EXHIBIT 10.8
LEASE
THIS LEASE dated as of the 1st day of January, 1999, by and between XXXXX
X. XXXXX, with an address of 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx (the
"Landlord"), and ZIPLINK, LLC, with an address of 00 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx (the "Tenant").
1. DEMISED SPACE. Landlord leases to Tenant and Tenant rents from Landlord
those certain premises containing (i) approximately 3,400 square feet of floor
space to be designated by the Landlord from time to time on the second floor of
the building described below (hereinafter collectively called the "Demised
Space"), which Demised Space is located within a building located at 00 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx (the "Premises"), together with the (a) the
nonexclusive use in common with others of approximately 100 square feet of floor
space to be designated by the Landlord from time to time on the first floor of
the Premises for the placement of co-location equipment (b) the nonexclusive use
in common with others of all Common Areas appurtenant to the Premises (including
but not limited to, any parking spaces at the Premises) as may be designated by
the Landlord (collectively the "Common Areas"), and (c) right of access to and
from the Demised Space and the Common Areas to a publicly dedicated road at all
times.
2. TERM. The term of this Lease shall be for five (5) years commencing on
January 1, 1999 and expiring on December 31, 2001 unless sooner terminated as
hereinafter provided (the "Lease Term").
3. USE. Tenant shall use the Demised Space for the sole purpose of general
office use.
4. COMPLIANCE WITH LAWS, ORDINANCES, ETC. During the Lease Term, Tenant
shall, at Tenant's own cost and expense, promptly observe and comply with all
laws, orders, regulations, rules, ordinances and requirements of the federal,
state, town, county and municipal governments and of all other governmental and
public authorities affecting the Tenant's use and occupancy of the Demised
Space. Additionally, Tenant shall comply with the provisions of all insurance
policies from time to time in force with respect to the Premises or any part
thereof to the extent that Tenant has been notified in advance of such
requirements. Tenant shall further comply with reasonable rules and regulations
as may be adopted by Landlord from time to time to the extent that Tenant has
been notified in advance of such rules and regulations and all modifications
thereto and such rules and regulations do not substantially interfere with the
normal and customary use of the Demised Space as permitted under this Lease.
Tenant shall pay all costs, expenses, claims, fines, penalties and damages that
may in any manner arise out of or be imposed because of the failure of Tenant to
comply with the provisions of this paragraph within thirty (30) days of receipt
by Tenant of an invoice and supportive documentation thereof.
Tenant further agrees (a) that Tenant will not violate any environmental
laws, regulations, ordinances, etc.; (b) that Tenant will not use, store,
dispose, or generate any hazardous materials or contaminants in the Demised
Space or the Premises; (c) that the Tenant will not cause or permit any
condition which would create contamination on the Premises; (d) to give notice
to the Landlord immediately upon the Tenant's acquiring knowledge of the
presence of any hazardous materials or contamination at the Premises with a full
description thereof; (e) to give notice to the Landlord immediately of any
notice of violation of any laws, rules or regulations regulating hazardous
materials or contamination at the Premises; and (f) to promptly
comply with any governmental requirements requiring the removal, treatment or
disposal of such hazardous materials or contamination generated, located, or
placed on or at the Demised Space or the Premises by the Tenant, its employees,
representatives, agents, contractors or invitees.
THE PROVISIONS OF THIS PARAGRAPH 4 SHALL SPECIFICALLY SURVIVE THE BREACH,
EXPIRATION, OR TERMINATION OF THIS LEASE.
5. RENT.
(a) The rental during the Lease Term shall be payable by Tenant to
Landlord at the annual rate of thirty-nine thousand ($39,000.00) Dollars (the
"Rent"). The Rent shall be due and payable, in advance, on the first day of
each month during the Lease Term in twelve (12) equal monthly installments of
$4,375 each commencing on January 1, 1999. The Rent shall be due and payable
without notice, deduction or setoff.
(b) If any installment of Rent due from Tenant is not received by
Landlord within ten (10) days of when such installment is due, Tenant shall pay
to Landlord an additional sum of 5% of the overdue rent as a late charge.
Acceptance of any late charge shall not constitute a waiver of Tenant's default
with respect to the overdue amount or prevent Landlord from exercising any of
the other rights and remedies available to Landlord.
(c) Tenant agrees to pay to the Landlord as additional rent, in
addition to the amounts payable pursuant to paragraph 5(a) above, Tenant's
proportionate share of any increase in the total Operating Expenses over the
Base Operating Expense (as hereinafter defined). "Operating Expenses" shall mean
all costs and expenses incurred by Landlord, including, but not limited to, (a)
utilities, sewer rents and charges for water, steam, electricity, heat, gas, hot
water, power and any other service or services furnished to the Premises; (b)
labor and materials in connection with the operation, improvement, repair,
replacement and/or maintenance of the Premises and Common Areas; (c) amounts
charged to the Landlord by contractors for services, materials and supplies
furnished in connection with the operation, improvement, repair, replacement
and/or maintenance of any part of the Premises, Common Areas, and/or the
heating, air conditioning, ventilating, plumbing, electrical, elevators and
other systems and utilities serving the Premises and the Common Areas; (d)
insurance premiums for insurance coverage obtained by the Landlord with respect
to the Premises and the Common Areas, including, but not limited to, All Risk
Insurance and/or public liability insurance obtained in connection with the
Premises and the Common Areas or any portion thereof; (e) any assessment, which
shall or may during the term of this Lease be charged, laid, levied, assessed or
imposed upon or in respect of the Premises and the Common Areas, including, but
not limited to, real property taxes and general and special assessments, or any
tax levied, assessed or imposed in lieu of the foregoing; (f) snow removal,
rubbish removal, landscaping and all other costs and expenses incurred by
Landlord with respect to the Common Areas; and (j) any excise, levy, license and
permit fees and other governmental charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, of any kind and nature whatsoever which
shall or may, during the term of this Lease be assessed, levied, charged,
confirmed or imposed upon or become payable out of or become a lien on the
Premises or any part thereof. "Base Operating Expense" shall mean the Operating
Expenses as hereinabove defined, in the amount of One Hundred Thousand
($100,000.00) Dollars. Tenant's proportionate share of the increases in the
Operating Expenses over the Base Operating Expense shall be 25%. Each year
Landlord shall notify Tenant of Landlord's calculation of Tenant's proportionate
share of the increase in the Operating Expenses and together with such notice
shall
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furnish a statement reflecting the new projected Operating Expenses. Tenant
agrees to pay its share of the increases in the Operating Expenses within thirty
(30) days after submission of the aforementioned statements. Following the
establishment and/or projection by Landlord of an increase in the Operating
Expenses for any year during the term of this Lease, Tenant shall, in addition
to the payments required above, pay to Landlord for the next succeeding twelve
month period in monthly installments in advance, with each monthly installment
equal to 1/12th of the amount of the Tenant's proportionate share of the
established and/or projected increases in the Operating Expenses subject to
adjustment at the expiration of such succeeding twelve month period, or at the
expiration of this Lease, whichever occurs sooner. All increases in Operating
Expenses which shall become payable for the last year of the term of this Lease
shall be apportioned pro rata between Landlord and Tenant in accordance with the
respective portions thereof.
6. UTILITIES; EXTRA SERVICES. Landlord shall be solely responsible for and
shall promptly pay directly to the proper utility company for reasonable
quantities, as determined in the sole discretion of the Landlord, of water,
steam, electricity, heat, gas, hot water, light, power, janitorial and
housekeeping services, security and alarm services, refuse removal, and any
other service or services furnished to the Demised Space as required for
Tenant's use of the Demised Space for commercial office space. Except for
"Excess Usage" (as defined below), any increase in the cost of said utilities
and services shall be paid by the Tenant in accordance with the provisions of
Paragraph 5(c) of this Lease relating to increases in the Operating Expenses.
The Tenant shall pay for all extra services and utilities, including, but not
limited to, telephone, that are not furnished to the Demised Space or the
occupants thereof by the Landlord during the term of this Lease but which
services are furnished to the Demised Space at the request of the Tenant. To the
extent that these utilities are not billed directly to Tenant, Tenant shall
reimburse Landlord on a monthly basis for Landlord's costs in furnishing the
above-mentioned utilities and services to the Demised Space within ten (10) days
after Tenant receives an invoice from Landlord, together with copies of the
applicable xxxx. Landlord shall not be liable for failure to furnish any and all
utilities or services to the Demised Space.
Notwithstanding anything herein to the contrary, if the Tenant's utility or
service requirements are or become excessive as determined by the Landlord in
the sole discretion of the Landlord or if Tenant's utility or service
requirements increase due to the installation or use of additional equipment,
then the Tenant shall be required to pay the increased cost of utilities or
services incurred that exceed the cost of reasonable quantities of utilities of
services required in connection with the rental of office space as determined by
the Landlord in the sole discretion of the Landlord (the "Excess Usage"). The
Landlord may, at its option and at the Tenant's sole cost and expense, install a
separate meter to measure such Excess Usage of utilities and services consumed
by the Tenant and/or determine such Excess Usage based upon a survey performed
by consultants selected by the Landlord at the sole cost and expense of the
Tenant. If Landlord constructs new or additional utilities installations,
including, without limitation, wiring, plumbing, conduits and mains, resulting
from Tenant's changed, increased, or excessive utility or service requirements,
the Tenant shall on demand pay to Landlord the total cost of these items. Tenant
must obtain the Landlord's prior written consent with respect to any and all
installations of utility or service fixtures, appliances and equipment within
the Demised Space.
7. PLACE OF PAYMENTS. All payments required to be paid by Tenant to
Landlord shall be delivered to the office of Landlord as above mentioned without
any prior demand for the same.
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8. TENANT'S INSTALLATIONS AND ALTERATIONS. Tenant agrees to accept the
Demised Space in its "AS IS CONDITION WITH ALL FAULTS". Tenant shall not make
any alterations to the Demised Space or install any equipment in the Demised
Space without (i) furnishing plans and specifications of each alteration or
equipment installation to Landlord; and (ii) obtaining Landlord's prior written
consent, which consent may be withheld in the sole discretion of the Landlord.
9. ASSIGNMENT. Tenant may not assign, mortgage or encumber this Lease, in
whole or in part, or sublet all or any part of the Demised Space.
Notwithstanding the foregoing, this Lease may be assigned to any successor to
Tenant by operation of law, including, but not limited to, consolidation or
merger. Accordingly, Tenant may assign this Lease or sublet the Demised Space to
any entity which acquires all or part of Tenant, or which is acquired in whole
or in part by Tenant, or which is controlled directly or indirectly by Tenant or
which entity controls, directly or indirectly, the Tenant, or which owns or is
owned by the affiliates of the Tenant.
10. MAINTENANCE AND SERVICES. Landlord shall maintain and repair the
structural components and the mechanical, electrical, fire safety, plumbing,
sprinkler systems and HVAC of the building at the Premises and the Common Areas
as may be necessary in the reasonable discretion of the Landlord.
Notwithstanding the foregoing, the Tenant shall pay for, at Tenant's sole cost
and expense, the foregoing maintenance and repair by the Landlord to the extent
such maintenance or repairs is necessitated by, caused, or arises out of the
negligence, misconduct or fault of the Tenant, its employees, agents,
representative, contractors or business customers. Tenant covenants and agrees
at the Tenant's sole cost and expense, to maintain in good order, condition and
repair all the nonstructural portions of the interior of the Demised Space, and
the fixtures and equipment therein and appurtenances thereto located within the
Demised Space. Landlord shall have the right to install or maintain in, over or
under the Demised Space or any portion thereof, such mains, conduits, pipes,
ducts or other facilities as may be necessary or desirable to service the
Premises or any part thereof. Tenant shall, at Tenant's sole cost and expense,
arrange with third parties and, pay for telephone services, equipment, and
fixtures furnished to the Demised Space.
11. LIENS. Should any mechanic's or other lien be filed against the
Premises or any part thereof for any reason whatsoever by reason of Tenant's
acts or omissions or because of a claim against Tenant, Tenant shall cause the
same to be canceled and discharged of record by bond or otherwise within thirty
(30) days after notice by the Landlord.
12. TENANT'S PERSONAL PROPERTY TAXES. Tenant shall pay, directly to the
applicable taxing authority, all taxes assessed, levied or charged against
Tenant's trade fixtures, furniture, improvements and other personal property
installed in, stored in or kept upon the Premises.
13. INSURANCE. Tenant covenants and agrees at Tenant's sole cost and
expense, to provide on or before the commencement of the Lease Term and to keep
in force during the entire Lease Term comprehensive public liability insurance
in the amount of at least $2,000,000 for any occurrence resulting in bodily or
personal injury to or the death of one or more persons and "All Risk" property
damage insurance covering liability for damages to all Tenant's personal
property in the amount of at least $500,000 per occurrence. Tenant shall deliver
to Landlord on the date hereof and thereafter at least thirty (30) days prior to
the expiration of any such policy, either a duplicate original or a certificate
and true copy of all policies procured by Tenant in
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compliance with its obligations hereunder, together with evidence of payment
therefor and including an endorsement which states that such insurance may not
be canceled except upon thirty (30) days written notice to Landlord and any
designee(s) of Landlord. Landlord hereby releases Tenant and Tenant hereby
releases Landlord, except as to deductible amounts, to the extent of their
insurance policies required under this Lease from all claims for loss or damages
to the property of the other, whether or not caused by the act or negligence of
the other and will assure that such insurance permits waiver of liability and
contains a waiver of subrogation.
14. DESTRUCTION. If the Premises or any portion thereof shall be damaged by
any casualty, the Landlord may terminate this Lease within ninety (90) days
after such casualty. In the event that Landlord does not terminate this Lease,
then Landlord shall, upon receipt of the insurance proceeds, repair the same
with due diligence; provided, however, the obligation of Landlord to restore the
Premises shall be limited to the extent of the insurance proceeds actually
received by Landlord, free and clear from collection by any mortgagees and after
deducting the cost and expense, if any, including reasonable attorney's fees of
settling with the insurer. The Rent shall be abated proportionately as to that
portion of the Demised Space rendered untenantable. If Landlord elects to
terminate this Lease, this Lease shall expire as of the termination date
specified by the Landlord and Tenant shall vacate and surrender the Demised
Space to Landlord. Tenant's liability for Rent upon the termination of this
Lease shall cease as of the termination date specified by the Landlord. In the
event Landlord elects to repair the damage insurable under Landlord's policies,
any abatement of Rent shall end upon notice from Landlord to Tenant of the
completion of all necessary repairs.
15. EMINENT DOMAIN. In the event that the whole of the Premises shall be
taken under the power of eminent domain, this Lease shall thereupon terminate as
of the date possession shall be so taken. If any portion of the Premises shall
be taken as aforesaid, then Landlord may, by written notice to Tenant, terminate
this Lease and termination of the Lease shall be effective as of the date
possession is taken. In the event that this Lease is not so terminated, Landlord
shall, upon receipt of the award in condemnation, make all necessary repairs or
alterations to the building in which the Premises are located, but Landlord
shall not be required to spend for such repairs an amount in excess of the
Amount Received by Landlord as damages for the part of the Premises so taken.
"Amount received by Landlord" shall mean that part of the award in condemnation
which is free and clear to Landlord of any collection by mortgagees and after
payment of all costs involved in collection, including but not limited to
attorney's fees. In the event that Landlord does not terminate this Lease upon a
partial taking of the Premises, (i) Tenant, at its own cost and expense shall,
restore all exterior signs, fixtures, equipment, leasehold improvements and
other installations of personality of Tenant which are not taken to as near its
former condition as the circumstance will permit; and (ii) all provisions of
this Lease shall remain in full force and effect, except that the Rent shall be
proportionately reduced in the event that any portion of the Demised Space is
the subject of such partial taking. The entire amount of any condemnation award
shall belong to the Landlord without any deduction therefrom for any present or
future estate of Tenant, and Tenant hereby expressly waives any claim and
assigns to all Tenant's right, title and interest to any such award to the
Landlord. Tenant shall be entitled to a separate claim for moving expenses and
Tenant's trade fixtures as may be permitted under applicable law provided such
claim is made separate and apart from any award to Landlord and only so long as
Tenant's claim and award shall not diminish, reduce or prejudice the award to be
received by Landlord in any way whatsoever.
16. DEFAULT. Upon the happening of any one or more of the following events,
the Landlord may give written notice to the Tenant stating that the term of this
Lease is terminated
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on a date set forth in the notice and if such notice shall be given, the term of
this Lease shall terminate on the date so stated in the written notice:
(a) The failure of the Tenant to timely and fully pay any rent or
other assessments, taxes, damages, amounts, charges, fees, sums, etc. required
by this Lease within ten (10) days of the day or dates appointed for the payment
thereof.
(b) The failure of the Tenant to perform any one or more of its other
covenants under this Lease within thirty (30) days after written notice to the
Tenant specifying the covenant or covenants the Tenant has not performed and the
failure of the Tenant to remedy such failure to perform within said thirty (30)
day period.
(c) The making by the Tenant of an assignment for the benefit of its
creditors.
(d) The levying of a writ of execution or attachment on or against the
Building if the same is not released or discharged within thirty (30) days
thereafter.
(e) The instituting of proceedings in a court of competent
jurisdiction for the involuntary or voluntary bankruptcy, arrangement,
reorganization, liquidation or dissolution of the Tenant under the Federal
Bankruptcy Rules (as now or hereafter in effect) or any federal or state
bankruptcy or insolvency act applicable to Tenant or Tenant's business, or for
its adjudication as a bankrupt or insolvent, or for the appointment of a
receiver of the property of the Tenant, and said proceedings are not dismissed,
or any receiver, trustee, or liquidator appointed therein is not discharged
within thirty (30) days after the institution of said proceedings.
Notwithstanding any such termination, the Tenant shall remain liable to the
Landlord as hereinafter provided in this Lease.
17. REMEDIES OF LANDLORD. If an event of default set forth in this Lease
occurs, the Landlord shall have the following rights and remedies, in addition
to all other remedies at law or equity, and none of the following, whether or
not exercised by Landlord, shall preclude the exercise of any other right or
remedy whether herein set forth or existing at law or equity:
(a) Landlord shall have the right to terminate this Lease by giving
the Tenant notice in writing of the termination date of this Lease, and upon the
giving of such notice this Lease as well as all the right, title and interest of
the Tenant under this Lease shall wholly cease on the termination date set forth
in the notice as if such date were the expiration date of the term of this
Lease, without the necessity of re-entry or any other act on the Landlord's
part. Upon termination the Tenant shall quit and surrender to the Landlord the
Building. If this Lease is so terminated by the Landlord, the Landlord shall be
entitled to recover from the Tenant as damages the worth at the time of such
termination of the excess, if any, of the amount of the rent reserved in this
Lease for the balance of the term of this Lease, over the then reasonable rental
value of the Building for the same period plus all costs and expenses of the
Landlord caused by the Tenant's default.
(b) The Landlord may, without demand or notice, re-enter and take
possession of the Demised Space or any part thereof, and repossess the same as
of the Landlord's former estate in the manner prescribed by the Connecticut
statute relating to summary process and expel the Tenant and those claiming
through or under the Tenant, and remove the effects of any and all such persons
without prejudice to any remedies for arrears of
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rent or preceding breach of covenants. Should the Landlord elect to re-enter as
provided in this Paragraph or should the Landlord take possession pursuant to
legal proceedings or pursuant to any notice provided for by law, the Landlord
may, from time to time, without terminating this Lease, relet the Demised Space
or any part thereof for such terms and at such rental, and upon such other
conditions as the Landlord may deem advisable, with the right to make
alterations and repairs to the Demised Space. No such re-entry or repossession
of the Demised Space by the Landlord shall be construed as an election on the
Landlord's part to terminate this Lease unless a written notice of termination
is given to the Tenant by the Landlord. No such re-entry or repossession of the
Demised Space shall relieve the Tenant of its liability and obligation under
this Lease, all of which shall survive such re-entry or repossession. Upon the
occurrence of such re-entry or repossession, the Landlord shall be entitled to
liquidated damages in the amount of the monthly rent, taxes, fees, charges,
assessments, and other sums, which would be payable hereunder if such re-entry
or repossession had not occurred, less the net proceeds, if any, of any
reletting of the Demised Space after deducting all the Landlord's expenses in
connection with such reletting, including, but without limitation, all
repossession costs, brokerage commissions, legal expenses, attorney's fees,
expenses of employees, alteration costs, and expenses of preparation for such
reletting. The Tenant shall pay such liquidated damages to the Landlord on the
days on which the rent or any other sums due hereunder would have been payable
hereunder retaken.
In determining the rent which would be payable by Tenant hereunder
subsequent if possession had not been to default, the annual rent for each year
of the unexpired term shall be equal to the average annual rent and all
additional rent paid by Tenant from commencement of the Lease to the time of
default.
18. ACCESS TO PREMISES. Landlord shall have the right to enter the Demised
Space during business hours upon reasonable notice to inspect the Demised Space,
make repairs, additions, alterations or improvements to the Demised Space as
Landlord may elect or as may be required hereunder, or for any other reasonable
purpose. In the event of an emergency, Landlord may enter the same by a master
key without incurring liability therefor and without in any manner affecting the
obligations of this Lease.
19. SUBORDINATION. The Tenant agrees that this Lease and the Tenant's
interest hereunder shall be subordinate to any security agreement and/or
mortgage to a bank or other institution as well as any easements granted to any
governmental or quasi-governmental authority or body or any utility company.
Upon request of the Landlord or Landlord's mortgagee, Tenant agrees to promptly
execute and deliver any and all documents subordinating its right under this
Lease as aforesaid. The word "mortgage" as used herein includes, but is not
limited to, mortgages, deeds of trust, or similar instruments and modifications,
consolidations, extensions, renewals, replacements or substitutions thereof.
This subordination shall be automatically effective at such time or times as any
and all future security agreements and/or mortgages come into existence without
the necessity for the Tenant to execute any further instruments.
20. QUIET ENJOYMENT. Tenant, upon paying the Rent and performing all of the
terms on its part to be performed, shall peaceably and quietly enjoy the Demised
Space subject, nevertheless, to the terms of this Lease and to any mortgage,
ground lease or agreements of record to which this Lease is subordinated.
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21. FORCE MAJEURE. Except for the payment by Tenant of the Rent and other
sums payable by Tenant under this Lease, the parties shall be excused for the
period of any delay in the performance of any obligations hereunder, when
prevented from so doing by cause or causes beyond their respective control which
shall include, without limitation, all labor disputes, civil commotion, war,
war-like operations, hostilities, sabotage, governmental regulations or
controls, fire or other casualty, inability to obtain any material, services or
through acts of God.
22. END OF TERM. At the expiration of this Lease, Tenant shall surrender
the Demised Space in the same condition as the Demised Space were in upon
delivery of possession thereto under this Lease, reasonable wear and tear
excepted, and shall deliver all keys and combinations of all locks, safes and
vaults to Landlord. Any leasehold improvements made to the Demised Space by
Tenant or by Landlord for Tenant's benefit, including but not limited to,
demising walls, ceilings, walls separating the Demised Space into office space
and all improvements which cannot be removed without damaging or leaving holes
in the Demised Space shall remain in the Demised Space and shall become the
property of the Landlord immediately upon the expiration of or earlier
termination of this Lease. Before surrendering the Demised Space, Tenant shall
remove all its personal property including all trade fixtures, and shall repair
any damage caused thereby. Tenant's obligations under this provision shall
specifically survive the expiration or termination of the Lease Term. If Tenant
fails to remove its property upon the expiration of this Lease, then said
property shall be deemed abandoned and become the property of the Landlord at
the option of the Landlord after (i) Landlord provides at least ten (10) days
prior notice to the Tenant; and (ii) Tenant fails to immediately remove any such
personal property and repair any damage caused thereby after receipt of such
notice from the Landlord.
23. HOLDING OVER. Tenant shall surrender possession of the Demised Space
immediately upon the expiration of the term of this Lease or earlier termination
of this Lease. Any holding over after the expiration of this term or termination
of this Lease shall be construed to be a month to month tenancy and terminable
by Landlord upon ten (10) days written notice to the Tenant. The Tenant shall
pay the Landlord twice the per diem rental paid by Tenant prior to such
expiration or earlier termination of this Lease per day along with the
additional rent and other charges to paid by Tenant pursuant to this Lease in
addition to all Landlord's costs and expenses in removing the Tenant from the
Demised Space, including reasonable attorneys' fees and shall otherwise be
subject to such other obligations and liabilities set forth in this Lease as may
be applicable to such occupancy of the Demised Space by the Tenant. In addition,
Tenant shall pay Landlord for any and all damages sustained by Landlord as a
result of Tenant's holding over or failure to surrender the Demised Space,
including, but not limited to, lost profits and amounts required to be paid to
any tenant or prospective tenant who was to occupy the Demised Space after the
expiration or sooner termination of the Lease, related attorney's fees and
brokerage commissions.
The Tenant hereby waives any notice to quit in the event that the Lease
terminates by the lapse of time in accordance with the provisions of Section
47a-25 of the Connecticut General Statutes, Revision of 1958, as amended. The
Tenant represents that this waiver is made knowingly and intelligently and that
the Tenant conferred with its legal advisors prior to agreeing to this waiver.
24. NO WAIVER. Failure of either party to insist upon the strict
performance of any provision of this Lease or to exercise any option or enforce
any rules and regulations herein
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contained shall not be construed as a waiver by such party for the future of any
such provision, rule or option. The receipt by Landlord of Rent with knowledge
of the breach of any provision of this Lease shall not be deemed a waiver of
such breach. No provision of this Lease shall be deemed to have been waived
unless such waiver be in writing signed by the party benefiting from such
provision.
25. NOTICES. Any notice, demand, request or other instrument which may be
or are required to be given under this Lease shall be delivered in person or
sent by United States Certified Mail, return receipt requested, postage prepaid,
and shall be addressed (a) if to Landlord, at the address as hereinabove set
forth and (b) if to Tenant, at the address specified in the introductory
paragraph of this Lease. Either party may designate such other address as shall
be given by written notice.
26. REMEDY OF TENANT. In the event of default by Landlord under the terms
of this Lease, Tenant's sole and exclusive remedy shall be against Landlord's
interest in the Premises subject to rights of mortgagees, and in no event,
however, shall any action be brought against other assets of the Landlord for
any claim by Tenant to recover for damages of any kind, nature or description.
In addition, any action brought by Tenant for damages arising from a default by
Landlord shall be solely limited to direct damage incurred as a result of such
default without any claim for consequential damages or lost profits. Tenant
hereby waives any and all claims and rights to recover consequential damages or
lost profits arising from a default by Landlord under this Lease.
27. PARKING. Tenant shall have the non-exclusive right in common with
others to the use of the parking spaces located at the Premises subject to such
restrictions and regulations as Landlord deems appropriate provided such
restrictions and regulations do not unreasonably interfere with Tenant's
permitted use of the Premises.
28. INDEMNIFICATION. Notwithstanding any other terms, covenants, and
conditions contained in this Lease, the Tenant shall indemnify and save harmless
Landlord and its agents from and against any and all loss (including, but not
limited to, loss of any rent payable by the Tenant pursuant to this Lease),
claims, actions, damages, liability and expense in connection with loss of life,
personal injury, damage to property or any other loss or injury whatsoever
arising from or out of the occupancy or use by the Tenant of the Premises, the
Demised Space and/or Common Areas Space or any part thereof or any work or thing
whatsoever done, or any condition created (other than by Landlord, its agents,
servants or employees) in or about the Premises and the Building during the term
of this Lease or during any other period of time that Tenant may have been given
access to the Premises and the Demised Space, or arising from any negligent or
otherwise wrongful act or omission of Tenant or any of its subtenants, assigns
or licensees or its or their employees, agents, contractors, guests or invitees.
In case any action or proceeding be brought against Landlord, by reason of any
such claim, Tenant, upon notice from Landlord, shall resist and defend such
action or proceeding by attorneys reasonably acceptable to Landlord. If the
Landlord shall, without fault on its part, be made a party to any litigation
commenced by or against the Tenant, then the Tenant shall protect, indemnify and
hold the Landlord harmless and shall pay all costs, expenses and reasonable
legal fees incurred or paid by the Landlord in connection with such litigation.
The Tenant shall also pay all costs, expenses and legal fees that may be
incurred or paid by the Landlord in enforcing the terms, covenants and
conditions in this Lease, unless a court shall decide otherwise. This paragraph
shall be read in conjunction with all other provisions of this Lease.
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29. NON-LIABILITY OF LANDLORD. Landlord shall not be liable for any failure
of water supply or electric current or of any service by any utility, not for
injury or damage to person (including death) or property caused by or resulting
from steam, gas, electricity, water, rain or snow which may flow or leak from
any part of the Premises, or from any pipes, appliances or plumbing works of the
same, or from any other cause, or from the street or subsurface or from any
other place, nor from interferences with light or easements, however caused,
except to the extent such injuries to person or damages to property arise as a
result of the negligent affirmative acts or intentional misconduct of the
Landlord. The Landlord shall have no liability to Tenant by reason of any
temporary inconvenience, annoyance, interruption or loss of business arising
from Landlord's making any repairs or changes which Landlord may make in or to
any portion of the Premises or in or to the fixtures, equipment or appurtenances
of the Premises.
The Landlord shall not be required to provide any services or perform any
act in connection with the Demised Space or the Premises except as otherwise
specifically provided in this Lease. Except as expressly provided otherwise in
this Lease, Rent shall be paid to the Landlord without any claim on the part of
the Tenant for diminution or abatement thereof, and the fact that the Tenant's
use and occupancy of the Demised Space shall be disturbed or prevented from any
cause whatsoever shall not in any way suspend, xxxxx or reduce the rental to be
paid hereunder except as otherwise specifically provided in this Lease.
30. WASTE; NUISANCE. Tenant shall not use the Demised Space and the
Premises in any manner that will constitute waste, nuisance, or annoyance
(including, without limitation, the use of loudspeakers or an objectionable
sound or light apparatus that can be heard or seen outside the Demised Space) to
the Landlord, occupants of adjacent properties or other tenants of the Premises.
31. SIGNS. Tenant shall not erect or install any sign, awning or other type
display whatsoever, either upon the exterior of the building at the Premises,
upon or in any window, or in any lobby, hallway or door therein located, without
the prior express written consent of Landlord. The installation, size and design
of any signs, awnings or displays at the Premises shall also be subject to the
laws, ordinances, rules and regulations of any federal, state or local
governmental authority. Tenant shall, at Tenant's sole cost and expense,
maintain any such signs or other installation, as may be approved, in good
condition and repair. The Tenant shall pay all permit and license fees which may
be required to be paid for the erection and maintenance of any and all such
signs and other installation and provided such signs and other installations are
legally permitted to be installed. The Tenant agrees to exonerate, save
harmless, protect and indemnify the Landlord from, and against any and all
losses, damages, claims, suits or actions for any damage or injury to the person
or property caused by the erection and maintenance of such signs and other
installations or parts thereof, and insurance coverage for such signs and
installations shall be included in the public liability policy which the Tenant
is required to furnish under this Lease. At or before the expiration of this
Lease, or the date of any earlier termination of this Lease, all such signs and
other installations shall be removed by Tenant unless otherwise agreed to by
Landlord and Tenant shall repair any damage to the Premises resulting from such
removal and shall restore the Premises to the condition designated by Landlord.
32. MISCELLANEOUS.
(a) Tenant shall not record this Lease on the Hartford land records.
If it does so, Landlord may terminate this Lease by recording a Notice of
Termination of this Lease on the
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Hartford land records effective with Landlord's signature solely appearing as
such Notice of Termination.
(b) If any provision of this Lease or application thereof to any
person or circumstance shall to any extent by invalid, the remainder of this
Lease or the application of such provision to persons or circumstances other
than those as to which it is held invalid shall not be affected thereby.
(c) Landlord and Tenant each represent and warrant that there are no
claims for brokerage commissions or finder's fees in connection with the
execution of this Lease and each agrees to indemnify the other against and hold
it harmless from all liabilities arising from any such claim, including
attorney's fees incurred by such other party in connection with any such claim.
(d) All provisions herein shall be binding upon and shall inure to the
benefit of the parties, their legal representatives, successors and assigns.
(e) Time is of the essence with respect to the performance of all of
the covenants, conditions, terms and obligations contained in this Lease.
(f) If Landlord sells or conveys its interest in the Premises,
thereafter Landlord shall be relieved of any liability to Tenant under this
Lease and Tenant shall look solely to the new owner or owners for performance of
the Landlord's obligations hereunder.
(g) This Lease contains the agreements between the parties hereto and
this Lease shall control over and supersede any and all prior understandings and
prior agreements relating to the Demised Space between the parties including,
but not limited to, a certain Lease dated July 1, 1996 by and between Landlord
and Tenant ("Prior Lease"). The Landlord and Tenant hereby terminate and
discharge the Prior Lease as of December 31, 1998. In addition, this Lease shall
not be modified in any manner except by an instrument in writing executed by the
parties, their heirs, administrators, executors, successors or assigns. No
representations have been made by either party other than those set forth in
this Lease and neither party shall be bound by or held to any representations
other than as are set forth in this Lease.
(h) This Lease shall be governed by and construed in accordance with
the Laws of the State of Connecticut. If any provision of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby and each provision of the Lease shall be valid and enforceable to the
fullest extent permitted by the Law.
(i) Landlord and Tenant hereby specifically and irrevocably consent to
the jurisdiction of the courts of the State of Connecticut with respect to all
matters concerning this Lease and the enforcement hereof.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
Signed, Sealed and Delivered LANDLORD:
in the Presence of:
/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
TENANT:
ZIPLINK, LLC
By /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------
Xxxxxxxxxxx Xxxxxxx
Its: President
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