . . . . . . . . . . . -8-
SECTION 19 - DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . -8-
SECTION 20 - LESSEE'S LIABILITY INSURANCE. . . . . . . . . . . . . . . -8-
SECTION 21 - INSURABLE DAMAGES . . . . . . . . . . . . . . . . . . . . -8-
SECTION 22 - FIRE, CASUALTY, EMINENT DOMAIN. . . . . . . . . . . . . . -8-
SECTION 23 - DEFAULT, BANKRUPTCY . . . . . . . . . . . . . . . . . . . -9-
SECTION 24 - NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . -9-
SECTION 25 - SURRENDER . . . . . . . . . . . . . . . . . . . . . . . . -10-
SECTION 26 - HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . -10-
SECTION 27 - RIGHT TO MOVE . . . . . . . . . . . . . . . . . . . . . . -10-
SECTION 28 - RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . -10-
SECTION 29 - NOT TO INVALIDATE . . . . . . . . . . . . . . . . . . . . -10-
SECTION PAGE
------- ----
SECTION 30 - QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 31 - ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . . . -11-
SECTION 32 - SUBORDINATE. . . . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 33 - LESSOR'S ACCESS. . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 34 - INDEMNIFICATION AND LIABILITY. . . . . . . . . . . . . . . -12-
SECTION 35 - LESSEE'S RISK. . . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 36 - INJURY CAUSED BY THIRD PARTY . . . . . . . . . . . . . . . -12-
SECTION 37 - LESSEE'S REMOVABLE PROPERTY. . . . . . . . . . . . . . . . -13-
SECTION 38 - WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
SECTION 39 - FINANCIAL INFORMATION. . . . . . . . . . . . . . . . . . . -13-
SECTION 40 - LATE PAYMENT . . . . . . . . . . . . . . . . . . . . . . . -13-
SECTION 41 - CONFERENCE ROOM. . . . . . . . . . . . . . . . . . . . . . -14-
SECTION 42 - TERMINATING EXISTING LEASE . . . . . . . . . . . . . . . . -14-
SECTION 43 - WHEN LEASE BECOMES BINDING . . . . . . . . . . . . . . . . -14-
Rules and Regulations. . . . . . . . . . . . . . . . . . . -17-
Exhibit "A". . . . . . . . . . . . . . . . . . . . . . . . -19-
Exhibit "B". . . . . . . . . . . . . . . . . . . . . . . . -20-
STANDARD COMMERCIAL LEASE
SECTION 1 - PARTIES
Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx Company, LESSOR, which expression shall
include their heirs, successors and assigns where the context so admits, does
hereby lease to IntelliLink, Corp., LESSEE.
SECTION 2 - PREMISES
LESSEE, which expression shall include its successors, executors,
administrators and assigns where the context so admits, does hereby lease the
following described Premises: Suite Number 200, consisting of approximately
2,365 square feet of space, and Suite Number 210, consisting of approximately
2,275 square feet of space (hereinafter collectively referred to as the
"Premises") and Storage Space Number 203, consisting of approximately 475
square feet of space (hereinafter referred to as "Storage Space"), all
located on the second (2nd) floor of Nashua Office Park, Xxx Xxxx Xxxxxxxxx,
Xxxxxx, XX 00000, as outlined on Exhibit "A" of this Lease, which also
includes a 15% common area factor, together with the right to use in common,
with others entitled thereto, the hallways, stairways and elevators,
necessary for access to said Premises and lavatories nearest thereto.
SECTION 3 - TERM
The term of this Lease shall be for three (3) years, commencing on the
Commencement Date (defined below), and terminating three (3) years immediately
thereafter, unless sooner terminated as herein provided.
SECTION 3A - ADJUSTMENT OF TERM
If the Commencement Date (defined below) is other than the first day of a
calendar month, this Lease shall continue in full force and effect for a period
of three (3) years from the first day of the calendar month next succeeding the
Commencement Date.
SECTION 4 - COMMENCEMENT DATE
The Commencement Date shall be the date the Premises are ready for occupancy.
The Premises shall be deemed ready for occupancy on the first day as of which
XXXXXX'S Work, as described on Exhibit "B-2" attached hereto and made a part
hereof, has been completed except for items of work (and, if applicable,
adjustment and fixtures) which can be completed after occupancy without causing
undue interference with XXXXXX'S use of the Premises (i.e., so-called "punch
list" items) and LESSEE has been given notice thereof. LESSOR shall complete as
soon as conditions permit, all "punch list" items and LESSEE shall afford LESSOR
access to the Premises for such purposes.
Notwithstanding the foregoing, if LESSEE'S personnel shall occupy all or any
part of the Premises for the conduct of its business prior to the Lease
Commencement Date as determined pursuant to the preceding paragraph, such date
of occupancy shall, for all intents and purposes of Lease Agreement, Lease
Commencement Date.
XXXXXX and XXXXXX agree to execute a Supplemental Agreement setting forth the
actual Occupancy and Term Dates, once the same have been established.
SECTION 5 - RENT
The LESSEE agrees to pay to LESSOR, without deduction or offset, rent at the
following rate:
SIXTY-SIX THOUSAND ONE HUNDRED TWENTY AND 00/100 ($66,120.00) Dollars annually,
payable in advance on the first day of each month, in equal monthly installments
of FIVE THOUSAND FIVE HUNDRED TEN AND 00/100 ($5,510.00) Dollars, for the
Premises, and at that rate for any fraction of a month at the beginning of the
term; and
THREE THOUSAND EIGHT HUNDRED 00/100 ($3,800.00) Dollars annually, payable in
advance on the first day of each month, in equal monthly installments of THREE
HUNDRED SIXTEEN AND 67/100 ($316.67) Dollars, for Storage Space, and at that
rate for any fraction of a month at the beginning of the term..
SECTION 5A - RENT COMMENCEMENT DATE
The payment of rental shall commence upon the Commencement Date.
SECTION 6 - ABATEMENT OF RENT
It is understood and agreed that if for any reason whatsoever, the LESSOR does
not deliver possession of the Premises according to the terms of this Lease, the
rent shall be abated until such date as possession of the Premises is rendered
by the LESSOR. In no event shall the LESSOR, its agents or employees be liable
in damages for failure to deliver possession under the terms of this Lease,
except for willful failure to do so.
SECTION 7 - SECURITY DEPOSIT
LESSOR hereby acknowledges that it is currently in receipt of a Security Deposit
in the amount of FIVE HUNDRED THIRTY-SEVEN AND 75/100 ($537.75) Dollars, which
shall be held as security for LESSEE'S performance as herein provided. Said
Security Deposit shall be refunded to LESSEE at the end of this Lease, subject
to XXXXXX'S satisfactory compliance with the conditions herein contained and set
forth.
SECTION 8 - ADDITIONAL RENT
In accordance with the following, XXXXXX shall under the terms, conditions and
provisions hereinafter provided, pay to LESSOR as additional rent, the
following:
REAL ESTATE TAXES
1. If real estate taxes upon the land and buildings (the "Property"),
of which the Premises are a part, for any tax year exceed the real
estate base tax amount, whether by reason of an increase in either
the tax rate or the assessed valuation or both, LESSEE shall pay to
LESSOR as additional rent within ten (10) days after billing
therefor, an amount equal to the product of (a) such excess over the
base taxes and (b) the following fraction:
Square Footage of Lessee's Premises
-----------------------------------
Aggregate of All the Rentable Square Footage
(whether or not rented or improved within the entire building)
Effective April 1, 1993, LESSEE shall pay monthly, at the time when
Rent payments are due hereunder, an amount equal to one-twelfth
(1/12th) of the total of annual real estate
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taxes (as estimated by XXXXXX) due from LESSEE to LESSOR pursuant to this
Subsection 8.1. Promptly after the determination by any taxing authority of real
estate taxes upon the Building for each tax year, LESSOR shall make a
determination of the real estate taxes allocated to the Premises, and if the
aforesaid payments theretofore made for such tax year by XXXXXX exceed the real
estate taxes allocated to the Premises, such overpayment shall be credited
against the payments thereafter to be made by LESSEE pursuant to this paragraph;
and if the real estate taxes allocated to the Premises for such tax year are
greater than such payments theretofore made on account for such tax year, LESSEE
shall within ten (10) days of written notice from the LESSOR make a suitable
payment to LESSOR. Xerox copies of tax bills submitted by XXXXXX with any such
statement shall be conclusive evidence of the amount of real estate taxes
charged, assessed or imposed. After the full assessment year, the initial
monthly payment on account of the real estate taxes allocated to the Premises
shall be replaced each year by a payment which is one-twelfth (1/12th) of the
real estate taxes allocated to the Premises for the immediately preceding tax
year.
2. For the purposes of this clause, the term "Tax Year" shall mean the
twelve month period commencing on April lst (or any month as it may apply
and/or change for the city, town or municipality tax period) immediately
preceding the Commencement Date and each twelve month period thereafter
during the term of this Lease.
3. It is agreed by both parties that the Base Year as it applies to taxes
for this Lease shall be April 1, 1992 - March 30, 1993.
4. If any abatement, refund or rebate shall be subsequently made for any tax
year, an appropriate adjustment shall be made in the amount payable from, or
paid by LESSEE to LESSOR on account of said real estate taxes, after
deducting the LESSOR'S expenses reasonably incurred in obtaining such
abatement, refund or rebate and provided there is no existing default of
LESSEE. An appropriate adjustment will be made to the base tax year as a
result of the foregoing.
5. It some method or type of taxation replaces the current method of
assessment of real estate taxes, or the type thereof, XXXXXX agrees that it
shall pay an equitable share of the same computation herein provided, to the
end that LESSER'S share thereof shall be to the maximum extent practicable,
comparable to that which LESSEE would bear under the foregoing provisions.
6. If a tax (other than a Federal or State net income tax) is assessed on
account of the rents or other charges payable by LESSEE to the LESSOR under
this Lease, XXXXXX agrees to pay the same within ten (10) days after billing
therefor, unless applicable law prohibits the payment of such tax by XXXXXX.
LESSOR shall have the same rights and remedies for non-payment by LESSEE of
any such amounts due on account of such taxes as XXXXXX has hereunder, for
the failure of LESSEE to pay rent as provided for in Section 23 of this Lease.
OPERATING EXPENSES
7. The following is a list of all such items of operating expenditures as
are within the meaning of "Operating Expenses" hereinafter set forth. If, in
any calendar year
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of the term of this Lease, XXXXXX'S Operating Expenses exceed
Operating Expenses for the calendar year 1992, LESSEE shall after
notice as hereinafter provided, pay to LESSOR as additional rent, an
amount equal to the product of (a) such excess multiplied by (b) a
fraction involving the same numerator and denominator as is provided
for in Subsection 8.1 of this Lease.
8. The expression "Operating Expenses" as used herein, shall mean
the aggregate cost or expenses reasonably incurred by LESSOR with
respect to the operation, administration, cleaning, repair,
maintenance and management of the Property, including without
limitation, those items enumerated hereinafter. If during any
portion of the calendar year for which Operating Expenses are being
computed, less than 93% of the building's rentable area was
occupied by tenants, actual Operating Expenses incurred shall be
reasonably extrapolated by LESSOR on an item by item basis to the
estimated operating expenses that would have been incurred if the
building were at least 93% occupied for such year, and such
extrapolated amounts shall for the purposes hereof, be deemed to be
the Operating Expenses for such year.
9. Effective January 1, 1993, XXXXXX shall pay monthly, at the
time when Rent payments are due hereunder, an amount equal to
one-twelfth (1/12th) of the total annual Operating Expenses (as
estimated by XXXXXX) due from LESSEE to LESSOR pursuant to
Subsection 8.7 of this Lease. Promptly after the end of each
calendar year thereafter, LESSOR shall make a determination of
LESSEE'S share of such Operating Expenses; and if the aforesaid
payments theretofore made for such period by XXXXXX exceed XXXXXX'S
share, such overpayment shall be credited against the payments
thereafter to be made by LESSEE pursuant to this Paragraph; and if
LESSEE'S share is greater than such payments theretofore made an
account for such period, LESSEE shall within thirty (30) days of
written notice from the LESSOR make a suitable payment to LESSOR.
The initial monthly payment on account of the Operating Expense Charge
shall be replaced after XXXXXX'S determination of LESSEE'S share
thereof for the preceding accounting period by a payment which is
one-twelfth (1/12th) of LESSEE'S actual share thereof for the
immediately preceding period, with adjustments as appropriate where
such preceding period is less than a full twelve-month period. LESSOR
shall have the same rights and remedies for non-payment by LESSEE of
any such amounts due on account of such Operating Expenses as XXXXXX
has hereunder, for the failure of LESSEE to pay rent as provided for
in Section 23 of this Lease.
10. Without limitation, Operating Expenses shall include:
a. All expenses incurred by LESSOR or LESSOR'S agents which
shall be directly related to employment of personnel, including
amounts incurred for wages, salaries and other compensation for
services, payroll, social security, unemployment and similar
taxes, worker's compensation insurance, disability benefits,
pensions, hospitalization, retirement plans and group insurance,
uniforms and working clothes and the cleaning thereof, and
expenses imposed on LESSOR or LESSOR'S agents pursuant to any
collective bargaining agreement for the services of employees of
LESSOR or LESSOR'S agents in connection with the operation,
repair, maintenance, cleaning, management and protection of the
Property, and its mechanical
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systems including, without limitation, day and night
supervisors, property manager, accountants, bookkeepers,
janitors, carpenters, engineers, mechanics, electricians and
plumbers and personnel engaged in supervision of any of the
persons mentioned above; provided that, if any such employee
is also employed on other properties of LESSOR, such
compensation shall be suitably prorated among the Property
and such other properties.
b. The cost of services, utilities, materials and supplies
furnished or used in the operation, repair, maintenance,
cleaning, management and protection of the Property.
c. The cost of replacements for tools and other similar
equipment used in the repair, maintenance, cleaning and
protection of the Property; provided that, in the case of any
such equipment used jointly on other properties of LESSOR,
such costs shall be suitably prorated among the Property and
such other properties.
d. Where the Property is managed by LESSOR or an affiliate
of LESSOR, a sum equal to the amounts customarily charged by
management firms in the Boston area for similar properties
whether or not actually paid, or where otherwise managed, the
amounts accrued for management, together with amounts accrued
for legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in
connection with services rendered for securing or renewing
leases and for matters not related to the normal
administration and operation of the building.
e. Premiums for insurance against damage or loss to the
building from such hazards as shall from time to time be
generally required by institutional mortgagors in the Boston
area for similar properties, including, but not by way of
limitation, insurance covering loss of rent attributable to
any such hazards, and public liability insurance.
f. Cost for electricity, water and sewer use charges, and
other utilities supplied to the Property and not paid for
directly by XXXXXX.
g. Betterment assessments, provided the same are
apportioned equally over the longest period permitted by law.
h. Amounts paid to independent contractors for services,
materials and supplies furnished for the operation, repair,
maintenance, cleaning and protection of the Property.
i. Any capital expenditure made by XXXXXX during the term
of this Lease, the total cost of which is not properly
includable in Operating Expenses for the operating year in
which it was made, shall nevertheless be included in such
Operating Expenses for the operating year in which it was
made, and Operating Expenses for each succeeding operating
year shall include the annual charge-off of such capital
expenditure. Annual charge-off shall be determined by
dividing the original capital expenditure plus an interest
factor, reasonably determined by XXXXXX, as being the
interest rate then being charged for long-term mortgages by
institutional lenders on
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"like" properties within the locality in which the building
is located, by the number of years of useful life of the
capital expenditure, and the useful life shall be determined
reasonably by LESSOR in accordance with generally accepted
accounting principles and practices in effect at the time of
making such expenditure.
SECTION 9 - USE
The LESSEE shall use the Premises only for the purpose of general business
offices.
SECTION 10 - COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in the
Premises or use made thereof which will be unlawful, improper, noisy or
offensive, or contrary to any law or any municipal by-law or ordinance in
force in the city or town in which the Premises is situated.
SECTION 11 - FIRE INSURANCE
The LESSEE shall not permit any use of the Premises which will make voidable
any insurance on the Property of which the Premises are a part, or on the
contents of said Property, which shall be contrary to any law or regulation
from time to time established by the New England Fire Insurance Rating
Association, or any similar body succeeding to its powers. The LESSEE shall,
on demand, reimburse the LESSOR and all other tenants, all extra insurance
premiums caused by LESSEE'S misuse of the Premises.
SECTION 12 - UTILITIES
The LESSOR shall provide and shall pay for all LESSEE'S water and sewer use
charges and reasonable heating and air-conditioning during the normal heating
and cooling season between the hours of 8:00 A.M. and 6:00 P.M., during
normal business days. The normal cooling season shall be from April 15th to
October lst of any given year. Normal business days are all days except
Saturday, Sunday, New Year's Day, Memorial Day, July 4th, Labor Day,
Thanksgiving Day, Christmas Day (and the following day when any such day
occurs on Sunday) and such other days as LESSOR presently or in the future
recognizes as holidays for LESSOR'S general office staff. In addition,
XXXXXX agrees to furnish elevator service and to light passageways and
stairways during business hours, and to furnish such cleaning service as is
customary in similar buildings in said city or town, all subject to
interruption due to any accident, to the making of repairs, alterations or
improvements, to labor difficulties, to trouble in obtaining fuel,
electricity, service or supplies from the sources from which they are usually
obtained for said building, or to causes beyond LESSOR'S control. If LESSEE
shall require air-conditioning, heating or ventilation outside the hours and
days above specified, LESSOR shall furnish such service and LESSEE shall pay
therefor such charges as may from time to time be in effect. In the event
LESSEE introduces into the Premises personnel or equipment which overloads
the capacity of the building system or in any other way interferes with the
system's ability to perform adequately its proper functions, supplementary
systems may if and as needed at LESSOR'S option, be provided by XXXXXX, at
LESSEE'S expense.
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SECTION 13 - ELECTRICAL
LESSEE shall purchase and receive electric current for the Premises directly
from the public utility company serving the building and LESSEE shall permit
LESSOR'S existing wires, risers, conduits and other electrical equipment of
LESSOR to be used for such purposes. LESSOR shall not in any way be liable or
responsible to LESSEE for any loss or damage or expense which LESSEE may sustain
or incur if, during the term of this Lease, either the quantity or character of
electric current is changed or electric current is no longer available or
suitable for LESSEE'S requirements due to a factor or cause beyond LESSOR'S
control. LESSOR at LESSEE'S expense, shall purchase and install all lamps,
tubes, bulbs, starters and ballasts.
SECTION 14 - ADDITIONAL CHARGES
Should LESSEE fail to pay when due, any sums under this Lease designated as an
additional charge, LESSOR shall have the same rights and remedies as XXXXXX has
hereunder, for failure to pay rent as provided for in Section 23 of this Lease.
SECTION 15 - MAINTENANCE OF PREMISES
The LESSEE agrees to maintain the Premises in the same condition as existed at
the commencement of the term or as they may be improved during the term of this
Lease, reasonable wear and tear, damage by fire and other casualty only
excepted, and whenever necessary, to replace plate glass and other glass
therein, acknowledging that the Premises are now in good order and the glass
whole. The LESSEE shall not permit the Premises to be overloaded, damaged,
stripped, or defaced, nor suffer any waste. XXXXXX shall obtain written consent
of LESSOR before erecting any sign on the Premises. LESSEE shall be responsible
for the cost of repairs which may be made necessary by reason of damage to
common areas in the building by LESSEE, LESSEE'S independent contractors, or
XXXXXX'S invitees. If repairs are required to be made by LESSEE pursuant to the
terms hereof, LESSOR may demand that LESSEE make the same forthwith, and if
LESSEE refuses or neglects to commence such repairs and complete the same with
reasonable dispatch after such demand, LESSOR may (but shall not be required to)
make or cause such repairs to be made and shall not be responsible to LESSEE for
any loss or damage that may occur to LESSEE'S stock or business by reason
thereof. If XXXXXX makes or causes such repairs to be made, XXXXXX agrees that
LESSEE shall forthwith on demand, pay to LESSOR the cost thereof as an
additional charge.
SECTION 16 - ALTERATIONS
The LESSEE shall not make any structural alterations or additions to the
Premises, but may make non-structural alterations provided the LESSOR consents
thereto in writing, which consent shall not be unreasonably withheld or delayed.
All such allowed alterations shall be at LESSEE'S sole cost and expense and
shall be of such quality at least equal to the present construction. XXXXXX
shall not permit any mechanics' liens, or similar liens, to remain upon the
Premises for labor and material furnished to LESSEE or claimed to have been
furnished to LESSEE in connection with work of any character performed or
claimed to have been performed at the direction of LESSEE and shall cause any
such lien to be released of record forthwith without cost to LESSOR. Any
alterations or improvements made by the LESSEE shall become the property of the
LESSOR at the termination of occupancy as provided herein.
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SECTION 17 - LESSOR'S LIABILITY
XXXXXX specifically agrees to look solely to XXXXXX'S then equity interest in
the Property at the time owned, for recovery of any judgment from XXXXXX; it
being specifically agreed that neither XXXXXX (original or successor) nor anyone
claiming under the LESSOR, shall ever be personally liable for any such
judgment, or for the payment of any monetary obligation to LESSEE.
LESSOR being self-insured for Comprehensive General Liability, XXXXXX would look
to LESSOR to maintain sufficient equity to satisfy its obligations not to exceed
amounts equal to those required of LESSEE for such coverage and evidence of
same.
SECTION 18 - LESSOR'S SERVICES
With respect to any services to be furnished by LESSOR to LESSEE, LESSOR shall
in no event be liable for failure to furnish the same when prevented from doing
so by strike, lockout, breakdown, accident, order or regulation of or by any
governmental authority, or failure of supply, or inability by the exercise of
reasonable diligence to obtain supplies, parts or employees necessary to furnish
such services, or because of war or other emergency, or for any cause due to any
act or neglect of LESSEE or LESSEE'S servants, agents, employees, licensees or
any person claiming by, through or under XXXXXX.
SECTION 19 - DAMAGES
In no event shall LESSOR ever be liable to LESSEE for any indirect or
consequential damages suffered by LESSEE from whatever cause.
SECTION 20 - LESSEE'S LIABILITY INSURANCE
The LESSEE shall maintain with respect to the Premises and the Property of which
the Premises are a part, comprehensive public liability insurance in the amounts
of $1,000,000.00/$1,000,000.00, with property damage insurance in limits of
$1,000,000.00, in responsible companies qualified to do business in
Massachusetts and in good standing therein, insuring the LESSOR as well as the
LESSEE against injury to persons or damage to property as provided. The LESSEE
shall deposit with the LESSOR, prior to the Commencement Date of the term of
this Lease, certificates for such insurance, and thereafter within thirty (30)
days prior to the expiration of any such policies. All such insurance
certificates shall provide that such policies shall not be cancelled without at
least ten (10) days prior written notice to each insured named therein.
SECTION 21 - INSURABLE DAMAGES
LESSOR shall not be liable for any damage insurable by LESSEE to LESSEE'S
fixtures, merchandise or property regardless of cause and LESSEE hereby releases
LESSOR from same. LESSEE shall not be liable for any damage insurable by XXXXXX
to the Premises, regardless of cause and LESSOR hereby releases LESSEE from
same.
SECTION 22 - FIRE, CASUALTY, EMINENT DOMAIN
Should a substantial portion of the Premises, or of the Property of which the
Premises are a part, be damaged by fire or other casualty, or be taken by
eminent domain, the LESSOR
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may elect to terminate this Lease. When such fire, casualty, or taking renders
the Premises substantially unsuitable for LESSEE'S intended use, a just and
proportionate abatement of rent shall be made, and the LESSOR may elect to
terminate this Lease if: (a) the LESSOR fails to give written notice within
ninety (90) days of its intention to restore the Premises, or (b) the LESSOR
fails to restore the Premises to a condition substantially suitable for LESSEE'S
intended use within one hundred twenty (120) days of said fire, casualty or
taking. The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights
which the LESSEE may have for damages or injury to the Premises for any taking
by eminent domain, except for damage to LESSEE'S fixtures, property or
equipment.
SECTION 23 - DEFAULT, BANKRUPTCY
If at any time subsequent to the date of this Lease, any one or more of the
following events (herein referred to as a default of LESSEE) shall occur: (a)
LESSEE shall fail to pay the installment of rent, escalation charge or other
charges hereunder when due, and such failure shall continue for three (3) full
business days after notice has been given to LESSEE from LESSOR; (b) 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 thirty (30) days after such notice thereof; (c) LESSEE shall be
declared bankrupt or insolvent according to law; or (d) if any assignment shall
be made of LESSEE'S property for the benefit of creditors, then the LESSOR shall
have the right thereafter, while such default continues, to re-enter and take
complete possession of the Premises, to declare the term of this Lease ended,
and to 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
indemnify the LESSOR against all loss of rent and other payments which the
LESSOR may incur by reason of such termination during the remainder of the term.
If the LESSEE should default, after reasonable notice thereof, in the observance
or performance of any conditions or covenants on LESSEE'S part to be observed or
performed under or by virtue of any of the provisions in any section of this
Lease, the LESSOR, without being under any obligation to do so and without
thereby waiving such default, may remedy such default for the account and at the
expense of the LESSEE. If the LESSOR makes any expenditures or incurs any
obligations for the payment of money in connection therewith, including but not
limited to reasonable attorney's fees in instituting, prosecuting or defending
any action or proceeding, any such sums paid or obligations incurred, shall
accrue interest at the rate of eighteen percent (18%) per annum, and all costs
shall be paid to the LESSOR by the LESSEE, as additional rent.
SECTION 24 - NOTICE
Any notice from the LESSOR to the LESSEE relating to the Premises or to the
occupancy thereof, shall be deemed duly served if addressed to the LESSEE and
left at the Premises, or if addressed to the LESSEE and mailed to the Premises
by registered or certified mail, return receipt requested, postage prepaid.
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 at
Braintree Hill Office Park, 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000, or to
such other address as the LESSOR may from time to time advise in writing.
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SECTION 25 - SURRENDER
The LESSEE shall at the expiration or other termination of this Lease, remove
all LESSEE'S goods and effects from the Premises (including without hereby
limiting the generality of the foregoing, all signs and lettering affixed or
painted by the LESSEE, either inside or outside of the Premises). LESSEE shall
deliver to LESSOR, the Premises and all keys, locks thereto and other fixtures
connected therewith and all alterations and additions made to or upon the
Premises, in the same condition as they were at the Commencement Date of the
term of this Lease, or as they were put in during the term hereof, reasonable
wear and tear and damage by fire or other casualty only excepted. In the event
of LESSEE'S failure to remove any of LESSEE'S property from the Premises, LESSOR
is hereby authorized without liability to LESSEE for loss or damage thereto, and
at the sole risk of LESSEE, to remove and store any of the property at LESSEE'S
expense, or to retain same under XXXXXX'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.
SECTION 26 - HOLDING OVER
Any holding over by LESSEE after the expiration of the term of this Lease shall
be treated as a daily Tenancy At Sufferance, at a rate equal to two (2) times
the rent plus escalation charges and other charges herein provided (prorated on
a daily basis) and shall otherwise be on the same terms and conditions as set
forth in this Lease, where the same may be applicable.
SECTION 27 - RIGHT TO MOVE
The LESSOR reserves the right to move the LESSEE and if LESSOR so requests,
LESSEE shall vacate the Premises and relinquish its right with respect to the
same, provided that LESSOR provides to LESSEE, space within the complex commonly
known as Nashua Office Park, Nashua, NH 03062.
Such space shall be reasonably comparable in size, layout, finish and utility to
the existing Premises, and further provided that LESSOR shall, at its sole cost
and expense, move the LESSEE and its removable property from the Premises to
such new space in such a manner as will minimize, to the greatest extent
practicable, undue interference with the business or operations of LESSEE. Any
such space shall from and after such relocation, be treated as the Premises
demised under this Lease, and shall be occupied by LESSEE under the same terms,
provisions and conditions as are set forth in this Lease.
SECTION 28 - RULES AND REGULATIONS
The LESSEE will observe and comply with the Rules and Regulations as attached
hereto and made a part hereof, including revisions and additions as the LESSOR
may from time to time institute.
SECTION 29 - NOT TO INVALIDATE
If any term or provision of this Lease, or the application thereof to any person
or circumstance shall, to the extent be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term
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and provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
SECTION 30 - QUIET ENJOYMENT
LESSER, subject to the terms and provisions of this Lease, on payment of the
rent and escalation charges and observing, keeping and performing all of the
other terms and provisions of this Lease on LESSEE'S part to be observed, kept
and performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the term hereof, without hindrance or ejection by any
persons lawfully claiming under LESSOR to have title to the Premises superior to
LESSOR.
SECTION 31 - ASSIGNMENT AND SUBLETTING
The LESSEE shall not assign or sublet the whole or any portion of the
Premises without LESSOR'S prior written consent, which consent shall be at
the sole discretion of LESSOR. Any increase in the rent resulting from the
permitted subletting will be due and payable to the LESSOR. The foregoing
restrictions shall not be applicable to any assignment of this Lease or a
subletting of the Premises by LESSEE to a subsidiary wholly-owned by LESSEE,
or controlling operation, the stock in which is wholly-owned by the
stockholders of LESSEE. It shall be a condition of the validity of any
assignment, whether with the consent of XXXXXX or to a subsidiary or
controlling corporation, that the assignee agrees directly with XXXXXX, to be
bound by all the obligations of LESSEE hereunder including, without
limitation, the covenant against further assignment and subletting. No
assignment or subletting shall relieve LESSEE from its obligations hereunder
and LESSEE shall remain fully and primarily liable therefor. If this Lease
shall be assigned, or if the Premises or any portion thereof shall be sublet
or occupied by anyone other than LESSEE, LESSOR may, at any time and from
time to time, collect rent and other charges from the assignee, sublessee or
occupant, and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or the acceptance of the assignee,
sublessee or occupant as a lessee, or a release of LESSEE or any successor
from obtaining the express consent in writing of XXXXXX, to any further
assignment or subletting. No assignment or subletting and no use of the
Premises by a subsidiary wholly-owned by LESSEE or controlling corporation of
LESSEE shall affect permitted uses.
Notwithstanding the provisions of the above, any proposed assignee or sublessee
submitted to the LESSOR for approval must have the same or greater financial
strength as LESSEE. If XXXXXX shall request permission to assign this Lease or
sublet the Premises or any part thereof to any person other than a subsidiary
wholly-owned by LESSEE or controlling corporation, the stock of which is
wholly-owned by the stockholders of LESSEE, LESSEE shall, together with such
request for consent thereto, inform LESSOR of the rental and other amounts to be
paid by such assignee or sublessee, the term of any subletting and the financial
information required by LESSOR to make the determination required by the first
sentence of this paragraph.
LESSOR shall have the right to terminate this Lease, provided that LESSOR shall
exercise such right within forty-five (45) days of its receipt of LESSEE'S
request for such consent and provided further, that LESSEE shall have the right
to withdraw its request for such consent within fifteen (15) days after its
receipt of such notice from LESSOR, in which event such notice of termination
shall become null and void. If this Lease shall be terminated pursuant to the
provisions of the immediately
-11-
preceding sentence, such termination shall become effective upon the last day of
the calendar month next following XXXXXX'S giving notice of termination. Upon
XXXXXX'S vacating the Premises in accordance with this Lease, LESSOR shall
refund all unearned rent and other payments made by LESSER.
SECTION 32 - SUBORDINATE
This Lease shall be subject and subordinate to any and all mortgages, deeds of
trust and other instruments in the nature of a mortgage, now or at any time
hereafter, a lien or liens on the Property of which the Premises are a part and
the LESSEE shall, when requested, promptly execute and deliver such written
instruments as shall be necessary to show the subordination of this Lease to
said mortgages, deeds of trust or other such instruments in the nature of
mortgage, and LESSEE hereby appoints such holder as XXXXXX'S attorney-in-fact to
execute such subordination agreement upon default of LESSEE in complying with
such holder's request.
SECTION 33 - LESSOR'S ACCESS
The LESSOR or agents of the LESSOR may, at reasonable times, enter to view the
Premises and may remove placards and signs not approved and affixed as herein
provided, and make repairs and alterations as LESSOR should elect to do and may
show the Premises to others, and at any time within three (3) months prior to
the expiration of the term, may affix to any suitable part of the Premises a
notice for letting or selling the Premises or Property of which the Premises are
a part and keep the same so affixed without hindrance or molestation.
SECTION 34 - INDEMNIFICATION AND LIABILITY
The LESSEE shall save the LESSOR harmless from all loss and damage occasioned by
the use or escape of water or by the bursting of pipes, as well as from any
claim or damage resulting from neglect in not removing snow and ice from the
roof of the building or from the sidewalks bordering upon the Premises so
leased, or by any nuisance made or suffered on the Premises, unless such loss is
caused by the negligence of the LESSOR. The removal of snow and ice from the
sidewalks bordering upon the Premises shall be the LESSOR'S responsibility.
SECTION 35 - LESSEE'S RISK
To the maximum extent this agreement may be made effective according to law,
XXXXXX agrees to use and occupy the Premises and to use such other portions of
the building as LESSEE is herein given the right to use at LESSEE'S own risk;
and LESSOR shall have no responsibility or liability for any loss of or damage
to LESSEE'S removable property. The provisions of this section shall be
applicable from and after the execution of this Lease and until the end of the
term of this Lease, and during such further period as LESSEE may use or be in
occupancy of any part of the Premises or of the building.
SECTION 36 - INJURY CAUSED BY THIRD PARTY
To the maximum extent this agreement may be made effective according to law,
XXXXXX agrees that XXXXXX shall not be responsible or liable to LESSEE or to
those claiming by, through or under XXXXXX, for any loss or damage that may be
-12-
occasioned by or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connecting with the Premises
or any part of the Property or otherwise.
SECTION 37 - LESSEE'S REMOVABLE PROPERTY
All articles of personal property and all business fixtures, machinery and
equipment and furniture owned or installed by LESSEE solely at its expense in
the Premises (LESSEE'S removable property) shall remain the property of the
LESSEE and may be removed by LESSEE at any time prior to the expiration of this
Lease, provided that LESSEE, at its expense, shall repair any damage to the
building caused by such removal or installation.
SECTION 38 - WAIVER
Failure on the part of LESSOR or LESSEE to complain of any action or non-action
on the part of the other, no matter how long the same may continue, shall never
be a waiver by XXXXXX or XXXXXX, respectively, of any of the other's rights
hereunder. Further, no waiver at any time of any of the provisions hereof by
LESSOR or LESSEE shall be construed as a waiver of any of the other provisions
hereof, and a waiver at any time of any of the provisions shall not be construed
as a waiver at any subsequent time of the same provisions. The consent or
approval of LESSOR or LESSEE to or of any action by the other requiring such
consent or approval shall not be construed to waive or render unnecessary
LESSOR'S or LESSEE'S consent or approval to or of any subsequent similar act by
the other.
No payment by XXXXXX, or acceptance by XXXXXX, of a lesser amount than shall be
due from LESSEE to LESSOR shall be treated otherwise than as a payment on
account. The acceptance by LESSOR of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and LESSOR
may accept such check without prejudice to any other rights or remedies which
LESSOR may have against XXXXXX.
SECTION 39 - FINANCIAL INFORMATION
It is hereby understood and agreed that XXXXXX will supply to the LESSOR, an an
annual basis, a copy of LESSEE'S audited financial statement within ninety (90)
days following XXXXXX'S fiscal year end. Any information obtained by LESSOR
pursuant to the provisions of this Paragraph shall be treated as confidential,
except that LESSOR may disclose such information to its lenders.
SECTION 40 - LATE PAYMENT
If Tenant fails to pay any installment of Annual Rent and/or Additional Rent on
or before the first (lst) day of the calendar month when such installment
becomes due and payable, Tenant shall pay to Landlord a late charge of five
percent (5%) of the amount of such installment, and, in addition, such unpaid
installment shall bear interest at the rate per annum which is four percent
(4%) greater than the "base lending rate" then in effect at The Wall Street
Journal, or the highest rate permitted by law, whichever may be less; with it
being the
-13-
express intent of the parties that nothing herein contained shall be construed
or implemented in such manner as to allow Landlord to charge or receive interest
in excess of the maximum legal rate then allowed by law. Such late charge and
interest shall constitute Additional Rent hereunder due and payable with the
next monthly installment of Annual Rent due.
SECTION 41 - CONFERENCE ROOM
LESSEE shall have the right to use, in common with other tenants, the
conference room on the lower level of Nashua Office Park, Xxx Xxxx Xxxxxxxxx,
Xxxxxx, XX 00000, on a prescheduled appointment basis.
SECTION 42 - TERMINATING EXISTING LEASE
In the event LESSEE is not then in default of any of the terms, conditions and
covenants of its existing Lease Agreement dated March 2, 1992, as amended by a
First Amendment to Lease dated May 13, 1992, as further amended by a Second
Amendment to Lease dated November 9, 1993, by and between LESSOR and LESSEE, for
the Premises described as Suite Numbers 210 and 203 on the second (2nd) floor of
Nashua Office Park, Xxx Xxxx Xxxxxxxxx, Xxxxxx, XX 00000, (hereinafter referred
to as the "Existing Location"), upon the Commencement Date of the term of this
Lease, said existing Lease, as amended, shall become null and void.
Notwithstanding the foregoing, it is hereby understood and agreed that LESSEE
shall be obligated to pay all amounts owed LESSOR including but not limited to
the payment of Rent, Additional Rent, Electrical (if applicable) and any other
charges or expenses of any nature accruing on said Existing Location, prior to
the date of such relocations.
In the event LESSEE is delayed in moving from its Existing Locations to the
Premises demised hereunder by the fault or delays caused by XXXXXX, LESSEE shall
be allowed to continue leasing said Existing Locations from LESSOR under the
same terms and conditions contained in the Lease and Amendments, including the
Rent and Additional Rent as presently being charged.
SECTION 43 - WHEN LEASE BECOMES BINDING
The submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for the Premises,
and this document shall become effective and binding only upon the execution and
delivery thereof by both XXXXXX and XXXXXX, regardless of any written or verbal
representation of any agent, manager or other employee of LESSOR to the
contrary. All negotiations, consideration, representations and understandings
between LESSOR and LESSEE are incorporated herein and this Lease expressly
supersedes any proposals or other written documents relating hereto. This Lease
may be modified or altered only by written agreement between XXXXXX and XXXXXX,
and no act or omission of any employee or agent of LESSOR shall alter, change or
modify any of the provisions thereof.
-14-
IN WITNESS WHEREOF, the LESSOR and XXXXXX have hereunto set their
hands and common seals this 20th day of November, 1995.
XXXXXX Xxxxxx X. Xxxxxxx d/b/a
The Xxxxxxx Company
/s/ [ILLEGIBLE] /s/ Xxxxxx X. Xxxxxxx
----------------------- -------------------------------
WITNESS By Xxxxxx X. Xxxxxxx
Its President
LESSEE IntelliLink, Corp.
/s/ A.K. Xxxxxxx
----------------------- -------------------------------
WITNESS By
Its
Duly Authorized
-15-
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF NORFOLK )
November 20, 1995.
Then personally appeared Xxxxxx X. Xxxxxxx to me known to be the
individual who acknowledged himself to be the President of The Xxxxxxx Company,
XXXXXX, and that he, as such, being authorized to do so, executed the foregoing
instrument and acknowledged the execution thereof to be his free act and deed
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at
Norfolk County, Braintree, Massachusetts, this 20th day of November 1995.
/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Notary Public
My commission expires: 8/29/97
STATE OF NEW HAMPSHIRE )
) SS.
COUNTY OF HILLSBORO )
October 18, 1995.
Then personally appeared X. Xxxxx Xxxxxxx to me known
to be the individual who acknowledged himself to be the President
of IntelliLink, Corp., XXXXXX, and that he, as such, being authorized to do so,
executed the foregoing instrument and acknowledged the execution thereof to be
his free act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal
at Hillsboro County, Nashua, NH, this 18th day of October, 1995.
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Notary Public
My commission expires:
XXXXXX X. XXXXXXXX, Notary Public
My Commission Expires November 10, 1999
-16-
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by any
LESSEE, nor shall they be used for any purpose other than ingress and egress
to and from the Premises. LESSOR shall keep the sidewalks and curbs directly
in front of said Xxxxxxxx, clean and free from ice and snow.
2. No awnings or other projections shall be attached to the outside walls of
the building without the prior written consent of the LESSOR. No curtains,
blinds, shades or screens shall be attached to, hung in, or used in
connection with, any window or door of the Premises, without the prior
written consent of the LESSOR. Any such awnings, projections, curtains,
blinds, shades, screens or other fixtures used by LESSEE (if given the prior
written consent of the LESSOR for such use), shall be of a quality, type,
design and color, attached in a manner approved by the LESSOR.
3. A building directory will be maintained in the main lobby of the building
at the expense of the LESSOR and the number of such listings shall be at the
sole discretion of the LESSOR. No sign, advertisement, notice or other
lettering shall be exhibited, inscribed, painted or affixed by any LESSEE on
any part of the outside or inside of the Premises or building, without the
prior written consent of the LESSOR. In the event of violation of the
foregoing by any LESSEE, LESSOR may remove same without any liability and may
charge the expense incurred by such removal to any LESSEES violating this
rule. Interior signs on doors and directory tablet shall be inscribed,
painted or affixed for each LESSEE, at LESSEE'S expense and shall be of a
size, color and style acceptable to the LESSOR.
4. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
building shall not be covered or obstructed by any LESSEE, nor shall any
bottles, parcels or other articles be placed on the windowsills.
5. No show cases or other articles shall be put in front of, or affixed to
any part of the exterior of the building, nor placed in the halls, corridors,
vestibules or fire escapes, without the prior written consent of the LESSOR.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuses of the fixtures shall be borne by the
LESSEE who, or whose servants, employees, agents, visitors, or licensees,
shall have caused same.
7. No LESSEE shall mark, paint, drill into, or in any way deface any part of
the Premises or the building of which they form a part. No boring, cutting
or stringing of wires shall be permitted, except with the prior written
consent of LESSOR, and as the LESSOR may direct. No LESSEE shall lay
linoleum, or other similar floor covering, so that the same shall come in
contact with the floor of the Premises, and, if linoleum or other similar
floor covering is desired to be used, an interlining of builder's deadening
felt shall be first affixed to the floor by a paste or other material,
soluble in water, the use of cement or other similar adhesive material being
expressly prohibited.
8. No bicycles, vehicles or animals of any kind shall be brought in or kept
about the Premises, and no cooking shall be done or permitted by LESSEE on
said Premises. No LESSEE shall cause or permit any unusual or objectionable
odors to be produced upon or permeate from the Premises.
-17-
9. No space in the building, except as provided in individual Leases, shall
be used for manufacturing, for the storage of merchandise, or for the sale of
merchandise, goods or property of any kind at auction.
10. No LESSEE shall make, or permit to be made, any unsettling or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises' or those having business with them, whether by the use
of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. No LESSEE shall throw anything out
of doors, windows, skylights or down the passageways.
11. No LESSEE, nor any of LESSEE'S servants, employees, agents, visitors or
licensees, shall at any time bring or keep upon the Premises any flammable,
combustible or explosive fluid, chemical and substance.
12. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any LESSEE, nor shall any changes be made in existing
locks or the mechanism thereof. Each LESSEE must, upon the termination of
his tenancy, return to the LESSOR, all keys for stores, offices and toilet
rooms, either furnished to, or otherwise procured by, such LESSEE, and in the
event of the loss of any keys so furnished, such LESSEE shall pay the LESSOR
the cost thereof.
13. All removals, or the carrying in or out of any safes, freight, furniture
or bulky matter of any description must take place during the hours which the
LESSOR or its agents may determine from time to time. The LESSOR reserves
the right to inspect all freight to be brought into the building and to
exclude from the building, all freight which violates any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
14. No LESSEE shall occupy or permit any portion of the Premises leased to
him to be occupied for the possession, storage, manufacture or sale of
liquor, narcotics, or dope, or as a xxxxxx or manicure shop.
15. LESSOR shall have the right to prohibit any advertising by any LESSEE
which, in XXXXXX'S opinion, tends to impair the reputation of the building or
its desirability as a building for offices, and upon written notice from
LESSOR, LESSEE shall refrain from or discontinue such advertising. LESSEE
shall not use the name of the building or its owner in any advertising
without the express written consent of the LESSOR.
16. No LESSEE shall install or permit the installation or use of any machines
dispensing goods for sale, including without limitation, foods, beverages,
cigarettes or cigars. No food or beverage shall be carried in the public
halls and elevators of the buildings, except in closed containers.
17. The Premises shall not be used for lodging or sleeping or for any immoral
or illegal purpose.
18. Canvassing, soliciting and peddling in the building is prohibited and
each LESSEE shall cooperate to prevent the same by notifying the LESSOR.
LESSOR reserves the right to inspect any parcel or package being removed from
the building by XXXXXX, its employees, representatives and business invitees.
19. There shall not be used in any space or in the public halls of any
building, either by a LESSEE or by jobbers or others in the delivery of or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
-18-
EXHIBIT "A"
Floor Plan
-19-
EXHIBIT "B"
Description of LESSOR'S Work
LESSOR shall construct LESSEE'S Premises in accordance with a
mutually agreed upon floor plan.
-20-
[LETTERHEAD]
December 18, 1995
Xx. Xxxxx Xxxxxxx
IntelliLink, Corp.
Xxx Xxxx Xxxxxxxxx
Xxxxxx, XX 00000
SUPPLEMENTAL AGREEMENT
To be attached to and made a part of that certain Lease Agreement dated
November 20, 1995, by and between Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx
Company, as LESSOR, and IntelliLink, Corp., as LESSEE.
Relative to the Premises located at Suite Number 200 on the second (2nd)
floor of Nashua Office Park, Xxx Xxxx Xxxx., Xxxxxx, XX 00000, and more
specifically referred to in the above-mentioned Lease, our records indicate
the following pertinent information with regard to same:
Occupancy Date: December 11, 1995
Term Commencement Date: December 11, 1995
Actual Term Dates: December 11, 1995 - December 31, 1998
Rent Commencement Date: December 11, 1995
If you concur with the above, please acknowledge by signature below,
retaining one (1) copy of this agreement for your files and returning the
other to my attention, at your earliest possible convenience.
Should this Supplemental Agreement not be executed and returned to LESSOR
within thirty (30) days of its receipt by XXXXXX, said dates as specified
herein shall hereby be deemed assented to by the LESSOR.
Sincerely yours,
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
COMMERCIAL/INDUSTRIAL DIVISION
CC: S. Weeks
X. Xxxxxxxxx
CERTIFIED MAIL - RETURN RECEIPT REQUESTED - Z 394 773 280
Page Two
December 18, 1995
Xx. Xxxxx Xxxxxxx
IntelliLink, Corp.
The foregoing is hereby acknowledged and agreed.
WITNESS LESSEE: IntelliLink, Corp.
----------------------------------- ---------------------------------------
By: Xxxxx Xxxxxxx
Its:
Duly Authorized
THE XXXXXXX COMPANY
STANDARD FORM OF COMMERCIAL LEASE
SUBMISSION NOT AN OPTION
THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND NEGOTIATION DOES NOT
CONSTITUTE AN OFFER TO LEASE, A RESERVATION OF, OR OPTION FOR THE PREMISES
AND SHALL VEST NO RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR
THROUGH TENANT SHALL HAVE THE RIGHTS TO THE PREMISES AS SET FORTH HEREIN AND
THIS LEASE BECOMES EFFECTIVE AS A LEASE ONLY UPON EXECUTION, ACKNOWLEDGEMENT
THEREOF BY LANDLORD AND TENANT, REGARDLESS OF ANY WRITTEN OR VERBAL
REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE OF LANDLORD TO THE CONTRARY.
TABLE OF CONTENTS
SECTION PAGE
------- ----
SECTION 1 - PARTIES . . . . . . . . . . . . . . . . . . . . . . . . -1-
SECTION 2 - PREMISES . . . . . . . . . . . . . . . . . . . . . . . . -1-
SECTION 3 - TERM . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
SECTION 3A ADJUSTMENT OF TERM . . . . . . . . . . . . . . . . . . . -1-
SECTION 4 - COMMENCEMENT DATE . . . . . . . . . . . . . . . . . . . -1-
SECTION 5 - RENT . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
SECTION 5A RENT COMMENCEMENT DATE . . . . . . . . . . . . . . . . . -2-
SECTION 6 - ABATEMENT OF RENT . . . . . . . . . . . . . . . . . . . -2-
SECTION 7 - SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . -2-
SECTION 8 - ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . -2-
Real Estate Taxes . . . . . . . . . . . . . . . . . . . . -2-
Operating Expenses . . . . . . . . . . . . . . . . . . . . -3-
SECTION 9 USE . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
SECTION 10 - COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . -6-
SECTION 11 - FIRE INSURANCE . . . . . . . . . . . . . . . . . . . . -6-
SECTION 12 - UTILITIES . . . . . . . . . . . . . . . . . . . . . . . -6-
SECTION 13 - ELECTRICAL . . . . . . . . . . . . . . . . . . . . . . -7-
SECTION 14 - ADDITIONAL CHARGES . . . . . . . . . . . . . . . . . . -7-
SECTION 15 - MAINTENANCE OF PREMISES . . . . . . . . . . . . . . . . -7-
SECTION 16 - ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . -7-
SECTION 17 - LESSOR'S LIABILITY . . . . . . . . . . . . . . . . . . -8-
SECTION 18 - LESSOR'S SERVICES . . . . . . . . . . . . . . . . . . . -8-
SECTION 19 - DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . -8-
SECTION 20 - LESSEE'S LIABILITY INSURANCE . . . . . . . . . . . . . -8-
SECTION 21 - INSURABLE DAMAGES . . . . . . . . . . . . . . . . . . . -8-
SECTION 22 - FIRE, CASUALTY, EMINENT DOMAIN . . . . . . . . . . . . -8-
SECTION 23 - DEFAULT, BANKRUPTCY . . . . . . . . . . . . . . . . . . -9-
SECTION 24 - NOTICE . . . . . . . . . . . . . . . . . . . . . . . . -9-
SECTION 25 - SURRENDER . . . . . . . . . . . . . . . . . . . . . . . -9-
SECTION 26 - HOLDING OVER . . . . . . . . . . . . . . . . . . . . . -10-
SECTION 27 - RIGHT TO MOVE . . . . . . . . . . . . . . . . . . . . . -10-
SECTION 28 - RULES AND REGULATIONS . . . . . . . . . . . . . . . . . -10-
SECTION 29 - NOT TO INVALIDATE . . . . . . . . . . . . . . . . . . . -10-
SECTION 30 - QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . -10-
SECTION 31 - ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . -11-
SECTION 32 - SUBORDINATE . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 33 - LESSOR'S ACCESS . . . . . . . . . . . . . . . . . . . . -12-
SECTION 34 - INDEMNIFICATION AND LIABILITY . . . . . . . . . . . . . -12-
SECTION 35 - LESSEE'S RISK . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 36 - INJURY CAUSED BY THIRD PARTY . . . . . . . . . . . . . -12-
SECTION 37 - LESSEE'S REMOVABLE PROPERTY . . . . . . . . . . . . . . -12-
SECTION 38 - WAIVER . . . . . . . . . . . . . . . . . . . . . . . . -13-
SECTION 39 - FINANCIAL INFORMATION . . . . . . . . . . . . . . . . . -13-
SECTION 40 - LATE PAYMENT . . . . . . . . . . . . . . . . . . . . . -13-
SECTION 41 - GUARANTY . . . . . . . . . . . . . . . . . . . . . . . -13-
SECTION 42 - WHEN LEASE BECOMES BINDING . . . . . . . . . . . . . . -14-
Rules and Regulations . . . . . . . . . . . . . . . . . -17-
Exhibit "A" . . . . . . . . . . . . . . . . . . . . . . -19-
Exhibit "B" . . . . . . . . . . . . . . . . . . . . . . -20-
STANDARD COMMERCIAL LEASE
SECTION 1 - PARTIES
Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx Company, LESSOR, which expression shall
include their heirs, successors and assigns where the context so admits, does
hereby lease to Intellilink Corp., LESSEE.
SECTION 2 - PREMISES
LESSEE, which expression shall include its successors, executors,
administrators and assigns where the context so admits, does hereby lease the
following described Premises: Suite Number 202 consisting of approximately
1,535 square feet of space (hereinafter referred to as the "Premises")
located on the second (2nd) floor of Nashua Office Park, Xxx Xxxx Xxxxxxxxx,
Xxxxxx, XX 00000, as outlined on Exhibit "A" of this Lease, which also
includes a 15% common area factor, together with the right to use in common,
with others entitled thereto, the hallways, stairways and elevators,
necessary for access to said Premises and lavatories nearest thereto.
SECTION 3 - TERM
The term of this Lease shall be for two (2) years seven (7) months,
commencing on the Commencement Date (defined below), and terminating two (2)
years seven (7) months immediately thereafter, unless sooner terminated as
herein provided.
SECTION 3A - ADJUSTMENT OF TERM
If the Commencement Date (defined below) is other than the first day of a
calendar month, this Lease shall continue in full force and effect for a
period of two (2) years seven (7) months from the first day of the calendar
month next succeeding the Commencement Date.
SECTION 4 - COMMENCEMENT DATE
The Commencement Date of the term of this Lease shall be the earlier to occur
of (i) the date the Premises are ready for occupancy or (ii) the date LESSEE
takes occupancy of the Premises. The Premises shall be deemed ready for
occupancy on the first day as of which XXXXXX'S work has been completed
except for items of work (and, if applicable, adjustment and fixtures) which
can be completed after occupancy has been taken, without causing undue
interference with XXXXXX'S use of the Premises (i.e., so-called "punch list"
items) and LESSEE has been given notice thereof. LESSOR shall complete as
soon as conditions permit, all "punch list" items and LESSEE shall afford
LESSOR access to the Premises for such purposes.
Notwithstanding the foregoing, if LESSEE'S personnel shall occupy all or any
part of the Premises for the conduct of its business prior to the
Commencement Date as determined pursuant to the preceding paragraph, such
date of occupancy shall, for all intents and purposes of this Lease, be the
Commencement Date.
XXXXXX and XXXXXX agree to execute a Supplemental Agreement setting forth the
actual Occupancy and Term Dates, once the same have been established.
SECTION 5 - RENT
The LESSEE agrees to pay to LESSOR, without deduction or offset, rent at the
rate of TWENTY-THREE THOUSAND FOUR HUNDRED EIGHT AND 75/100 ($23,408.75)
Dollars annually, payable in advance on the first day of each month, in equal
monthly installments of ONE THOUSAND NINE HUNDRED FIFTY AND 73/100
($1,950.73) Dollars, and at that rate for any fraction of a month at the
beginning of the term.
SECTION 5A - RENT COMMENCEMENT DATE
The payment of rental shall commence upon the Commencement Date.
SECTION 6 - ABATEMENT OF RENT
It is understood and agreed that if for any reason whatsoever, the LESSOR
does not deliver possession of the Premises according to the terms of this
Lease, the rent shall be abated until such date as possession of the Premises
is rendered by the LESSOR. In no event shall the LESSOR, its agents or
employees be liable in damages for failure to deliver possession under the
terms of this Lease, except for willful failure to do so.
SECTION 7 - SECURITY DEPOSIT
Upon the execution of this Lease by XXXXXX, LESSEE shall pay to LESSOR, the
amount of ONE THOUSAND NINE HUNDRED FIFTY AND 73/100 ($1,950.73) Dollars
which shall be held as security for LESSEE'S performance as herein provided.
Said Security Deposit shall be refunded to LESSEE at the end of this Lease,
subject to XXXXXX'S satisfactory compliance with the conditions herein
contained and set forth.
SECTION 8 - ADDITIONAL RENT
In accordance with the following, XXXXXX shall under the terms, conditions
and provisions hereinafter provided, pay to LESSOR as additional rent, the
following:
REAL ESTATE TAXES
1. If real estate taxes upon the land and buildings (the
"Property"), of which the Premises are a part, for any tax year
exceed the real estate base tax amount, whether by reason of an
increase in either the tax rate or the assessed valuation or both,
LESSEE shall pay to LESSOR as additional rent within ten (10) days
after billing therefor, an amount equal to the product of (a) such
excess over the base taxes and (b) the following fraction:
Square Footage of Lessee's Premises
Aggregate of All the Rentable Square Footage
--------------------------------------------
(whether or not rented or improved within the entire building)
Effective April 1, 1997, LESSEE shall pay monthly, at the
----
time when Rent payments are due hereunder, an amount equal to
one-twelfth (1/12) of the total of annual real estate taxes (as
estimated by XXXXXX) due from LESSEE to LESSOR pursuant to this
Subsection 8.1. Promptly after the determination by any taxing
authority of real estate taxes upon the Building for each tax year,
LESSOR shall make a determination of the real estate taxes
allocated to the Premises, and if the aforesaid payments
theretofore made for such tax year by XXXXXX exceed the real estate
taxes
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allocated to the Premises, such overpayment shall be credited
against the payments thereafter to be made by LESSEE pursuant to
this paragraph; and if the real estate taxes allocated to the
Premises for such tax year are greater than such payments
theretofore made on account for such tax year, LESSEE shall within
ten (10) days of written notice from the LESSOR make a suitable
payment to LESSOR. Xerox copies of tax bills submitted by XXXXXX
with any such statement shall be conclusive evidence of the amount
of real estate taxes charged, assessed or imposed. After the full
assessment year, the initial monthly payment on account of the real
estate taxes allocated to the Premises shall be replaced each year
by a payment which is one-twelfth (1/12th) of the real estate taxes
allocated to the Premises for the immediately preceding tax year.
2. For the purposes of this clause, the term "Tax Year" shall mean
the twelve month period commencing on July 1st (or any month as it
may apply and/or change for the city, town or municipality tax
period) immediately preceding the Commencement Date and each twelve
month period thereafter during the term of this Lease.
3. It is agreed by both parties that the Base Year as it applies to
taxes for this Lease shall be April 1, 1996 - March 31, 1997.
4. If any abatement, refund or rebate shall be subsequently made
for any tax year, an appropriate adjustment shall be made in the
amount payable from, or paid by LESSEE to LESSOR on account of said
real estate taxes, after deducting the LESSOR'S expenses reasonably
incurred in obtaining such abatement, refund or rebate and provided
there is no existing default of LESSEE. An appropriate adjustment
will be made to the base tax year as a result of the foregoing.
5. If some method or type of taxation replaces the current method
of assessment of real estate taxes, or the type thereof, XXXXXX
agrees that it shall pay an equitable share of the same computation
herein provided, to the end that XXXXXX'S share thereof shall be to
the maximum extent practicable, comparable to that which LESSEE
would bear under the foregoing provisions.
6. If a tax (other than a Federal or State net income tax) is
assessed on account of the rents or other charges payable by LESSEE
to the LESSOR under this Lease, XXXXXX agrees to pay the same
within ten (10) days after billing therefor, unless applicable law
prohibits the payment of such tax by XXXXXX. LESSOR shall have the
same rights and remedies for non-payment by LESSEE of any such
amounts due on account of such taxes as XXXXXX has hereunder, for
the failure of LESSEE to pay rent as provided for in Section 23 of
this Lease.
OPERATING EXPENSES
7. The following is a list of all such items of operating
expenditures as are within the meaning of "Operating Expenses"
hereinafter set forth. If, in any calendar year of the term of this
Lease, LESSOR'S Operating Expenses exceed Operating Expenses for
the calendar year 1996, as it relates to all other changes with the
exception of snow removal, which shall be an amount representative
of LESSOR'S actual snow removal costs over the previous five (5)
year period. LESSEE shall after notice as hereinafter provided, pay
to LESSOR as additional rent, an amount
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equal to the product of (a) such excess multiplied by (b) a
fraction involving the same numerator and denominator as is
provided for in Subsection 8.1 of this Lease.
8. The expression "Operating Expenses" as used herein, shall mean
the aggregate cost or expenses reasonably incurred by LESSOR with
respect to the operation, administration, cleaning, repair,
maintenance and management of the Property, including without
limitation, those items enumerated hereinafter. If during any
portion of the calendar year for which Operating Expenses are being
computed, less than 93% of the building's rentable area was
occupied by tenants, actual Operating Expenses incurred shall be
reasonably extrapolated by LESSOR on an item by item basis to the
estimated operating expenses that would have been incurred if the
building were at least 93% occupied for such year, and such
extrapolated amounts shall for the purposes hereof, be deemed to be
the Operating Expenses for such year.
9. Effective January 1, 1997, LESSEE shall pay monthly, at the time
----
when Rent payments are due hereunder, an amount equal to
one-twelfth (1/12th) of the total annual Operating Expenses (as
estimated by XXXXXX) due from LESSEE to LESSOR pursuant to
Subsection 8.7 of this Lease. Promptly after the end of each
calendar year thereafter, LESSOR shall make a determination of
LESSEE'S share of such Operating Expenses; and if the aforesaid
payments theretofore made for such period by LESSEE exceed XXXXXX'S
share, such overpayment shall be credited against the payments
thereafter to be made by LESSEE pursuant to this Paragraph; and if
LESSEE'S share is greater than such payments theretofore made on
account for such period, LESSEE shall within thirty (30) days of
written notice from the LESSOR make a suitable payment to LESSOR.
The initial monthly payment on account of the Operating Expense
Charge shall be replaced after XXXXXX'S determination of LESSEE'S
share thereof for the preceding accounting period by a payment
which is one-twelfth (1/12th) of LESSEE'S actual share thereof for
the immediately preceding period, with adjustments as appropriate
where such preceding period is less than a full twelve-month
period. LESSOR shall have the same rights and remedies for
non-payment by LESSEE of any such amounts due on account of such
Operating Expenses as XXXXXX has hereunder, for the failure of
LESSEE to pay rent as provided for in Section 23 of this Lease.
10. Without limitation, Operating Expenses shall include:
a. All expenses incurred by LESSOR or LESSOR'S agents which
shall be directly related to employment of personnel, including
amounts incurred for wages, salaries and other compensation for
services, payroll, social security, unemployment and similar
taxes, worker's compensation insurance, disability benefits,
pensions, hospitalization, retirement plans and group insurance,
uniforms and working clothes and the cleaning thereof, and
expenses imposed on LESSOR or LESSOR'S agents pursuant to any
collective bargaining agreement for the services of employees of
LESSOR or LESSOR'S agents in connection with the operation,
repair, maintenance, cleaning, management and protection of the
Property, and its mechanical systems including, without
limitation, day and night supervisors, property manager,
accountants, bookkeepers, janitors, carpenters, engineers,
mechanics, electricians and plumbers and personnel engaged in
supervision of any of the persons
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mentioned above; provided that, if any such employee is also
employed on other properties of LESSOR, such compensation shall
be suitably prorated among the Property and such other
properties.
b. The cost of services, utilities, materials and supplies
furnished or used in the operation, repair, maintenance,
cleaning, management and protection of the Property.
c. The cost of replacements for tools and other similar
equipment used in the repair, maintenance, cleaning and
protection of the Property; provided that, in the case of any
such equipment used jointly on other properties of LESSOR,
such costs shall be suitably prorated among the Property and
such other properties.
d. Where the Property is managed by LESSOR or an affiliate of
LESSOR, a sum equal to the amounts customarily charged by
management firms in the Nashua area for similar properties
whether or not actually paid, or where otherwise managed, the
amounts accrued for management, together with amounts accrued
for legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in
connection with services rendered for securing or renewing
leases and for matters not related to the normal
administration and operation of the building.
e. Premiums for insurance against damage or loss to the
building from such hazards as shall from time to time be
generally required by institutional mortgagors in the Nashua
area for similar properties, including, but not by way of
limitation, insurance covering loss of rent attributable to
any such hazards, and public liability insurance.
f. Cost for electricity, water and sewer use charges, and
other utilities supplied to the Property and not paid for
directly by XXXXXX.
g. Betterment assessments, provided the same are apportioned
equally over the longest period permitted by law.
h. Amounts paid to independent contractors for services,
materials and supplies furnished for the operation, repair,
maintenance, cleaning and protection of the Property.
i. Any capital expenditure made by XXXXXX during the term of
this Lease, the total cost of which is not properly includable
in Operating Expenses for the operating year in which it was
made, shall nevertheless be included in such Operating Expenses
for the operating year in which it was made, and Operating
Expenses for each succeeding operating year shall include the
annual charge-off of such capital expenditure. Annual
charge-off shall be determined by dividing the original capital
expenditure plus an interest factor, reasonably determined by
XXXXXX, as being the interest rate then being charged for
long-term mortgages by institutional lenders on "like" properties
within the locality in which the building is located, by the
number of years of useful life of the capital expenditure, and
the useful life shall be determined reasonably by XXXXXX in
accordance with generally accepted accounting principles and
practices in effect at the time of making such expenditure.
-5-
SECTION 9 - USE
The LESSEE shall use the Premises only for the purpose of general business
offices.
SECTION 10 - COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in the
Premises or use made thereof which will be unlawful, improper, noisy or
offensive, or contrary to any law or any municipal by-law or ordinance in
force in the city or town in which the Premises is situated.
SECTION 11 - FIRE INSURANCE
The LESSEE shall not permit any use of the Premises which will make voidable
any insurance on the Property of which the Premises are a part, or on the
contents of said Property, which shall be contrary to any law or regulation
from time to time established by the New England Fire Insurance Rating
Association, or any similar body succeeding to its powers. The LESSEE shall,
on demand, reimburse the LESSOR and all other tenants, all extra insurance
premiums caused by LESSEE'S misuse of the Premises.
SECTION 12 - UTILITIES
The LESSOR shall provide all LESSEE'S water and sewer use and reasonable heating
and air-conditioning during the normal heating and cooling season between the
hours of 8:00 A.M. and 6:00 P.M., during normal business days. The normal
cooling season shall be from April 15th to October 1st of any given year.
Normal business days are all days except Saturday, Sunday, New Year's Day,
Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Day (and the
following day when any such day occurs on Sunday) and such other days as LESSOR
presently or in the future recognizes as holidays for LESSOR'S general office
staff. In addition, XXXXXX agrees to furnish elevator service and to light
passageways and stairways during business hours, and to furnish such cleaning
service as is customary in similar buildings in said city or town, all subject
to interruption due to any accident, to the making of repairs, alterations or
improvements, to labor difficulties, to trouble in obtaining fuel, electricity,
service or supplies from the sources from which they are usually obtained for
said building, or to causes beyond LESSOR'S control. If LESSEE shall require
air-conditioning, heating or ventilation outside the hours and days above
specified, LESSOR shall furnish such service and LESSEE shall pay therefor such
charges as may from time to time be in effect. In the event LESSEE introduces
into the Premises personnel or equipment which overloads the capacity of the
building system or in any other way interferes with the system's ability to
perform adequately its proper functions, supplementary systems may if and as
needed at LESSOR'S option, be provided by XXXXXX, at LESSEE'S expense.
-6-
SECTION 13 - ELECTRICAL
LESSOR shall purchase and receive electric current for the Premises directly
from the public utility company serving the building and LESSEE shall permit
LESSOR'S existing wires, risers, conduits and other electrical equipment of
LESSOR to be used for such purposes. LESSOR shall not in any way be liable
or responsible to LESSEE for any loss or damage or expense which LESSEE may
sustain or incur if, during the term of this Lease, either the quantity or
character of electric current is changed or electric current is no longer
available or suitable for LESSEE'S requirements due to a factor or cause
beyond LESSOR'S control. LESSOR at LESSEE'S expense, shall purchase and
install all lamps, tubes, bulbs, starters and ballasts.
SECTION 14 - ADDITIONAL CHARGES
Should LESSEE fail to pay when due, any sums under this Lease designated as
an additional charge, LESSOR shall have the same rights and remedies as
XXXXXX has hereunder, for failure to pay rent as provided for in Section 23
of this Lease.
SECTION 15 - MAINTENANCE OF PREMISES
The LESSEE agrees to maintain the Premises in the same condition as existed
at the commencement of the term or as they may be improved during the term of
this Lease, reasonable wear and tear, damage by fire and other casualty only
excepted, and whenever necessary, to replace plate glass and other glass
therein, acknowledging that the Premises are now in good order and the glass
whole. The LESSEE shall not permit the Premises to be overloaded, damaged,
stripped, or defaced, nor suffer any waste. XXXXXX shall obtain written
consent of LESSOR before erecting any sign on the Premises. LESSEE shall be
responsible for the cost of repairs which may be made necessary by reason of
damage to common areas in the building by LESSEE, LESSEE'S independent
contractors, or XXXXXX'S invitees. If repairs are required to be made by
LESSEE pursuant to the terms hereof, LESSOR may demand that LESSEE make the
same forthwith, and if LESSEE refuses or neglects to commence such repairs
and complete the same with reasonable dispatch after such demand, LESSOR may
(but shall not be required to) make or cause such repairs to be made and
shall not be responsible to LESSEE for any loss or damage that may occur to
LESSEE'S stock or business by reason thereof. If XXXXXX makes or causes such
repairs to be made, XXXXXX agrees that LESSEE shall forthwith on demand, pay
to LESSOR the cost thereof as an additional charge.
SECTION 16 - ALTERATIONS
The LESSEE shall not make any structural alterations or additions to the
Premises, but may make non-structural alterations provided the LESSOR
consents thereto in writing, which consent shall not be unreasonably withheld
or delayed. All such allowed alterations shall be at LESSEE'S sole cost and
expense and shall be of such quality at least equal to the present
construction. XXXXXX shall not permit any mechanics' liens, or similar
liens, to remain upon the Premises for labor and material furnished to LESSEE
or claimed to have been furnished to LESSEE in connection with work of any
character performed or claimed to have been performed at the direction of
LESSEE and shall cause any such lien to be released of record forthwith
without cost to LESSOR. Any alterations or improvements made by the LESSEE
shall become the property of the LESSOR at the termination of occupancy as
provided herein.
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SECTION 17 - LESSOR'S LIABILITY
XXXXXX specifically agrees to look solely to XXXXXX'S then equity interest in
the Property at the time owned, for recovery of any judgment from XXXXXX; it
being specifically agreed that neither XXXXXX (original or successor) nor
anyone claiming under the LESSOR, shall ever be personally liable for any
such judgment, or for the payment of any monetary obligation to LESSEE.
SECTION 18 - LESSOR'S SERVICES
With respect to any services to be furnished by LESSOR to LESSEE, LESSOR
shall in no event be liable for failure to furnish the same when prevented
from doing so by strike, lockout, breakdown, accident, order or regulation of
or by any governmental authority, or failure of supply, or inability by the
exercise of reasonable diligence to obtain supplies, parts or employees
necessary to furnish such services, or because of war or other emergency, or
for any cause due to any act or neglect of LESSEE or LESSEE'S servants,
agents, employees, licensees or any person claiming by, through or under
XXXXXX.
SECTION 19 - DAMAGES
In no event shall LESSOR ever be liable to LESSEE for any indirect or
consequential damages suffered by LESSEE from whatever cause.
SECTION 20 - LESSEE'S LIABILITY INSURANCE
The LESSEE shall maintain with respect to the Premises and the Property of
which the Premises are a part, comprehensive public liability insurance in
the amounts of $1,000,000.00/$1,000,000.00, with property damage insurance in
limits of $1,000,000.00, in responsible companies qualified to do business in
New Hampshire and in good standing therein, insuring the LESSOR as well as
the LESSEE against injury to persons or damage to property as provided. The
LESSEE shall deposit with the LESSOR, prior to the Commencement Date of the
term of this Lease, certificates for such insurance, and thereafter within
thirty (30) days prior to the expiration of any such policies. All such
insurance certificates shall provide that such policies shall not be
cancelled without at least ten (10) days prior written notice to each insured
named therein.
SECTION 21 - INSURABLE DAMAGES
LESSOR shall not be liable for any damage insurable by LESSEE to LESSEE'S
fixtures, merchandise or property regardless of cause and LESSEE hereby
releases LESSOR from same. LESSEE shall not be liable for any damage
insurable by XXXXXX to the Premises, regardless of cause and LESSOR hereby
releases LESSEE from same.
SECTION 22 - FIRE, CASUALTY, EMINENT DOMAIN
Should a substantial portion of the Premises, or of the Property of which the
Premises are a part, be damaged by fire or other casualty, or be taken by
eminent domain, the LESSOR may elect to terminate this Lease. When such fire,
casualty, or taking renders the Premises substantially unsuitable for
LESSEE'S intended use, a just and proportionate abatement of rent shall be
made, and the LESSEE may elect to terminate this Lease if: (a) the LESSOR
fails to give written notice within ninety (90) days of its intention to
restore the Premises, or (b) the LESSOR fails to restore the Premises to a
condition
-8-
substantially suitable for XXXXXX'S intended use within one hundred twenty
(120) days of said fire, casualty or taking. The LESSOR reserves, and the
LESSEE grants to the LESSOR, all rights which the LESSEE may have for damages
or injury to the Premises for any taking by eminent domain, except for damage
to LESSEE'S fixtures, property or equipment.
SECTION 23 - DEFAULT, BANKRUPTCY
If at any time subsequent to the date of this Lease, any one or more of the
following events (herein referred to as a default of LESSEE) shall occur: (a)
LESSEE shall fail to pay the installment of rent, escalation charge or other
charges hereunder when due, and such failure shall continue for three (3)
full business days after notice has been given to LESSEE from LESSOR; (b)
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 thirty (30) days after such notice thereof; (c)
LESSEE shall be declared bankrupt or insolvent according to law; or (d) if
any assignment shall be made of LESSEE'S property for the benefit of
creditors, then the LESSOR shall have the right thereafter, while such
default continues, to re-enter and take complete possession of the Premises,
to declare the term of this Lease ended, and to 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 indemnify the LESSOR against all
loss of rent and other payments which the LESSOR may incur by reason of such
termination during the remainder of the term. If the LESSEE should default,
after reasonable notice thereof, in the observance or performance of any
conditions or covenants on LESSEE'S part to be observed or performed under or
by virtue of any of the provisions in any section of this Lease, the LESSOR,
without being under any obligation to do so and without thereby waiving such
default, may remedy such default for the account and at the expense of the
LESSEE. If the LESSOR makes any expenditures or incurs any obligations for
the payment of money in connection therewith, including but not limited to
reasonable attorney's fees in instituting, prosecuting or defending any
action or proceeding, any such sums paid or obligations incurred, shall
accrue interest at the rate of eighteen percent (18%) per annum, and all
costs shall be paid to the LESSOR by the LESSEE, as additional rent.
SECTION 24 - NOTICE
Any notice from the LESSOR to the LESSEE relating to the Premises or to the
occupancy thereof, shall be deemed duly served if addressed to the LESSEE and
left at the Premises, or if addressed to the LESSEE and mailed to the
Premises by registered or certified mail, return receipt requested, postage
prepaid.
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 at
Braintree Hill Office Park, 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000, or
to such other address as the LESSOR may from time to time advise in writing.
SECTION 25 - SURRENDER
The LESSEE shall at the expiration or other termination of this Lease, remove
all LESSEE'S goods and effects from the Premises (including without hereby
limiting the generality of the foregoing, all signs and lettering affixed or
painted by the LESSEE, either inside or outside of the Premises). LESSEE
shall deliver to LESSOR, the Premises and all keys, locks thereto and other
fixtures connected therewith and all
-9-
alterations and additions made to or upon the Premises, in the same condition
as they were at the Commencement Date of the term of this Lease, or as they
were put in during the term hereof, reasonable wear and tear and damage by
fire or other casualty only excepted. In the event of LESSEE'S failure to
remove any of LESSEE'S property from the Premises, LESSOR is hereby
authorized without liability to LESSEE for loss or damage thereto, and at the
sole risk of LESSEE, to remove and store any of the property at LESSEE'S
expense, or to retain same under XXXXXX'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.
SECTION 26 - HOLDING OVER
Any holding over by LESSEE after the expiration of the term of this Lease
shall be treated as a daily Tenancy At Sufferance, at a rate equal to two (2)
times the rent plus escalation charges and other charges herein provided
(prorated on a daily basis) and shall otherwise be on the same terms and
conditions as set forth in this Lease, where the same may be applicable.
SECTION 27 - RIGHT TO MOVE
The LESSOR reserves the right to move the LESSEE and if LESSOR so requests,
LESSEE shall vacate the Premises and relinquish its right with respect to the
same, provided that LESSOR provides to LESSEE, space within the complex
commonly known as Nashua Office Park, Nashua, NH 03062.
Such space shall be reasonably comparable in size, layout, finish and utility
to the existing Premises, and further provided that LESSOR shall, at its sole
cost and expense, move the LESSEE and its removable property from the
Premises to such new space in such a manner as will minimize, to the greatest
extent practicable, undue interference with the business or operations of
LESSEE. Any such space shall from and after such relocation, be treated as
the Premises demised under this Lease, and shall be occupied by LESSEE under
the same terms, provisions and conditions as are set forth in this Lease.
SECTION 28 - RULES AND REGULATIONS
The LESSEE will observe and comply with the Rules and Regulations as attached
hereto and made a part hereof, including revisions and additions as the
LESSOR may from time to time institute.
SECTION 29 - NOT TO INVALIDATE
If any term or provision of this Lease, or the application thereof to any person
or circumstance shall, to the extent be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and enforced to the fullest extent permitted by law.
SECTION 30 - QUIET ENJOYMENT
XXXXXX, subject to the terms and provisions of this Lease, on payment of the
rent and escalation charges and observing, keeping and performing all of the
other terms and provisions of this Lease on LESSEE'S part to be observed,
kept and performed, shall lawfully, peaceably and quietly have, hold, occupy
and
-10-
enjoy the Premises during the term hereof, without hindrance or ejection by
any persons lawfully claiming under XXXXXX to have title to the Premises
superior to LESSOR.
SECTION 31 - ASSIGNMENT AND SUBLETTING
The LESSEE shall not assign or sublet the whole or any portion of the
Premises without LESSOR'S prior written consent, which consent shall be at
the sole discretion of LESSOR. Any increase in the rent resulting from the
permitted subletting will be due and payable to the LESSOR. The foregoing
restrictions shall not be applicable to any assignment of this Lease or a
subletting of the Premises by LESSEE to a subsidiary wholly-owned by LESSEE,
or controlling operation, the stock in which is wholly-owned by the
stockholders of LESSEE. It shall be a condition of the validity of any
assignment, whether with the consent of XXXXXX or to a subsidiary or
controlling corporation, that the assignee agrees directly with XXXXXX, to be
bound by all the obligations of LESSEE hereunder including, without
limitation, the covenant against further assignment and subletting. No
assignment or subletting shall relieve LESSEE from its obligations hereunder
and LESSEE shall remain fully and primarily liable therefor. If this Lease
shall be assigned, or if the Premises or any portion thereof shall be sublet
or occupied by anyone other than LESSEE, LESSOR may, at any time and from
time to time, collect rent and other charges from the assignee, sublessee or
occupant, and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or the acceptance of the assignee,
sublessee or occupant as a lessee, or a release of LESSEE or any successor
from obtaining the express consent in writing of XXXXXX, to any further
assignment or subletting. No assignment or subletting and no use of the
Premises by a subsidiary wholly-owned by LESSEE or controlling corporation of
LESSEE shall affect permitted uses.
Notwithstanding the provisions of the above, any proposed assignee or
sublessee submitted to the LESSOR for approval must have the same or greater
financial strength as LESSEE. If XXXXXX shall request permission to assign
this Lease or sublet the Premises or any part thereof to any person other
than a subsidiary wholly-owned by LESSEE or controlling corporation, the
stock of which is wholly-owned by the stockholders of LESSEE, LESSEE shall,
together with such request for consent thereto, inform LESSOR of the rental
and other amounts to be paid by such assignee or sublessee, the term of any
subletting and the financial information required by LESSOR to make the
determination required by the first sentence of this paragraph.
LESSOR shall have the right to terminate this Lease, provided that LESSOR shall
exercise such right within forty-five (45) days of its receipt of LESSEE'S
request for such consent and provided further, that LESSEE shall have the right
to withdraw its request for such consent within fifteen (15) days after its
receipt of such notice from LESSOR, in which event such notice of termination
shall become null and void. If this Lease shall be terminated pursuant to the
provisions of the immediately preceding sentence, such termination shall become
effective upon the last day of the calendar month next following XXXXXX'S
giving notice of termination. Upon XXXXXX'S vacating the Premises in
accordance with this Lease, LESSOR shall refund all unearned rent and other
payments made by LESSEE.
SECTION 32 - SUBORDINATE
This Lease shall be subject and subordinate to any and all mortgages, deeds
of trust and other instruments in the nature of a mortgage, now or at any
time hereafter, a lien or liens on the Property of which the Premises are a
part and the LESSEE
-11-
shall, when requested, promptly execute and deliver such written instruments
as shall be necessary to show the subordination of this Lease to said
mortgages, deeds of trust or other such instruments in the nature of
mortgage, and XXXXXX hereby appoints such holder as XXXXXX'S attorney-in-fact
to execute such subordination agreement upon default of LESSEE in complying
with such holder's request.
SECTION 33 - LESSOR'S ACCESS
The LESSOR or agents of the LESSOR may, at reasonable times (except in cases
of emergency), enter to view the Premises and may remove placards and signs
not approved and affixed as herein provided, and make repairs and alterations
as LESSOR should elect to do and may show the Premises to others, and at any
time within three (3) months prior to the expiration of the term, may affix
to any suitable part of the Premises a notice for letting or selling the
Premises or Property of which the Premises are a part and keep the same so
affixed without hindrance or molestation.
SECTION 34 - INDEMNIFICATION AND LIABILITY
The LESSEE shall save the LESSOR harmless from all loss and damage occasioned
by the use or escape of water or by the bursting of pipes, as well as from
any claim or damage resulting from neglect in not removing snow and ice from
the roof of the building or from the sidewalks bordering upon the Premises so
leased, or by any nuisance made or suffered on the Premises, unless such loss
is caused by the negligence of the LESSOR. The removal of snow and ice from
the sidewalks bordering upon the Premises shall be the LESSOR'S
responsibility.
SECTION 35 - LESSEE'S RISK
To the maximum extent this agreement may be made effective according to law,
XXXXXX agrees to use and occupy the Premises and to use such other portions
of the building as LESSEE is herein given the right to use at LESSEE'S own
risk; and LESSOR shall have no responsibility or liability for any loss of or
damage to LESSEE'S removable property. The provisions of this section shall
be applicable from and after the execution of this Lease and until the end of
the term of this Lease, and during such further period as LESSEE may use or
be in occupancy of any part of the Premises or of the building.
SECTION 36 - INJURY CAUSED BY THIRD PARTY
To the maximum extent this agreement may be made effective according to law,
XXXXXX agrees that LESSOR shall not be responsible or liable to LESSEE or to
those claiming by, through or under LESSEE, for any loss or damage that may be
occasioned by or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connecting with the Premises
or any part of the Property or otherwise.
SECTION 37 - LESSEE'S REMOVABLE PROPERTY
All articles of personal property and all business fixtures, machinery and
equipment and furniture owned or installed by LESSEE solely at its expense in
the Premises (LESSEE'S removable property) shall remain the property of the
LESSEE and may be removed by LESSEE at any time prior to the expiration of
this Lease, provided that LESSEE, at its expense, shall repair any damage to
the building caused by such removal or installation.
-12-
SECTION 38 - WAIVER
Failure on the part of LESSOR or LESSEE to complain of any action or
non-action on the part of the other, no matter how long the same may
continue, shall never be a waiver by XXXXXX or XXXXXX, respectively, of any
of the other's rights hereunder. Further, no waiver at any time of any of
the provisions hereof by LESSOR or LESSEE shall be construed as a waiver of
any of the other provisions hereof, and a waiver at any time of any of the
provisions shall not be construed as a waiver at any subsequent time of the
same provisions. The consent or approval of LESSOR or LESSEE to or of any
action by the other requiring such consent or approval shall not be construed
to waive or render unnecessary LESSOR'S or LESSEE'S consent or approval to or
of any subsequent similar act by the other.
No payment by XXXXXX, or acceptance by XXXXXX, of a lesser amount than shall
be due from LESSEE to LESSOR shall be treated otherwise than as a payment on
account. The acceptance by LESSOR of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and
LESSOR may accept such check without prejudice to any other rights or
remedies which LESSOR may have against XXXXXX.
SECTION 39 - FINANCIAL INFORMATION
It is hereby understood and agreed that XXXXXX will supply to the LESSOR, on
an annual basis, a copy of LESSEE'S audited financial statement within ninety
(90) days following XXXXXX'S fiscal year end. Any information obtained by
LESSOR pursuant to the provisions of this Paragraph shall be treated as
confidential, except that LESSOR may disclose such information to its lenders.
SECTION 40 - LATE PAYMENT
If LESSEE fails to pay any installment of Annual Rent and/or Additional Rent
on or before the first (lst) day of the calendar month when such installment
becomes due and Payable, LESSEE shall pay to LESSOR a late charge of five
percent (5%) of the amount of such installment, and, in addition, such
unpaid installment shall bear interest at the rate per annum which is four
percent (4%) greater than the "base lending rate" then in effect at The
Wall Street Journal, or the highest rate permitted by law, whichever may be
less; with it being the express intent of the parties that nothing herein
contained shall be construed or implemented in such manner as to allow LESSOR
to charge or receive interest in excess of the maximum legal rate then
allowed by law. Such late charge and interest shall constitute Additional
Rent hereunder due and payable with the next monthly installment of Annual
Rent due.
SECTION 41 - GUARANTY
One (1) Guaranty is attached hereto and made a part hereof.
-13-
SECTION 42 - WHEN LEASE BECOMES BINDING
The submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for the
Premises, and this document shall become effective and binding only upon the
execution thereof by both XXXXXX and XXXXXX, regardless of any written or
verbal representation of any agent, manager or other employee of LESSOR to
the contrary. All negotiations, consideration, representations and
understandings between LESSOR and LESSEE are incorporated herein and this
Lease expressly supersedes any proposals or other written documents relating
hereto. This Lease may be modified or altered only by written agreement
between XXXXXX and XXXXXX, and no act or omission of any employee or agent of
LESSOR shall alter, change or modify any of the provisions thereof.
IN WITNESS WHEREOF, the LESSOR and XXXXXX have hereunto set their hands and
common seals this 13th day of June, 1996.
XXXXXX Xxxxxx X. Xxxxxxx d/b/a
The Xxxxxxx Company
/S/ Xxxxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------
WITNESS By Xxxxxx X. Xxxxxxx
Its President
LESSEE Intellilink Corp.
/S/ [Illegible] /s/ Xxxx Xxxx
------------------------------ ------------------------------
WITNESS By
Its President
Duly Authorized
-14-
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF NORFOLK )
June 13, 1996.
Then personally appeared Xxxxxx X. Xxxxxxx to me known to be the individual
who acknowledged himself to be the President of The Xxxxxxx Company, XXXXXX, and
that he, as such, being authorized to do so, executed the foregoing instrument
and acknowledged the execution thereof to be his free act and deed for the
purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Norfolk
County, Braintree, Massachusetts, this 13th day of June, 1996.
/s/ Xxxxx X. Xxxxx
-------------------------------
Notary Public
My commission expires:
[SEAL]
STATE OF California )
--------------------
) SS.
COUNTY OF Santa Xxxxx )
-------------------
June 5, 1996.
------
Then personally appeared Xxxx Xxxx to me known to be the individual
who acknowledged himself to be the President of Intellilink Corp., XXXXXX,
and that he, as such, being authorized to do so, executed the foregoing
instrument and acknowledged the execution thereof to be his free act and deed
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Santa
Xxxxx County, San Jose, California, this 5th day of June, 1996.
[SEAL] /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Notary Public
My commission expires: April 21, 2000
-15-
GUARANTY
IN CONSIDERATION of the execution and delivery of the within Lease dated
the 13th day of June, 1996, by and between Xxxxxx X. Xxxxxxx d/b/a The
---- ---- --
Xxxxxxx Company, as Lessor, and Intellilink Corp., as Lessee, the
undersigned, Puma Technology, Inc., having its place of business
at_________________________________________________________, does hereby
guarantee, jointly and severally, to the Lessor, its successors and assigns,
in the event of a default by the Lessee in the within Lease, the payment of
rental reserved in the within Lease and the performance by the Lessee of its
covenants and agreements therein contained. This Guaranty and the limits set
forth herein, shall not limit the rights of the Lessor as contained in the
Lease in the event of any defaults by Lessee.
The undersigned hereby expressly waives notice of all defaults and
agrees that the waiver of any rights by the Lessor against the Lessee,
arising out of defaults by the Lessee or otherwise, shall not in any way
modify or release the obligations of the undersigned.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
executed at San Jose, CA, this 5th day of June, 1996.
Puma Technology, Inc.
/s/ [Illegible] /s/ Xxxx Xxxx
------------------------------ ------------------------------
Witness By
Its President & CEO
STATE OF California )
--------------------
) SS.
COUNTY OF Santa Xxxxx )
-------------------
June 5, 1996.
------
Then personally appeared Xxxx Xxxx to me known to be the individual who
acknowledged himself to be the President & CEO of Puma Technology, Inc., and
that he, as such, being authorized to do so, executed the foregoing instrument
and acknowledged the execution thereof to be his free act and deed for the
purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Santa
Xxxxx County, San Jose, California, this 5th day of June, 1996.
[SEAL] /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Notary Public
My commission expires: April 21, 2000
-16-
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by any
LESSEE, nor shall they be used for any purpose other than ingress and egress
to and from the Premises. LESSOR shall keep the sidewalks and curbs directly
in front of said Xxxxxxxx, clean and free from ice and snow.
2. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of the LESSOR. No
curtains, blinds, shades or screens shall be attached to, hung in, or used in
connection with, any window or door of the Premises, without the prior
written consent of the LESSOR. Any such awnings, projections, curtains,
blinds, shades, screens or other fixtures used by LESSEE (if given the prior
written consent of the LESSOR for such use), shall be of a quality, type,
design and color, attached in a manner approved by the LESSOR.
3. A building directory will be maintained in the main lobby of the
building at the expense of the LESSOR and the number of such listings shall
be at the sole discretion of the LESSOR. No sign, advertisement, notice or
other lettering shall be exhibited, inscribed, painted or affixed by any
LESSEE on any part of the outside or inside of the Premises or building,
without the prior written consent of the LESSOR. In the event of violation
of the foregoing by any LESSEE, LESSOR may remove same without any liability
and may charge the expense incurred by such removal to any LESSEES violating
this rule. Interior signs on doors and directory tablet shall be inscribed,
painted or affixed for each LESSEE, at LESSEE'S expense and shall be of a
size, color and style acceptable to the LESSOR.
4. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
building shall not be covered or obstructed by any LESSEE, nor shall any
bottles, parcels or other articles be placed on the windowsills.
5. No show cases or other articles shall be put in front of, or affixed to
any part of the exterior of the building, nor placed in the halls, corridors,
vestibules or fire escapes, without the prior written consent of the LESSOR.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuses of the fixtures shall be borne by the
LESSEE who, or whose servants, employees, agents, visitors, or licensees,
shall have caused same.
7. No LESSEE shall mark, paint, drill into, or in any way deface any part
of the Premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior
written consent of LESSOR, and as the LESSOR may direct. No LESSEE shall lay
linoleum, or other similar floor covering, so that the same shall come in
contact with the floor of the Premises, and, if linoleum or other similar
floor covering is desired to be used, an interlining of builder's deadening
felt shall be first affixed to the floor by a paste or other material,
soluble in water, the use of cement or other similar adhesive material being
expressly prohibited.
8. No bicycles, vehicles or animals of any kind shall be brought in or kept
about the Premises, and no cooking shall be done or permitted by LESSEE on
said Premises. No LESSEE shall cause or permit any unusual or objectionable
odors to be produced upon or permeate from the Premises.
-17-
9. No space in the building, except as provided in individual Leases, shall
be used for manufacturing, for the storage of merchandise, or for the sale of
merchandise, goods or property of any kind at auction.
10. No LESSEE shall make, or permit to be made, any unsettling or
disturbing noises or disturb or interfere with occupants of this or
neighboring buildings or premises' or those having business with them,
whether by the use of any musical instrument, radio, talking machine,
unmusical noise, whistling, singing, or in any other way. No LESSEE shall
throw anything out of doors, windows, skylights or down the passageways.
11. No LESSEE, nor any of LESSEE'S servants, employees, agents, visitors or
licensees, shall at any time bring or keep upon the Premises any flammable,
combustible or explosive fluid, chemical and substance.
12. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any LESSEE, nor shall any changes be made in existing
locks or the mechanism thereof. Each LESSEE must, upon the termination of
his tenancy, return to the LESSOR, all keys for stores, offices and toilet
rooms, either furnished to, or otherwise procured by, such LESSEE, and in the
event of the loss of any keys so furnished, such LESSEE shall pay the LESSOR
the cost thereof.
13. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which the LESSOR or its agents may determine from time to time. The LESSOR
reserves the right to inspect all freight to be brought into the building and
to exclude from the building, all freight which violates any of these Rules
and Regulations or the Lease of which these Rules and Regulations are a part.
14. No LESSEE shall occupy or permit any portion of the Premises leased to
him to be occupied for the possession, storage, manufacture or sale of
liquor, narcotics, or dope, or as a xxxxxx or manicure shop.
15. LESSOR shall have the right to prohibit any advertising by any LESSEE
which, in XXXXXX'S opinion, tends to impair the reputation of the building or
its desirability as a building for offices, and upon written notice from
LESSOR, LESSEE shall refrain from or discontinue such advertising. LESSEE
shall not use the name of the building or its owner in any advertising
without the express written consent of the LESSOR.
16. No LESSEE shall install or permit the installation or use of any
machines dispensing goods for sale, including without limitation, foods,
beverages, cigarettes or cigars. No food or beverage shall be carried in the
public halls and elevators of the buildings, except in closed containers.
17. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
18. Canvassing, soliciting and peddling in the building is prohibited and
each LESSEE shall cooperate to prevent the same by notifying the LESSOR.
LESSOR reserves the right to inspect any parcel or package being removed from
the building by XXXXXX, its employees, representatives and business invitees.
19. There shall not be used in any space or in the public halls of any
building, either by a LESSEE or by jobbers or others in the delivery of or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
-18-
LEASE AGREEMENT
This Lease Agreement dated this 18th day of March, 1997, by and between
Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx Company, as LESSOR, and Intellilink
Corporation, as LESSEE.
WITNESSETH:
1. PREMISES: Located within Nashua Office Park, Xxx Xxxx Xxxxxxxxx, Xxxxxx, XX
00000, LESSOR hereby leases to LESSEE, and LESSEE hires from LESSOR, the
area as indicated on Exhibit "A", as attached hereto and made a part
hereof, (the "Premises"), containing approximately 804 square feet of floor
area.
2. TERM: The term of this Lease Agreement shall be for eight
(8) months, commencing on the commencement date (defined below), and
terminating eight (8) months immediately thereafter, unless sooner
terminated as herein provided.
3. COMMENCEMENT DATE: The Commencement Date of the term of this Lease shall be
July 1, 1996.
Notwithstanding the foregoing, if LESSEE'S personnel shall occupy all or
any part of the Premises for the conduct of its business prior to the
Commencement Date as determined pursuant to the preceding paragraph, such
date of occupancy shall, for all intents and purposes of this Lease, be
the Commencement Date.
XXXXXX and XXXXXX agree to execute a Supplemental Agreement setting forth
the actual Occupancy and Term Dates, once the same have been established.
4. RENT: The LESSEE agrees to pay to LESSOR, without deduction or offset, rent
at the rate of FOUR THOUSAND TWO HUNDRED EIGHTY-EIGHT AND 00/100
($4,288.00) Dollars annually, payable in advance of the first day of each
month, in equal monthly installments of FIVE HUNDRED THIRTY-SIX AND 00/100
($536.00) Dollars, and at that rate for any fraction of a month at the
beginning of the term.
5. RENT COMMENCEMENT DATE: The payment of rental shall commence upon the
Commencement Date.
6. ADDTTTONAL RENT: In accordance with the following, LESSEE shall under the
terms, conditions and provisions hereinafter provided, pay to LESSOR as
additional rent, the following:
REAL ESTATE TAXES
1. If real estate taxes upon the land and buildings (the "Property"), of
which the Premises are a part, for any tax year exceed the real estate base
tax amount, whether by reason of an increase in either the tax rate or the
assessed valuation or both, LESSEE shall pay to LESSOR as additional rent
within ten (10) days after billing therefore, an amount equal to the
product of (a) such excess over the base taxes and (b) the following
fraction:
Square Footage of LESSEE'S Premises
--------------------------------------------
Aggregate of All the Rentable Square Footage
(whether or not rented or improved within the entire building)
Effective April 1, 1996, LESSEE shall pay monthly, at the time when Rent
payments are due hereunder, an amount equal to one-twelfth (1/12th) of the
total of annual real estate taxes (as estimated by XXXXXX) due from LESSEE to
LESSOR pursuant to this Subsection 6.1. Promptly after the determination by
any taxing
authority of real estate taxes upon the Building for each tax year, LESSOR
shall make a determination of the real estate taxes allocated to the
Premises, and if the aforesaid payments theretofore made for such tax year by
XXXXXX exceed the real estate taxes allocated to the Premises, such
overpayment shall be credited against the payments thereafter to be made by
LESSEE pursuant to this paragraph; and if the real estate taxes allocated to
the Premises for such tax year are greater than such payments theretofore
made on account for such tax year, LESSEE shall within ten (10) days of
written notice from the LESSOR make a suitable payment to LESSOR. Xerox
copies of tax bills submitted by XXXXXX with any such statement shall be
conclusive evidence of the amount of real estate taxes charged, assessed or
imposed. After the full assessment year, the initial monthly payment on
account of the real estate taxes allocated to the Premises shall be replaced
each year by a payment which is one-twelfth (1/12th) of the real estate taxes
allocated to the Premises for the immediately preceding tax year.
2. For the purposes of this clause, the term "Tax Year" shall mean the
twelve month period commencing on April 1st (or any month as it may apply
and/or change for the city, town or municipality tax period) immediately
preceding the Commencement Date and each twelve month period thereafter
during the term of this Lease.
3. It is agreed by both parties that the Base Year as it applies to taxes
for this Lease shall be April 1, 1996 - March 31, 1996.
4. If any abatement, refund or rebate shall be subsequently made for any
tax year, an appropriate adjustment shall be made in the amount payable from,
or paid by LESSEE to LESSOR on account of said real estate taxes, after
deducting the LESSOR'S expenses reasonably incurred in obtaining such
abatement, refund or rebate and provided there is no existing default of
LESSEE. An appropriate adjustment will be made to the base tax year as a
result of the foregoing.
5. If some method or type of taxation replaces the current method of
assessment of real estate taxes, or the type thereof, XXXXXX agrees that it
shall pay an equitable share of the same computation herein provided, to the
end that XXXXXX'S share thereof shall be to the maximum extent practicable,
comparable to that which LESSEE would bear under the foregoing provisions.
6. If a tax (other than a Federal or State net income tax) is assessed on
account of the rents or other charges payable by LESSEE to the LESSOR under
this Lease, XXXXXX agrees to pay the same within ten (10) days after billing
therefore, unless applicable law prohibits the payment of such tax by XXXXXX.
LESSOR shall have the same rights and remedies for non-payment by LESSEE of
any such amounts due on account of such taxes as XXXXXX has hereunder, for
the failure of LESSEE to pay rent as provided for in Section 11 of this Lease.
OPERATING EXPENSES
7. The following is a list of all such items of operating expenditures as
are within the meaning of "Operating Expenses" hereinafter set forth. If, in
any calendar year of the term of this Lease, LESSOR'S Operating Expenses
exceed Operating Expenses for the calendar year 1996, as it related to all
other charges with the exception of snow removal, which shall be an amount
representative of LESSOR'S actual snow removal costs over the previous five
(5) year period, LESSEE shall after notice as hereinafter provided, pay to
LESSOR as additional rent, an amount equal to the product of (a) such excess
multiplied by (b) a fraction involving the same numerator and denominator as
is provided for in Subsection 6.1 of this Lease.
8. The expression "Operating Expenses" as used herein, shall mean the
aggregate cost of expenses reasonably incurred by XXXXXX
with respect to the operation, administration, cleaning, repair, maintenance
and management of the Property, including without limitation, those items
enumerated hereinafter. If during any portion of the calendar year for which
Operating Expenses are being computed, less than 93% of the building's
rentable area was occupied by tenants, actual Operating Expenses incurred
shall be reasonably extrapolated by LESSOR on an item by item basis to the
estimated operating expenses that would have been incurred if the building
were at least 93% occupied for such year, and such extrapolated amounts shall
for the purposes hereof, be deemed to be the Operating Expenses for such year.
9. Effective January 1, 1997, XXXXXX shall pay monthly, at the time when Rent
payments are due hereunder, an amount equal to one-twelfth (1/12th) of the
total annual Operating Expenses (as estimated by XXXXXX) due from LESSEE to
LESSOR pursuant to Subsection 8.7 of this Lease. Promptly after the end of
each calendar year thereafter, LESSOR shall make a determination of LESSEE'S
share of such Operating Expenses; and if the aforesaid payments theretofore
made for such period by LESSEE exceed XXXXXX'S share, such overpayment shall
be credited against the payments thereafter to be made by LESSEE pursuant to
this Paragraph; and if LESSEE'S share is greater than such payments
theretofore made on account for such period, LESSEE shall within thirty (30)
days of written notice from the LESSOR make a suitable payment to LESSOR.
The initial monthly payment on account of the Operating Expense Charge shall be
replaced after XXXXXX'S determination of LESSEE'S share thereof for the
preceding accounting period by a payment which is one-twelfth (1/12th) of
LESSEE'S actual share thereof for the immediately preceding period, with
adjustments as appropriate where such preceding period is less than a full
twelve-month period. LESSOR shall have the same rights and remedies for
non-payment by LESSEE of any such amounts due on account of such Operating
Expenses as XXXXXX has hereunder, for the failure of LESSEE to pay rent as
provided for in Section 23 of this Lease.
10. Without limitation, Operating Expenses shall include:
a. All expenses incurred by LESSOR or LESSOR'S agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social
security, unemployment and similar taxes, worker's compensation insurance,
disability benefits, pensions, hospitalization, retirement plans and group
insurance, uniforms and working clothes and the cleaning thereof, and
expenses imposed on LESSOR or LESSOR'S agents pursuant to any collective
bargaining agreement for the services of employees of LESSOR or LESSOR'S
agents in connection with the operation, repair, maintenance, cleaning,
management and protection of the Property, and its mechanical systems
including, without limitation, day and night supervisors, property manager,
accountants, bookkeepers, janitors, carpenters, engineers, mechanics,
electricians and plumbers and personnel engaged in supervision of any of
the persons mentioned above; provided that, if any such employee is also
employed on other properties of LESSOR, such compensation shall be suitably
prorated among the Property and such other properties.
b. The cost of services, utilities, materials and supplies furnished
or used in the operation, repair, maintenance, cleaning, management and
protection of the Property.
c. The cost of replacements for tools and other similar equipment used
in the repair, maintenance, cleaning and protection of the Property;
provided that, in the case of any such equipment used jointly on other
properties of LESSOR, such costs shall be suitable prorated among the
Property and such other properties.
d. Where the Property is managed by LESSOR or an affiliate of LESSOR, a
sum equal to the amounts customarily charged by management firms in the
Nashua area for similar properties whether or not actually paid, or where
otherwise managed, the amounts accrued for management, together with
amounts accrued for legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in connection with
services rendered for securing or renewing leases and for matters not
related to the normal administration and operation of the building.
e. Premiums for insurance against damage or loss to the building from
such hazards as shall from time to time be generally required by
institutional mortgagors in the Nashua area for similar properties,
including, but not by way of limitation, insurance covering loss of rent
attributable to any such hazards, and public liability insurance.
f. Cost for electricity, water and sewer use charges, and other utilities
supplied to the Property and not paid for directly by XXXXXX.
g. Betterment assessments, provided the same are apportioned equally over
the longest period permitted by law.
h. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
i. Any capital expenditure made by XXXXXX during the term of this Lease,
the total cost of which is not properly includable in Operating Expenses
for the operating year in which it was made, shall nevertheless be included
in such Operating Expenses for the operating year in which it was made, and
Operating Expenses for each succeeding operating year shall include the
annual charge-off of such capital expenditure. Annual charge-off shall be
determined by dividing the original capital expenditure plus an interest
factor, reasonably determined by XXXXXX, as being the interest rate then
being charged for long-term mortgages by institutional lenders on "like"
properties within the locality in which the building is located, by the
number of years of useful life of the capital expenditure, and the useful
life shall be determined reasonably by XXXXXX in accordance with generally
accepted accounting principles and practices in effect at the time of
making such expenditure.
7. ELECTRICAL: LESSOR shall purchase and receive electric current for the
Premises directly from the public utility company serving the building.
LESSOR at LESSEE'S expense, shall purchase and install all lamps, tubes,
bulbs, starters and ballasts.
Section 7 of this Lease Agreement shall apply until such time as LESSOR
separately meters LESSEE'S Premises. Thereupon, LESSEE shall be
responsible to purchase its own light and plug electricity.
8. UTILITIES: The LESSOR shall provide all shall pay for all LESSEE'S
water and sewer use charges and reasonable heating and air-conditioning
during the normal heating and cooling season between the hours of 8:00
a.m. and 6:00 p.m. during normal business days.
9. NOTICES: Any notice from the LESSOR to the LESSEE relating to the
Premises or to the occupancy thereof, shall be deemed duly served if
addressed to the LESSEE and sent certified or registered mail to Nashua
Office Park, Xxx Xxxx Xxxxxxxxx, Xxxxxx, XX 00000.
Any notice from the LESSEE to the LESSOR relating to the Premises or to
the occupancy thereof, shall be deemed duly served if addressed to the
LESSOR and sent certified or regisered mail to Braintree Hill Office Park,
00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000.
10. USE: LESSEE shall use the Premises only for the purpose of storage space.
11. LATE PAYMENT: If LESSEE fails to pay any installment of Annual Rent and/or
Additional Rent on or before the first (lst) day of the calendar month when
such installment becomes due and payable, LESSEE shall pay to LESSOR a late
charge of five percent (5%) of the amount of such installment, and, in
addition, such unpaid installment shall bear interest at the rate per annum
which is four percent (4%) greater than the "base lending rate" then in
effect at The Wall Street Journal, or the highest rate permitted by law
whichever may be less; with it being the express intent of the parties that
nothing herein contained shall be construed or implemented in such manner
of the maximum legal rate then allowed by law. Such late charge and
interest shall constitute Additional Rent hereunder due and payable with
the next monthly installment of Annual Rent due.
12. FINANCIAL INFORMATION: It is hereby understood and agreed that XXXXXX will
supply to the LESSOR, on an annual basis, a copy of LESSEE'S audited
financial statement within ninety (90) days following XXXXXX'S fiscal year
end. Any information obtained by LESSOR pursuant to the provisions of
this Paragraph shall be treated as confidential, except that LESSOR may
disclose such information to its lenders.
13. CONDITION OF PREMISES: LESSEE acknowledges that it has examined and
inspected the Premises and is familiar with the physical condition thereof.
LESSEE further acknowledges (1) that XXXXXX has not made and does not
hereby make any representations regarding the physical condition of the
Premises and (2) that there are no warranties, either expressed or implied,
regarding the condition of the Premises. Any such warranties which may
exist, are hereby expressly released and waived. Accordingly, XXXXXX
hereby agrees to accept the Premises in their "as is" condition.
14. INSURANCE: XXXXXX agrees to save XXXXXX and indemnify LESSOR against any
and all injury, loss, damage or claims for injury, loss or damage, of
whatever nature, as a result of XXXXXX'S use of said space. At the
execution of this Agreement, LESSEE must produce evidence of Liability
Insurance prior to its entering the Premises with minimum coverage of ONE
MILLION AND 00/100 ($1,000,000.00) Dollars, on account of bodily injury to
or death of one person, and ONE MILLION AND 00/100 ($1,000,000.00) Dollars,
on account of bodily injury to or death of more than one person as a result
of any one accident or disaster, and with ONE MILLION AND 00/100
($1,000,000.00) Dollars minimum coverage for property damage in any
accident and to deposit said policy or policies (or certificates thereof)
with the LESSOR within thirty (30) days of any use or occupancy of the
Premises.
15. GUARANTY: One (1) Corporate Guaranty is attached hereto and made a part
hereof.
16. RULES AND REGULATIONS: XXXXXX will observe and comply with the Rules and
Regulations as attached hereto and made a part hereof, including
revisions and additions as the LESSOR may from time to time institute.
17. The submission of this document is for examination and negotiation does
not constitute an offer, and this document shall become effective and
binding only upon the execution thereof by both LESSOR and XXXXXX,
regardless of any written
or verbal representation of any agent, manager or other employee of XXXXXX
to the contrary. All negotiations, consideration, representations and
understandings between LESSOR and LESSEE are incorporated herein and this
Lease Agreement expressly supersedes any proposals or other written
documents relating hereto. This Lease Agreement may be modified or altered
only be written agreement between LESSOR and LESSEE, and no act or omission
of any employee or agent of LESSOR shall alter, change or modify any of the
provisions thereof.
IN WITNESS WHEREOF, XXXXXX and XXXXXX have hereunto set their hands and
common seals this 18th day of March, 1997.
LESSOR: Xxxxxx X. Xxxxxxx d/b/a
The Xxxxxxx Company
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxx
----------------------------- ------------------------------
WITNESS By Xxxxxx X. Xxxxxxx
Its President
LESSEE: Intellink Corporation
/s/ X. Xxxxx Xxxxx
----------------------------- ------------------------------
WITNESS By
Its Sr. VP, CFO
Duly Authorized
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by any
LESSEE, nor shall they be used for any purpose other than ingress and egress
to and from the Premises. LESSOR shall keep the sidewalks and curbs directly
in front of said Xxxxxxxx, clean and free from ice and snow.
2. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of the LESSOR. No
curtains, blinds, shades or screens shall be attached to, hung in, or used in
connection with, any window or door of the Premises, without the prior
written consent of the LESSOR. Any such awnings, projections, curtains,
blinds, shades, screens or other fixtures used by LESSEE (if given the prior
written consent of the LESSOR for such use), shall be of a quality, type,
design and color, attached in a manner approved by the LESSOR.
3. A building directory will be maintained in the main lobby of the
building at the expense of the LESSOR and the number of such listings shall
be at the sole discretion of the LESSOR. No sign, advertisement, notice or
other lettering shall be exhibited, inscribed, painted or affixed by any
LESSEE on any part of the outside or inside of the Premises or building,
without the prior written consent of the LESSOR. In the event of violation of
the foregoing by any LESSEE, LESSOR may remove same without any liability and
may charge the expense incurred by such removal to any LESSEES violating this
rule. Interior signs on doors and directory tablet shall be inscribed,
painted or affixed for each LESSEE, at LESSEE'S expense and shall be of a
size, color and style acceptable to the LESSOR.
4. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
building shall not be covered or obstructed by any LESSEE, nor shall any
bottles, parcels or other articles be placed on the windowsills.
5. No show cases or other articles shall be put in front of, or affixed to
any part of the exterior of the building, nor placed in the halls, corridors,
vestibules or fire escapes, without the prior written consent of the LESSOR.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuses of the fixtures shall be borne by the
LESSEE who, or whose servants, employees, agents, visitors, or licensees,
shall have caused same.
7. No LESSEE shall mark, paint, drill into, or in any way deface any part of
the Premises or the building of which they form a part. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
LESSOR, and as the LESSOR may direct. No LESSEE shall lay linoleum, or other
similar floor covering, so that the same shall come in contact with the floor
of the Premises, and, if linoleum or other similar floor covering is desired
to be used, an interlining of builder's deadening felt shall be first affixed
to the floor by a paste or other material, soluble in water, the use of
cement or ther similar adhesive mateial being expressly prohibited.
8. No bicycles, vehicles or animals of any kind shall be
brought in or kept about the Premises, and no cooking shall be done or
permitted by XXXXXX on said Premises. No LESSEE shall cause or permit any
unusual or objectionable odors to be produced upon or permeate from the
Premises.
9. No space in the building, except as provided in individual Leases, shall
be used for manufacturing, for the storage of merchandise, or for the sale of
merchandise, goods or property of any kind at auction.
10. No LESSEE shall make, or permit to be made, any unsettling or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises' or those having business with them, whether by the use
of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. No LESSEE shall throw anything out
of doors, windows, skylights or down the passageways.
11. No LESSEE, nor any of LESSEE'S servants, employees, agents, visitors or
licensees, shall at any time bring or keep upon the Premises any flammable,
combustible or explosive fluid, chemical and substance.
12. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any LESSEE, nor shall any changes be made in existing
locks or the mechanism thereof. Each LESSEE must, upon the termination of
his tenancy, return to the LESSOR, all keys for stores, offices and toilet
rooms, either furnished to, or otherwise procured by, such LESSEE, and in the
event of the loss of any keys so furnished, such LESSEE shall pay the LESSOR
the cost thereof.
13. All removals, or the carrying in or out of any safes, freight, furniture
or bulky matter of any description must take place during the hours which the
LESSOR or its agents may determine from time to time. The LESSOR reserves
the right to inspect all freight to be brought into the building and to
exclude from the building, all freight which violates any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
14. No LESSEE shall occupy or permit any portion of the Premises leased to
him to be occupied for the possession, storage, manufacture or sale of
liquor, narcotics, or dope, or as a xxxxxx or manicure shop.
15. LESSOR shall have the right to prohibit any advertising by any LESSEE
which, in XXXXXX'S opinion, tends to impair the reputation of the building or
its desirability as a building for offices, and upon written notice from
LESSOR, LESSEE shall refrain from or discontinue such advertising. LESSEE
shall not use the name of the building or its owner in any advertising
without the express written consent of the LESSOR.
16. No LESSEE shall install or permit the installation or use of any
machines dispensing goods for sale, including without limitation, foods,
beverages, cigarettes or cigars. No food or beverage shall be carried in the
public halls and elevators of the buildings, except in closed containers.
17. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
18. Canvassing, soliciting and peddling in the building is prohibited and
each LESSEE shall cooperate to prevent the same by notifying the LESSOR.
LESSOR reserves the right to inspect any parcel or package being removed from
the building by XXXXXX, its employees, representatives and business invitees.
19. There shall not be used in any space or in the public halls of any
building, either by a LESSEE or by jobbers or others in the delivery of or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF NORFOLK )
_______________, 1997.
Then personally appeared Xxxxxx X. Xxxxxxx to me known to be the
individual who acknowledged himself to be the President of The Xxxxxxx
Company, XXXXXX, and that he, as such, being authorized to do so, executed
the foregoing instrument and acknowledged the execution thereof to be his
free act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Norfolk
County, Braintree, Massachusetts, this __ day of _______________, 1997.
--------------------------------
Notary Public
My commission expires:
STATE OF __________________ )
) SS.
COUNTY OF _________________ )
_______________, 1997.
Then personally appeared ______________________________ to me known to
be the individual who acknowledged himself to be the _______________________
of Intellilink Corporation, LESSEE, and that he, as such, being authorized to
do so, executed the foregoing instrument and acknowledged the execution
thereof to be his free act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at
______________ County, ______________, __________________, this _______day of
_____________________,1997.
--------------------------------
Notary Public
My commission expires:
EXHIBIT "A"
Floor Plan
[GRAPHIC OF FLOOR PLAN]
GUARANTY
IN CONSIDERATION of the execution and delivery of the within Lease dated
the ________ day of _______________, 19__, by and between Xxxxxx X. Xxxxxxx
d/b/a The Xxxxxxx Company, as LESSOR, and Intellilink Corporation, as LESSEE,
the undersigned, Puma Technology, Inc., having its place of business at
_______________________, does hereby guarantee, jointly and severally, to the
LESSOR, its successors and assigns, in the event of a default by the LESSEE
in the within Lease, the payment of rental reserved in the within Lease and
the performance by the LESSEE of its covenants and agreements therein
contained. This Guaranty and the limits set forth herein, shall not limit
the rights of the LESSOR as contained in the Lease in the event of any
defaults by XXXXXX.
The undersigned hereby expressly waives notice of all defaults and
agrees that the waiver of any rights by the LESSOR against the LESSEE,
arising out of defaults by the LESSEE or otherwise, shall not in any way
modify or release the obligations of the undersigned.
IN WITNESS WHEREOF, the undersigned has caused thIs Guaranty to be
executed at ___________________, this 18th day of March, 1997.
Puma Technology, Inc.
------------------------------------
/s/ Xxxxx Xxxxx /s/ X. Xxxxx Xxxxx
------------------------------- ------------------------------------
Witness By:
Its: Sr. VP, CFO
STATE OF ____________________ )
) SS.
COUNTY OF ___________________ )
_______________________, 19__.
Then personally appeared ___________________________ to me known to be
the individual who acknowledged himself to be the __________________ of Puma
Technology, Inc., and that he, as such, being authorized to do so, executed
the foregoing instrument and acknowledged the execution thereof to be his
free act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at _______
County,_________, _________________, this ________ day of ____________, 19__.
------------------------------------
Notary Public
My commission expires:
THE XXXXXXX COMPANY
STANDARD FORM OF COMMERICAL LEASE
SUBMISSION NOT AN OPTION
EMPLOYEES OR AGENTS OF LANDLORD HAVE NO AUTHORITY TO MAKE
OR AGREE TO MAKE A LEASE OR ANY OTHER AGREEMENT IN
CONNECTION HEREWITH. THE SUBMISSION OF THIS LEASE FOR
EXAMINATION AND NEGOTIATION DOES NOT CONSTITUTE AN OFFER TO
LEASE, A RESERVATION OF, OR OPTION FOR THE PREMISES AND SHALL
VEST NO RIGHT IN ANY PARTY, TENANT OR ANYONE CLAIMING UNDER
OR THROUGH TENANT SHALL HAVE THE RIGHTS TO THE PREMISES AS
SET FORTH AND THIS LEASE BECOME EFFECTIVE AS A LEASE
ONLY UPON EXECUTION, ACKNOWLEDGE AND DELIVERY
THEREOF BY LANDLORD AND TENANT, REGARDLESS OF ANY WRITTEN
OR VERBAL REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE
OF LANDLORD TO THE CONTRARY.
TABLE OF CONTENTS
SECTION PAGE
ARTICLE 1 SUMMARY OF BASIC LEASE PROVISIONS. . . . . . . . . . 2
SECTION 1.1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.2 BASIC DATA . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.3 ENUMERATION OF EXHIBITS . . . . . . . . . . . . . . 4
ARTICLE II DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS . . . 4
SECTION 2.1 LOCATION OF PREMISES . . . . . . . . . . . . . . . . 4
SECTION 2.2 APPURTENANT RIGHTS AND RESERVATIONS . . . . . . . . 4
ARTICLE III TERM OF LEASE: CONDITION OF PREMISES . . . . . . . . 5
SECTION 3.1 TERM OF LEASE. . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV RENT . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.1 RENT PAYMENTS. . . . . . . . . . . . . . . . . . . . 5
SECTION 4.2 REAL ESTATE TAX. . . . . . . . . . . . . . . . . . . 6
SECTION 4.3 TENANT'S SHARE OF OPERATING COSTS. . . . . . . . . . 8
ARTICLE V USE OF PREMISES. . . . . . . . . . . . . . . . . . . 10
SECTION 5.1 PERMITTED USE. . . . . . . . . . . . . . . . . . . . 10
SECTION 5.2 COMPLIAINCE WIIH LAWS. . . . . . . . . . . . . . . . 11
SECTION 5.3 INSURANCE RISKS. . . . . . . . . . . . . . . . . . . 11
SECTION 5.4 ELECTRICAL EQUIPMENT . . . . . . . . . . . . . . . . 12
SECTION 5.5 TENANT'S OPERATIONAL COVENANTS . . . . . . . . . . . 12
SECTION 5.6 SIGNS, BLINDS and DRAPES . . . . . . . . . . . . . . 13
SECTION 5.7 HAZARDOUS MATERIALS. . . . . . . . . . . . . . . . . 13
ARTICLE VI INSTALLATIONS, ALTERATIONS, AND ADDITIONS. . . . . . 14
SECTION 6.1 INSTALLATIONS, ALTERATIONS, AND ADDITIONS. . . . . . 14
XXXXXX VII ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . 15
SECTION 7.1 PROHIBITION. . . . . . . . . . . . . . . . . . . . . 15
SECTION 7.2 ACCEPTANCE OF RENT FROM TRANSFEREE . . . . . . . . . 17
ARTICLE VIII REPAIRS MAINTENANCE. . . . . . . . . . . . . . . . . 17
SECTION 8.1 TENANT OBLIGATIONS . . . . . . . . . . . . . . . . . 17
SECTION 8.2 LANDLORD OBLIGATIONS . . . . . . . . . . . . . . . . 17
ARTICLE IX SERVICES TO BE FURNISHED BY LANDLORD;
UTILITIES. . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.1 LANDLORD'S SERVICES. . . . . . . . . . . . . . . . . 18
SECTION 9.2 CAUSES BEYOND CONTROL OF THE LANDLORD. . . . . . . . 19
SECTION 9.3 SEPARATELY METERED UTILITIES . . . . . . . . . . . . 19
ARTICLE X INDEMNITY. . . . . . . . . . . . . . . . . . . . . . 19
SECTION 10(a) THE TENANT'S INDEMNITY . . . . . . . . . . . . . . . 19
SECTION 10(b) THE LANDLORD'S INDEMNITY . . . . . . . . . . . . . . 20
SECTION 10.2 THE TENANT'S RISK. . . . . . . . . . . . . . . . . . 20
SECTION 10.3 INJURY CAUSED BY THIRD PARTIES . . . . . . . . . . . 21
SECTION 10.4 SECURITY . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE XI INSURANCE. . . . . . . . . . . . . . . . . . . . . . 21
SECTION 11.1 INSURANCE OBLIGATIONS. . . . . . . . . . . . . . . . 21
SECTION 11.2 CONSTRUCTION PERIOD INSURANCE. . . . . . . . . . . . 21
SECTION 11.3 WAIVER OF SUBROGATION. . . . . . . . . . . . . . . . 22
ARTICLE XII CASUALTY . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 12.1 DEFINITION OF "SUBSTANTLAL DAMAGE" AND
"PARTIAL DAMAGE" . . . . . . . . . . . . . . . . . . 22
SECTION 12.2 PARTIAL DAMAGE TO THE BUILDING . . . . . . . . . . . 22
SECTION 12.3 SUBSTANTIAL DAMAGE TO THE BUILDING . . . . . . . . . 23
SECTION 12.4 ABATEMENT OF RENT. . . . . . . . . . . . . . . . . . 23
SECTION 12.5 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 23
ARTICLE XIII EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . 24
SECTION 13.1 RIGHTS OF TERMINATION FOR TAKING . . . . . . . . . . 24
SECTION 13.2 PAYMENT OF AWARD . . . . . . . . . . . . . . . . . . 25
SECTION 13.3 ABATEMENT OF RENT. . . . . . . . . . . . . . . . . . 25
SECTION 13.4 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 25
ARTICLE XIV TENANT'S DEFAULT . . . . . . . . . . . . . . . . . . 25
SECTION 14.1 TENANT'S DEFAULT . . . . . . . . . . . . . . . . . . 25
ARTICLE XV THE LANDLORD'S ACCESS TO PREMISES. . . . . . . . . . 30
SECTION 15.1 THE LANDLORD'S RIGHT OF ACCESS . . . . . . . . . . . 30
ARTICLE XVI LANDLORD'S MORTGAGES . . . . . . . . . . . . . . . . 30
SECTION 16.1 SUBORDINATION . . . . . . . . . . . . . . . . . . . 30
SECTION 16.2 MODIFICATIONS . . . . . . . . . . . . . . . . . . . 30
ARTICLE XVII MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . 30
SECTION 17.1 CAPTIONS. . . . . . . . . . . . . . . . . . . . . . 30
SECTION 17.2 NO ACCORD AND SATISFACTION . . . . . . . . . . . . 31
SECTION 17.3 CUMULATIVE REMEDIES . . . . . . . . . . . . . . . . 31
SECTION 17.4 LANDLORD'S RIGHT TO CURE. . . . . . . . . . . . . . 31
SECTION 17.5 BROKERAGE . . . . . . . . . . . . . . . . . . . . . 31
SECTION 17.6 HOLDOVER. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 17.7 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . 32
SECTION 17.8 CONSTRUCTION AND GRAMMATICAL USAGE. . . . . . . . . 32
SECTION 17.9 SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . 32
SECTION 17.10 LANDLORD'S ENFORCEMENT EXPENSES . . . . . . . . . . 33
SECTION 17.11 TENANT'S ENFORCEMENT EXPENSES . . . . . . . . . . . 33
SECTION 17.12 NO SURRENDER. . . . . . . . . . . . . . . . . . . . 34
SECTION 17.13 COVENANT OF QUIET ENJOYMENT . . . . . . . . . . . . 34
SECTION 17.14 NO PERSONAL LIABILITY OF THE LANDLORD . . . . . . . 34
SECTION 17.15 NOTICES . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 17.16 FINANCIAL INFORMATION . . . . . . . . . . . . . . . 34
SECTION 17.17 RULES AND REGULATIONS . . . . . . . . . . . . . . . 35
SECTION 17.18 RIGHT TO MOVE . . . . . . . . . . . . . . . . . . . 35
SECTION 17.19 TENANT'S RIGHT TO EXPAND. . . . . . . . . . . . . . 35
SECTION 17.20 TENANT'S OPTION TO EXPAND . . . . . . . . . . . . . 36
SECTION 17.21 WHEN LEASE BECOMES BINDING. . . . . . . . . . . . . 37
SECTION 17.22 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 38
SECTION 17.23 ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . 38
RULES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . . . . 38
EXHIBIT A: PLAN showing the Premises
EXHIBIT B: Description of Landlord's Work
EXHIBIT B-1: Construction
EXHIBIT C: Term Commencement Date Agreement
EXHIBIT D: Landlord's Waiver
LEASE
This instrument is an indenture of lease by and between Xxxxxx X. Xxxxxxx
d/b/a The Xxxxxxx Company ("Landlord") and Puma Technology, Inc., a Delaware
corporation ("Tenant").
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
SUMMARY OF BASIC LEASE PROVISIONS
1.1 INTRODUCTION
As further supplemented in the balance of this instrument and its
Exhibits, the following sets forth the basic terms of this Lease, and, where
appropriate, constitutes definitions of certain terms used in this Lease.
1.2 BASIC DATA
Date: May 23, 1997
Landlord: Xxxxxx X. Xxxxxxx d/b/a
The Xxxxxxx Company
Present Mailing Address
of Landlord: 00 Xxxxxxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Payment Address: P.O. Box 850168
Braintree, MA 02185-0168
Tenant: Puma Technology, Inc.
Mailing Address of
Tenant: 000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Premises: Suite Nos. 1104, 2200, 2201, 2202, 2203 and
2210 located on the first (1st) and second
(2nd) floors of Nashua Office Park, Xxx Xxxx
Xxxxxxxxx, Xxxxxx, XX 00000
-2-
Lease Term: Five (5) years (plus the partial calendar month
immediately following the Term Commencement Date
if the Term Commencement Date does not
fall on the first day of a month).
Term Commencement Date: June 1, 1997
Base Rent: For the first lease year through the second
lease year, at the rate of $177,304.00 per annum
($14,775.33 per month);
For the third lease year through the fourth
lease year, at the rate of $189,284.00 per
annum ($15,773.67 per month); and
For the fifth lease year, at the rate of
$195,273.96 per annum ($16,272.83 per month).
Rent Commencement Date: Shall commence on the Term Commencement Date.
Security Deposit: $14,775.33 of which $2,488.88 is on account.
Permitted Use: General Business Office, and for no other
purpose or purposes.
Tenant's Proportionate
Share: shall be based on the fraction:
Square Footage of TENANT's Premises
-----------------------------------------
Aggregate of All the Rentable Square Footage
(whether or not rented or improved within the entire Building)
Additional Rent: (i) Operating Expense Base: The Operating
Costs for the Building and Lot for Fiscal Year
ending December 1997.
(ii) Real Estate Tax Base: Real Estate Taxes
for the Building and Lot for the City of
Nashua Fiscal Year ending March 31 1998.
Tenant's Insurance
Requirements: Public Liability: ONE MILLION AND 00/100
($1,000,000.00) Dollars for injury to one
person, ONE MILLION AND 00/100 ($1,000,000.00)
Dollars for injury to more than one person,
per incident.
-3-
Property Damage: ONE MILLION AND 00/100
($1,000,000.00) Dollars per incident.
1.3 ENUMERATION OF EXHIBITS
Exhibit A: Plan showing the Premises.
Exhibit B: Description of Landlord's work.
Exhibit B-1: Work Letter
Exhibit C: Term Commencement Date Agreement
Exhibit D: Landlord's Waiver
ARTICLE II
DESCRIPTION OF PREMISES AND APPURTENANT
RIGHTS
2.1 LOCATION OF PREMISES
The Landlord hereby leases to Tenant, and Tenant hereby accepts from
Landlord, the premises (the "Premises") described as Suite Number 1104 on the
first (1st) floor and Suite Numbers 2200, 2201, 2202, 2203 and 2210 in
"Landlord's building (the "Building") located at Nashua Office Park, Xxx Xxxx
Xxxxxxxxx, Xxxxxx, XX 00000, consisting of approximately 11,980 square feet of
space as identified on Exhibit A. Nothing, in Exhibit A shall be treated as a
representation that the Premises or the Building, shall be precisely of the
area, dimensions, or shapes as shown, it being the intention of the parties
only to show diagrammatically, rather than precisely, on Exhibit A the layout
of the Premises and the Building.
2.2 APPURTENANT RIGHTS AND RESERVATIONS
Tenant shall have, as appurtenant to the Premises, rights to use in
common with others entitled thereto the common facilities included in the
Building or the land on which the Building is located (the "Lot"), including
common walkways, driveways, lobbies, hallways, ramps, stairways and elevators,
necessary for access to said Premises and lavatories nearest thereto. Such
rights shall always be subject to reasonable rules and regulations from time
to time established by Landlord by suitable notice, and to the right of
Landlord to designate and to change from time to time the areas and facilities
so to be used, provided that such changes do not unreasonably interfere with
the use of the Premises for the Permitted Use.
-4-
Not included in the Premises are the roof or ceiling, the floor and all
perimeter walls of the space identified in Exhibit A, except the inner
surfaces thereof and the perimeter doors and windows. The Landlord reserves
the right to install, use, maintain, repair and replace in the Premises (but
in such manner as not unreasonably to interfere with Tenant's use of the
Premises) utility lines, shafts, pipes, and the like, in, over and upon the
Premises, provided that the same are located above the dropped ceiling (or, if
there is no dropped ceiling, then within three (3) feet of the roof deck),
below the floor surfaces or tight against demising walls or columns. Landlord
agrees to repair any damage to the Premises caused by the installation of any
such items. Such utility lines, shafts, pipes and the like shall not be
deemed part of the Premises under this Lease. The Landlord also reserves the
right to alter or relocate any common facility and to change the lines of the
Lot.
ARITCLE III
TERM OF LEASE: CONDITION OF PREMISES
3.1 TERM OF LEASE
The term of this Lease shall be the period specified in Section 1.2
hereof as the "Lease Term" commencing upon the Term Commencement Date
specified in Section 1.2. Promptly upon the determination of the date
constituting the Term Commencement Date, the parties hereto shall enter into a
term commencement date agreement substantially in the form of Exhibit C
attached hereto and made a part hereof.
ARTICLE IV
RENT
4.1 RENT PAYMENTS
The Base Rent (at the rates specified in Section 1.2 hereof) and the
additional rent or other charges payable pursuant to this Lease (collectively
the "Rent") shall be payable by Tenant to Landlord at the Payment Address or
such other place as Landlord may from time to time designate by notice to
Tenant without any demand whatsoever except as otherwise specifically provided
in this Lease and without any counterclaim, offset or deduction whatsoever,
EXCEPT AS PROVIDED HEREIN.
(a) Commencing on the Rent Commencement Date, Base Rent and the monthly
installments of Tenant's Proportionate Share of the Taxes and Tenant's
Proportionate Share of Operating Expenses shall be payable in advance on the
first day of each and every calendar month during the term of this Lease. If
the Rent Commencement Date falls on a day other than the first day of a calendar
month, the first payment which Tenant shall make shall be made on the Rent
Commencement Date and shall be equal to a proportionate part of such monthly
Rent for the partial month from the Rent Commencement Date to the first day of
the succeeding calendar month, and the monthly Rent for such succeeding calendar
month. As used in this Lease, the term "lease year" shall mean any twelve (12)
month period commencing on the Term
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Commencement Date; provided, however, if the Term Commencement Date does not
fall on the first day of a month, then the term "lease year" shall mean any
twelve month period commencing on the first day of the month immediately
following the Term Commencement Date, in which event the first lease year
shall also include the partial month containing the Term Commencement Date.
(b) Base Rent and the monthly installments of Tenant's Proportionate
Share of the Taxes and Xxxxxx's Proportionate Share of Operating Expenses for
any partial month shall be paid by Tenant to Landlord at such rate on a pro
rata basis. Any other charges payable by Tenant on a monthly basis, as
hereinafter provided, shall likewise be prorated.
(c) Rent not paid when due shall bear interest at a rate (the "Lease
Interest Rate") equal to the lesser of (I) the so-called base rate of interest
charged from time to time by The First National Bank of Boston, N.A., plus TWO
percent (2%) per annum or (ii) the maximum legally permissible rate, from the
due date until paid.
(d) Rent for the first full month of the initial Term for which rent
is due shall be paid by Tenant upon the execution of this Lease.
4.2 REAL ESTATE TAX
(a) The term "Taxes" shall mean all taxes and assessments (including
without limitation, assessments for public improvements or benefits and water
and sewer use charges), and other charges or fees in the nature of taxes for
municipal services which at any time during or in respect of the Lease Term
may be assessed, levied, confirmed or imposed on or in respect of, or be a lien
upon, the Building and the Lot, or any part thereof, or any rent therefrom or
any estate, right, or interest therein, or any occupancy, use, or possession
of such property or any part thereof, and ad valorem taxes for any personal
property used in connection with the Building or Lot. Without limiting the
foregoing, Taxes shall also include any payments made by Landlord in lieu of
taxes. The Landlord agrees that Xxxxxx's share of any special assessment
shall be determined (whether or not Landlord avails itself of the privilege so
to do) as if Landlord had elected to pay the same in installments over the
longest period of time permitted by applicable law and Tenant shall be
responsible only for those installments (including interest accruing and
payable thereon) or parts of installment that are attributable to periods
within the Lease Term.
Should the STATE OF NEW HAMPSHIRE, or any political subdivision thereof,
or any other governmental authority having jurisdiction over the Building, (1)
impose a tax, assessment, charge or fee, which Landlord shall be required to
pay, by way of substitution for or as a supplement to such Taxes, or (2)
impose an income or franchise tax or a tax on rents in substitution for or as
a supplement to a tax levied against the Building or the Lot or any part
thereof and/or the personal property used in connection
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with the Building or the Lot or any part thereof, all such taxes, assessments,
fees or charges ("Substitute Taxes") shall be deemed to constitute Taxes
hereunder. Taxes shall also include, in the year paid, all fees and costs
incurred by Landlord in seeking to obtain a reduction of, or a limit on the
increase in, any Taxes, BUT ONLY TO THE EXTENT OF reduction or limitation
ACTUALLY obtained. Except as hereinabove provided with regard to Substitute
Taxes, Taxes shall not include any inheritance, estate, succession, transfer,
gift, franchise, net income or capital stock tax.
(b) The Tenant shall pay to Landlord, as additional rent, Xxxxxx's
Proportionate Share of the Taxes assessed against the Building and Lot which
exceeds Tenant's Real Estate Tax Base during any tax year (i.e., April 1 through
March 31) during the Lease Term.
Effective April 1, 1998, Tenant shall pay monthly, at the time when Rent
payments are due hereunder, an amount equal to one-twelfth (1/12th) of the
total of annual Taxes (as estimated by Xxxxxxxx) due from Tenant to Landlord
pursuant to this Article 4.2(b). Promptly after the determination by any
taxing authority of Taxes upon the Building and Lot for each tax year,
Landlord shall make a determination of the Taxes allocated to the Premises,
and if the aforesaid payments theretofore made for such tax year by Xxxxxx
exceed the Taxes allocated to the Premises, such overpayment shall be credited
against the payments thereafter to be made by Tenant pursuant to this
paragraph; and if the Taxes allocated to the Premises for such tax year are
greater than such payments theretofore made on account for such tax year,
Tenant shall within ten (10) days of written notice from the Landlord make a
suitable payment to Landlord. Xerox copies of tax bills submitted by Landlord
with any such statement shall be conclusive evidence of the amount of Taxes
charged, assessed or imposed. After the full assessment year, the initial
monthly payment on account of the Taxes allocated to the Premises shall be
replaced each year by a payment which is one-twelfth (1/12th) of the Taxes
allocated to the Premises for the immediately preceding tax year.
(c) If any Taxes, with respect to which Tenant shall have paid
Tenant's Proportionate Share, shall be adjusted to take into account any
abatement or refund, Tenant shall be entitled to a credit against rental
obligations hereunder, in the amount of Tenant's Proportionate Share of such
abatement or refund less Landlord's costs or expenses, including without
limitation appraiser's and attorneys' fees, of securing such abatement or
refund or, if the Lease Term has expired and Tenant has no outstanding
monetary obligations to Landlord, Landlord shall promptly pay such amount to
Tenant. The Tenant shall not apply for any real estate tax abatement without
the prior written consent of Landlord.
(d) Tenant shall pay or cause to be paid, prior to delinquency, any
and all taxes and assessments levied upon all trade fixtures, inventories and
other personal property placed in and upon the Premises by Xxxxxx.
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4.3 TENANT'S SHARE OF OPERATING COSTS
If, in any calendar year of the term of this Lease, Landlord's
Operating Costs exceed the Operating Expense Base, as it relates to all other
changes with the exception of snow removal, which shall be an amount
representative of Landlord's actual snow removal cost over the previous five
(5) year period. Tenant shall after notice as hereinafter provided, pay to
Landlord as additional rent, an amount equal to the product of (a) such
excess multiplied by (b) a fraction involving the same numerator and
denominator as is provided for in Article 1.2, namely Basic Data, of this
Lease.
Effective January 1, 1998, Tenant shall pay monthly, at the time
when Rent payments are due hereunder, an amount equal to one-twelfth (1/12th)
of the total annual Operating Costs (as estimated by Landlord) due from
Tenant to Landlord pursuant to Article 4.3 of this Lease. Promptly after the
end of each calendar year thereafter, Landlord shall make a determination of
Tenant's share of such Operating Costs; and if the aforesaid payments
theretofore made for such period by Tenant exceed Xxxxxx's share, such
overpayment shall be credited against the payments thereafter to be made by
Tenant pursuant to this Paragraph; and if Tenant's share is greater than such
payments theretofore made on account for such period, Tenant shall within
thirty (30) days of written notice from the Landlord make a suitable payment
to Landlord.
The initial monthly payment on account of the Operating Costs shall be
replaced after Xxxxxxxx's determination of Tenant's share thereof for the
preceding accounting period by a payment which is one-twelfth (1/12th) of
Tenant's actual share thereof for the immediately preceding period, with
adjustments as appropriate where such preceding period is less than a full
twelve-month period. Landlord shall have the same rights and remedies for
non-payment by Tenant of any such amounts due on account of such
Operating Costs as Landlord has hereunder, for the failure of Tenant
to pay rent as provided for in Article 14 of this Lease.
As used in this Lease, the term "Operating Costs" shall mean all
costs and expenses incurred by Landlord in connection with the operation,
insuring, repair, equipping, maintenance, replacement, management and
cleaning (collectively, "the Operation") of the Building, the Building
heating, ventilating, electrical, plumbing, and other systems and the Lot
(collectively, "the Property"), including, without limitation, the following:
(1) All expenses incurred by Landlord or Landlord's agents which
shall be directly related to employment of personnel, including amounts
incurred for wages, salaries and other compensation for services, payroll,
social security, unemployment and similar taxes, worker's compensation
insurance, disability benefits, pensions, hospitalization, retirement plans
and group insurance, uniforms and working clothes and the cleaning thereof,
and expenses imposed on Landlord or Landlord's agents pursuant to any
collective bargaining agreement for the services of employees of Landlord or
Landlord's agents in connection with the Operation of the Property, and its
mechanical systems including, without limitation, day and night supervisors,
property manager, accountants, bookkeepers, janitors, carpenters, engineers,
mechanics,
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electricians and plumbers and personnel engaged in supervision of any of the
persons mentioned above; provided that, if any such employee is also employed
on other properties of Landlord such compensation shall be suitably prorated
among the Property and such other properties;
(2) The cost of services, materials and supplies furnished or used
in the Operation of the Property, including, without limitation, the cost to
perform Landlord's obligations under Sections 8.2 and 9.1 of this Lease;
(3) The amounts paid to managing agents and for legal and other
professional fees relating to the Operation of the Property, but excluding
such fees paid in connection with (x) negotiations for or the enforcement of
leases; and (y) seeking abatements of Taxes; provided, however, that
management fees shall not exceed prevailing market rates;
(4) Insurance premiums;
(5) Costs for electricity, steam and other utilities required in
the Operation of the Property;
(6) Water and sewer use charges;
(7) The costs of snow-plowing and removal and landscaping;
(8) Amounts paid to independent contractors for services,
materials and supplies furnished for the Operation of the Property;
(9) All other expenses incurred in connection with the Operation
of the Property; and
(10) ONLY THOSE CAPITAL EXPENDITURES MADE TO REDUCE OPERATING
EXPENSES OR WHICH ARE FOR ENERGY CONSERVATION SHALL BE INCLUDED IN OPERATING
EXPENSES PURSUANT TO THIS SECTION.
NOTWITHSTANDING THE FOREGOING, OPERATING COSTS SHALL NOT, HOWEVER, INCLUDE:
(a) EXPENSES IN CONNECTION WITH THE SERVICES OR OTHER BENEFITS OF
A TYPE WHICH ARE NOT PROVIDED TO LESSEE BUT WHAT ARE PROVIDED TO ANOTHER
TENANT OR OCCUPANT.
(b) COSTS INCURRED DUE TO VIOLATION BY LESSOR OR ANY TENANT OF THE
TERMS AND CONDITIONS OF ANY LEASE.
(c) OVERHEAD AND PROFIT INCREMENT PAID TO SUBSIDIARIES OR
AFFILIATES OR LESSOR FOR SERVICES ON OR TO THE REAL PROPERTY TO THE EXTENT
ONLY THAT THE COST OF SUCH SERVICES EXCEEDS COMPETITIVE COSTS OF SUCH
SERVICES WERE THEY NOT SO RENDERED BY A SUBSIDIARY AFFILIATE.
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(d) XXXXXX'S GENERAL OVERHEAD, IF ANY, NOT DIRECTLY CONNECTED WITH
THE OPERATION AND MANAGEMENT OF THE BUILDING.
(e) ANY COMPENSATION PAID TO CLERKS, ATTENDANTS OR OTHER PERSONS
IN COMMERCIAL CONCESSIONS OPERATED BY LESSOR.
(f) ALL ITEMS AND SERVICES FOR WHICH LESSEE IS SEPARATELY CHARGED,
REIMBURSES LESSOR OR PAYS THIRD PERSONS.
(g) ANY FINES OR PENALTIES INCURRED DUE TO VIOLATIONS BY XXXXXX OF
ANY GOVERNMENTAL RULE OR AUTHORITY.
(h) ANY COSTS WHATSOEVER RELATED TO LESSOR'S EXPANSION OF THE
BUILDING OR CONSTRUCTION OF NEW IMPROVEMENTS ON THE LAND.
WITH A THIRTY (30) DAY PRIOR WRITTEN NOTICE TO XXXXXX, LESSEE SHALL HAVE THE
RIGHT TO AUDIT THE LESSOR'S RECORDS, AT LESSOR'S MAIN OFFICE DURING NORMAL
BUSINESS HOURS, AS THEY RELATE TO THE CHARGES AS CONTAINED UNDER SECTION 4.2,
NAMELY REAL ESTATE TAX AND SECTION 4.3, NAMELY TENANT'S SHARE OF OPERATING
COSTS. ANY ADJUSTMENT TO THE ORIGINAL BILLING AS A RESULT OF SUCH AUDIT,
SHALL BE MADE TO THE NEXT REGULAR RENT PAYMENT HEREUNDER. THIS RIGHT TO
AUDIT DOES NOT EXTEND LESSEE THE RIGHT TO WITHHOLD PAYMENT OF SUCH REAL
ESTATE TAXES OR OPERATING EXPENSES.
XXXXXX AGREES TO KEEP BOOKS AND RECORDS SHOWING OPERATING EXPENSES IN
ACCORDANCE WITH A SYSTEM OF ACCOUNTS AND ACCOUNTING PRACTICES WHICH ARE
CONSISTENTLY MAINTAINED ON A YEAR-TO-YEAR BASIS AND IN ACCORDANCE WITH
GENERALLY ACCEPTED ACCOUNTING PRACTICES. XXXXXX AGREES THAT ALL INFORMATION
GAINED FROM INSPECTIONS OR AUDITS OF SUCH BOOKS AND RECORDS CONDUCTED BY OR
ON BEHALF OF LESSEE SHALL BE CONFIDENTIAL AND SHALL NOT BE DISCLOSED OTHER
THAN TO CARRY OUT THE PURPOSES HEREOF, PROVIDED, HOWEVER, THAT LESSEE SHALL
BE PERMITTED TO DIVULGE SUCH INFORMATION IN CONNECTION WITH ANY
ADMINISTRATIVE OR JUDICIAL PROCEEDING IN WHICH LESSOR IS INVOLVED AND WHERE
LESSEE IS REQUIRED TO DIVULGE SUCH INFORMATION.
ARTICLE V
USE OF PREMISES
5.1 PERMITTED USE
Tenant agrees that the Premises shall be used and occupied by
Tenant only for the purposes specified as the Permitted Use thereof in
Section 1.2 of this Lease, and for no other purpose or purposes.
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The Tenant shall comply and shall cause its employees, agents, and
invitees to comply with such reasonable rules and regulations as Landlord
shall from time to time establish for the proper regulation of the Building
and the Lot, provided that Landlord gives Tenant reasonable advance notice
thereof and that such additional rules and regulations shall be of general
application to all the tenants in the Building, except where different
circumstances justify different treatment. SUCH RULES AND REGULATIONS SHALL
NOT CONFLICT WITH THE LEASE OR IMPOSE A GREATER BURDEN ON TENANT.
5.2 COMPLIANCE WITH LAWS
Xxxxxx agrees that no trade or occupation shall be conducted in the
Premises or use made thereof which will be unlawful, improper, or contrary to
any law, ordinance, by-law, code, rule, regulation or order applicable in the
municipality in which the Premises are located or which will disturb the
quiet enjoyment of the other tenants of the Building. Tenant shall obtain
any and all approvals, permits, licenses, variances and the like from
governmental or quasi-governmental authorities, including without limitation
any Architectural Access Board and Board of Fire Underwriters (collectively,
"Approvals") which are required for Tenant's use of the Premises, including,
without limitation, any which may be required for any construction work and
installations, alterations, or additions made by Tenant to, in, on, or about
the Premises; provided, however, that Tenant shall not seek or apply for any
Approvals without first having given Landlord a reasonable opportunity to
review any applications for Approvals and all materials and plans to be
submitted in connection therewith and obtaining Landlord's written consent.
In any event, Tenant shall be responsible for all costs, expenses, and fees
in connection with obtaining all Approvals. Tenant's inability to obtain or
delay in obtaining any such Approval shall in no event reduce, delay, or
terminate Tenant's rental, payment, and performance obligations hereunder.
Tenant shall, at its own cost and expense, (i) make all installations,
repairs, alterations, additions, or improvements to the Premises required by
any law, ordinance, by-law, code, rule, regulation or order of any
governmental or quasi-governmental authority DUE TO TENANT'S SPECIFIC USE OR
ALTERATIONS AS OPPOSED TO GENERAL OFFICE USE; (ii) keep the Premises equipped
with all required safety equipment and appliances; and (iii) comply with all
laws, ordinances, codes, rules, regulations, and orders and the requirements
of Landlord's and Xxxxxx's insurers applicable to the Premises, Building and
Lot. Tenant shall not place a load upon any floor in the Premises exceeding
the lesser of (a) the floor load per square foot of area which such floor was
designed to carry as certified by Landlord's architect and (b) the floor load
per square foot of area which is allowed by law. Landlord reserves the right
to prescribe the weight and position of all business machines and mechanical
equipment, including safes, which shall be placed so as to distribute the
weight.
5.3 INSURANCE RISKS
Tenant shall not permit any use of the Premises which will make
voidable or, unless Tenant pays the extra insurance premium attributable
thereto as provided below,
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increase the premiums for any insurance on the Building or on the contents of
said property or which shall be contrary to any law or regulation from time
to time established by the New England Fire Insurance Rating Association (or
any successor organization) or which shall require any alteration or addition
to the Building. Tenant shall, within thirty (30) days after written demand
therefor, reimburse Landlord and all other tenants for the costs of all extra
insurance premiums caused by Xxxxxx's use of the Premises. Any such amounts
shall be deemed to be additional rent hereunder.
5.4 ELECTRICAL EQUIPMENT
The Tenant shall not, without Xxxxxxxx's written consent in each
instance, connect to the electrical distribution system any fixtures,
appliances, or equipment which will operate individually or collectively at a
wattage in excess of the capacity of the electrical system serving the
Premises as the same may be reasonably determined by Landlord and Landlord
may audit Tenant's use of electric power to determine Tenant's compliance
herewith. If Landlord, in its sole discretion, permits such excess usage,
Tenant will pay for the cost of such excess power as additional rent,
together with the cost of installing any additional risers, meters, or other
facilities that may be required to furnish or measure such excess power to
the Premises.
5.5 TENANT'S OPERATIONAL COVENANTS
(a) Affirmative Covenants
In regard to the use and occupancy of the Premises, Tenant will at
its expense: (1) keep the inside and outside of all glass in the doors and
windows of the Premises reasonably clean AND FREE OF ANY OBSTRUCTIONS; (2)
UNLESS COVERED BY LANDLORD'S COMPREHENSIVE PUBLIC LIABILITY INSURANCE,
replace promptly any cracked or broken glass of the Premises PROVIDED SUCH
REPLACEMENT IS NECESSARY DUE TO THE NEGLIGENCE OF THE TENANT, ITS AGENTS,
CONTRACTORS OR INVITEES, with glass of like kind and quality; (3) maintain
the Premises in a clean, orderly and sanitary condition and free of insects,
rodents, vermin and other pests; (4) keep any garbage, trash, rubbish or
other refuse in vermin-proof containers within the interior of the Premises
until removed (and Tenant shall cause the Premises to be inspected and
exterminated on a regular basis by a reputable, licensed exterminator and
shall provide Landlord, on request, with a copy of Xxxxxx's contract for such
services); (5) keep all mechanical apparatus OWNED BY TENANT FREE of
vibration and loud noise which may be transmitted beyond the Premises; and
(6) comply with and observe all rules and regulations reasonably established
by Landlord from time to time.
(b) Negative Covenants
In regard to the use and occupancy of the Premises and common
areas, Tenant will not: (7) place or maintain any trash, refuse or other
articles in any vestibule or entry of the Premises, on the sidewalks or
corridors adjacent thereto or elsewhere on the exterior of the Premises so as
to obstruct any corridor, stairway, sidewalk or
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common area; (8) permit undue accumulations of or burn garbage, trash,
rubbish or other refuse within or without the Premises; (9) cause or permit
objectionable odors to emanate or to be dispelled from the Premises; or (10)
commit, or suffer to be committed, any waste upon the Premises or any public
or private nuisance or other act or thing which may disturb the quiet
enjoyment of any other tenant or occupant of the Building, or use or permit
the use of any portion of the Premises for any unlawful purpose; (11) park
trucks or other vehicles in a manner that will block access to the loading
docks serving the Building.
5.6 SIGNS, BLINDS and DRAPES
Tenant shall not place any signs on the exterior of the Building or
on or in any window, public corridor or door visible from the exterior of the
Premises. No drapes or blinds may be put on or in any window nor may any
Building drapes or blinds be removed by Tenant.
5.7 HAZARDOUS MATERIALS
WITH THE EXCEPTION OF ORDINARY OFFICE SUPPLIES, the Tenant shall not
use, handle, store or dispose of any oil, hazardous or toxic substances,
materials or wastes (collectively "Hazardous Materials") in, under, on or
about the Property except for such storage and use consented to by Landlord
in advance which consent may be withheld in Landlord's sole and absolute
discretion. Any Hazardous Materials in the Premises, and all containers
therefor, shall be used, kept, stored and disposed of in conformity with all
applicable laws, ordinances, codes, rules, regulations and orders of
governmental authorities. If the transportation, storage, use or disposal of
Hazardous Materials anywhere on the Property in connection with Tenant's use
of the Premises results in (1) contamination of the soil or surface or ground
water or (2) loss or damage to person(s) or property, then Tenant agrees (i)
to notify Landlord immediately of any contamination, claim of contamination,
loss or damage, (ii) after consultation with and approval by Landlord, to
clean up all contamination in full compliance with all applicable statutes,
regulations and standards, and (iii) to indemnify, defend and hold Landlord
harmless from and against any claims, suits, causes of action, costs and
fees, including, without limitation, attorneys' fees, arising from or
connected with any such contamination, claim of contamination, loss or
damage. This provision shall survive the termination of this Lease. No
consent or approval of Landlord shall in any way be construed as imposing
upon Landlord any liability for the means, methods, or manner of removal,
containment or other compliance with applicable law for and with respect to
the foregoing. The terms of this Section 5.7 shall apply to any
transportation, storage, use or disposal of Hazardous Materials irrespective
of whether Tenant has obtained Landlord's consent therefor but nothing in
this Lease shall limit or otherwise modify the requirement of obtaining
Landlord's prior consent as set forth in the first sentence of this Section
5.7. LANDLORD REPRESENTS AND WARRANTS TO THE BEST OF ITS KNOWLEDGE THAT AS OF
THE RENT COMMENCEMENT DATE THERE SHALL BE NO HAZARDOUS MATERIALS LOCATED ON,
AT, IN OR UNDER THE PROPERTY AND THAT LANDLORD HAS RECEIVED
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NO NOTICE OF ANY RELEASE OR THREAT OF RELEASE OF ANY OF ANY HAZARDOUS
MATERIALS ON, AT, IN OR UNDER THE PROPERTY OR NEAR THE PROPERTY. LANDLORD
SHALL INDEMNIFY AND HOLD TENANT HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS,
LOSS, COST, EXPENSE OR DAMAGE RESULTING FROM ANY BREACH BY LANDLORD OF THE
FOREGOING REPRESENTATION AND WARRANTY.
ARTICLE VI
INSTALLATIONS, ALTERATIONS, AND ADDITIONS
6.1 INSTALLATIONS, ALTERNATIONS, AND ADDITIONS
Tenant shall not make structural installations, alterations, or
additions to the Premises, but may make nonstructural installations,
alterations or additions provided that Landlord consents thereto in advance
and in writing. TENANT SHALL HAVE THE RIGHT TO MAKE NONSTRUCTURAL ALTERATIONS
COSTING IN EXCESS OF $15,000.00 WITHOUT FIRST OBTAINING LANDLORD'S PRIOR
WRITTEN CONSENT. In any event, Tenant shall not demolish the existing office
space in the Premises, without the prior written approval of Landlord, which
approval may NOT BE UNREASONABLY withheld OR DELAYED PROVIDED, HOWEVER, THAT
TENANT CONFORMS TO THE STANDARD TYPICAL CONSTRUCTION CRITERIA ESTABLISHED BY
LANDLORD FOR THE BUILDING. In no event shall Landlord's approval of any
proposed installations, alterations, or additions to the Premises, whether in
connection with Tenant's initial leasehold improvements or otherwise,
constitute a representation by Landlord that such work complies with the
requirements of any applicable law or regulation, including without
limitation the requirements of the ADA. Any installations, alterations, or
additions made by Tenant shall be at Tenant's sole cost and expense and shall
be done in a good and workmanlike manner using materials of a quality at
least equivalent to that of the existing improvements and in compliance with
the requirements of Section 5.2; and prior to Tenant's use of the Premises,
after the performance of any such work, Tenant shall procure certificates of
occupancy and any other required certificates. Tenant shall not suffer or
permit any mechanics' or similar liens to be placed upon the Premises for
labor or materials furnished to Tenant or claimed to have been furnished to
Tenant in connection with work of any character performed or claimed to have
been performed at the direction of Tenant, and shall cause any such lien to
be released of record forthwith without cost to Landlord. Any and all Tenant
installations, alterations, and additions, in or to the Premises, that are
intended to become or do become part of the real estate or fixtures therein
(other than trade fixtures that are readily removable without damage to the
Premises) including but not limited to equipment, appliances, and machinery,
shall be fully paid for and free and clear of any and all chattel mortgages,
conditional bills of sale, security interests, or any liens or encumbrances
of any kind or nature. At all times when any installation, alteration, or
addition by Tenant is in progress, there shall be maintained, at Tenant's
cost and expense, insurance meeting the requirements of Section 11.3 below
and certificates of insurance evidencing such coverage shall be furnished to
Landlord prior to the commencement of any such work. Any installations,
alterations or additions made by Tenant to the Premises, including, without
limitation, all utility systems,
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fixtures, machinery, equipment, and appliances installed in connection
therewith, other than movable personal property, shall become the property of
Landlord at the termination or expiration of this Lease, unless Landlord
requires, at the time of Landlord's approval of such work, Tenant to remove
any of the same, IF NOT TYPICAL OFFICE ALTERATIONS, in which event Tenant
shall, at its own cost and expense, comply with such requirement and repair
any damage caused by such removal.
It is further agreed and understood that at the termination of this
Lease or any extensions thereof, Tenant shall leave the Premises broom clean
and in good repair, order and condition, ORDINARY WEAR AND TEAR EXCEPTED
ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 PROHIBITION
Notwithstanding any other provision of this Lease, Tenant shall not,
directly or indirectly, assign, mortgage, pledge or otherwise transfer,
voluntarily or involuntarily, this Lease or any interest herein or sublet
(which term without limitation, shall include granting of concessions,
licenses, and the like) or allow any other person or entity to occupy the
whole or any part of the Premises, without, in each instance, having first
received the express consent of Landlord, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED. Any assignment of this Lease or subletting
of the whole or any part of the Premises (other than as permitted to a
subsidiary or a controlling corporation as set forth below) by Tenant without
Landlord's express consent shall be invalid, void and of no force or effect.
This prohibition includes, without limitation, any assignment, subletting, or
other transfer which would occur by operation of law, merger, consolidation,
reorganization, acquisition, transfer, or other change of Tenant's corporate
or proprietary structure, including a change in the partners of any
partnership, and the sale, pledge, or other transfer of any of the issued or
outstanding capital stock of any corporate Tenant (unless such stock is
publicly traded on a recognized security exchange or over-the-counter
market). Any request for consent under this Section 7.1 shall set forth, in
detail reasonably satisfactory to Landlord, the identification of the
proposed assignee or sublessee, its financial condition and the terms on
which the proposed assignment or subletting is to be made, including, without
limitation, the rent or any other consideration to be paid in respect thereto
and such request shall be treated as Tenant's warranty in respect of the
information submitted therewith.
In any case where Xxxxxxxx shall consent to any assignment or
subletting, Tenant originally named herein shall remain fully liable for
Tenant obligations hereunder, including, without limitation, the obligation
to pay the rent and other amounts provided under this Lease and such
liability shall not be affected in any way by any future amendment,
modification, or extension of this Lease (BUT SHALL NOT BE INCREASED BY SUCH
FUTURE AMENDMENTS) or any further assignment, other transfer, or subleasing
and Tenant hereby irrevocably consents to any and all such transactions.
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Xxxxxx agrees to pay to Landlord, within fifteen (15) days of billing
therefor, all reasonable legal and other out-of-pocket expenses UP TO
$1,000.00 incurred by Landlord in connection with any request to assign or
sublet. It shall be a condition of the validity of any permitted assignment
or subletting that the assignee or sublessee agree directly with Landlord, in
form REASONABLY satisfactory to Landlord, to be bound by all Tenant
obligations hereunder, including, without limitation, the obligation to pay
all Rent and other amounts provided for under this Lease and the covenant
against further assignment or other transfer or subletting.
Without limiting Landlord's discretion to grant or withhold its consent
to any proposed assignment or subletting, if Tenant requests Landlord's
consent to assign this Lease or sublet all or any portion of the Premises,
Landlord shall have the option, exercisable by notice to Tenant given within
thirty (30) days after Landlord's receipt of such request, to terminate this
Lease as of the date specified in such notice which shall be not less than
thirty (30) nor more than sixty (60) days after the date of such notice for
the entire Premises, in the case of an assignment or subletting of the whole,
and for the portion of the Premises, in the case of a subletting of a
portion. In the event of termination in respect of a portion of the
Premises, the portion so eliminated shall be delivered to Landlord on the date
specified in good order and condition in the manner provided in Section 8.1
at the end of the Lease Term and thereafter, to the extent necessary in
Landlord's judgment, Landlord, at Xxxxxx's sole cost and expense, may have
access to and may make modification to the Premises so as to make such
portion a self-contained rental unit with access to common areas, elevators
and the like. Rent and Xxxxxx's Proportionate Share shall be adjusted
according to the extent of the Premises for which this Lease is terminated.
Without limitation of the rights of Landlord hereunder in respect thereto, if
there is any assignment of this Lease by Tenant for consideration or a
subletting of the whole of the Premises by Xxxxxx at a rent which exceeds the
rent payable hereunder by Xxxxxx, or if there is a subletting of a portion of
the Premises by Xxxxxx at a rent in excess of the subleased portion's PRO
RATA share of the Rent payable hereunder by Xxxxxx, then Tenant shall pay to
Landlord, as additional rent, forthwith upon Xxxxxx's receipt of the
consideration (or the cash equivalent thereof) therefor, in the case of an
assignment, and in the case of a subletting, FIFTY PERCENT (50%) of the
amount of any such excess rent. The provisions of this paragraph shall apply
to each and every assignment of this Lease and each and every subletting of
all or a portion of the Premises, whether to a subsidiary or controlling
corporation of Tenant or any other person, firm or entity, in each case on
the terms and conditions set forth herein. For the purposes of this Section
7.1, the term "rent" shall mean all rent, additional rent or other payments
and/or consideration payable by one party to another for the use and
occupancy of all or a portion of the Premises.
The requirement of Landlord's prior consent and Landlord's recapture
right shall not, however, be applicable to an assignment of this Lease by
Tenant to a subsidiary (for such period of time as at least 50% of the stock
of such subsidiary continues to be owned by Tenant, it being agreed that the
subsequent sale or transfer of the stock of such subsidiary (either
individually or in the aggregate) resulting in Tenant owning less than 50% of
the stock of such subsidiary shall be treated as if such sale or transfer
were, for all purposes, an assignment of this Lease governed by the provisions
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of this Section 7.1) or controlling corporation, provided (and it shall be a
condition of the validity of any such assignment) that such subsidiary or
controlling corporation agree directly with Landlord to be bound by all of
the obligations of Tenant hereunder, including, without limitation, the
obligation to pay the rent and other amounts provided for under this Lease,
the covenant to use the Premises only for the purposes specifically permitted
under this Lease and the covenant against further assignment; but such
assignment shall not relieve Tenant herein named of any of its obligations
hereunder, and Xxxxxx shall remain fully liable therefor. Further,
Xxxxxxxx's consent shall not be required for an assignment of this Lease in
connection with a transfer of substantially all operations of Tenant to
another entity by way of merger, consolidation or sale of substantially all
of the stock therein or assets thereof, provided that at the time of such
assignment such entity has a net worth at least equal to that of Tenant or
any guarantor on the date hereof or on the date of such assignment, whichever
is greater.
7.2 ACCEPTANCE OF RENT FROM TRANSFEREE
The acceptance by Landlord of the payment of Rent, additional rent,
or other charges following assignment, subletting, or other transfer
prohibited by this Article VII shall not be deemed to be a consent by
Landlord to any such assignment, subletting, or other transfer, nor shall the
same constitute a waiver of any right or remedy of Landlord.
ARTICLE VIII
REPAIRS AND MAINTENANCE
8.1 TENANT OBLIGATIONS
From and after the date that possession of the Premises is
delivered to Tenant and until the end of the Lease Term, Tenant shall keep
the Premises and every part thereof in good order, condition, and repair,
reasonable wear and tear and damage by casualty, as a result of condemnation,
or as a result of the failure of Landlord to provide services required to be
provided hereunder only excepted; and shall return the Premises to Landlord
at the expiration or earlier termination of the Lease Term in such condition.
8.2 LANDLORD OBLIGATIONS
Except as may be provided in Articles XII and XIII, Landlord agrees
to keep in good order, condition, and repair the structural components and
the roof of the Building, the common utility and Building systems, the common
hallways, entrances, restrooms and elevators, the paved surface of the
parking areas serving the Building and the sprinkler system to the extent the
same is located outside the Premises (Tenant being responsible for all
portions of the sprinkler system located within the Premises), except that
Tenant shall reimburse Landlord, as additional rent hereunder, for the costs
of maintaining, repairing, or otherwise correcting any condition caused by an
act, omission, neglect or default under this Lease of Tenant or any employee,
agent, or
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contractor of Tenant or any other party for whose conduct Tenant is
responsible UNLESS COVERED BY LANDLORD'S COMPREHENSIVE PUBLIC LIABILITY
INSURANCE. Without limitation, Landlord shall not be responsible to make any
improvements or repairs other than as expressly provided in this Section 8.2,
and Landlord shall not be liable for any failure to make such repairs unless
Tenant has given notice to Landlord of the need to make such repairs and
Landlord has failed to commence to make such repairs within a reasonable time
thereafter.
ARTICLE IX
SERVICES TO BE FURNISHED BY LANDLORD;
UTILITIES
9.1 LANDLORD'S SERVICES
The Landlord shall provide all Tenant's water and sewer use and
reasonable heating and air-conditioning during the normal heating and cooling
season between the hours of 8:00 A.M. and 6:00 P.M., during normal business
days. The normal cooling season shall be from April 15th to October 1st of
any given year. Normal business days are all days except Saturday, Sunday,
New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day,
Christmas Day (and the following day when any such day occurs on Sunday) and
such other days as Landlord presently or in the future recognizes as holidays
for Landlord's general office staff. In addition, Xxxxxxxx agrees to furnish
elevator service and to light passageways and stairways during business
hours, and to furnish such cleaning service as is customary in similar
buildings in said city or town, all subject to interruption due to any
accident, to the making of repairs, alterations or improvements, to labor
difficulties, to trouble in obtaining fuel, electricity, service or supplies
from the sources from which they are usually obtained for said building, or
to causes beyond Landlord's control. If Tenant shall require
air-conditioning, heating or ventilation outside the hours and days above
specified, Landlord shall furnish such service and Tenant shall pay therefor
such charges as may from time to time be in effect. In the event Tenant
introduces into the Premises personnel or equipment which overloads the
capacity of the building system or in any other way interferes with the
system's ability to perform adequately its proper functions, supplementary
systems may if and as needed at Landlord's option, be provided by Landlord,
at Tenant's expense.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF
DURING THE LEASE TERM THERE IS A LOSS OR INTERFERENCE WITH A BUILDING SYSTEM
AND SUCH LOSS OR INTERFERENCE SHALL MATERIALLY INTERFERE WITH TENANT'S USE OF
THE PREMISES AS CONTEMPLATED BY THIS LEASE, LANDLORD SHALL PROMPTLY RESTORE
SAID BUILDING SYSTEM TO ENABLE TENANT'S USE OF THE PREMISES. IN THE EVENT
THE BUILDING SYSTEM IS NOT RESTORED WITHIN FIVE (5) DAYS FROM THE DATE OF
SUCH LOSS OR INTERFERENCE, A JUST PROPORTION OF THE BASE RENT AND ADDITIONAL
RENT PAYABLE BY TENANT SHALL XXXXX, COMMENCING ON THE DATE OF SUCH
INTERRUPTION OR LOSS, BUT SUCH ABATEMENT OR REDUCTION SHALL END WHEN LANDLORD
SHALL HAVE SUBSTANTIALLY RESTORED THE BUILDING SYSTEM.
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9.2 CAUSES BEYOND CONTROL OF THE LANDLORD
The Landlord shall in no event be liable for failure to perform any
of its obligations under this Lease when prevented from doing so by causes
beyond its reasonable control, including without limitation labor dispute,
breakdown, accident, order or regulation of or by any governmental authority,
or failure of supply, or inability by the exercise of reasonable diligence to
obtain supplies, parts, or employees necessary to furnish services required
under this Lease, or because of war or other emergency, or for any cause due
to any act, neglect, or default of Tenant or Tenant's servants, contractors,
agents, employees, licensees or any person claiming by, through or under
Tenant, and in no event shall Landlord ever be liable to Tenant for any
indirect, special or consequential damages under the provisions of this
Section 9.2 or any other provision of this Lease.
9.3 SEPARATELY METERED UTILITIES
Tenant shall pay directly to the utility, as they become due, all
bills for electricity, gas, water and sewer, and other utilities (whether
they are used for furnishing heat or for other purposes) that are furnished
to the Premises and now or hereafter separately metered or billed by the
utility to the Premises. If any utilities used or consumed by Tenant are not
separately metered, Tenant shall pay its allocable share of such utilities,
based on use, as determined by Landlord. Landlord at Tenant's expense, shall
purchase and install all lamps, tubes, bulbs, starters and ballasts.
ARTICLE X
INDEMNITY
10.1 THE TENANT'S INDEMNITY. The Tenant shall indemnify and save
harmless Landlord, the directors, officers, agents, and employees of
Landlord, against and from all claims, expenses, or liabilities of whatever
nature (a) arising directly or indirectly from any default or breach by
Tenant or Tenant's contractors, licensees, agents, servants, or employees
under any of the terms or covenants of this Lease (including without
limitation any violation of Landlord's Rules and Regulations and any failure
to maintain or repair equipment or installations to be maintained or repaired
by Tenant hereunder) or the failure of Tenant or such persons to comply with
any rule, order, regulation, or lawful direction now or hereafter in force of
any public authority, in each case to the extent the same are related,
directly or indirectly, to the Premises or the Building, or Tenant's use
thereof; or (b) arising directly or indirectly from any accident, injury, or
damage, however caused, to any person or property, on or about the damages;
or (c) arising directly or indirectly from any accident, injury, or damage to
any person or property occurring outside the Premises but within the Building
or on the Lot, where such accident, injury, or damage results, or is claimed
to have resulted, from any act, omission, or negligence on the part of
Tenant, or Tenant's contractors, licensees, agents, servants, employees, or
customers, or anyone claiming by or through Tenant: provided, however, that in
no event shall Tenant be obligated under this clause (c) to indemnify
Landlord, the directors, officers, agents, employees of Landlord, to the
extent such claim, expense, or liability results from any omission, fault,
negligence,
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or other misconduct of Landlord or the officers, agents, or employees of
Landlord on or about the Premises or the Building.
This indemnity and hold harmless agreement shall include, without
limitation, indemnity against all expenses, attorney's fees and liabilities
incurred in connection with any such claim or proceeding brought thereon and
the defense thereof with counsel reasonably acceptable to Landlord. At the
request of Landlord, Tenant shall defend any such claim or proceeding
directly on behalf and for the benefit of Landlord.
(b) THE LANDLORD'S INDEMNITY. THE LANDLORD SHALL INDEMNIFY AND SAVE
HARMLESS TENANT, THE DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES OF TENANT,
AGAINST AND FROM ALL CLAIMS, EXPENSES, OR LIABILITIES OF WHATEVER NATURE (A)
ARISING DIRECTLY OR INDIRECTLY FROM ANY DEFAULT OR BREACH BY LANDLORD OR
LANDLORD'S CONTRACTORS, LICENSEES, AGENTS, SERVANTS, OR EMPLOYEES UNDER ANY
OF THE TERMS OR COVENANTS OF THIS LEASE (INCLUDING WITHOUT LIMITATION ANY
FAILURE TO MAINTAIN OR REPAIR EQUIPMENT OR INSTALLATIONS TO BE MAINTAINED OR
REPAIRED BY LANDLORD HEREUNDER) OR THE FAILURE OF LANDLORD OR SUCH PERSONS TO
COMPLY WITH ANY RULE, ORDER, REGULATION, OR LAWFUL DIRECTION NOW OR HEREAFTER
IN FORCE OF ANY PUBLIC AUTHORITY, IN EACH CASE TO THE EXTENT THE SAME ARE
RELATED, DIRECTLY OR INDIRECTLY, TO THE PREMISES OR THE BUILDING, OR
LANDLORD'S USE THEREOF; OR (B) ARISING DIRECTLY OR INDIRECTLY FROM ANY
ACCIDENT, INJURY, OR DAMAGE, HOWEVER CAUSED, TO ANY PERSON OR PROPERTY, ON OR
ABOUT THE PREMISES; OR (C) ARISING DIRECTLY OR INDIRECTLY FROM ANY ACCIDENT,
INJURY, OR DAMAGE TO ANY PERSON OR PROPERTY OCCURRING OUTSIDE THE PREMISES
BUT WITHIN THE BUILDING OR ON THE LOT, WHERE SUCH ACCIDENT, INJURY, OR DAMAGE
RESULTS, OR IS CLAIMED TO HAVE RESULTED, FROM ANY ACT, OMISSION, OR
NEGLIGENCE ON THE PART OF LANDLORD, OR LANDLORD'S CONTRACTORS, LICENSEES,
AGENTS, SERVANTS, EMPLOYEES, OR CUSTOMERS, OR ANYONE CLAIMING BY OR THROUGH
LANDLORD; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL LANDLORD BE OBLIGATED
UNDER THIS SECTION 10.1 (b) TO INDEMNIFY TENANT, THE DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES OF TENANT, TO THE EXTENT SUCH CLAIM, EXPENSE, OR LIABILITY
RESULTS FROM ANY OMISSION, FAULT, NEGLIGENCE, OR OTHER MISCONDUCT OF TENANT OR
THE OFFICERS, AGENTS, OR EMPLOYEES OF TENANT ON OR ABOUT THE PREMISES OR THE
BUILDING.
THIS INDEMNITY AND HOLD HARMLESS AGREEMENT SHALL INCLUDE, WITHOUT
LIMITATION, INDEMNITY AGAINST ALL EXPENSES, ATTORNEY'S FEES AND LIABILITIES
INCURRED IN CONNECTION WITH ANY SUCH CLAIM OR PROCEEDING BROUGHT THEREON AND
THE DEFENSE THEREOF WITH COUNSEL REASONABLY ACCEPTABLE TO TENANT. AT THE
REQUEST OF TENANT, LANDLORD, SHALL DEFEND ANY SUCH CLAIM, OR PROCEEDING
DIRECTLY ON BEHALF AND FOR THE BENEFIT OF TENANT.
10.2 THE TENANT'S RISK
The Tenant agrees to use and occupy the Premises and to use such
other portions of the Building and the Lot as Tenant is herein given the
right to use at Tenant's sole risk; and Landlord shall have no responsibility
or liability for any loss or damage, however caused, to furnishings,
fixtures, equipment, or other personal property of Tenant or of any persons
claiming by, through, or under Tenant.
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10.3 INJURY CAUSED BY THIRD PARTIES
The Tenant agrees that Landlord shall not be responsible or liable
to Tenant, or to those claiming by, through, or under Tenant, for any loss or
damage resulting to Tenant or those claiming by, through, or under Tenant, or
its or their property, that may be occasioned by or through the acts or
omissions of persons occupying any part of the Building, or for any loss or
damage from the breaking, bursting, crossing, stopping, or leaking of
electric cables and wires, and water, gas, sewer, or steam pipes, or like
matters.
10.4 SECURITY
Xxxxxx agrees that, in all events, Xxxxxx is responsible for
providing security to the Premises and its own personnel.
ARTICLE XI
INSURANCE
11.1 TENANT'S INSURANCE OBLIGATIONS
Tenant shall carry public liability insurance in a company or
companies licensed to do business in the state in which the Premises are
located and reasonably approved by Landlord. Said insurance shall be in
minimum amounts reasonably required by Landlord from time to time by notice
to Tenant and shall name Landlord as an additional insured, as its interests
may appear, and Tenant shall provide Landlord with evidence, when requested,
that such insurance is in full force and effect. Tenant shall carry property
damage insurance for all of its equipment and for all leasehold improvements
above the building standard which are made by Landlord or Tenant in and to
the Premises, which policies shall name Landlord as an additional insured.
If required by Landlord, receipts evidencing payment for said insurance shall
be delivered to Landlord at least annually by Tenant and each policy shall
contain an endorsement that will prohibit its cancellation or amendment prior
to the expiration of thirty (30) days after notice of such proposed
cancellation or amendment to Landlord. Tenant shall carry insurance in the
initial amounts listed in the Basic Data and shall provide Landlord with
certificates of such Tenant Insurance Requirements on or prior to the
Commencement Date.
11.2 CONSTRUCTION PERIOD INSURANCE
At any time when demolition or construction work is being performed
on or about the Premises or Building by or on behalf of Tenant, the Tenant
shall keep in full force and effect the following insurance coverage in each
instance with policies reasonably acceptable to Landlord, including, without
limitation, the amount of any deductible thereunder:
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(1) builder's risk completed value (non-reporting form) in such
form and affording such protections as required by Landlord, naming landlord
and its mortgagees as additional insureds; and
(2) workers' compensation or similar insurance in form and amounts
required by law.
Tenant shall cause a certificate or certificates of such insurance
to be delivered to Landlord prior to the commencement of any work in or about
the Building or the Premises, in default of which Landlord shall have the
right, but not the obligation, to obtain any or all such insurance at the
expense of Tenant, in addition to any other right or remedy of Landlord. The
provisions of this Section 11.3 shall survive the expiration or earlier
termination of this Lease.
11.3 WAIVER OF SUBROGATION
Tenant and Landlord each hereby release the other to the extent of
their respective insurance coverage, from any and all liability for any loss
or damage caused by fire or any of the extended coverage casualties or any
other casualty insured against, even if such fire or other casualty shall be
brought about by the fault or negligence of Tenant, Landlord or their agents.
Tenant and Landlord agree that their respective policies covering such loss
or damage shall contain a clause to the effect that this release shall not
affect said policies or the right of Tenant or Landlord, as the case may be,
to recover thereunder and otherwise acknowledging this mutual waiver of
subrogation.
ARTICLE XII
CASUALTY
12.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE"
The term "substantial damage," as used herein, shall refer to
damage which is of such a character that in Landlord's reasonable, good faith
estimate the same cannot, in ordinary course, be expected to be repaired
within 90 calendar days from the time that such repair work would commence.
Any damage which is not "substantial damage" is "partial damage."
12.2 PARTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be partial damage to the
Building by fire or other casualty and if such damage shall materially
interfere with Xxxxxx's use of the Premises as contemplated by this Lease,
Landlord shall promptly proceed to restore the Building to substantially the
condition in which it was immediately prior to the occurrence of such damage.
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12.3 SUBSTANTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be substantial damage to the
Building by fire or other casualty and if such damage shall materially
interfere with Tenant's use of the Premises as contemplated by this Lease,
Landlord shall promptly restore the Building to the extent reasonably
necessary to enable Tenant's use of the Premises, unless Landlord, within
ninety (90) days after the occurrence of such damage, shall give notice to
ALL OF THE TENANTS OF THE BUILDING of Landlord's election to terminate ALL
TENANTS LEASES WITHIN THE BUILDING. The Landlord shall have the right to
make such election in the event of substantial damage to the Building whether
or not such damage materially interferes with Xxxxxx's use of the Premises.
If Landlord shall give such notice, then this Lease shall terminate as of the
date of such notice with the same force and effect as if such date were the
date originally established as the expiration date hereof. If Landlord has
not restored the Premises to the extent required under this Section 12.3
within nine (9) months after the date of such damage or destruction, such
nine-month period to be extended to the extent of any delays of the
completion of such restoration due to matters beyond Landlord's reasonable
control, or if the Premises shall be substantially damaged during the last
nine (9) months of the Lease Term then, in either such case, Tenant may elect
to terminate this Lease by giving written notice of such election to Landlord
within thirty (30) days after the end of such nine-month period and before
the substantial completion of such restoration. If Tenant so elects to
terminate this Lease, then this Lease and the term hereof shall cease and
come to an end on the date that is thirty (30) days after the date that
Landlord receives Tenant's termination notice, unless on or before such date
Landlord has substantially completed such restoration.
12.4 ABATEMENT OF RENT
If during the Lease Term the Building shall be damaged by fire or
casualty and if such damage shall materially interfere with Xxxxxx's use of
the Premises as contemplated by this Lease, a just proportion of the Base
Rent payable by Tenant hereunder shall xxxxx proportionately for the period
in which, by reason of such damage, there is such interference with Xxxxxx's
use of the Premises, having regard to the extent to which Tenant may be
required to discontinue Tenant's use of the Premises, but such abatement or
reduction shall end if and when Landlord shall have substantially restored
the Premises or so much thereof as shall have been originally constructed by
Landlord (exclusive of any of Tenant's fixtures, furnishings, equipment and
the like or work performed therein by Tenant) to substantially the condition
in which the Premises were prior to such damage.
12.5 MISCELLANEOUS
In no event shall Landlord have any obligation to make any repairs or
perform any restoration work under this Article XII if prevented from doing so
by reason of any cause beyond its reasonable control, including, without
limitation, the requirements
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of any applicable laws, codes, ordinances, rules, or regulations, the refusal
of the holder of a mortgage or ground lease affecting the premises to make
available to Landlord the net insurance proceeds attributable to such
restoration, or the inadequacy of such proceeds to fund the full cost of such
repairs or restoration, but reasonably promptly after Landlord ascertains the
existence of any such cause, it shall either terminate this Lease or waive such
condition to its restoration obligations and proceed to restore the Premises
as otherwise provided herein. Further, Landlord shall not be obligated in
any event to make any repairs or perform any restoration work EXCEPT FOR
DAMAGE CAUSED BY NEGLIGENCE OF LANDLORD, ITS AGENTS OR CONTRACTORS, to any
alterations, additions, or improvements to the Premises performed by or for
the benefit of Tenant or to any fixtures in or portions of the Premises or
the Building which were constructed or installed by or for some party other
than Landlord or which are not the property of Landlord.
ARTICLE XIII
EMINENT DOMAIN
13.1 RIGHTS OF TERMINATION FOR TAKING
If the Premises, or such portion thereof as to render the balance
(if reconstructed to the maximum extent practicable in the circumstances)
physically unsuitable for Tenant's purposes, shall be taken (including a
temporary taking in excess of 180 days) by condemnation or right of eminent
domain or sold in lieu of condemnation, Landlord or Tenant may elect to
terminate this Lease by giving notice to the other of such election not later
than thirty (30) days after Tenant has been deprived of possession.
Further, if so much of the Building (which may include the
Premises) or the Lot shall be so taken, condemned or sold or shall receive
any direct or consequential damage by reason of anything done pursuant to
public or quasi-public authority such that continued operation of the same
would, in Xxxxxxxx's opinion, be uneconomical, Landlord may elect to
terminate this Lease by giving notice to Tenant of such election not later
than thirty (30) days after the effective date of such taking.
Should any part of the Premises be so taken or condemned or receive
such damage and should this Lease be not terminated in accordance with the
foregoing provisions, Landlord shall promptly after the determination of
Landlord's award on account thereof, expend so much as may be necessary of
the net amount which may be awarded to Landlord in such condemnation
proceedings in restoring the Premises to an architectural unit that is
reasonably suitable to the uses of Tenant permitted hereunder. Should the
net amount so awarded to Landlord be insufficient to cover the cost of so
restoring the Premises, in the reasonable estimate of Landlord, Landlord may,
but shall have no obligation to, supply the amount of such insufficiency and
restore the Premises to such an architectural unit, with all reasonable
diligence, or Landlord may terminate this Lease by giving notice to Tenant
within a reasonable time after Landlord has determined the estimated cost of
such restoration.
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13.2 PAYMENT OF AWARD
The Landlord shall have and hereby reserves and excepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages to
the Building and the Lot and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking or
damage, as aforesaid. The Tenant covenants to deliver such further
assignments and assurances thereof as Landlord may from time to time request.
Nothing contained herein shall be construed to prevent Xxxxxx from
prosecuting in any condemnation proceedings a claim for the value of any of
Tenant's trade fixtures installed in the Premises by Tenant at Tenant's
expense and for relocation expenses, provided that such action shall not
affect the amount of compensation otherwise recoverable hereunder by Xxxxxxxx
from the taking authority.
13.3 ABATEMENT OF RENT
In the event of any such taking of the Premises, the Base Rent or a
fair and just proportion thereof, according to the nature and extent of the
damage sustained, shall be suspended or abated, as appropriate and equitable
in the circumstances.
13.4 MISCELLANEOUS
In no event shall Landlord have any obligation to make any repairs
under this Article XIII if prevented from doing so by reason of any cause
beyond its reasonable control, including, without limitation, requirements of
any applicable laws, codes, ordinances, rules, or regulations or requirements
of any mortgagee. Further, Landlord shall not be obligated to make any
repairs to any portions of the Premises or the Building which were
constructed or installed by or for some party other than Landlord or which
are not the property of Landlord, and Tenant shall be obligated to perform
any repairs on and restorations to any alterations, additions, or
improvements to the Premises performed by or for the benefit of Tenant.
ARTICLE XIV
14.1 TENANT'S DEFAULT
(a) EVENTS OF DEFAULT. The following shall be "Events of Default"
under this Lease:
(i) If Tenant shall fail to pay any monthly installment of Rent when
due, and such default shall continue for five (5) days after written
notice from Landlord; provided that no such notice shall be required
if Tenant has received a similar notice within three hundred
sixty-five (365) days prior to such violation or failure;
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(ii) If Tenant shall fail to timely make any other payment
required under this Lease and such default shall continue for five
(5) days after written note from Landlord; provided that no such
notice shall be required if Tenant has received a similar notice
within three hundred sixty-five (365) days prior to such violation
or failure;
(iii) If Tenant shall violate or fail to perform any of the
other terms, conditions, covenants or agreements herein made by
Tenant, if such violation or failure continues for a period of thirty
(30) days after Landlord's written notice thereof to Tenant; provided
that no such notice shall be required if Tenant has received a
similar notice within three hundred sixty-five (365) days prior to
such violation or failure;
(iv) Xxxxxx's becoming insolvent, as that term is defined
in Title 11 of the United States Code, entitled Bankruptcy, 11
U.S.C. Section 101 et. seq. (the "Bankruptcy Code"), or under the
insolvency laws of any State, District, Commonwealth or Territory of
the United States (the "Insolvency Laws");
(v) the appointment of a receiver or custodian for all or
a substantial portion of Tenant's property or assets, or the
institution of a foreclosure action upon all or a substantial portion
of Tenant's real or personal property;
(vi) the filing of a voluntary petition under the
provisions of the Bankruptcy Code or Insolvency Laws;
(vii) the filing of an involuntary petition against Xxxxxx
as the subject debtor under the Bankruptcy Code or Insolvency Laws,
which is either not dismissed within forty-five (45) days of filing,
or results in the issuance of an order for relief against the debtor,
whichever is earlier;
(viii) Xxxxxx's making or consenting to an assignment for the
benefit of creditors or a common law composition of creditors; or
(ix) Xxxxxx's interest in this Lease being taken on
execution in any action against the Tenant.
(b) LANDLORD'S REMEDIES. Should an Event of Default occur under
this Lease, Landlord may pursue any or all of the following remedies:
(i) TERMINATION OF LEASE. Landlord may terminate this Lease by
giving written notice of such termination to Tenant, or by
reentry, whereupon the mailing of such notice of termination
addressed to Tenant, or in the case of reentry, upon such
reentry, with or without notice or demand and with process of law
(forcibly if necessary), this Lease shall automatically cease and
terminate and Tenant shall be immediately obligated to quit the
Premises. Termination by entry or notice as provided herein shall
be effective and complete upon entry or the mailing of notice,
respectively, and shall require no further action on the
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part of Landlord including, without limitation, resort to legal process under
applicable law. Any other notice to quit or notice of Xxxxxxxx's intention to
reenter the Premises is hereby expressly waived. If Landlord elects to
terminate this Lease, everything contained in this Lease on the part of Landlord
to be done and performed shall cease without prejudice, subject, however, to the
right of Landlord to recover from Tenant all Annual Rent and Additional Rent and
any other sums accrued up to the time of termination or recovery of possession
by Landlord, whichever is later.
(ii) SUIT FOR POSSESSION. Landlord may proceed to recover possession
of the Premises under and by virtue of the provisions of the laws of the state
in which the Premises are located or by such other proceedings, including
reentry and possession, as may be applicable.
(iii) RELETTING OF PREMISES. Should this Lease be terminated
before the expiration of the Tenn of this Lease by reason of Tenant's default
as hereinabove provided, or if Tenant shall abandon or vacate the Premises
before the expiration or termination of the Term of this Lease without having
paid the full rental for the remainder of such Term, Landlord shall have the
option, but not the obligation, to relet the Premises for such rent and upon
such terms as are not unreasonable under the circumstances, and, if the full
Annual Rent and Additional Rent reserved under this Lease, BUT IN NO EVENT
MORE THAN THE ACCELERATED REMAINING RENT AND COST TO RELET (and any of the
costs, expenses or damages indicated below) shall not be realized by
Landlord, Tenant shall be liable for all damages sustained by Landlord,
including, without limitation, deficiency in rent, reasonable attorneys'
fees, brokerage fees and expenses of placing the Premises in first-class
rentable condition including without limitation any alterations and
improvements. Landlord, in putting the Premises in good order or preparing
the same for rerental may, at Landlord's option, make such alterations,
repairs or replacements in the Premises as Landlord, in its sole judgment,
considers advisable and necessary for the purpose of reletting the Premises,
and the making of such alterations, repairs, or replacements shall not
operate or be construed to release Tenant from liability hereunder as
aforesaid. Landlord shall in no event be liable in any way whatsoever for
failure to relet the Premises, or in the event that the Premises are relet,
for failure to collect the rent under such reletting, and in no event shall
Tenant be entitled to receive the excess, if any, of such net rent collected
over the sums payable by Tenant to Landlord hereunder.
(iv) ACCELERATION OF PAYMENT. If Tenant shall fail to pay any
monthly installment of Rent pursuant to the terms of this Lease, within five
(5) days of the date when each such payment is due, for three (3) consecutive
months, or three (3) times in any period of twelve (12) consecutive months,
then Landlord may, by giving written notice to Tenant, exercise any of the
following options: (A) declare the entire rent reserved under this Lease to be
due and payable within ten (10) days of such notice; (B) declare the rent
reserved under this Lease for the next six (6) months (or at Landlord's
option for a lesser period) to
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be due and payable within ten (10) days of such notice; or (C)
require an additional security deposit to be paid to Landlord
within ten (10) days of such notice in an amount not to exceed six
(6) months rent. Landlord may invoke any of the options provided
for herein at any time during which an Event of Default remains
uncured.
(v) MONETARY DAMAGES. Any damage or loss of rent sustained
by Landlord may be recovered by Landlord, at Landlord's option, at
the time of the reletting, or in separate actions, from time to
time, as said damage shall have been made more easily
ascertainable by successive relettings, or at Xxxxxxxx's option in
a single proceeding deferred until the expiration of the Term of
this Lease (in which event Tenant hereby agrees that the cause of
action shall not be deemed to have accrued until the date of
expiration of said Xxxx) or in a single proceeding prior to either
the time or relenting or the expiration of the Tenn of this Lease.
In addition, should it be necessary for Landlord to employ legal
counsel to enforce any of the provisions herein contained, Xxxxxx
agrees to pay all attorney's fees and court costs reasonably
incurred.
(vi) ANTICIPATORY BREACH; CUMULATIVE REMEDIES. Nothing
contained herein shall prevent the enforcement of any claim
Landlord may have against Tenant for anticipatory breach of the
unexpired Term of this Lease. In the event of a breach or
anticipatory breach by Tenant of any of the covenants or
provisions hereof, Landlord shall have the right of injunction
and the right to invoke any remedy allowed at law or in equity as
if reentry, summary proceedings and other remedies were not
provided for herein. Mention in this Lease of any particular
remedy shall not preclude Landlord from any other remedy, in law
or in equity, whether or not mentioned herein. Xxxxxxxx's
election to pursue one or more remedies, whether as set forth
herein or otherwise, shall not bar Landlord from seeking any other
or additional remedies at any time and in no event shall Landlord
ever be deemed to have elected one or more remedies to the
exclusion of any other remedy or remedies. Any and all rights and
remedies that Landlord may have under this Lease, and at law and
in equity, shall be cumulative and shall not be deemed
inconsistent with each other, and any two or more of all such
rights and remedies may be exercised at the same time insofar as
permitted by law. Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future
laws in the event of Tenant being evicted or dispossessed for any
cause, or in the event of Landlord obtaining possession of the
Premises, by reason of the violation by Tenant of any of the
covenants and conditions of this Lease, or otherwise.
(c) WAIVER. If, under the provisions hereof, Landlord shall
institute proceedings against Tenant and a compromise or settlement thereof
shall be made, the same shall not constitute a waiver of any other covenant,
condition or agreement herein contained, nor of any of Landlord's rights
hereunder. No waiver by Landlord of any breach of any covenant, condition or
agreement herein contained shall operate as a waiver of such covenant,
condition, or agreement itself, or of any subsequent breach thereof. No
payment by Tenant or receipt by Landlord of a lesser amount than the
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monthly installments of rent herein stipulated shall be deemed to be other
than on account of the earliest stipulated rent, nor shall any endorsement or
statement on any check or letter accompanying a check for payment of Rent or
any other sum be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or any other sum or so pursue any other remedy provided
in this Lease. No reentry by Xxxxxxxx, and no acceptance by Landlord of keys
from Tenant, shall be considered an acceptance of a surrender of the Lease or
Premises.
(d) RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT. If Tenant defaults
in the making of any payment or in the doing of any act herein required to be
made or done by Tenant, then Landlord may, but shall not be required to, make
such payment or do such act, and charge the amount of the expense thereof, if
made or done by Landlord, with interest thereon at the rate per annum which
is TWO percent (2%) greater than the "base-lending rate" then in effect at
The First National Bank of Boston, Boston, Massachusetts, or the highest rate
permitted by law, whichever may be less; with it being the express intent of
the parties that nothing herein contained shall be construed or implemented
in such a manner as to allow Landlord to charge or receive interest in excess
of the maximum legal rate then allowed by law. Such payment and interest
shall constitute Additional Rent hereunder due and payable with the next
monthly installment of Rent; but the making of such payment or the taking of
such action by Landlord shall not operate to cure such default or to stop
Landlord from the pursuit of any remedy to which Xxxxxxxx would otherwise be
entitled.
(e) LATE PAYMENT. If Tenant fails to pay any installment of Rent
WITHIN FIVE (5) DAYS AFTER WRITTEN NOTICE FROM LANDLORD THAT such installment
becomes due and payable, Tenant shall pay to Landlord a late charge of five
percent (5%) of the amount of such installment, and, in addition, such unpaid
installment shall bear interest at the rate per annum which is TWO percent
(2%) greater than the "base lending rate" then in effect at The First
National Bank of Boston, Boston, Massachusetts, or the highest rate permitted
by law, whichever may be less; with it being the express intent of the
parties that nothing herein contained shall be construed or implemented in
such manner as to allow Landlord to charge or receive interest in excess of
the maximum legal rate then allowed by law. Such late charge and interest
shall constitute Additional Rent hereunder due and payable with the next
monthly installment of Rent due, or if payments have been accelerated
pursuant to this Article 14, due and payable immediately.
(f) LIEN ON PERSONAL PROPERTY. LANDLORD EXPRESSLY WAIVES ITS
STATUTORY OR COMMON LAW LANDLORD'S LIEN AND ANY AND ALL RIGHTS GRANTED UNDER
ANY PRESENT OR FUTURE LAWS TO LEVY OR DISTRAIN FOR RENT (WHETHER IN ARREARS
OR IN ADVANCE) AGAINST THE AFORESAID PROPERTY OF TENANT ON THE PREMISES AND
FURTHER AGREES TO EXECUTE ANY REASONABLE INSTRUMENTS EVIDENCING SUCH WAIVER,
AT ANY TIME OR TIMES HEREAFTER UPON TENANT'S REQUEST IN THE FORM OF EXHIBIT
"D" ATTACHED HERETO.
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ARTICLE XV
THE LANDLORD'S ACCESS TO PREMISES
15.1 THE LANDLORD'S RIGHT OF ACCESS
The Landlord and its agents, contractors, and employees shall have
the right to enter the Premises at all reasonable hours upon reasonable
advance notice AND ACCOMPANIED BY A REPRESENTATIVE OF TENANT or any time in
case of emergency, for the purpose of inspecting or of making repairs or
alterations, to the Premises or the Building or additions to the Building,
and Landlord shall also have the right to make access available at all
reasonable hours UPON REASONABLE ADVANCE NOTICE to prospective or existing
mortgagees or purchasers of any part of the Building.
For a period commencing twelve (12) months prior to the expiration
of the Lease Term, Landlord may have reasonable access to the Premises at all
reasonable hours UPON REASONABLE ADVANCE NOTICE for the purpose of exhibiting
the same to prospective tenants.
ARTICLE XVI
16.1 SUBORDINATION
Upon the written request of Xxxxxxxx, Tenant shall enter into a
recordable agreement IN A COMMERCIALLY REASONABLE FORM with the holder of any
present or future mortgage of the Premises, Building or Lot which shall
provide that (i) this Lease shall be subordinated to such mortgage, (ii) in
the event of foreclosure of said mortgage or any other action thereunder by
the mortgagee, the mortgagee (and its successors in interest) and Tenant shall
be directly bound to each other to perform the respective undischarged
obligations of Landlord and Tenant hereunder (in the case of Landlord
accruing after such foreclosure or other action and in the case of Tenant
whether accruing before or after such foreclosure or other action), (iii)
this Lease shall continue in full force and effect, and (iv) Tenant's rights
hereunder shall not be disturbed, except as in this Lease provided. The word
"mortgage" as used herein includes mortgages, deeds of trust and all similar
instruments, all modifications, extensions, renewals and replacements
thereof, and any and all assignments of the Landlord's interest in this Lease
given as collateral security for any obligation of Landlord.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 CAPTIONS
The captions throughout this Lease are for convenience or reference
only and shall in no way be held or deemed to define, limit, explain,
describe, modify, or add to the interpretation, construction, or meaning of
any provision of this Lease.
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17.2 NO ACCORD AND SATISFACTION
No acceptance by Landlord of a lesser sum than the minimum and
additional rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be
deemed to be an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of
such installment or pursue any other remedy in this Lease or at law or in
equity provided.
17.3 CUMULATIVE REMEDIES
The specific remedies to which Landlord may resort under the terms
of this Lease are cumulative and not intended to be exclusive of any other
remedies or means of redress to which it may be lawfully entitled in case of
any breach or threatened breach by Tenant of any provisions of this Lease.
In addition to the other remedies provided in this Lease, Landlord shall be
entitled to the restraint by injunction of the violation or attempted or
threatened violation of any of the covenants, conditions or provisions of
this Lease or to a decree compelling specific performance of any such
covenants, conditions or provisions. Except as otherwise set forth herein,
any obligations of Tenant as set forth herein (including, without limitation,
rental and other monetary obligations, repair obligations and obligations to
indemnify Landlord) shall survive the expiration or earlier termination of
this Lease, and Tenant shall immediately reimburse Landlord for any expense
incurred by Landlord in curing Tenant's failure to satisfy any such
obligation (notwithstanding the fact that such cure might be effected by
Landlord following the expiration or earlier termination of this Lease).
17.4 LANDLORD'S RIGHT TO CURE
If Tenant shall at any time default in the performance of any
obligation under this Lease, Landlord shall have the right, but not the
obligation, to enter upon the Premises, and/or to perform such obligation,
notwithstanding the fact that no specific provision for such substituted
performance by Xxxxxxxx is made in this Lease with respect to such default.
In performing any such obligations, Landlord may make any payment of money or
perform any other act. All sums so paid by Xxxxxxxx (together with interest
at the Lease Interest Rate) and all necessary incidental costs and expenses
in connection with the performance of any such act by Landlord, shall be deemed
to be additional rent under this Lease and shall be payable to Landlord
immediately on demand. Landlord may exercise the foregoing rights without
waiving any other of its rights or releasing Tenant from any of its
obligations under this Lease.
17.5 BROKERAGE
Tenant warrants that there are no claims for broker's commission or
finder's fees in connection with its execution of this Lease or the tenancy
hereby created and
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agrees to indemnify and save Landlord harmless from any liability that may
arise from such claim, including reasonable attorneys fees.
17.6 HOLDOVER
If Tenant remains in the Premises after the termination of this
Lease, by its own terms or for any other reason, such holding over shall not
be deemed to create any tenancy, but Tenant shall be a tenant at sufferance
only, at a daily rate equal to ONE HUNDRED FIFTY PERCENT (150%) the Rent
applicable immediately prior to such termination plus the then applicable
additional rent and other charges under this Lease. Tenant shall also pay to
Landlord all damages, direct or indirect, sustained by Landlord by reason of
any such holding over. Otherwise, such holding over shall be on the terms and
conditions set forth in this Lease as far as applicable.
17.7 COUNTERPARTS
This Lease is executed in any number of counterparts, each copy of
which is identical, and any one of which shall be deemed to be complete in
itself and may be introduced in evidence or used for any purpose without the
production of the other copies.
17.8 CONSTRUCTION AND GRAMMATICAL USAGE
This Lease shall be governed, construed and interpreted in
accordance with the laws of THE STATE OF NEW HAMPSHIRE, and Xxxxxx agrees to
submit to the personal jurisdiction of any court (federal or state) in said
STATE for any dispute, claim or proceeding arising out of or relating to this
Lease. In construing this Lease, feminine or neuter pronouns shall be
substituted for those masculine in form and vice versa, and plural terms
shall be substituted for singular and singular for plural in any place in
which the context so admits or requires. If there be more than one party
tenant, the covenants of Tenant shall be the joint and several obligations of
each such party and, if Tenant is a partnership, the covenants of Tenant
shall be the joint and several obligations of each of the partners and the
obligations of the firm.
17.9 SECURITY DEPOSIT
Tenant has deposited with Landlord the Security Deposit as security
for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease. It is agreed that in the event
Tenant defaults in respect of any of the terms, provisions and conditions of
this Lease, Landlord may use, apply or retain the whole or any part of the
Security Deposit to the extent required for payment of any Rent or any other
sum as to which Tenant is in default or for any sum which Landlord may expend
or may be required to expend by reason of Tenant's default in respect of any
of the terms, covenants and conditions of this Lease, including but not
limited to any damage or deficiency accrued before or after summary
proceedings or other reentry by Landlord, including the costs of such
proceeding or reentry and further including, without limitation, reasonable
attorney's fees. It is agreed that Landlord shall always
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have the right to apply the Security Deposit, or any part thereof, as
aforesaid, WITH ADVANCE notice and without prejudice to any other remedy or
remedies which Landlord may have, or Landlord may pursue any other such
remedy or remedies in lieu of applying the Security Deposit or any part
thereof. No interest shall be payable on the Security Deposit. If Landlord
shall use, apply or retain the Security Deposit in whole or in part and the
Lease continues or Tenant's occupancy continues in the Premises, Tenant shall
within ten (10) days after written notice from the Landlord make such further
or other deposit of monies as may be necessary to bring the balance of the
deposit to $14,775.33. In the event that Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Lease, the Security Deposit shall be returned to Tenant within FORTY-FIVE
(45) days after the date fixed as the end of the Lease and after delivery of
entire possession of the Premises to Landlord in accordance with the terms of
this Lease. In the event of a sale or other transfer of the Building, or
leasing of the entire Building including the Premises subject to Xxxxxx's
tenancy hereunder, Landlord shall transfer the Security Deposit then
remaining to the vendee or lessee and Landlord shall thereupon be released
from all liability for the return of such Security Deposit to Tenant; and
Xxxxxx agrees to look solely to the new Landlord for the return of said
Security Deposit then remaining. The holder of any mortgage upon the
Building or Lot shall never be responsible to Tenant for the Security Deposit
or its application or return unless the Security Deposit shall actually have
been received in hand by such holder. Tenant further covenants that it will
not assign or encumber or attempt to assign or encumber the Security Deposit
and that neither Landlord nor its successors or assigns shall be bound by any
such assignment, encumbrance, attempted assignment or attempted encumbrance.
17.10 LANDLORD'S ENFORCEMENT EXPENSES
Unless prohibited by applicable law, the Tenant agrees to pay to the
Landlord the amount of all fees and expenses (including, without limitation,
attorneys' fees and costs) incurred by the Landlord arising out of or resulting
from any act or omission by the Tenant with respect to this Lease or the
Premises, including without limitation, any breach by the Tenant of its
obligations hereunder, irrespective of whether Landlord resorts to litigation as
a result thereof.
17.11 TENANTS'S ENFORCEMENT EXPENSES
UNLESS PROHIBITED BY APPLICABLE LAW, THE LANDLORD AGREES TO PAY TO THE
TENANT THE AMOUNT OF ALL FEES AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES AND COSTS) INCURRED BY THE TENANT ARISING OUT OF OR RESULTING
FROM ANY ACT OR OMISSION BY THE LANDLORD WITH RESPECT TO THIS LEASE OR THE
PREMISES, INCLUDING WITHOUT LIMITATION, ANY BREACH BY THE LANDLORD OF ITS
OBLIGATIONS HEREUNDER, IRRESPECTIVE OF WHETHER TENANT RESORTS TO LITIGATION AS A
RESULT THEREOF.
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17.12 NO SURRENDER
The delivery of keys to any employee of Landlord or to Landlord's
agents or employees shall not operate as a termination of this Lease or a
surrender of the Premises.
17.13 COVENANT OF QUIET ENJOYMENT
Subject to the terms and provisions of this Lease and on payment of
the Rent, additional rent, and other sums due hereunder and compliance with
all of the terms and provisions of this Lease, Tenant shall lawfully,
peaceably, and quietly have, hold, occupy, and enjoy the Premises during the
term hereof, without hindrance or ejection by Landlord or by any persons
claiming under Landlord; the foregoing covenant of quiet enjoyment is in lieu
of any other covenant, express or implied.
17.14 NO PERSONAL LIABILITY OF THE LANDLORD
It is specifically agreed that the obligations of Landlord under
this Lease do not constitute personal obligations of Landlord and that Tenant
shall not seek recourse against the personal assets of Landlord for
satisfaction of any liability with respect to this Lease.
17.15 NOTICES
Any notice or consent required to be given by or on behalf of
either party to the other shall be in writing and shall be given by mailing
such notice or consent as set forth in Article 1.2 of this Lease, addressed,
if to Landlord, at the address set forth in Article 1.2 of this Lease, and,
if to Tenant, at the address as set forth in Article 1.2 of this Lease, or at
such other address as may be specified from time to time in writing sent to
the other party by like notice.
Whenever, by the terms of this Lease, notice shall or may be given
either to Landlord or to Tenant, such notice shall be in writing and shall be
delivered by hand or sent by registered or certified mail, postage prepaid or
by so-called "express" mail (such as Federal Express or U.S. Postal Service
Express Mail).
17.16 FINANCIAL INFORMATION
IT IS XXXXXX UNDERSTOOD AND AGREED THAT UPON XXXXXXXX'S WRITTEN
REQUEST, SOLELY FOR THE REASONS SET FORTH BELOW, TENANT SHALL SUPPLY TO THE
LANDLORD, FINANCIAL INFORMATION REASONABLY ACCEPTABLE TO LANDLORD;
1. UPON WRITTEN REASONABLE REQUEST BY XXXXXXXX'S LENDER.
2. UPON WRITTEN REASONABLE REQUEST FOR PURPOSES OF FINANCING OR
REFINANCING THE PREMISES.
3. SHOULD TENANT BE IN DEFAULT AS DEFINED IN SECTION 14.1 HEREIN.
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17.17 RULES AND REGULATIONS
The Tenant will observe and comply with the Rules and Regulations as
attached hereto and made a part hereof, including revisions and additions as the
Landlord may from time to time institute.
17.18 RIGHT TO MOVE
The Landlord reserves the right to move the Tenant and if Landlord so
requests, Tenant shall vacate the Premises and relinquish its right with respect
to the same, provided that Landlord GIVES TENANT NOT LESS THAN NINETY (90) DAYS
PRIOR WRITTEN NOTICE OF SUCH A MOVE, AND FURTHER provides to Tenant, space
within the complex commonly known as Nashua Office Park, Nashua, NH 03062.
Such space shall be reasonably comparable in size, layout, finish and utility
to the existing Premises, and further provided that Landlord shall, at its sole
cost and expense, move the Tenant and its removable property from the Premises
to such new space in such a manner as will minimize, to the greatest extent
practicable, undue interference with the business or operations of Tenant.
LANDLORD FURTHER AGREES TO PAY FOR ALL VERIFIED REASONABLE DIRECT AND INDIRECT
COSTS AS A RESULT OF ANY SUCH RELOCATION, TO INCLUDE BUT NOT BE LIMITED TO COSTS
OF RELOCATING FURNITURE, FILES AND EQUIPMENT, TELEPHONE INSTALLATION, AND THE
REASONABLE COSTS OF NEW STATIONERY. Any such space shall from and after such
relocation, be treated as the Premises demised under this Lease, and shall be
occupied by Tenant under the same terms, provisions and conditions as are set
forth in this Lease.
17.19 TENANT'S RIGHT TO EXPAND
IN THE EVENT TENANT HAS NOT BEEN IN DEFAULT OF ANY OF THE TERMS,
CONDITIONS AND COVENANTS OF THIS LEASE AND ANY AMENDMENTS MADE HERETO DURING
THE TERM HEREOF, LANDLORD HEREBY AGREES TO LEASE TO TENANT AND TENANT HEREBY
AGREES TO LEASE FROM LANDLORD APPROXIMATELY 1,199 SQUARE FEET OF SPACE
ADJACENT TO TENANT'S EXISTING PREMISES ON THE SECOND (2ND) FLOOR OF NASHUA
OFFICE PARK, ONE XXXX BOULEVARD, NASHUA, NH 03062 (HEREINAFTER REFERRED TO AS
THE "EXPANSION PREMISES I"). THE LANDLORD SHALL DELIVER THE EXPANSION
PREMISES I TO TENANT ON OR BEFORE OCTOBER 1, 1997, PROVIDED, HOWEVER, IF
LANDLORD IS UNABLE TO DELIVER THE EXPANSION PREMISES I ON OR BEFORE SUCH DATE
AS A RESULT OF THE EXISTING TENANT HOLDING OVER IN THE EXPANSION PREMISES I,
LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY DELAY CAUSED THEREBY AND LANDLORD
SHALL DILIGENTLY PURSUE ALL ITS REMEDIES UNDER THE LAW OR ITS LEASE WITH SUCH
THIRD PARTY TO EVICT SUCH HOLDOVER TENANT FROM THE EXPANSION PREMISES I.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, EFFECTIVE
ON THE COMMENCEMENT DATE WITH RESPECT TO THE EXPANSION PREMISES I, THE
FOLLOWING TERMS AND PROVISIONS OF THIS LEASE SHALL BE AMENDED ACCORDINGLY:
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1. THE DESCRIPTION OF TENANT'S PREMISES AS SET FORTH IN ARTICLE 2.1
HEREIN, SHALL BE AMENDED IN PART BY DELETING THE PHRASE
"CONSISTING OF APPROXIMATELY 11,980 SQUARE FEET OF SPACE" AND
REPLACING WITH "CONSISTING OF APPROXIMATELY 13,179 SQUARE FEET
OF SPACE".
2. THE TERM OF THE EXPANSION PREMISES I SHALL BE COTERMINOUS WITH
THE TERM OF THIS LEASE AS SET FORTH IN ARTICLE 3.1 HEREIN.
3. SAID EXPANSION PREMISES SHALL BE OFFERED TO TENANT AT THE SAME
PER SQUARE FOOT RENTAL RATE THEN BEING PAID BY TENANT IN
ACCORDANCE WITH ARTICLE 4.1 HEREIN.
4. TENANT XXXXXX AGREES TO ACCEPT THE EXPANSION PREMISES I IN THEIR
"AS-IS" CONDITION.
EXCEPT AS PROVIDED HEREINABOVE, ALL OTHER TERMS AND PROVISIONS OF THIS LEASE
SHALL APPLY TO THE EXPANSION PREMISES I AND SHALL REMAIN THE SAME WHERE
APPLICABLE AND ARE HEREBY REAFFIRMED.
17.20 TENANT'S OPTION TO EXPAND
IN THE EVENT TENANT HAS NOT BEEN IN DEFAULT OF ANY OF THE TERMS,
CONDITIONS AND COVENANTS OF THIS LEASE AND ANY AMENDMENTS MADE HERETO DURING
THE TERM HEREOF, TENANT SHALL HAVE THE RIGHT, TO LEASE ADDITIONAL SPACE FROM
THE LANDLORD WITHIN NASHUA OFFICE PARK, XXX XXXX XXXXXXXXX, XXXXXX, XX 00000,
SUBJECT TO AVAILABILITY AND FURTHER SUBJECT, BUT NOT LIMITED TO, THE
FOLLOWING TERMS AND CONDITIONS:
1. TENANT'S ADDITIONAL SPACE REQUIREMENT MUST BE APPROXIMATELY 1,336
SQUARE FEET ON THE SECOND (2ND) FLOOR OF SAID BUILDING
(HEREINAFTER REFERRED TO AS THE `EXPANSION PREMISES II').
2. TENANT MUST NOTIFY LANDLORD IN WRITING OF ITS ADDITIONAL SPACE
REQUIREMENTS NO LESS THAN NINETY (90) DAYS PRIOR TO THE DATE
TENANT DESIRES SUCH EXPANSION PREMISES II.
3. TENANT MUST OCCUPY SAID EXPANSION PREMISES II AND THE PREMISES
DEMISED HEREUNDER FOR A TERM WHICH SHALL BE COTERMINOUS WITH THE
EXISTING LEASE, BUT IN NO EVENT LESS THAN THREE (3) YEARS.
4. RENT FOR SAID EXPANSION SPACE II SHALL BE AT THE THEN CURRENT
MARKET RENT RATE.
IT IS HEREBY AGREED BETWEEN THE PARTIES THAT IMMEDIATELY FOLLOWING LANDLORD'S
RECEIPT OF TENANT'S NOTICE INDICATING ITS DESIRE TO LEASE EXPANSION PREMISES
II LANDLORD AND LESSEE SHALL ENTER INTO A MUTUALLY ACCEPTABLE AMENDMENT TO
THE SETTINCY FORTH THE TERMS AND PROVISIONS SET FORTH HEREINABOVE.
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17.21 WHEN LEASE BECOMES BINDING
Employees or agents of Landlord have no authority to make or agree
to make a lease or any other agreement or undertaking in connection herewith.
The submission of this Lease for examination and negotiation does not
constitute an offer to lease, a reservation of, or option for the Premises
and shall vest no right in any party. Tenant or anyone claiming under or
through Tenant shall have the rights to the Premises as set forth herein and
this Lease becomes effective as a Lease only upon execution, acknowledgement
and delivery thereof by Landlord and Xxxxxx, regardless of any written or
verbal representation of any agent, manager or employee of Landlord to the
contrary.
17.22 MISCELLANEOUS
Each party hereto has reviewed and revised (or requested revisions
of) this Lease, and therefore any usual rules of construction requiring that
ambiguities are to be resolved against a particular party shall not be
applicable in the construction and interpretation of this Lease or any
Exhibits hereto.
17.23 ENTIRE AGREEMENT
This Lease and the exhibits and any rider attached hereto, set
forth all the covenants, promises, agreements conditions, representations and
understandings between Landlord and Tenant concerning the Premises and there
are no covenants, promises, agreements, conditions, representations or
understandings, either oral or written between them other than those herein
set forth and this Lease expressly supersedes any proposals or other written
documents relating hereto. Except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Landlord and Tenant unless reduced to writing and signed by
them. Xxxxxx agrees that Landlord and its agents have made no
representations or promises with respect to the Premises, or the Building of
which the Premises are a part, or the Lot, except as herein expressly set
forth.
IN WITNESS OF, the parties hereto have executed this instrument
under s@ as of the date set forth in Section 1.2, above.
LANDLORD: Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx Company
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
By: Xxxxxx X. Xxxxxxx
Its: President
TENANT: Puma Technology, Inc
/s/ X. Xxxxx Xxxxx
-------------------------------------------
By: X. Xxxxx Xxxxx
Its: Sr VP, CFO
-37-
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by any
Tenant, nor shall they be used for any purpose other than ingress and egress to
and from the Premises. Landlord shall keep the sidewalks and curbs directly in
front of said Xxxxxxxx, clean and free from ice and snow.
2. No awnings or other projections shall be attached to the outside walls of
the building without the prior written consent of the Landlord. No curtains,
blinds, shades or screens shall be attached to, hung in, or used in connection
with, any window or door of the Premises, without the prior written consent of
the Landlord. Any such awnings, projections, curtains, blinds, shades, screens
or other fixtures used by Tenant (if given the prior written consent of the
Landlord for such use), shall be of a quality, type, design and color, attached
in a manner approved by the Landlord.
3. A building directory will be maintained in the main lobby of the building
at the expense of the Landlord and the number of such listings shall be at the
sole discretion of the Landlord. No sign, advertisement, notice or other
lettering shall be exhibited, inscribed, painted or affixed by any Tenant on any
part of the outside or inside of the Premises or building, without the prior
written consent of the Landlord. In the event of violation of the foregoing by
any Tenant, Landlord may remove same without any liability and may charge the
expense incurred by such removal to any Tenants violating this rule. Interior
signs on doors and directory tablet shall be inscribed, painted or affixed for
each Tenant, at Tenant's expense and shall be of a size, color and style
acceptable to the Landlord.
4. The sashes, sash doors, skylights, windows and doors that reflect or admit
light and air into the halls, passageways or other public places in the building
shall not be covered or obstructed by any Tenant, nor shall any bottles, parcels
or other articles be placed on the windowsills.
5. No show cases or other articles shall be put in front of, or affixed to any
part of the exterior of the building, nor placed in the halls, corridors,
vestibules or fire escapes, without the prior written consent of the Landlord.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuses of the fixtures shall be done by the Tenant
who, or whose servants, employees, agents, visitors, or licensees, shall have
caused same.
7. No Tenant shall mark, paint, drill into, or in any way deface any part of
the Premises or the building of which they form a part. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
Landlord, and as the Landlord may direct. No Tenant shall lay linoleum, or
other similar floor covering, so
-38-
that the same shall come in contact with the floor of the Premises, and, if
linoleum or other similar floor covering is desired to be used, an
interlining of builder's deadening felt shall be first affixed to the floor
by a paste or other material, soluble in water, the use of cement or other
similar adhesive material being expressly prohibited.
8. No bicycles, vehicles or animals of any kind shall be brought in or kept
about the Premises, and no cooking shall be done or permitted by Tenant on said
Premises. No Tenant shall cause or permit any unusual or objectionable odors to
be produced upon or permeate from the Premises.
9. No space in the building, except as provided in individual Leases, shall be
used for manufacturing, for the storage of merchandise, or for the sale of
merchandise, goods or property of any kind at auction.
10. No Tenant shall make, or permit to be made, any unsettling or disturbing
noises or disturb or interfere with occupants of this or neighboring buildings
or premises' or those having business with them, whether by the use of any
musical instrument, radio, talking machine, unusual noise, whistling,
singing, or in any other way. No Tenant shall throw anything out of doors,
windows, skylights or down the passageways.
11. No Tenant, nor any of Tenant's servants, employees, agents, visitors or
licensees, shall at any time bring or keep upon the Premises any flammable,
combustible or explosive fluid, chemical and substance.
12. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or the mechanism thereof. Each Tenant must, upon the termination of his
tenancy, return to the Landlord, all keys for stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such Tenant, and in the event of
the loss of any keys so furnished, such Tenant shall pay the Landlord the cost
thereof.
13. All removals, or the carrying in or out of any safes, freight, furniture or
bulky matter of any description must take place during the hours which the
Landlord or its agents may determine from time to time. The Landlord reserves
the right to inspect all freight to be brought into the building and to exclude
from the building, all freight which violates any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part.
14. No Tenant shall occupy or permit any portion of the Premises leased to him
to be occupied for the possession, storage, manufacture or sale of liquor,
narcotics or as a xxxxxx or manicure shop.
15. Landlord shall have the right to prohibit any advertising by any Tenant
which, in Landlord's opinion, tends to impair the reputation of the building or
its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising. Tenant
shall not use the name of the building or its owner in any advertising without
the express written consent of the Landlord.
-39-
16. No Tenant shall install or permit the installation or use of any machines
dispensing goods for sale, including without limitation, foods, beverages,
cigarettes or cigars. No food or beverage shall be carried in the public halls
and elevators of the buildings, except in closed containers.
17. The Premises shall not be used for lodging or sleeping or for any immoral
or illegal purpose.
18. Canvassing, soliciting and peddling in the building is prohibited and each
Tenant shall cooperate to prevent the same by notifying the Landlord. Landlord
reserves the right to inspect any parcel or package being removed from the
building by Tenant, its employees, representatives and business invitees.
19. There shall not be used in any space or in the public halls of any
building, either by a Tenant or by jobbers or others in the delivery of or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
-40-
EXHIBIT A
Floor Plan
-41-
EXHIBIT B
LANDLORD shall construct TENANT Premises in accordance with a mutually agreed
upon floor plan.
-42-
EXHIBIT B-1
CONSTRUCTION
Attached to and made part of Lease dated as of _________________, 1997.
Between
Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx Company
and
Puma Technology, Inc.
A. SUBSTANTIAL COMPLETION. For the purposes hereof, the Landlord's Work shall
be deemed to be Substantially Complete on the date that (i) Landlord's Work, as
defined in Paragraph B hereof, has been completed in a good and workmanlike
manner except for minor items of work and adjustment of equipment and fixtures
which can be completed within thirty (30) days after Xxxxxxxx's receipt of a
punch list from the Tenant, without causing unreasonable interference with
Xxxxxx's use of the Premises (i.e., so-called "punch list" items) which "punch
list" items (a) shall be designated by Tenant and/or Tenant's Representative, in
conjunction with Xxxxxxxx's architect and/or Landlord's Representative, and (b)
Landlord shall complete within thirty (30) days (except for any "Long Lead Time
Items" as developed between Landlord's Representative and Tenant's
Representative as attached hereto); and (ii) Tenant has received a Certificate
of Occupancy (permanent or temporary) from the City of Nashua in connection with
Xxxxxxxx's Work. In the event a temporary Certificate of Occupancy is issued,
Xxxxxxxx agrees to diligently proceed to obtain a permanent Certificate of
Occupancy. If Landlord fails to (i) complete the punch list items within thirty
(30) days following receipt of the punch list from the Tenant or (ii) obtain a
permanent Certificate of Occupancy within ninety (90) days, Tenant shall have
the right, but not the obligation, to complete such work at Landlord's cost and
expense, and Tenant may deduct from Base Rent the cost thereof if Landlord does
not reimburse Tenant on demand therefor.
B. LANDLORD'S WORK. Notwithstanding the foregoing, for the purposes of
determining Substantial Completion, "Landlord's Work" shall be defined as all
work shown on the Final Plans, as defined in Paragraph D hereof, but shall not
include telephone data, furniture, fixtures, and equipment ("FF &E"), special
work (i.e., Long Lead Time Items) and any items of work which are delayed by
changes made by Tenant to the Final Plans, or Tenant's physical move.
Xxxxxxxx's Work shall be performed in a good and workmanlike manner, in
compliance with all applicable laws and regulations and in accordance with the
Final Plans.
C. PAYMENT FOR WORK. Tenant shall pay for the cost of Landlord's Work (as
set forth below) and shall contribute to the cost of the Landlord's Work,
including, the construction work and materials, all permit fees, all
architectural, engineering, and Xxxxxxxx's general contractor's fees and
general conditions which shall be 10% of the
-43-
total construction costs; Tenant shall pay 50% of the estimated construction
costs upon Lease execution and the balance upon substantial completion of
Landlord's Work.
If (A) Tenant makes any changes after the Tenant's Plans have been approved by
Landlord and Tenant, and (B) the net cost of Landlord's Work will be increased
thereby, then Tenant shall pay to Landlord within ten (10) days of Substantial
Completion the amount by which the net increase in the cost of Landlord's Work
resulting from all of the applicable changes. All change orders (which shall
include Xxxxxxxx's general contractor's fee of 10% of the total construction
costs (unless such change order extends the time for substantial completion of
Landlord's Work in which event the fee shall be 10% of the work so extending the
substantial completion date) shall be agreed upon in writing by Landlord and
Xxxxxx's Representative prior to the commencement of any work in accordance with
standard Bulletin Proposal format, a copy of the form of which is attached
hereto as Exhibit B-2.
All payments to Landlord's contractor shall be made via AIA Requisition form
which shall be executed by the Landlord's Representative prior to payment to
such contractors. All subcontractors shall provide releases of liens as
condition to payment of monthly requisitions. Each requisition shall contain
customary trade payment breakdown and backup for each trade for the prior
month's work.
D. PLAN PREPARATION AND APPROVAL. Landlord shall prepare a full and complete
set of biddable working plans and specifications ("Tenant's Plans") in
accordance with the following schedule:.
1. Submission of all plans for construction shall satisfy the permitting
process with the City of Nashua Building Department and shall be available on or
before May 15, 1997. Landlord shall be responsible for obtaining all
construction permits and approvals in connection with Xxxxxxxx's Work.
2. In or within ten (10) days of completion of the design development
drawings, but in no event later than May 15, 1997, Landlord shall provide
Tenant with a detailed cost estimate by trade breaking out all costs and
expenses associated with Landlord's Work.
3. Response (i.e. approval or disapproval of Xxxxxx's Plans) by Tenant to the
Tenant's Plans shall be on or before the fifth (5th) business day after Landlord
submits to Tenant all of Tenant's Plans (or revised plans). Xxxxxxxx agrees to
promptly commence, and thereafter diligently and continuously proceed, to
complete and deliver to Tenant, Xxxxxx's Plans, and Landlord and Tenant agree
that upon delivery of Tenant's Plans to Tenant, each shall proceed with
reasonable diligence and continuity to complete the process of finalizing and
approving Tenant's Plans with the intent of the parties completing the process
by May 15, 1997 or earlier. Landlord shall use best efforts to supply progress
prints of the Tenant's Plans to Tenant from time to time during plan
preparation.
-44-
4. Upon approval of Xxxxxx's Plans by Xxxxxxxx and Xxxxxx, such plans are
referred to herein as the "Final Plans". Landlord shall submit the Final Plans
to at least three (3) qualified subcontractors.
Landlord and Tenant shall jointly review and evaluate the bids to determine
which bids, if any, conform to the requirements of this Section, and which
appear to be bona fide, responsible and free of apparent error. In the event
that both Landlord and Tenant approve any such bids, Landlord shall enter into a
contract or contracts with the lowest qualified bidder(s) promptly thereafter.
Xxxxxxxx agrees to consult with and make a diligent, good faith effort to
include Tenant in all aspects of the bidding process. Tenant and Xxxxxx's
Representative shall be notified of and entitled to attend all progress and
status meetings relating to Landlord's Work. Tenant shall also have the right
to inspect and review the plans and specifications of the base building and
systems relating thereto to ensure the capacity and quality thereof.
5. Landlord shall submit to Tenant a detailed budget by trade breaking out all
costs associated with Xxxxxxxx's Work. On or before the fifth (5th) business
day after Xxxxxxxx's submission to Tenant of the cost of Landlord's Work
(including appropriate back-up by trade), Tenant shall either (i) agree upon the
price for Landlord's Work and the estimated amount to be paid by Tenant to
Landlord, if any, for the cost of Landlord's Work in excess of the Construction
Allowance (subject to adjustment based on change orders), and authorize Landlord
to commence Landlord's Work, or (ii) Tenant shall have the right to revise the
Tenant's Plans and have Landlord work in conjunction with Tenant towards value
engineering. Time is of the essence in connection with the authorization to
Landlord to proceed with construction.
E. PERFORMANCE OF WORK. Landlord agrees to use best efforts to complete
Landlord's Work in accordance with the schedule of certain dates attached hereto
as Exhibit B-3, including, without limitation, the dates of (i) delivery to
Tenant of Tenant's Plans and portions thereof, (ii) approval by Tenant of
Tenant's Plans and portions thereof, (iii) commencement of construction, (iv)
anticipated date of Substantial Completion of Landlord's Work and delivery to
Tenant. The actual date of Substantial Completion of the Premises is defined as
a "Rent Commencement Date".
If Tenant (i) fails or omits to supply additional information relating
to Landlord's Work which may be requested after Xxxxxx's authorization to
Landlord to proceed with construction, or materially interferes with the
performance of Landlord's Work in the exercise of its rights pursuant to
Paragraph F hereof, and any of the foregoing failures continues for three (3)
business days after written notice from Landlord to Tenant, or (E) changes
the scope of Landlord's Work or requests change orders which because of the
process for approval therefor or the additional time to perform the work or
obtain the materials delay the performance of Landlord's Work and Landlord
gives Tenant written notice of such delay ( (i) and (ii) collectively,
"Tenant Delays"), then the Rent Commencement Date shall be deemed to have
occurred as of the date the Premises would
-45-
have been Substantially Completed in accordance with Paragraphs A & B hereof,
but for such Tenant Delays the Premises are not, in fact, ready for Tenant's
occupancy. Xxxxxxxx agrees to use reasonable efforts to accelerate construction
or reschedule certain portions of the Landlord's Work to make up for lost time
due to any delays, provided that Landlord shall not be required to incur
additional costs as a result thereof and any overtime costs incurred by Landlord
as a result of accelerating construction due to Tenant Delays shall be Tenant
change orders.
If Landlord does not Substantially Complete Landlord's Work to the Premises in
accordance with Paragraphs A and B hereof by the Required Delivery Date (as same
may have been adjusted as a result of Tenant Delays) then from the Required
Delivery Date (as same may have been adjusted as a result of Tenant Delays)
until the date of which Landlord's Work is Substantially Complete, Tenant shall
not be obligated to pay Base Rent, but such obligation shall commence on the
date of which Landlord's Work is Substantially Complete. If Landlord does not
Substantially Complete the Premises in accordance with Paragraphs A and B
hereof on or before the Required Delivery Date (as same may have been adjusted
as a result of Tenant Delays) (the "Penalty Date"), then from the Penalty Date
until the date on which Landlord's Work is Substantially Complete, Tenant shall
be entitled to a credit towards the Base Rent under this Lease in the amount of
two days of Base Rent for each day from the Penalty Date until the date on which
Landlord's Work is Substantially Complete.
F. TENANT'S WORK. Tenant shall have the right to contract with cabling and
wiring contractors to install cable and wiring, furniture contractor and other
specialty trades, provided Xxxxxx's contractors shall cooperate and coordinate
their work with the general contractor for Landlord's Work (which schedule shall
be as set by said general contractor), and shall comply with reasonable,
non-discriminatory rules and regulations, in an "open-shop" capacity. All
Tenant contractors shall be subject to the supervision and authority of
Xxxxxxxx's job superintendent.
G. TENANT'S CONTRACTORS. In the event that Xxxxxx engages any separate
contractors in the performance of Xxxxxx's Work, Tenant and Xxxxxx's
contractors and Landlord and Xxxxxxxx's contractors shall cooperate in all
ways with each other to avoid any delay to the work being performed by each
party or any damages which might occur to any work or materials to be
installed in the Premises or conflict in any other way with the performance
of such work. Tenant and its agents, contractors, and employees shall have
the right to enter the Premises at all reasonable hours for the purpose of
performing Tenant's Work.
H. ACCEPTANCE OF WORK. Tenant shall be conclusively deemed to have agreed
that Landlord has performed all of its obligations under this Exhibit B-1
unless not later than sixty (60) days after the Rent Commencement Date,
Tenant shall give Landlord written notice specifying the respects in which
Landlord has not performed any such obligation. Notwithstanding the
foregoing, Landlord guarantees that Landlord's Work shall be free from
defects for a period of twelve (12) months from the Rent Commencement Date.
-46-
I. RIGHTS AND REMEDIES. Landlord shall have the same rights and remedies
which Landlord has upon the nonpayment of Base Rent and Additional Rent for
nonpayment of the cost of Landlord's Work in excess of the Construction
Allowance pursuant to the provisions herein.
-47-
EXHIBIT C
TERM COMMENCEMENT DATE AGREEMENT
To be attached to and made a part of that certain Lease Agreement dated April
___________, 1997 by and between Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx Company as
LANDLORD, and Puma Technology, Inc., as TENANT.
Relative to the Premises located on the second floor first (1st) and second
(2nd) floors of Nashua Office Park and more specifically referred to in the
above-mentioned Lease, our records indicate the following pertinent information
with regard to same:
Occupancy Date:
Term Commencement Date:
Actual Term Dates:
Rent Commencement Date:
If you concur with the above, please acknowledge by signature below, retaining
one (1) copy of this Agreement for your files and returning the other to my
attention, at your earliest possible convenience.
-48-
PAGE TWO
TERM COMMENCEMENT DATE AGREEMENT
Should this Term Commencement Date Agreement not be executed and returned
to LANDLORD within thirty (30) days of its receipt by TENANT, said dates as
specified herein shall hereby be deemed assented to by the TENANT.
Sincerely yours,
Lease Administration
COMMERCIAL/INDUSTRIAL DIVISIONS
cc:
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
P
The foregoing is hereby acknowledged and agreed.
WITNESS TENANT: Puma Technology, Inc.
/s/ X. Xxxxx Xxxxx
------------------------------ -------------------------------
By: X. Xxxxx Xxxxx
Xx. VP, CFO
Duly Authorized
-49-
EXHIBIT D
LANDLORD'S WAIVER
To induce ______________________, a lender having its principal place of
business at ______________________ (the "Lender"), to enter into certain
financial transactions with ____________, a corporation having its
principal place of business at _________________ ("Borrower"), including but
not limited to a certain transaction dated __________________, and in
consideration thereof, Xxxxxx X. Xxxxxxx d/b/a The Xxxxxxx Company
("Landlord"), who by indenture dated ________________ has leased to Borrower
a portion of the premises known as _____________________, consisting of
approximately ________ square feet (the "Premises") hereby represents,
warrants, covenants and agrees to and with the Borrower, the Bank and each of
them, as follows:
The Landlord hereby subordinates, waives, releases and relinquishes to said
Xxxxxx, its successors or assigns, all right, title and interest, if any,
which the Landlord may otherwise claim in and to all property (collateral)
which is the subject of the Security Agreement dated _____________________,
between the Borrower and the Lender, including substitutions, accessions,
replacements and after-acquired collateral. A description of the collateral
secured by the Security Agreement is attached hereto as Exhibit "A".
The Landlord consents to the continued location of all collateral on the
Premises and hereby authorizes and empowers the Bank, its agents, attorneys,
employees, successors and assigns, to enter upon the Premises and to remove the
collateral provided that (1) the Lender gives Landlord prior written notice of
Xxxxxxxx's default; (2) the Lender gives Landlord a ten (10) day prior written
notice before entering the Premises to recover the collateral and (3) the Lender
agrees to restore the demised Premises to their original condition, reasonable
wear and tear excepted.
Xxxxxxxx further agrees that the Lender may, by giving simultaneous written
notice to the Landlord of the Lender's intention to take occupancy, maintain
sole, exclusive use and occupation of the Premises for such reasonable time as
may be necessary to remove the collateral from the Premises, provided that such
reasonable period of time shall not exceed thirty (30) days; and the Lender
shall pay to Landlord that Rent then being paid by Borrower for its use and
occupancy of the Premises. It is clearly understood and agreed that in no event
will a foreclosure sale take place within the Premises.
-50-
THAT CERTAIN LEASE BY AND BETWEEN XXXXXX X. XXXXXXX d/b/a THE XXXXXXX COMPANY
AND , A CORPORATION, DOES NOT CONSTITUTE
COLLATERAL OF SECURED PARTIES.
This Waiver and Assent shall be binding upon Landlord and Landlord's successors
and assigns and shall inure to the benefit of the Lender and its successors and
assigns.
IN WITNESS WHEREOF, Xxxxxxxx and the Lender have executed this Waiver and
Assent this day of , 1997.
WITNESSETH: XXXXXX X. XXXXXXX
d/b/a THE XXXXXXX CONTANY
--------------------------------- --------------------------------------
By: Xxxxxx X. Xxxxxxx
Its: President
WITNESSETH:
--------------------------------- --------------------------------------
By:
Its:
-51-
COMMONWEALTH OF MASSACHUSETTS
Norfolk, ss.
Then personally appeared before me the above named Xxxxxx X. Xxxxxxx, as
President, and acknowledged the foregoing to be his free act and deed, on behalf
of XXXXXX X. XXXXXXX d/b/a THE XXXXXXX COMPANY before me, this day
of , 1997.
------------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
, ss.
Then personally appeared before me the above named , as
and
acknowledged the foregoing to be free act and deed, on behalf of __________
____, before me, this day of , 1997.
------------------------
Notary Public
My Commission Expires:
-52-
EXHIBIT "A"
TO LANDLORD'S WAIVER
Notwithstanding anything contained herein to the contrary, it is hereby
understood and agreed, that certain Lease by and between Xxxxxx X. Xxxxxxx
d/b/a The Xxxxxxx Company and _______________________________, a
_________________________________Corporation, does not constitute Collateral
of secured parties.
-53-
CALIFORNIA
ALL-PURPOSE
ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
COUNTY OF Santa Xxxxx )
-----------------
On May 14, 1997 before me, Xxxxxxx Xxxxxxxxx
------------ -----------------------------------------------------,
DATE NAME, TITLE OF OFFICER - E.G., "XXXX XXX, NOTARY PUBLIC"
personally appeared, Xxxxxx Xxxxx Xxxxx
----------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
[STAMP]
Xxxxxxx Xxxxxxxxx
---------------------------------- (SEAL)
NOTARY PUBLIC SIGNATURE
OPTIONAL INFORMATION
TITLE OR TYPE OF DOCUMENT Standard form of Commercial Lease
-----------------------------------------------------
DATE OF DOCUMENT 05-08-97 NUMBER OF PAGES
--------------------------- -------------------
SIGNER(S) OTHER THAN NAMED ABOVE
----------------------------------------------
FIRST AMENDMENT TO LEASE
This Agreement made this 7th day of May, 1998, by and between Xxxxxx X.
Xxxxxxx d/b/a The Xxxxxxx Company (hereinafter referred to as LANDLORD), and
Puma Technology, Inc. (hereinafter referred to as TENANT),
WITNESSETH:
WHEREAS, by a certain Lease Agreement dated May 23, 1997, as amended by
a Supplemental Agreement dated November 19, 1997 (hereinafter referred to as
the "Lease"), LANDLORD leased to TENANT certain premises located at Nashua
Office Park, Xxx Xxxx Xxxxxxxxx, Xxxxxx, XX 00000, consisting of
approximately 13,179 square feet of space, more particularly described
therein as ("Premises"), and,
TENANT wishes to lease from LANDLORD, and LANDLORD wishes to lease to
TENANT an additional 1,336 square feet of space (hereinafter referred to as
"Expansion Premises II") located on the second (2nd) floor of Nashua Office
Park, Xxx Xxxx Xxxxxxxxx, Xxxxxx, XX 00000, as outlined on Exhibit "A-1"
attached hereto and made a part hereof;
LANDLORD and TENANT desire to amend the Lease to reflect this and
certain additional changes which have been agreed to by the parties and all
changes as set forth below shall become effective on the First Amendment to
Lease Commencement Date (as hereinafter defined).
NOW, THEREFORE, for more valuable consideration, the receipt of which is
hereby acknowledged each to the other, the above-named parties do hereby
agree to amend said Xxxxx as follows:
1. Effective upon the First Amendment to Lease Commencement Date, the
description of TENANT'S Premises as set forth in Section 2.1 of the Lease,
namely Location of Premises, shall be amended, in part, as follows:
... Suite Number 1104 on the first (lst) floor and Suite No. 2200 on
the second (2nd) floor of Nashua Office Park, Xxx Xxxx Xxxxxxxxx,
Xxxxxx, XX 00000, consisting of approximately 14,515 square feet of
space ...
2. The term of this First Amendment to Lease shall commence on the First
Amendment to Lease Commencement Date (defined below), and shall be
coterminous with the existing Lease Agreement, and therefore shall
terminate June 30, 2002.
The First Amendment to Lease Commencement Date shall be February 15,
1998.
Notwithstanding the foregoing, if TENANT'S personnel shall occupy all
or any part of the Expansion Premises II for the conduct of its
business prior to the First Amendment to Lease Commencement Date as
determined pursuant to the preceding paragraph, such date of occupancy
shall, for all intents and purposes of this First Amendment to Lease,
be the First Amendment to Lease Commencement Date.
LANDLORD and TENANT agree to execute a Supplemental Agreement setting
forth the actual Occupancy and Term Dates, once the same have been
established.
1
3. Effective upon the First Amendment to Lease Commencement Date, the
TENANT agrees to pay to LANDLORD, without deduction or offset, rent FOR
THE EXPANSION PREMISES II ONLY, at the rate of NINETEEN THOUSAND SEVEN
HUNDRED SEVENTY-TWO AND 80/100 ($19,772.80) DOLLARS annually, payable in
advance, on the first day of each month, in equal monthly installments
of ONE THOUSAND SIX HUNDRED FORTY-SEVEN AND 73/100 ($1,647.73) DOLLARS
for the period commencing on the First Amendment to Lease Commencement
Date and continuing through and including June 30, 1999, and at that rate
for any fraction of a month; and
TWENTY-ONE THOUSAND ONE HUNDRED EIGHT AND 80/100 ($21,108.80) DOLLARS
annually, payable in advance, on the first day of each month, in equal
monthly installments of ONE THOUSAND SEVEN HUNDRED FIFTY-NINE AND 07/100
($1,759.07) DOLLARS for the period commencing July 1, 1999 and continuing
through and including June 30, 2001, and at that rate for any fraction of
a month; and
TWENTY-ONE THOUSAND SEVEN HUNDRED SEVENTY-SIX AND 80/100 ($21,776.80)
DOLLARS annually, payable in advance, on the first day of each month, in
equal monthly installments of ONE THOUSAND EIGHT HUNDRED FOURTEEN AND
73/100 ($1,814.73) DOLLARS for the period commencing July 1, 2001 and
continuing through and including June 30, 2002, and at that rate for any
fraction of a month of the term.
4. CONSTRUCTION COST. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, IT IS XXXXXX UNDERSTOOD AND AGREED THAT LANDLORD XXXXXX AGREES
TO PERFORM THE CONSTRUCTION AS DESCRIBED ON EXHIBIT "B-1", ATTACHED
HERETO AND MADE A PART HEREOF. TENANT XXXXXX AGREES TO REIMBURSE
LANDLORD FOR THE TOTAL CONSTRUCTION COST, NAMELY TWENTY-TWO THOUSAND
THREE HUNDRED SEVENTY NINE AND 23/100 ($22,379.23) DOLLARS, (HEREINAFTER
REFERRED TO AS THE "TOTAL CONTRIBUTION") . LANDLORD IS IN RECEIPT OF
ONE-HALF (1/2) OF THE TOTAL CONTRIBUTION, NAMELY ELEVEN THOUSAND ONE
HUNDRED EIGHTY-NINE AND 62/100 ($11,189.62) DOLLARS. THE BALANCE OF THE
TOTAL CONTRIBUTION, NAMELY ELEVEN THOUSAND ONE HUNDRED EIGHTY-NINE AND
61/100 ($11,189.61) DOLLARS SHALL BE REMITTED BY TENANT TO LANDLORD UPON
SUBSTANTIAL COMPLETION OF LANDLORD IS WORK TO THE PREMISES. XXXXXXXX'S
WORK SHALL BE DEEMED SUBSTANTIALLY COMPLETED WHEN THE EXPANSION PREMISES
II IS READY FOR OCCUPANCY EXCEPT FOR ITEMS OF WORK (AND, IF APPLICABLE,
ADJUSTMENTS AND FIXTURES) WHICH CAN BE COMPLETED AFTER OCCUPANCY HAS
BEEN TAKEN, WITHOUT CAUSING UNDUE INTERFERENCE WITH TENANT'S USE OF THE
EXPANSION PREMISES II (I.E., SO-CALLED "PUNCH LIST" ITEMS) AND TENANT
HAS GIVEN NOTICE THEREOF. LANDLORD SHALL COMPLETE AS SOON AS CONDITIONS
PERMIT, ALL "PUNCH LIST" ITEMS AND TENANT SHALL AFFORD LANDLORD ACCESS
TO THE EXPANSION PREMISES II FOR SUCH PURPOSES.
5. Except where this First Amendment to Lease specifically changes same, all
other terms, conditions and covenants of the Lease shall apply to the
Expansion Premises II and shall remain the same, where applicable, and are
hereby reaffirmed.
6. The submission of this document for examination and negotiation does
not constitute an offer, and this document shall become effective and
binding only upon the execution and delivery thereof by both
LANDLORD and TENANT, regardless of any written or verbal representation
of any agent, manager or other employee of LANDLORD to the contrary. All
negotiations, consideration, representations and understandings between
LANDLORD and TENANT are incorporated herein and the Lease and this First
Amendment to Lease expressly supersede any proposals or other written
documents
2
relating hereto. The Lease and this First Amendment to Lease may be
modified or altered only by written agreement between LANDLORD and TENANT,
and no act or omission of any employee or agent of LANDLORD shall alter,
change or modify any of the provisions thereof.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
instrument on the day and year first above written.
LANDLORD Xxxxxx X. Xxxxxxx d/b/a
The Xxxxxxx Company
/s/ Xxxx Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxxx
--------------------------- ----------------------------
WITNESS By Xxxxxx X. Xxxxxxx
Its President
TENANT Puma Technology, Inc.
/s/ Xxxxx Xxxxx /s/ X. Xxxxx Xxxxx
--------------------------- ----------------------------
WITNESS By
Its
Duly Authorized
3
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF NORFOLK )
May 7, 1998.
Then personally appeared Xxxxxx X. Xxxxxxx to me known to be the
individual who acknowledged himself to be the President of The Xxxxxxx
Company, LANDLORD, and that he, as such, being authorized to do so, executed
the foregoing instrument and acknowledged the execution thereof to be his
free act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Norfolk
County, Braintree, Massachusetts, this 7th day of May, 1998.
/s/ Xxxxxxxx Xxxxxx
---------------------------
Notary Public
My commission expires:
STATE OF
--------------------- ) [SEAL]
COUNTY OF ) SS.
-------------------- )
, 19 .
-------------- ---
Then personally appeared to me
known to be the individual who acknowledged himself to be the
of Puma Technology, Inc., TENANT, and that he, as such, being authorized to
do so, executed the foregoing instrument and acknowledged the execution
thereof to be his free act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at _________
County, __________, _____________, this ____ day of _________________, 19__.
-------------------------------
Notary Public
my commission expires:
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EXHIBIT "A-1"
Floor Plan - Expansion Premises II
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EXHIBIT "B-1"
LANDLORD'S Work - Expansion Premises II
LANDLORD shall construct TENANT'S Expansion Premises II in accordance with a
mutually agreed upon floor plan.
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