1
Exhibit 10.4
LEASE
AGREEMENT OF LEASE made as of this 27th day of July, 1995, by and
between Athena Wlasits, Xxxxxx Xxxxxx, and Xxxxxx X. Shack, as they are Trustees
of Xxxxxx Property Trust, u/d/t dated December 22, 1992, and thereafter amended,
said trust having an usual place of business at One Branch Street, Methuen,
Essex County, MA (hereinafter, "Landlord") and Omtool Limited, a duly organized
corporation with an usual place of business at 0X Xxxxxxxxxx Xxx, Xxxxx, XX
00000 (hereinafter, "Tenant").
1. Leased Premises. Landlord, for and in consideration of the
rents, covenants and agreements hereinafter specified to be paid, kept and
performed by the Tenant, hereby leases to Tenant that portion of a building
being known as "Building A" of the Brookview Industrial Condominium, a
Condominium created by Declaration dated November 30, 1988, recorded at
Rockingham County Registry of Deeds at Book 2770, Page 2921 and thereafter
amended of record (the "Condominium"). The Condominium is located at 0X
Xxxxxxxxxx Xxx, Xxxxx, XX. Said leased premises consists of approximately 15,000
square feet, within said building (the "Building") which is located on that
certain parcel of land as more particularly described in "Exhibit A" annexed
hereto and made a part hereof, comprising the Condominium. Said portion of the
Building is shown on "Exhibit B" annexed hereto and made a part hereof to be
hereinafter referred to as the "leased premises" or "leased property." The
parties hereto acknowledge and agree that the leased premises constitutes all of
Unit 1, located in said Building A, and that Tenant accepts and occupies the
said leased premises in its present condition, AS-IS, with no warranties of any
nature from Landlord, other than those which are set forth in this Lease.
2. Term. The term of this Lease shall be five (5) years,
beginning on August 1, 1995 and ending on July 31, 2000.
Tenant is hereby granted the option to extend this Lease for
one (1) additional successive period of three (3) years, the term of which is to
commence on the first day following the expiration date of this Lease (the
"Extension Period"). Tenant shall provide Landlord, at least six (6) months
prior to the said lease expiration date, written notice of its intent to
exercise its rights hereunder. The extension of this Lease shall be under the
same terms and conditions hereof, with the exception of the annual basic rent,
which shall be as more particularly provided in Section 3 below.
3. Rent; Taxes. The Tenant shall pay to Landlord for the leased
premises an annual basic rent in the amounts as follows:
Years 1 through 3, inclusive: Ninety thousand and 00/100
($90,000.00) Dollars, payable in equal monthly installments in the sum of Seven
Thousand Five Hundred and 00/100 ($7,500.00) Dollars in advance on the first day
of each month during the term hereof.
Years 4 and 5: Ninety Three Thousand Seven Hundred Fifty and
00/100 ($93,750.00) Dollars, payable in equal monthly installments in the sum of
Seven Thousand Eight
2
-2-
Hundred Twelve and 50/100 ($7,812.50) Dollars in advance on the first day of
each month during the term hereof.
During the Extension Period, the Tenant shall pay to Landlord
for the leased premises an annual basic rent in the amount of Ninety Seven
Thousand Five Hundred and 00/100 ($97,500.00) Dollars, payable in equal monthly
installments in the sum of Eight Thousand One Hundred Twenty Five and 00/100
($8,125.00) Dollars in advance on the first day of each month during the term
hereof.
Rent due from Tenant shall be prorated for any partial month
during the term hereof.
Such foregoing annual rent shall, for the purposes hereof, be
called the "basic rent" or "basic annual rent" for such portions of the term
during which such is in effect.
Together with the above basic rent, the Tenant shall also pay
all of the real estate and other municipal taxes levied against the leased
premises during the term of this Lease, including any extension thereof. The
real estate taxes levied against the leased premises shall mean one hundred
(100%) percent of all such amounts as shall be finally determined to be due to
the Town of Salem, NH, after deducting abatement, refund or rebates, if any.
Real estate taxes and special assessments, if any, which may be amortized over a
period of time, shall be amortized over the longest period permitted by law. At
its sole expense, Tenant may seek an abatement of such real estate taxes, in
which case Landlord shall cooperate with Tenant in initiating and pursuing any
proceedings which may be required in order to obtain such abatement.
If Landlord is escrowing tax payments with an institutional
holder of a first mortgage on the parcel of which the leased premises are a
part, Tenant shall pay its share of the taxes to such institutional holder at
the same time as Landlord is required so to do and as often as monthly, if so
required by such lender. If Landlord is not escrowing its tax payments with an
institutional lender, then Tenant shall pay its tax obligations hereunder to
Landlord or to the taxing authority directly before such taxes accrue penalty or
interest, but in no event sooner than twenty (20) days after Tenant shall have
received a copy of the applicable tax xxxx.
In the event Landlord neglects to pay its share of the taxes
in accordance with the terms hereof, if any, Tenant may pay (but is not
obligated to pay) the same for Landlord's account and deduct the amount of such
payment from the next installments of rent payable hereunder.
Landlord agrees to forward each tax xxxx received by it to
Tenant promptly upon receipt.
Any and all taxes, premiums or other costs or expenses which
the Tenant is required to pay hereunder (as hereinabove or as elsewhere
hereinafter set forth), together with all interest and penalties that may accrue
by reason of Tenant's failure to pay same in violation of the foregoing
provisions, shall be deemed to be additional rent and, in the event of
non-payment by Tenant, Landlord shall have all the rights and remedies with
respect thereto as Landlord has for the nonpayment of the basic rent.
3
-3-
4. Use. Tenant may use and occupy the leased premises for any
lawful purpose and shall not use nor knowingly permit any part of the leased
property to be used for any unlawful purposes.
Landlord represents and warrants that the leased premises are
in the Salem Industrial Park District and are properly zoned for industrial park
district uses (including, without limitation, general office use) and that the
applicable dimensional, lot area coverage and parking requirements have been
complied with in connection with the construction of the Building thereon.
5. Compliance with Laws. At its sole expense, Tenant shall comply
with all laws, orders, and regulations of federal, state, municipal and other
governmental or quasi-governmental authorities related to the manner in which
Tenant makes use of the leased property, and/or with any directions of any
public officer made pursuant thereto, which shall impose any duty upon the
Landlord or the Tenant with respect to the leased property (other than for
general office use). Landlord covenants that the leased property, including the
Building and parking areas thereon, are, or will be, on the commencement date of
the term hereof, in full compliance with all such laws, orders and regulations
and directions. At its sole expense, Tenant shall obtain all licenses or permits
which may be required for the conduct of its business within the terms of this
Lease, or for the making of repairs, alterations, improvements, or additions,
and the Landlord, where necessary, will join with the Tenant in applying for all
such permits or licenses.
6. Covenant of Quiet Enjoyment. Landlord warrants that Tenant,
upon the payment of the rent herein reserved and upon the performance of all the
terms of this Lease, at all times during the Lease term and during any extension
or renewal term, shall peaceably and quietly enjoy the leased property without
any disturbance from the Landlord or from any other person claiming by, through
or under the Landlord, or by superior title.
7. Tenant's Repairs and Maintenance. During the term hereof,
Tenant shall, at its own expense, make such repairs and replacements to so much
of the leased premises as Tenant is required to maintain as hereinafter set
forth, which are necessary to maintain the same in as good order and condition
as that which existed at the commencement of the term of this Lease, reasonable
wear and tear, damage by fire or other casualty, eminent domain takings,
defective workmanship, materials or equipment provided by Landlord in the
original construction of the Building, damage arising by settling of the
Building or any improvements on the leased property erected by Landlord for
Tenant and Landlord's failure to make any repairs required by it under the
Lease, excepted.
The property Tenant shall be required to maintain shall
include the interior of the leased premises, the pipes, HVAC and heating
systems, plumbing system, window glass if uninsured, fixtures, and all other
appliances, equipment, and appurtenances exclusively servicing the leased
premises.
With regard to the pipes, plumbing system, fixtures and all
other appliances and appurtenances exclusively servicing the leased premises,
and all equipment used in connection with the same, the Tenant's obligations
shall be limited to only those items which are located in
4
-4-
the interior of the leased premises. Landlord represents and warrants that the
pipes, plumbing system, fixtures and all other appliances and appurtenances
exclusively servicing the leased premises and all equipment used in connection
with the same are in good working order as of the commencement date of this
Lease.
8. Landlord's Repairs and Maintenance. Landlord agrees that it
will make all repairs, replacements, and alterations to the leased property
which Landlord is required to maintain as hereinafter set forth, and which may
be necessary to maintain the same in good repair and condition, provided
however, notwithstanding anything in this Lease to the contrary, Tenant, and not
Landlord, shall make all repairs, replacements and alterations to the property
which Landlord is required to maintain which may be required as the result of a
default or failure of repairs, replacements, alterations or other improvements
or installations made by Tenant.
The property which Landlord is required to maintain consists
of the structural parts of the Building of which the leased property is a part,
including, without limitation, the foundation, roof, gutters, downspouts,
exterior walls, window frames, door frames, slab floors and, to the extent not
included in the foregoing, all utilities, conduits, fixtures and equipment
serving the said Building but located outside of the leased property (but
excluding all uninsured against plate glass and doors), the walkways, curbs,
landscaped areas and parking areas located on the parcel of land on which the
Building of which the leased premises are a part is located. Such property shall
be deemed to include part replacements (subject to the provisions of Section 7.
above), capital repairs and replacement of the HVAC system, pipes, plumbing
system, heating system, and all other systems for which Tenant is not
responsible servicing the leased premises. In addition thereto, Landlord will
make any repairs to the property Tenant is required to maintain that are
required as a result of Landlord's negligence or failure to repair the property
Landlord is required to maintain hereunder, excluding negligent acts by Tenant
or Tenant's agents, invitees or employees.
Notwithstanding the foregoing, it is agreed that Tenant shall
pay to Landlord, as additional rent for said premises, such sum of money as
represents 9.3048% of the amounts reasonably expended or incurred by the
organization of unit owners of the Condominium (or Landlord acting in its stead)
in maintaining and routine repairing all said walkways, curbs, parking areas and
landscape areas referred to in the immediately preceding paragraph, excluding
replacements and capital improvements. Such additional rent shall be payable by
Tenant not more than semi-annually, within thirty (30) days of billing by
Landlord therefor.
In connection with the percentage named in the preceding
paragraph, the Landlord warrants that the leased premises represents not less
than 9.3048% of the total percentage interest of ownership of the Condominium,
as such is established by the terms and Provisions of the Declaration of
Brookview Industrial Condominium.
9. Condition of Premises at End of Term. At the expiration or
sooner termination of the term of this Lease, Tenant shall vacate the leased
property, leaving same in the same good order and repair as such property shall
have been received, subject to the exceptions set forth in Section 7, and shall
remove all of it property therefrom (subject to other provisions relating to
such property elsewhere herein contained), so that the Landlord can repossess
the leased property
5
-5-
not later than midnight on the date upon which this Lease or any extension
thereof ends, whether upon notice or by otherwise as for the breach of any
condition or covenant of this Lease.
The parties hereto covenant and agree that upon such vacation
by Tenant, occurring at any time prior to or upon the termination of this Lease
or any extension thereof, the additions, alterations, or improvements which have
been installed by the Tenant in the leased premises as fixtures attached
thereto, may become the property of the Landlord without any further document of
title being deemed necessary. Notwithstanding same, Tenant may remove from the
leased property all materials, non-fixture equipment, trade fixtures, and items
of personal property of every other sort or nature located within the leased
premises, provided that such property is removed without substantial injury to
the leased premises. No injury shall be considered substantial if it is promptly
corrected by restoration to the condition prior to the installation of such
property, if so requested by the Landlord. Any such property not removed shall
become the property of the Landlord.
10. Alterations to the Leased Premises. No structural alteration,
addition, or improvement to the leased premises shall be made by the Tenant
without the written consent of the Landlord, which consent shall not be
unreasonably withheld.
Landlord acknowledges Tenant may from time to time further
alter the premises as permitted herein or consented to or install fixtures and
equipment. Landlord agrees that such alterations or fixtures may be attached to
walls, floors and ceilings by nails, screws or similar means and that the
removal of the same may cause marks or discoloration of walls, ceilings or
floors, all of which shall be considered ordinary wear and tear for which Tenant
is not responsible to Landlord. As provided in Section 9 above, such fixtures
and equipment shall remain the property of the Tenant unless such is not removed
by Tenant upon termination of this Lease.
11. Utilities. Tenant shall pay all charges for gas, electricity,
light, heat, power, and telephone or other communication service used, rendered,
or supplied upon or in connection with the leased property. Tenant shall pay to
the Landlord or to the Town of Salem, NH or to any other governmental authority
for the account of Landlord, the rent or charge which may, during the term, be
assessed or imposed for the water and sewer use charges used or consumed in or
on the leased property, whether determined by meter or otherwise, as soon as and
when the same may be assessed or imposed.
Tenant shall indemnify the Landlord against any liability or
damages on any of aforesaid account or items.
12. Default. If Tenant shall default in the payment of any rent,
additional rent, or any other sum of money payable by Tenant to Landlord and if
Tenant shall fail to cure said default within ten (10) days after receipt of
written notice of same from Landlord, or if Tenant shall default in the
performance or observance of any other non-monetary type or manner of agreement
or condition on its part to be performed or observed and if Tenant shall fail to
cure said default within thirty (30) days after receipt of written notice of
said default from Landlord (or if said default shall reasonably require longer
than thirty (30) days to cure, if Tenant shall fail to commence to cure said
default within a reasonable time after receipt of notice thereof and
6
-6-
prosecute the curing of the same to completion with due diligence), or if the
Tenant's estate herein created shall be taken on execution or other process of
law, or if a petition in bankruptcy or for the appointment of a receiver shall
be filed by the Tenant, or if Tenant shall be adjudicated bankrupt or insolvent,
or if a receiver or other similar officer shall be appointed to take charge of
the Tenant's property and shall not be discharged within forty-five (45) days,
or if any assignment shall be made by the Tenant of its property for the benefit
of creditors, then, and in any of said cases, this Lease (if the Landlord so
elects) shall thereupon become null and void, and the Landlord shall have the
right to reenter or repossess the leased property, either by summary
proceedings, surrender, or otherwise, without breach of the peace, and
dispossess and remove therefrom the Tenant, or other occupants thereof and their
effects, without being liable to any prosecution therefor. In such case, the
Landlord may, at its option, relet the leased property or any part thereof, as
the agent of the Tenant and the Tenant shall pay the Landlord the difference
between the rent hereby reserved and agreed to be paid by the Tenant for the
portion of the term remaining at the time of reentry or repossession and the
amount, if any, received or to be received under such reletting for such portion
of the term. Landlord shall use its best efforts to mitigate damages hereunder.
Any violation or attempted violation or threatened violation
of any condition of this Lease by the Tenant, or anyone claiming under the
Tenant, shall be remediable by injunction, which shall be a cumulative remedy in
addition to every other remedy given by this Lease or by existing or future
laws.
13. Landlord's Right to Enter Premises. The Landlord and its
representatives may enter the leased property at any reasonable time after
24-hours notice for the purpose of inspecting the leased property, performing
any work which the Landlord is required or elects to undertake or which is made
necessary by reason of the Tenant's default under the terms of this Lease,
exhibiting the leased property for sale, lease (if within 90 days of the
termination date of this Lease), mortgage financing, or posting notices of
nonresponsibility under any mechanic's lien law, provided that, in performing
any such work, Landlord shall do so in such a manner as to minimize any
interference with Tenant's operations to the extent reasonably feasible and
further provided no access shall be had to any area where such access would
violate any Federal security or secrecy regulations or enable Landlord or its
representatives to learn Tenant's trade secrets. Landlord may enter without such
notice in the event of an emergency.
14. Damage, Fire or Casualty. In the event of damage to or
destruction of the leased property by fire or casualty, the Landlord (acting
either through the association of unit owners of the Condominium or on its own
account), at its sole expense, shall promptly restore the leased property
(including any property which shall have become the property of the Landlord
pursuant to the provisions of Section 9 above) as nearly as possible to its
condition prior to such damage or destruction. All insurance proceeds received
by the Landlord pursuant to the provisions of this Lease, less the cost (if any)
of such recovery, shall be held in trust by the institutional mortgagee holding
a first mortgage on the premises or, if there is none, such proceeds shall be
turned over to Landlord and shall be held in trust by Landlord and applied by
the Landlord to the payment of such restoration as such restoration progresses.
In the event of fire or other casualty damaging or otherwise adversely affecting
the leased premises, there shall be an abatement, proration, and/or reduction in
the rental due hereunder, which shall be computed from the date of the damage to
the
7
-7-
date of such restoration, and to be based upon the nature and extent to which
such damage shall interfere with the Tenant's use of the leased premises.
If the Building of which the leased property is a part or the
leased premises is destroyed or so damaged by fire or other casualty to the
extent of more than fifty (50%) percent of its insurance value, or if during the
last year preceding the expiration of the term of this Lease the Building of
which the leased property is a part or the leased premises is damaged or
destroyed to the extent of more than twenty-five (25%) percent of the insurable
value, or if the net insurance proceeds are not adequate to repair or restore
the premises in the manner herein provided, or if the repairs to the Building or
leased premises cannot be completed within 120 days or, if the leased premises
remains untenantable for a period of 120 days, the Landlord or Tenant may
terminate this Lease on notice of at least ten (10) days and no more than thirty
(30) days. Such notice shall be given within sixty (60) days after the
occurrence of the event entitling such notice to be given. If the Lease shall so
terminate, all basic and additional rent shall be apportioned to the date of
destruction and all insurance proceeds shall belong to the Landlord.
Any disbursement of insurance proceeds by a holder of a
mortgage shall be deemed to have been by the Landlord.
Except as provided hereinabove in this clause, if the leased
property or any part thereof or the furniture, furnishings and fixtures therein,
shall be destroyed or damaged, such fact shall not affect the provisions of this
Lease, any law, rule, or regulation to the contrary notwithstanding, and the
Tenant's obligations under this Lease, including the payment of basic rent,
additional rent, and other charges, shall continue without abatement of any
kind.
15. Fire Insurance. Landlord (acting either through the
association of unit owners of the Condominium or on its own account) shall be
obliged to keep the Building of which the leased premises are a part insured
against loss or damage by fire, with extended coverage endorsement in any amount
sufficient to prevent coinsurance under the terms of the applicable policies
but, in any event, in an amount not less than 80% of the full insurable value as
determined from time to time. The term "full insurable value" shall mean actual
replacement cost (exclusive of the cost of excavation, foundations, and
footings) without deduction for physical depreciation. Such insurance shall be
issued by financially responsible insurers duly authorization to do business in
the State of New Hampshire. Such policy or policies shall name Landlord and any
mortgagee as Insured parties and loss payees, and shall provide it is not
cancelable except on ten (10) days' prior written notice to all named parties. A
certificate of insurance shall be furnished upon request to Tenant.
Notwithstanding the foregoing, it is agreed that Tenant shall
pay to Landlord, as additional rent for said leased premises, such sum of money
as represents 9.3048% percent of the amount reasonably expended or incurred by
the organization of unit owners of the Condominium (or Landlord in its stead)
for maintaining in force the insurance as provided in the immediately preceding
paragraph. Such additional rent shall be payable by Tenant not more than
semiannually as and when billed by Landlord therefor.
8
-8-
In connection with the percentage named in the preceding
paragraph, the Landlord warrants that the leased premises represent not less
than 9.3048% percent of the total percentage interest of ownership as such is
established by the terms and provisions of the Declaration of Brookview
Industrial Condominium.
In connection with the various charges required by the
provisions of this Lease as additional rent, so-called, the Tenant shall be
entitled to receive (upon written request therefor) a verified copy of the
financial records of the Brookview Industrial Condominium Association, which
records shall include the annual budget and a record of expenditures on such
account.
16. Eminent Domain. If the leased property, or any part thereof,
is taken by eminent domain, then, at the option of either Landlord or Tenant,
this Lease shall expire on the date when the leased property shall be so taken
and the rent shall be apportioned as of that date. In the event of any such
taking, Tenant shall have the right at its election to continue to occupy all or
part of the leased premises to the extent permitted by law between the date of
such taking and the time when physical possession of the leased premises shall
be taken subject to the provisions of this Lease insofar as reasonably
applicable to such occupancy, but the amount charged Tenant by any such taking
authority or its assigns for rent or occupancy shall be deducted from the rent
paid or payable by Tenant hereunder. Notwithstanding the foregoing, nothing
herein shall prohibit Tenant, to the extent permitted by law, from prosecuting
its own claim for such damages sustained through such taking as the law may
provide to Tenant in its capacity as Tenant, including compensation for moving
expenses, fixtures and "special damages," so-called, so long as the same do not
infringe upon or diminish the damages sought by Landlord. If Tenant shall not be
entitled by law to prosecute such a claim in its own name, it may do so in, the
name of Landlord. In the event that Tenant does not elect to terminate this
lease pursuant to this Section following a taking of less than the entire leased
premises, Landlord (acting either through the association of unit owners of the
Condominium or on its own account) shall promptly restore the remaining portion
thereof so as to constitute an integral rental unit and the rental due hereunder
shall be equitably abated.
17. Utility Easements. Landlord shall have the right to grant
easements in areas of the leased property for installation of utilities,
provided that the use of such easement in areas for such purposes does not
interfere with the operation of the Tenant's business in the leased property or
its use of the parking areas and walkways appurtenant thereto. The Tenant shall
not be entitled to any compensation or abatement of rent if the use of the
parking areas and walkways appurtenant thereto. The Tenant shall not be entitled
to any compensation or abatement of rent if the use of such easement areas does
not materially interfere with the operation of the Tenant's business or its use
of the parking areas and walkways appurtenant thereto.
18. Assignment and Subletting. Tenant shall not assign, mortgage,
or encumber this Lease, nor sublet or permit the leased property or any part
thereof to be used by others, without the prior written consent of the Landlord
in each instance, which consent shall not be unreasonably withheld. If this
Lease is assigned, or if the leased property or any part thereof is sublet or
occupied by anybody other than the Tenant, the Landlord may, after default by
the Tenant, collect rent from the assignee, subtenant, or occupant and apply the
net amount collected to the rent herein reserved. No such assignment,
subletting, occupancy, or collection shall be
9
-9-
deemed a waiver of this covenant, nor shall the Landlord's acceptance of the
assignee, subtenant, or occupant as tenant be deemed the Landlord's release of
the Tenant from the further performance by the Tenant of the covenants in this
Lease. The consent by the Landlord to any one assignment or subletting shall not
be construed to relieve the Tenant from obtaining the consent in writing of the
Landlord to any further assignment or subletting.
19. Subordination to Mortgages; Estoppel Certificates. This Lease
shall be subject and subordinate at all times to the lien of existing mortgages
and of mortgages which hereafter may be made a lien on the leased property,
provided that so long as the Tenant is not in default in the payment of rent or
additional rent or in the performance of any of the terms of the Lease beyond
any grace periods provided herein, the Tenant's possession of the leased
property and the Tenant's rights and privileges under the Lease shall not be
diminished or interfered with by any Mortgagee. Tenant agrees to execute any and
all instruments reasonably required to effect such subordination upon request of
Landlord or any mortgagee in interest.
In the event any mortgage is foreclosed for any reason, and
the Mortgagee succeeds to the interest of the Landlord under the Lease, the
Tenant shall be bound to the Mortgagee under all the terms of this Lease for the
balance of the term thereof, all with the same force and effect as if the
Mortgagee were the Landlord under the Lease, and the Tenant hereby attorns to
the Mortgagee as its Landlord, such attornment to be effective and
self-operative immediately (without the necessity of the execution of any
further instrument on the part of either of the parties hereto) upon the
Mortgagee succeeding to the interest of the Landlord under the Lease. The
respective rights and obligations of the Tenant and the Mortgagee upon such
attornment shall be, to the extent of the then remaining balance of the term of
the Lease, the same as now set forth therein, it being the intention of the
parties hereto for this purpose to incorporate by reference this Lease into any
such mortgage with the same force and effect as is set forth at length herein.
In the event that any mortgage is foreclosed for any reason
and the Mortgagee succeeds to the interest of the Landlord under the Lease, the
Mortgagee succeeds to the interest of the Landlord under the Lease, the
Mortgagee shall be bound to the Tenant under all the terms of the Lease, and the
Tenant shall, from and after such event, have the same remedies against the
Mortgagee for the breach of an agreement contained in the Lease that the Tenant
might have had under the Lease against the prior Landlord hereunder. Subject to
the provisions of Section 32. below, in no event shall the Mortgagee be liable
for any act or omission of any prior Landlord, be subject to any offsets or
defenses which the Tenant might have against any prior Landlord, or be bound by
any rent or additional rent which the Tenant might have paid to any prior
Landlord for more than the current month:
At Landlord's request, from time to time, Tenant agrees to
execute and deliver to Landlord estoppel certificates in a form which may be
reasonably required by Landlord or its mortgagee.
The rights and obligations of the Tenant and the Mortgagee
hereunder shall bind and inure to the benefit of their respective successors and
assigns. Landlord shall make its best
10
-10-
efforts to provide Tenant with a fully executed non-disturbance agreement from
the Landlord's lender.
20. Tenant's Insurance; Landlord's Liability. Tenant shall
maintain general comprehensive public liability (including contractual liability
coverage and a broad form endorsement) with respect to the leased premises,
issued by an insurance company licensed to do business in the State of New
Hampshire, and naming Landlord as an additional insured, with a combined single
limit of not less than $1,000,000.00 for bodily injury and for property damage,
and with no annual aggregate limit. Tenant shall deliver to Landlord the
policies of such insurance, or certificates thereof, at the commencement of this
lease, and each renewal policy or certificate thereof, at least twenty (20) days
prior to the expiration of the policy it renews. Tenant may provide the required
coverages in this Section as part of a blanket or master policy of insurance
otherwise maintained by it.
The parties hereto agree that Landlord shall not be liable to
Tenant for injury or damage to person or property occurring within the leased
property unless caused by or resulting from any willful act, omission, fault,
negligence or other conduct of the Landlord or any of the Landlord's agents,
servants, or employees.
Tenant agrees to look only to Landlord's interest in the
leased premises for satisfaction of any claim against Landlord hereunder and not
to any other property or assets of Landlord. If Landlord transfers its interest
in the premises, then in the case of claims accruing from and after such
transfer Tenant shall look solely to the interest in the premises of Landlord's
transferee for the performance of all of the obligations of Landlord hereunder.
The obligations of Landlord shall not be binding on any partners (or trustees or
beneficiaries) of Landlord or of any successor individually, but only upon
Landlord's or such successor's assets as described in the foregoing sentences.
21. Notices. Any notice under this Lease must be in writing and
must be sent by certified mail to the first address of the party to whom the
notice is to be given, as designated by such party in writing. The Landlord
hereby designates its address as Xxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, with a
copy to Shack Law office, Xxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, and a copy to
Bank of Boston, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attn: X. Xxxxxx, VP. The
Tenant hereby designates its address as: _____________________________________.
22. No Abatement of Rent. Except as specifically provided
elsewhere herein, no abatement, diminution, or reduction of rent, charges, or
other compensation shall be claimed by or allowed to the Tenant (or to any
persons claiming under it) under any circumstances, whether for inconvenience,
discomfort, interruption of business, or otherwise, arising from the making of
alterations, changes, additions, improvements, or repairs to the leased premises
by virtue or because of any future governmental laws, ordinances, requirements,
orders, directions, rules, regulations, or by virtue or arising from, and
during, the restoration of the leased premises after the destruction or damages
thereof by fire or other cause or the taking or condemnation of a portion only
of the leased property.
11
-11-
23. Remedies Cumulative. The specified remedies to which the
parties may resort under the terms of this Lease are cumulative and are not
intended to be exclusive of any other remedies or means of redress to which the
parties may be lawfully party of any provision or provisions of this Lease.
24. No Oral Amendments. This Lease may not be changed orally, but
only by an agreement in writing and signed by the party against whom enforcement
of any waiver, change, modification, or discharge is sought. This Lease contains
the entire agreement between the parties and cannot be changed or terminated
orally.
25. Unenforceability. If any provision of this Lease shall be
declared invalid or unenforceable, the remainder of the Lease shall continue in
full force and effect.
26. Governing Law. This Lease shall be governed by, construed and
enforced in accordance with the laws of the State of New Hampshire.
27. Notice of Lease. The parties hereto agree that this Lease or
any notice thereof shall not be recorded.
28. Tenant's Right To Contest Laws. If, under the provisions of
Section 5 hereof, Tenant shall be required to comply with any law, ordinance,
order, regulation or rule, Tenant shall have the right to contest the validity
of said public order and shall not be deemed to be in default for not performing
the same until a final decision has been made as to the validity of said public
order, provided, however, that Tenant shall indemnify and hold Landlord harmless
against any fine or penalty arising by reason of Tenant's action in contesting
the same and protect Landlord against any forfeiture of estate by reason of
Tenant's action in contesting the same.
29. Warranty of Title. Landlord warrants and represents to Tenant
that, as of the Commencement Date hereof, it will be seized of the real estate,
will have full and lawful right to enter into this Lease, and that this Lease
will not violate the provisions of any other lease, mortgage or other
contractual agreement in effect and applicable with respect to the Building
(including, without limitation, any document related to the Condominium), and
that Landlord will not enter into any lease agreement or other undertaking which
would violate Tenant's rights hereunder.
30. Force Majeure. Except as herein elsewhere provided to the
contrary, all of the obligations of Landlord and Tenant hereunder are subject to
the following conditions, to wit: if performance other than payment of money or
substantial completion of the Building on the premises is prevented by reason of
fire, strike, labor difficulty, inability to obtain supplies or other
difficulties beyond the reasonable control of the party required to perform such
obligations, the performance shall be excusable during such period of inability.
31. Consents Not To Be Unreasonably Withheld. Wherever the consent
or approval of either party to this Lease is required, the same shall not be
unreasonably withheld or delayed.
32. Self Help. If Tenant shall default in the performance or
observance of any agreement or condition in this Lease contained on its part to
be performed and observed and shall
12
-12-
not commence to cure such default within the period prescribed in this Lease,
Landlord may, at its option, without waiving any claim for damages, at any time
thereafter give written notice to Tenant that if the cure is not commenced
within thirty (30) days, and thereafter diligently prosecuted to completion,
Landlord will cure such default for the account of Tenant, and any reasonable
amount paid for any contractual liability incurred by Landlord in so doing shall
be deemed paid or incurred for the account of the Tenant and Tenant agrees to
reimburse Landlord therefor or save Landlord harmless therefrom; provided, that
Landlord may cure any such default as aforesaid prior to the expiration of any
waiting period, but after notice to Tenant if the curing of such default prior
to the expiration of such waiting period is reasonably necessary to protect the
real estate of Landlord's interest therein, or to prevent injury or damage to
persons or property. If Tenant shall fail to reimburse Landlord upon demand for
any cost incurred, said amount shall be added to and become due as a part of the
next payment of rent due hereunder.
If Landlord shall default in the performance or observance of
any agreement or condition in this Lease contained on its part to be performed
or observed hereunder and shall not cure such default within thirty (30) days
after notice thereof from Tenant (or, if such default cannot reasonably be cured
within thirty (30) days, Landlord shall not within said period commence to cure
such default and thereafter prosecute the curing of such default to completion
with due diligence), at its option Tenant may, at any time thereafter cure such
default for the account of Landlord, and any amount paid for any contractual
liability incurred by Tenant in so doing shall be deemed paid or incurred for
the account of Landlord, and Landlord shall agree to reimburse Tenant therefor
or to save Tenant harmless therefrom; provided, that Tenant may cure any such
default as aforesaid prior to the expiration of said waiting period as is
reasonably necessary to protect the real estate of Tenant's interest therein or
to prevent injury or damage to persons or property. If Landlord shall fail to
reimburse Tenant within thirty (30) days of demand therefor, Tenant may deduct
the same from the rent or any other sum due Landlord hereunder.
33. No Waivers. No assent, express or implied, by one party to any
breach of any covenant or condition therein contained on the part of the other
to be performed or observed, and no waiver, express or implied, or failure by
one party to insist on the other's prompt performance or observance of any such
covenant or condition, shall be deemed to be a waiver of or assent to any
succeeding breach of the same, or of any other covenant or condition, and,
except as provided herein, such party may assert its rights and remedies
hereunder without any prior or additional notice to the other that it proposes
to do so. The payment by Tenant or acceptance by Landlord of rent or other
payment hereunder, or silence by either party as to any breach, shall not be
construed as waiving any of such party's rights hereunder unless such waiver is
in writing.
No payment by Tenant or acceptance by Landlord of a lesser
amount than shall be due to Landlord from Tenant shall be deemed to be anything
but payment on account, and the acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon or upon a letter accompanying
said check shall not be deemed an accord and satisfaction, and Landlord may
accept said check without prejudice to recover the balance due or pursue any
other remedy. It is agreed between the parties that f at any time a dispute
should arise as to the propriety or necessity of Tenant making any payment or
performing any obligations required hereunder, Tenant may pay or perform the
same under protest and such payment or performance under protest shall not be
considered to be voluntary on the part of Tenant.
13
-13-
34. Parking and Access to Premises. Tenant, its agents, servants,
invitees and licensees, will have use of the parking area or designated parking
space in common with other tenants and occupants of the Brookview Industrial
Condominium, and at all times will have free ingress and egress to and from the
said parking area and entrances for all reasonable purposes, including the
purpose of loading and unloading of its merchandise.
35. Signs. Subject to all local ordinances and regulations, as
well as current rules and regulations of the Brookview Industrial Condominium,
Tenant may erect and maintain such signs as it may desire in connection with its
business, provided that Tenant will be responsible for the removal of such signs
at the termination of the tenancy as well as for the repair of any injury to the
leased premises caused thereby. Landlord shall include Tenant's name on the
directory at the entrance to the property.
36. Effect of Holdover. Any holdover beyond the end of the term of
this Lease, or any extensions or renewals thereof, shall be construed to be a
tenancy from month to month at the same rental and under the same conditions as
provided herein.
37. Brokers. The parties hereby agree that there was no broker
involved in showing the leased premises to Tenant other than Xxxx Commercial
Properties, whose commission shall be paid by Landlord. Either party hereby
indemnifies and holds the other harmless from and against all claims for a
commission or other fee made by any other broker with respect to the leased
premises.
38. Arbitration. Any disagreement between the parties with respect
to the interpretation or application of this Lease or the obligations of the
parties hereunder shall be determined by arbitration. Such arbitration shall be
conducted upon request of either the Landlord or the Tenant, before one person
designated by the American Arbitration Association and in accordance with the
rules of such Association. The arbitrator designated and acting under this Lease
shall make award in strict conformity with such rules and shall have no power to
depart from or change any of the provisions thereof.
39. Security Deposit. Landlord acknowledges receipt of the sum of
$6,875.00, to be held as a security deposit during the term of this Lease, and
duly accounted for pursuant hereto.
14
-14-
IN WITNESS WHEREOF, Landlord and Tenant do hereby execute and deliver
this Lease to each other on the day and year first written.
LANDLORD: XXXXXX PROPERTY TRUST
____________________________________
Athena Wlasits, Trustee
and not individually
By: ________________________________
Xxxxxx Xxxxxx, Trustee
and not individually
By: ________________________________
Xxxxxx X. Shack, Trustee
and not individually
TENANT: OMTOOL LIMITED
By: ________________________________
hereto duly authorized
