Exhibit 10.5
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SUB-LEASE
dated as of February 1, 2001
between
Catalyst Operations, Inc.
as Lessor
and
0xxxxxxxx.xxx, Inc.
as Lessee
Affecting premises commonly known as:
00 Xxxxx Xxxxxx, Xxxxx 000, xx Xxxxxxxxxx, Xxxxxxxxxxx 00000.
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1 -- Demised Premises and Lease Term
2 -- Rent
3 -- No Counterclaim or Abatement
4 -- Use of Demised Premises
5 -- Condition of Demised Premises
6 -- Maintenance and Repair
7 -- Alterations and Additions
8 -- Impositions
9 -- Compliance With Requirements
10 -- Liens
11 -- Permitted Contests
12 -- Utility Services
13 -- Insurance
14 -- Indemnification By Lessee
15 -- Damage or Destruction
16 -- Taking of the Demised Premises
17 -- Quiet Enjoyment
18 -- Right to Cure Lessee's Default
19 -- Events of Default and Termination
20 -- Repossession
21 -- Reletting
22 -- Assignment of Subrents
23 -- Lessee's Equipment
24 -- Security Deposit
25 -- Survival of Obligations; Damages
26 -- Injunction
27 -- Waivers
28 -- Lessor's Remedies Cumulative
29 -- Assignment and Subletting
30 -- Subordination and Attornment
31 -- Entry by Lessor
32 -- Conveyance by Lessor
33 -- No Merger of Title
34 -- Acceptance of Surrender
35 -- End of Lease Term
36 -- Brokerage
37 -- Definitions
38 -- Notices
39 -- Miscellaneous
Exhibit A -- Description of Land
SUB-LEASE
LEASE, dated as of February 1, 2001, between Catalyst
Operations, Inc., a Connecticut corporation, having an
address at 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxxxxx 00000 ("Lessor"), and 0xxxxxxxx.xxx, Inc., a
Delaware corporation, having an address at 000 Xxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 ("Lessee").
1. The Demised Premises and Lease Term
In consideration of the Rent, as hereinafter defined,
and the terms, covenants and conditions set forth in this
Lease to be observed and performed by Lessee, Lessor hereby
demises and leases to Lessee, and Lessee hereby rents and
takes from Lessor, the following property (collectively
hereinafter referred to as the "Demised Premises"): (a) a
portion of the gross leasable space, but in no event less
than fifty percent (50%) of the gross leasable space, on the
second floor, Suite 202 in the building known as The
Xxxxxxxx Building, 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000 and the improvements thereto (the "Improvements") now
or hereafter located on the Demised Premises, all as
described in Exhibit A hereto; and (b) all rights of way or
of use, servitudes, licenses, tenements, appurtenances and
easements now or hereafter belonging or pertaining to the
Demised Premises and Improvements; SUBJECT TO the terms,
covenants and conditions of that certain lease, dated
November 16, 2000, between Xxxx Xxxxxxxx & Sons, LLC as
lessor and Catalyst Operations, Inc. as lessee (the "Master
Lease"), TO HAVE AND TO HOLD the Demised Premises unto
Lessee, and the permitted successors and assigns of Lessee,
upon and subject to all of the terms, covenants and
conditions herein contained, for a term (the "Lease Term")
of three years, commencing on February 1, 2001 and expiring
on January 31, 2004, unless the Lease Term shall sooner
terminate pursuant to any of the conditional limitations or
other provisions of this Lease.
2. Rent
Lessee covenants to pay to Lessor as a net minimum rent
(the "Fixed Rent") during the Lease Term twenty-four
thousand dollars $24,000.00 per annum.
The Fixed Rent shall be payable in advance in equal
monthly installments of two thousand dollars ($2,000.00) on
the first day of each calendar month. If the Lease Term does
not commence on the first day of a month, the Fixed Rent for
the month in which the Lease Term commences shall be
appropriately apportioned. The first installment of Fixed
Rent shall be paid simultaneously with the execution of this
Lease. Each date on which Fixed Rent is payable hereunder is
hereinafter referred to as a "Rent Payment Date".
Lessee also covenants to pay, from time to time as
provided in this Lease, as Additional Rent, all other
amounts and obligations which Lessee assumes or agrees to
pay under this Lease. If Lessee fails to pay any such
Additional Rent, Lessor shall have all the rights, powers
and remedies provided for in this Lease or at law or in
equity or otherwise in the case of nonpayment of rent.
All Fixed Rent and Additional Rent (collectively
hereinafter referred to as "Rent") shall be paid in such
coin or currency (or, subject to collection, by good check
payable in such coin or currency) of the United States of
America as at the time shall be legal tender for the payment
of public and private debts, at the office of Lessor as set
forth above, or at such place and to such person as Lessor
from time to time may designate.
3. No Counterclaim or Abatement
All Rent shall be absolutely net to Lessor so that this
Lease shall yield to Lessor the full amount of the
installments thereof throughout the Lease Term without
deduction. All Rent shall be paid to Lessor without notice,
demand, counterclaim, setoff, deduction or defense, and
nothing shall suspend, defer, diminish, xxxxx or reduce any
Rent, except as otherwise specifically provided in this
Lease.
4. Use of Demised Premises
Lessee covenants that the Demised Premises shall be
used solely for executive offices and for no other purpose,
unless approved in writing by Lessor.
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Lessee shall not do or permit any act or thing which is
contrary to any Legal Requirements or Insurance
Requirements, or which might impair the value or usefulness
of the Demised Premises or any part thereof.
Lessee shall not do or suffer any waste, damage,
disfigurement or injury to the Demised Premises.
Lessee shall not permit the spilling, discharge,
release, deposit or placement on the Demised Premises or any
part thereof, whether in containers or other impoundments,
of any substance which is a hazardous or toxic substance
within the meaning of any applicable environmental law.
5. Condition of Demised Premises
Lessee represents that Lessee has examined and is fully
familiar with the physical condition of the Demised
Premises, the Improvements thereon, and the present
tenancies, and uses thereof. Lessee accepts the same,
without recourse to Lessor, in the condition and state in
which they now are, and agrees that the Demised Premises
complies in all respects with all requirements of this
Lease. Lessor makes no representation or warranty, express
or implied in fact or by law, as to the nature or condition
of the De mised Premises, or its fitness or availability for
any particular use, or the income from or expenses of
operation of the Demised Premises.
6. Maintenance and Repair
Lessee, at all times during the Lease Term and at
Lessee's expense, shall keep the Demised Premises, and all
Improvements now or hereafter located thereon, and all
facilities and equipment thereon, and all appurtenances to
the Demised Premises, in a good and clean order and
condition and in such condition as may be required by all
Legal Requirements and Insurance Requirements. To the extent
that the Demised Premises sustains any damage as the result
of the Leasee's use thereof, the Leasee shall promptly make
all necessary or appropriate repairs, replacements and
renewals thereof, whether interior or exterior, structural
or nonstructural, ordinary or extraordinary, or foreseen or
unforeseen. All repairs, replacements and renewals shall be
equal in quality and class to the original work.
7. Alterations and Additions
Lessee shall not be entitled to make any alterations of
or additions to the Demised Premises without the prior
written consent of Lessor in each instance.
The title to all additions, repairs and replacements to
any Improvements made during the Lease Term and any renewal
thereof, forthwith shall vest in Lessor, and said
Improvements, additions, repairs and replacements shall be
and become the sole and absolute property of Lessor, without
any obligation of payment by Lessor therefor.
8. Impositions
Subject to Article 11 relating to contests, Lessee,
shall be responsible for and shall pay fifty percent (50%)
of all Impositions payable by the Lessor pursuant to the
Master Lease.
9. Compliance With Requirements
Subject to Article 11 relating to contests, Lessee, at
all times during the Lease Term and at Lessee's expense,
promptly and diligently shall: comply with all Legal
Requirements and Insurance Requirements, whether or not
compliance therewith shall require structural changes in the
Improvements or interfere with the use and enjoyment of the
Demised Premises or any part thereof; and procure, maintain
and comply with all permits, licenses, franchises and other
authorizations required for any use of the Demised Premises
or any part thereof then being made, including without
limitation all permits, licenses, and franchises which
Lessee is required to obtain for the proper erection,
installation, operation or main tenance of the Improvements
or Lessee's Equipment or any part thereof.
From time to time at the request of Lessor, Lessee at
Lessee's expense shall execute, file and record such
certificates of compliance, continuation statements, and
other documents and certificates, and shall pay such fees
and comply with such laws and regulations, as are necessary
or appropriate to preserve and protect any right of Lessor
under this Lease.
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With the exception of the payment of rent, Lessee, at
Lessee's expense, shall observe, perform and comply with all
of the terms, covenants and conditions of the Master Lease
on the part of the Lessor to be observed, performed or
complied with. In the event of any default, caused by the
Leasee, in the observance, performance or compliance with
any term, covenant or condition of the Master Lease, Lessor
shall have the right to cure such default, and all sums
advanced or incurred by Lessor in connection therewith shall
be paid by Lessee to Lessor on demand as Additional Rent.
10. Liens
Lessee shall not directly or indirectly create or
permit to be created or to remain, and shall discharge, any
mortgage, lien, security interest, encumbrance or charge on,
pledge of or conditional sale or other retention agreement
with respect to the Demised Premises or any part thereof,
Lessee's interest therein, or any Fixed Rent or other Rent
payable under this Lease, other than: liens for Impositions
not yet payable, or payable without the addition of any
fine, penalty, interest or cost for nonpayment, or being
contested as permitted in Article 11 hereof; and the liens
of mechanics, materialmen, suppliers or vendors, or right
thereto, incurred in the ordinary course of business for
sums which under the terms of the related contract are not
at the time due, provided that adequate provision for the
payment thereof shall have been made and provisions of the
following paragraph are complied with.
If, in connection with any work being performed by or
for Lessee or any subtenant or in connection with any
materials being furnished to Lessee or any subtenant, any
mechanic's lien or other lien or charge shall be filed or
made against the Demised Premises or any part thereof, or if
any such lien or charge shall be filed or made against
Lessor, then Lessee, at Lessee's expense, within thirty days
after such lien or charge shall have been filed or made,
shall cause the same to be canceled and discharged of record
by payment thereof or filing a bond or otherwise. Lessee
promptly and diligently shall defend any suit, action or
proceeding which may be brought for the enforcement of such
lien or charge; shall satisfy and discharge any judgment
entered therein within thirty days from the entering of such
judgment by payment thereof or filing a bond or otherwise;
and on demand shall pay all damages, costs and expenses,
including reasonable attorneys' fees, suffered or incurred
by Lessor in connection therewith.
Nothing contained in this Lease shall constitute any
consent or request by Lessor, express or implied, for the
performance of any labor or services or the furnishing of
any materials or other property in respect of the Demised
Premises or any part thereof, nor as giving Lessee any
right, power or authority to contract for or permit the
performance of any labor or services or the furnishing of
any materials or other property in any fashion that would
permit the filing or making of any lien or claim against
Lessor or the Demised Premises.
11. Permitted Contests
Lessee, at Lessee's expense, after prior written notice
to Lessor, may contest, by appropriate legal proceedings
conducted in good faith and with due diligence, the amount
or validity or ap plication, in whole or in part, of any
Imposition or any Legal Requirement, provided that: Lessee
shall first make all contested payments, under protest if
Lessee desires, unless such proceedings shall suspend the
collection thereof from Lessor; neither the Demised
Premises, nor any part thereof or interest therein, nor any
Rent would be in any danger of being sold, forfeited, lost
or interfered with; in the case of a Legal Requirement,
Lessor would not be in any danger of any additional civil or
criminal liability for failure to comply therewith and the
Demised Premises would not be subject to the imposition of
any lien as a result of such failure; and Lessee shall have
furnished such security, if any, as may be reasonably
requested by Lessor.
12. Utility Services
Lessee shall pay fifty percent (50%) of all charges,
required by the Master Lease, for all public or private
utility services and all sprinkler systems and protection
services at any time rendered to or in connection with the
Demised Premises or any part thereof; shall comply with all
contracts relating to any such services; and shall do all
other things required for the maintenance and continuance of
all such services.
13. Insurance
During the Lease Term, Lessee shall be responsible for
and shall pay as Additional Rent fifty percent (50%) of the
insurance premiums paid by the Lessor to maintain insurance
on premises as required by the Master Lease. Lessee shall
comply with such other requirements as Lessor from time to
time reasonably may request for the protection by insurance
of Lessor's interests.
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14. Indemnification By Lessee
Lessee shall indemnify and hold Lessor harmless from
and against all liabilities, obligations, claims, damages,
fines, penalties, interest, causes of action, costs and
expenses, including attorneys' fees (but excluding any
income or excess profits or franchise taxes of Lessor
determined on the basis of general income or revenue or any
interest or penalties in respect thereof), imposed upon or
incurred by or asserted against Lessor or the Demised
Premises by reason of the occurrence or existence of any of
the following, which result from any negligent act or
omission of Lessor: ownership of the Demised Premises or any
interest therein, or receipt of any rent or other sum
therefrom; any accident, injury to or death of persons
(including workers) or loss of or damage to property
occurring, or claimed to have occurred, on or about the
Demised Premises or any part thereof, or any Improvements
now or hereafter erected thereon, or appurtenances thereto;
any use or condition of the Demised Premises or any part
thereof, or any Improvements now or hereafter erect thereon,
or the adjoining sidewalks, curbs, vaults and vault spaces,
if any, streets or ways, or appurtenances thereto; any
failure on the part of Lessee promptly and fully to comply
with or perform any of the terms, covenants or conditions of
this Lease; or performance of any labor or services or the
furnishing of any materials or other property in respect of
the Demised Premises or any part thereof. In the case any
suit, action or proceeding is brought against Lessor or
filed against the Demised Premises or any part thereof by
reason of any such occurrence, Lessee, upon Lessor's request
and at Lessee's expense, shall resist and defend such suit,
action or proceeding, or cause the same to be resisted and
defended by counsel designated by Lessee and approved by
Lessor. The obligations of Lessee under this Article 14
shall survive the expiration or termination of the Lease
Term.
15. Damage to or Destruction of the Demised Premises
If there is any material damage to or destruction of
the Demised Premises or any part thereof, Lessee promptly
shall give written notice thereof to Lessor, generally
describing the nature and extent of such damage or
destruction.
If there is any damage to or destruction of the Demised
Premises or any part thereof, Lessee, at Lessee's expense
whether or not the insurance proceeds, if any, on account of
such damage or destruction shall be sufficient for the
purpose, promptly shall commence and complete, subject to
Unavoidable Delays, the restoration, replacement or
rebuilding of the Demised Premises as nearly as possible to
its value, condition and character immediately prior to such
damage or destruction, with such alterations and additions
as may be made at Lessee's election pursuant to and subject
to the terms, covenants and conditions of Article 7. Pending
the completion of such Restoration, Lessee shall perform all
temporary work and take all such actions as may be necessary
or desirable to protect and preserve the Demised Premises.
Insurance proceeds received by Lessor on account of any
damage to or destruction of the Demised Premises or any part
thereof, less the costs and expenses incurred by Lessor or
Lessee in the collection thereof, including without
limitation fees and expenses of adjusters and attorneys,
shall be applied as hereinafter provided.
Net insurance proceeds received on account of any
damage to or destruction of the Demised Premises or any part
thereof, unless Lessee is in default under this Lease, shall
be paid to Lessee or as Lessee may direct, from time to time
as Restoration progresses, to pay or to reimburse Lessee for
the cost of Restoration, upon written request of Lessee
accompanied by evidence, satisfactory to Lessor that the
amount requested has been paid or is then due and payable
and is properly a part of such cost, that there are no
mechanics' or similar liens for labor or materials
theretofore supplied in connection with the Restoration, and
that the balance of said proceeds after making the payment
requested will be sufficient to pay the balance of the cost
of Restoration. Upon receipt by Lessor of evidence
satisfactory to Lessor that the Restoration has been
completed and the cost thereof has been paid in full, and
that there are no mechanics' or similar liens for labor or
materials supplied in connection therewith, the balance, if
any, of such proceeds shall be paid to Lessor.
Any insurance proceeds held by Lessor on any
termination of this Lease and not required to be paid to
Lessee pursuant to this Article 15, shall be paid to and
retained by Lessor.
16. Taking of the Demised Premises
If there is a Taking of the fee of the entire Demised
Premises, other than for a temporary use, this Lease shall
terminate as of the date of such Taking. In case of a
Taking, other than for temporary use, of such perpetual
easement on the entire Demised Premises, or of such a
substantial part of the Demised Premises, as shall result,
in the good faith judgment of Lessor, in the Demised
Premises remaining after such Taking (even after Restoration
where made) being unsuitable for the use contemplated in
this Lease, Lessee may terminate this Lease by written
notice to Lessor given within sixty days after such
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Taking, as of a date specified in such notice within ninety
days after such Taking. Any Taking of the Demised Premises
of the character referred to in this Article 16, which
results in the termination of this Lease, is referred to
herein as a "Total Taking".
If there is a Taking of the Demised Premises other than
a Total Taking, this Lease shall remain in full force and
effect as to the principal of the Demised Premises remaining
immediately after such Taking, without any abatement or
reduction of Rent, except as may be expressly provided in
this Article 16, and Lessee, at Lessee's expense whether or
not the awards or payments, if any, on account of such
Taking will be sufficient for the purpose, promptly shall
commence and complete, subject to Unavoidable Delays,
Restoration of the Demised Premises as nearly as possible to
its value, condition and character immediately prior to such
Taking, except for any reduction in area caused thereby,
provided that in case of a Taking for temporary use Lessee
shall not be required to effect Restoration (other than
temporary work and actions necessary or desirable for the
protection of the Demised Premises) until such Taking for a
temporary use is terminated.
Awards and other payments on account of a Taking, less
fees, costs and expenses incurred in connection therewith,
shall be applied as follows:
(a) Net awards and payments received on account of a Taking,
other than a Taking for temporary use or a Total Taking,
shall be held and applied from time to time as Restoration
progresses, to pay or to reimburse Lessee for the cost of
Restoration, upon written request of Lessee accompanied by
evidence, satisfactory to Lessor, that the amount requested
has been paid or is then due and payable and is properly a
part of such cost, that there are no mechanics' or similar
liens for labor or materials theretofore supplied in
connection with the Restoration, and that the balance of
said proceeds after making the payment requested will be
sufficient to pay the balance of the cost of Restoration.
Upon the completion of the Restoration, the balance, if any,
of such awards and payments shall be paid to and retained by
Lessor.
(b) Net awards and payments received on account of a Taking
for temporary use shall be held and applied to the payment
of Rent until such Taking for temporary use is terminated
and Restoration, if any, has been completed, provided that,
if any portion of such award or payment is made by reason of
any damage to or destruction of the De mised Premises, such
portion shall be held and applied as provided in the first
sentence of clause (a) of this Article 16. The balance, if
any, of such awards and payments, unless Lessee is in
default hereunder, shall be paid to Lessee.
(c) All awards and payments received on account of a Total
Taking shall be paid to Lessor.
Notwithstanding the foregoing, if at the time of any
Taking or at any time thereafter, Lessee shall be in default
under this Lease and such default shall be continuing,
Lessor is hereby authorized and empowered, in the name and
on behalf of Lessee and otherwise, to file and prosecute
Lessee's claim, if any, for an award on account of any
Taking and to collect such award and apply the same, after
deducting all fees, costs and expenses incident to the
collection thereof, to the curing of any then existing
default under this Lease.
If any portion of an award or other payment received on
account of a Taking shall be paid to Lessor pursuant to the
second sentence of clause (a) of this Article 16, each
installment of Fixed Rent hereunder shall be reduced,
commencing with the first Rent Payment Date following the
date of such payment, by an amount to be computed by
multiplying such installment in effect prior to such date by
a fraction, the numerator of which is the amount of the
award or payment made to Lessor in connection with such
Taking after deduction of Lessor's expenses in the
collection of such awards and payments, including without
limitation fees and expenses of appraisers and attorneys,
and the denominator of which is the fair market value of the
Demised Premises prior to such Taking as determined by
Lessor, acting reasonably, as reduced by the amount of any
other such award or payment previously made to Lessor
pursuant to the second sentence of clause (a) of this
Article 16.
17. Quiet Enjoyment
Lessor covenants that so long as Lessee is not in
default hereunder in the payment of any Rent or compliance
with or the performance of any of the terms, covenants or
conditions of this Lease on Lessee's part to be complied
with or performed, Lessee shall not be hindered or molested
by Lessor in Lessee's enjoyment of the Demised Premises.
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18. Right to Cure Lessee's Default
If Lessee fails to make any payment or to comply with
or perform any term, covenant or condition of this Lease to
be complied with or performed by Lessee, Lessor may, but
shall be under no obligation to, after thirty days' notice
to Lessee (or upon shorter notice, or without notice, if
necessary to meet an emergency situation or time limitation
of a Legal Requirement), make such payment or perform or
cause to be performed such work, labor, services, acts or
things, and take such other steps as Lessor may deem
advisable, to comply with any such term, covenant or
condition which is in default. Entry by Lessor upon the
Demised Premises for such purpose shall not waive or release
Lessee from any obligation or default hereunder. Lessee
shall reimburse Lessor for all sums so paid by Lessor and
all costs and expenses incurred by Lessor in connection with
the making of any payments, the performance of any act or
other steps taken by Lessor pursuant to this Article 18.
19. Events of Default and Termination
If any one or more of the following events ("Events of
Default") shall occur:
(a) if Lessee shall fail to pay any Fixed Rent when as the
same becomes due and payable; or
(b) if Lessee shall fail to pay any Rent, other than Fixed
Rent, when and as the same becomes due and payable and such
failure shall continue for more than ten days; or
(c) if Lessee shall fail to comply with or perform any term,
covenant or condition of Articles 8, 9, 10 or 13, and such
failure shall continue for more than thirty days after
Lessee receives notice of such failure, regardless of the
source of such notice; or
(d) if Lessee shall fail to comply with or perform any other
term, covenant or condition hereof, and such failure shall
continue for more than thirty days after notice thereof from
Lessor, and Lessee within said period, subject to
Unavoidable Delays, shall not commence with due diligence
and dispatch the curing of such default, or, having so
commenced, thereafter shall fail or neglect to prosecute or
complete with due diligence and dispatch the curing of such
default for reasons other than Unavoidable Delays; or
(e) if Lessee shall make a general assignment for the
benefit of creditors, or shall admit in writing Lessee's
inability to pay Lessee's debts as they become due, or shall
file a petition in bankruptcy, or shall be adjudicated a
bankrupt or insolvent, or shall file a petition seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present
or future statute, law or regulation, or shall file an
answer admitting, or shall fail to contest, the material
allegations of a petition filed against Lessee in any such
proceeding, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Lessee
or any material part of Lessee's properties; or
(f) if, within ninety days after the commencement of any
proceeding against Lessee seeking any reorganization,
arrangement, composition, readjustment, liquidation, dis
solution or similar relief under any present or future
statute, law or regulation, such proceeding shall not have
been dismissed, or if, within ninety days after the
appointment without the consent or acquiescence of Lessee,
of any trustee, receiver or liquidator of Lessee or of any
material part of Lessee's properties, such appointment shall
not have been vacated; or
(g) if a final judgment for the payment of money shall be
rendered against Lessee and, within sixty days after the
entry thereof, such judgment shall not have been discharged
or execution thereof stayed pending appeal, or if, within
sixty days after the expiration of any such stay, such
judgment shall not have been discharged;
then, and in any such Event of Default, regardless of the
pendency of any proceeding which has or might have the
effect of preventing Lessee from complying with the terms,
covenants or conditions of this Lease, Lessor, at any time
thereafter may give a written termination notice to Lessee,
and on the date specified in such notice this Lease shall
terminate and, subject to Article 25, the Lease Term shall
expire and terminate by limitation, and all rights of Lessee
under this Lease shall cease, unless before such date (i)
all arrears of Rent and all costs and expenses, including
reasonable attorneys' fees, incurred by or on behalf of
Lessor hereunder, shall have been paid by Lessee, and (ii)
all other defaults at the time existing under this Lease
shall have been fully remedied to the satisfaction of
Lessor. Lessee shall reimburse Lessor for all costs and
expenses, including reasonable attorneys' fees, incurred by
or on behalf of Lessor occasioned by or in connection with
any default by Lessee under this Lease.
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20. Repossession
If an Event of Default shall have occurred and be
continuing, Lessor, whether or not the Lease Term shall have
been terminated pursuant to Article 19, may enter upon and
repossess the Demised Premises or any part thereof by force,
summary proceedings, ejectment or otherwise, and may remove
Lessee and all other persons and any and all property
therefrom.
21. Reletting
At any time or from time to time after the repossession
of the Demised Premises or any part thereof pursuant to
Article 20, whether or not the Lease Term shall have been
terminated pursuant to Article 19, Lessor may (but shall be
under no obligation to) relet the Demised Premises or any
part thereof for the account of Lessee, for such term or
terms (which may be greater than or less than the period
which would otherwise have constituted the balance of the
Lease Term) and on such conditions (which may include
concessions) and for such uses as Lessor, in Lessor's
absolute discretion, may determine, and may collect and
receive the rents therefrom. Lessor shall not be responsible
or liable for any failure to relet the Demised Premises or
any part thereof or for any failure to collect any rent due
upon any such reletting.
22. Assignment of Subrents
Lessee hereby irrevocably assigns to Lessor all rents
due or to become due from any assignee of Lessee's interest
hereunder and any sublessee or any tenant or occupant of the
Demised Premises or any part thereof, together with the
right to collect and receive such rents, provided that, so
long as Lessee is not in default under this Lease, Lessee
shall have the right to collect such rents for Lessee's own
use and purposes. Upon any default by Lessee under this
Lease, Lessor shall have absolute title to such rents and
the absolute right to collect the same. Lessor shall apply
to the Rent due under this Lease the net amount (after
deducting all costs and expenses incident to the collection
thereof and the operation and maintenance, including
repairs, of the Demised Premises) of any rents so collected
and received by Lessor.
23. Lessee's Equipment
All Lessee's Equipment shall be the property of Lessee
or Occupancy Tenants, as the case may be, provided that upon
the occurrence of an Event of Default, Lessor shall have, to
the extent permitted by law and in addition to all other
rights, a right of distress for rent and a lien on all
Lessee's Equipment (other than Lessee's Equipment not owned
by Lessee) then on the Demised Premises as security for the
Rent.
Any Lessee's Equipment not removed by Lessee, at
Lessee's expense, within thirty days after any repossession
of the Demised Premises, whether or not this Lease has been
terminated, shall be considered abandoned by Lessee and may
be appropriated, sold, destroyed or otherwise disposed of by
Lessor without notice to Lessee and without obligation to
account therefor; and Lessee shall pay Lessor, on demand,
all costs and expenses incurred by Lessor in removing,
storing or disposing of any of Lessee's Equipment. Lessee
shall immediately repair at Lessee's expense all damage to
the Demised Premises caused by any removal of Lessee's
Equipment therefrom, whether effected by Lessee or by any
other person. Lessor shall not be responsible for any loss
or damage to Lessee's Equipment. The ownership of Occupancy
Tenants' Equipment shall be governed by the terms of the
applicable Occupancy Lease.
24. Security Deposit
Lessee has deposited with Lessor the sum of four
thousand dollars ($4,000.00) as security for the full and
faithful observance and performance by Lessee of the terms,
covenants and conditions of this Lease. If Lessee defaults
in the observance or performance of any term, covenant or
condition of this Lease, including without limitation the
payment of Rent, Lessor may use, apply or retain the whole
or any part of the security so deposited to the extent
required for the payment of any Rent or any other sum as to
which Lessee is in default or for any sum which Lessor may
expend or may be required to expend by reason of Lessee's
default, including without limitation any damages or
deficiency accrued before or after summary proceedings or
other reentry by Lessor. If Lessee shall fully and
faithfully observe and perform all of the terms, covenants
and conditions of this Lease, the security, without
interest, shall be returned to Lessee after the end of the
Lease Term and after delivery of entire possession of the
Demised Premises to Lessor.
In the event of a sale, transfer or leasing of the
Demised Premises by Lessor, Lessor shall have the right to
transfer the security to the vendee, transferee or lessee,
and Lessor thereupon shall be released by Lessee from all
liability for the return of such security. Lessee agrees to
look solely to such new owner or landlord for the return of
said security. The provisions of this paragraph shall apply
to every
7
transfer or assignment of the security to a new owner or
landlord. Lessee shall not assign or encumber or attempt to
assign or encumber the security, and neither Lessor nor the
successors or assigns of Lessee shall be bound by any such
assignment, encumbrance, or attempted assignment or
encumbrance.
If Lessor applies or retains all or any portion of the
security, Lessee on demand shall pay to Lessor the amount so
applied or retained which shall be added to the security so
that the same shall be replenished to its former amount and
so that at all times the amount deposited shall be
$4,000.00.
25. Survival of Lessee's Obligations and Damages
No expiration or termination of the Lease Term pursuant
to this Lease, by operation of law or otherwise (except as
expressly provided herein), and no repossession of the
Demised Premises or any part thereof pursuant to this Lease
or otherwise, shall relieve Lessee of Lessee's obligations
or liabilities hereunder, all of which shall survive such
expiration, termination or repossession.
In the event of any such expiration, termination or
repossession, Lessee shall pay to Lessor all Rent up to the
time of such expiration, termination or repossession,
together with all costs and expenses incurred by Lessor in
connection with such termination or repossession including
attorneys' fees, and thereafter Lessee, until the end of
what would have been the Lease Term in the absence of such
expiration, termination or repossession, and whether or not
the Demised Premises or any part thereof shall have been
relet, shall be liable to Lessor for, and shall pay to
Lessor, as liquidated and agreed and current damages for
Lessee's default, (a) all Rent which would be payable under
this Lease by Lessee in the absence of such expiration,
termination or repossession, less (b) all net rents
collected by Lessor from the tenants or subtenants of the
Demised Premises, if any, and the net proceeds, if any, of
any reletting affected for the account of Lessee pursuant to
Article 21 after deducting from such proceeds all Lessor's
expenses in connection with such reletting and other sums
owed Lessor, including without limitation all repossession
costs, brokerage commissions, legal and accounting expenses,
attorneys' fees, employees' expenses, promotional expenses,
reasonable alteration costs, and expenses of preparation for
such reletting. Lessee shall pay such current damages
monthly on the Rent Payment Dates applicable in the absence
of such expiration, termination or repossession, and Lessor
shall be entitled to recover the same from Lessee on each
such date.
At any time after such expiration, termination or
repossession, whether or not Lessor shall have collected any
current damages as aforesaid, Lessor shall be entitled to
recover from Lessee, and Lessee shall pay to Lessor on
demand, as and for liquidated and agreed final damages for
Lessee's default and in lieu of all current damages beyond
the date of such demand, an amount equal to the excess, if
any, of (a) all Rent which would be payable under this Lease
from the date of such demand (or, if it be earlier, the date
to which Lessee shall have satisfied in full Lessee's
obligation under the preceding paragraph of this Article 25
to pay current damages) until what would be the then
unexpired Lease Term in the absence of such expiration,
termination or repossession, over (b) the then fair net
rental value of the Demised Premises for the same period.
Upon the payment of such final damages, this Lease, if not
already terminated, shall be deemed terminated. If any
statute or rule of law shall validly limit the amount of
such liquidated final damages to less than the amount above
agreed upon, Lessor shall be entitled to the maximum amount
allowable under such statute or rule of law.
26. Injunction
Lessor, in addition to all other rights, powers and
remedies and notwithstanding the concurrent pendency of
summary or other dispossess proceedings, at Lessor's option,
shall have the right at all times during the Lease Term to
restrain by injunction any violation or attempted violation
by Lessee of any of the terms, covenants or conditions of
this Lease, and to enforce by injunction any of such terms,
covenants or conditions.
27. Waivers
To the extent permitted by law, Lessee waives: any
notice of reentry or of the institution of legal proceedings
to that end; any right of redemption, reentry or
repossession; any right to trial by jury in any action or
proceeding or in any matter in any way connected with this
Lease or the Demised Premises; and the benefit of any laws
now or hereafter in force exempting property for rent or for
debt.
No failure by Lessor or Lessee to insist upon the
strict performance of and compliance with any term, covenant
or condition hereof or to exercise or enforce any right,
power or remedy con sequent upon a breach thereof, and no
submission by Lessee or acceptance by Lessor of full or
partial Rent during the continuance of any such breach,
shall constitute a waiver of any such breach or of any such
term, covenant or condition. No waiver of any breach of any
term, covenant or condition of this Lease shall
8
affect or alter this Lease, which shall continue in full
force and effect, or the respective rights, powers or
remedies of Lessor or Lessee with respect to any other then
existing or subsequent breach.
28. Lessor's Remedies Cumulative
All of the rights, powers and remedies of Lessor
provided for in this Lease or now or hereafter existing at
law or in equity, or by statute or otherwise, shall be
deemed to be separate, distinct, cumulative and concurrent.
No one or more of such rights, powers or remedies, nor any
mention of reference to any one or more of them in this
Lease, shall be deemed to be in the exclusion of, or a
waiver of, any other rights, powers or remedies provided for
in this Lease, or now or hereafter existing at law or in
equity, or by statute or otherwise. The exercise or
enforcement by Lessor of any one or more of such rights,
powers or remedies shall not preclude the simultaneous or
later exercise or enforcement by Lessor of any or all of
such other rights, powers or remedies.
29. Assignment, Subletting and Mortgages
Lessee expressly covenants that Lessee shall not
voluntarily or involuntarily assign, encumber, mortgage or
otherwise transfer this Lease, or sublet the Demised
Premises or any part thereof, or suffer or permit the
Demised Premises or any part thereof to be used or occupied
by others, by operation of law or otherwise, without the
prior written consent of Lessor in each instance. Absent
such consent, any act or instrument purporting to do any of
the foregoing shall be null and void.
If this Lease is assigned, whether or not in violation
of the terms of this Article 29, Lessor may collect Rent
from the assignee. If the Demised Premises or any part
thereof are sublet or occupied by anybody other than Lessee,
Lessor, after any default by Lessee, may collect rent from
the subtenant or occupant, and apply the net amount
collected to the Rent due hereunder. Such collection of rent
by Lessor shall not be deemed a waiver of the provisions
hereof, the acceptance of the assignee, subtenant or
occupant as a tenant, or a release of Lessee from the
further observance and performance by Lessee of the terms,
covenants and conditions of this Lease.
The consent by Lessor to an assignment, encumbrance,
transfer or subletting shall not in any way be deemed
consent to any further assignment, encumbrance, transfer or
subletting. In no event shall any permitted sublessee assign
or encumber its sublease or further sublet all or any
portion of its sublet space, or otherwise suffer or permit
the sublet space or any part thereof to be used or occupied
by others, without the prior written consent of Lessor in
each instance, and each permitted sublease shall so provide
in its terms.
If Lessee requests Lessor's consent to a specific
assignment or subletting, Lessee shall first submit to
Lessor in writing: the name and address of the proposed
assignee or sublessee; a coun terpart of the proposed
agreement of assignment or sublease and all other
instruments or agreements pertaining thereto; such
information as to the nature and character of the business
of the proposed assignee or sublessee and as to the nature
of its proposed use of the space, as Lessor reasonably may
request; banking, financial or other credit information
relating to the proposed assignee or sublessee sufficient to
enable Lessor to determine the financial responsibility and
character of the proposed assignee or sublessee; and a
statement of all sums or other consideration paid or to be
paid to Lessee by or for the account of the assignee or
sublessee for or in connection with such assignment or
sublease, including without limitation sums paid or to be
paid for the sale or rental of Lessee's fixtures, leasehold
improvements, equipment, furniture, furnishings or other
personal property.
Any such consent of Lessor shall be subject to the
terms of this Lease and conditional upon there being no
default by Lessee, beyond any grace period, under any term,
covenant or condition of this Lease at the time that
Lessor's consent is requested and on the date of the
commencement of the term of any such proposed sublease or
the effective date of any such proposed assignment.
Upon receiving Lessor's written consent, a duly
executed copy of the sublease or assignment shall be
delivered to Lessor within thirty days after execution
thereof. Any such sublease shall provide that the sublessee
shall comply with all applicable terms, covenants and
conditions of this Lease to be observed or performed by
Lessee hereunder. Any such assignment shall contain an
assumption by the assignee of all of the terms, covenants
and conditions of this Lease to be observed or performed by
Lessee.
The transfer of a majority of the issued and
outstanding capital stock of any corporate tenant or
subtenant of this Lease or of a majority of the total
interest in any partnership tenant or subtenant, however
accomplished, and whether in a single transaction or in a
series of related or unrelated transactions, shall be deemed
an assignment of this Lease or of such sublease. The
transfer of outstanding capital stock of any corporate
tenant or subtenant, for purposes of this Article 29, shall
not include a sale
9
of such stock by persons other than those deemed "insiders"
within the meaning of the Securities Exchange Act of 1934 as
amended, effected through any "over the counter" market or
recognized stock exchange.
30. Subordination and Attornment
This Lease, and all rights of Lessee hereunder, are and
shall be subject and subordinate in all respects to all
mortgages which may now or hereafter affect the Demised
Premises, whether or not such mortgages shall also cover
other lands or buildings, to each and every advance made or
hereafter to be made under such mortgages and to all
renewals, modifications, replacements, spreaders,
consolidations and extensions of such mortgages. In the
event of any sale of the Demised Premises in a foreclosure
of any such mortgage or the exercise by the holder of any
such mortgages of any other remedies provided for by law or
in such mortgage, Lessee, upon written request of the holder
of the mortgage or the purchaser at such foreclosure or any
person succeeding to the interest of the holder of the
mortgage, shall attorn to such holder, purchaser or
successor in interest, as the case may be, without change in
the terms, covenants or conditions of this Lease. If such a
request is made, this Lease shall not be deemed to be
terminated by any foreclosure proceedings or other remedies
for the enforcement of the mortgage by such holder,
purchaser or successor in interest. The provisions of this
Article 30 shall be self-operative and no further instrument
of subordination and/or attornment shall be required. In
confirmation of such subordination and/or attornment, Lessee
promptly shall execute and deliver at Lessee's expense any
instrument that Lessor or the holder of any such mortgage
may reasonably request to evidence such subordination and/or
attornment; and Lessee hereby irrevocably constitutes and
appoints Lessor as Lessee's attorney-in-fact, coupled with
an interest, to execute, acknowledge and deliver any such
instruments for and on behalf of Lessee.
31. Entry by Lessor
Lessor and the authorized representatives of Lessor
shall have the right to enter the Demised Premises at all
reasonable times for the purpose of inspecting the same or
for the purpose of doing any work permitted to be done by
Lessor under this Lease, and to take all such actions
thereon as may be necessary or appropriate for any other
purpose. Nothing contained in this Lease shall create or
imply any duty on the part of Lessor to make any such
inspection or do any such act. Lessor and representatives of
Lessor shall have the right to enter the Demised Premises at
all reasonable times for the purpose of showing the Demised
Premises to prospective purchasers or mortgagees, and at any
time during the twelve month period preceding the expiration
or termination of this Lease for the purpose of showing the
same to prospective tenants, and within said period to
display on the Demised Premises advertisements for sale or
letting if such advertisements do not interfere unreasonably
with the business then conducted on the De mised Premises.
No such entry shall constitute an eviction of Lessee.
32. Conveyance by Lessor
If the original or any successor Lessor shall convey or
otherwise dispose of the Demised Premises and Improvements,
Lessor shall thereupon be released from all obligations and
liabilities of Lessor under this Lease (except those
accruing prior to such conveyance or other disposition), and
such obligations and liabilities shall be binding solely on
the then Lessor of the Demised Premises and Improvements.
In any action brought to enforce the obligations or
liabilities of Lessor under this Lease, any judgment or
decree shall be enforceable against Lessor only to the
extent of Lessor's interest in the Demised Premises and
Improvements, and no such judgment shall be the basis of
execution on, or be a lien on, assets of Lessor other that
Lessor's interest in the Demised Premises and Improvements.
33. No Merger of Title
There shall be no merger of the leasehold estate
created by this Lease with the fee estate in the Demised
Premises by reason of the fact that the same person may own
or hold (a) the leasehold estate created by this Lease or
any interest therein, and (b) the fee estate in the Demised
Premises or any interest in such fee estate. No such merger
shall occur unless and until all persons having any interest
in the leasehold estate created by this Lease, and in the
fee estate in the Demised Premises, shall join in a written
instrument effecting such merger and shall duly record the
same.
34. Acceptance of Surrender
No modification, termination or surrender of this Lease
or surrender of the Demised Premises or any part thereof or
of any interest therein by Lessee shall be valid or
effective unless agreed to and accepted in writing by
Lessor, and no act by any representative or agent of Lessor,
other than such a written agreement and acceptance, shall
constitute an acceptance thereof.
10
35. End of Lease Term
Upon the expiration or termination of the Lease Term,
Lessee shall quit, surrender and deliver to Lessor the
Demised Premises with the Improvements thereon in good order
and condition, ordinary wear and tear excepted, and shall
remove all Lessee's Equipment therefrom.
36. Brokerage
Lessor and Lessee each represents and warrants to the
other that such party has not dealt with any broker or
finder in connection with the Demised Premises or this
Lease. Lessor and Lessee each agrees to indemnify and hold
the other harmless from and against any and all commission,
liability, claim, loss, damage or expense, including
reasonable attorneys' fees, arising from any claims for
brokerage or any other fee or commission by any person with
whom such party has dealt.
37. Definitions
As used in this Lease, the following terms have the
following respective meanings:
"default" -- any condition or event which constitutes, or
which after notice or lapse of time or both would
constitute, an Event of Default.
"Demised Premises" -- as defined in Article 1.
"Event of Default" -- as defined in Article 19.
"Fixed Rent" -- as defined in Article 2.
"Impositions" -- all taxes, assessments (including without
limitation all assessments for public improvements or
benefits, whether or not commenced or completed prior to the
date hereof and whether or not to be completed within the
Lease Term), ground rents, water and sewer rents and
charges, charges for public utilities, excises, levies,
license fees, permit fees, inspection fees and other
authorization fees and other charges of every nature and
kind whatsoever (including all interest and penalties
thereon), in each case, whether general or special, ordinary
or extraordinary, foreseen or unforeseen, of every
character, which at any time during or in respect of the
Lease Term may be assessed, levied, charged, confirmed or
imposed on or in respect of or be a lien upon (a) the
Demised Premises or any part thereof or any rent therefrom
or any estate, right or interest therein, or (b) any
occupancy, use or possession of or activity conducted on the
Demised Premises or any part thereof. The term "Impositions"
shall exclude, however, any income taxes assessed against
Lessor, franchise, estate, inheritance or transfer taxes of
Lessor, or any tax or charge in replacement or substitution
of the foregoing or of a similar character; provided,
however, that if at any time during the Lease Term the then
prevailing method of taxation or assessment shall be changed
so that the whole or any part of the Impositions theretofore
payable by Lessee as above provided, shall instead be
levied, charged, assessed or imposed whole or partially on
the rents received by Lessor from the Demised Premises, or
shall otherwise be imposed against Lessor in the form of a
franchise tax or otherwise, then Lessee shall pay the same
(and the same shall be deemed Impositions) at least twenty
days prior to the last day upon which the same may be paid
without interest or penalty for the late payment thereof.
"Improvements" -- as defined in Article 1.
"Insurance Requirements" -- all terms of any insurance
policy covering or applicable to the Demised Premises or any
part thereof, all requirements of the issuer of any such
policy, and all orders, rules, regulations and other
requirements of the National Board of Fire Underwriters, or
its successor or any other body exercising similar
functions, applicable to or affecting the Demised Premises
or any part thereof or any use or condition of the Demised
Premises or any part thereof.
"Land" -- as defined in Article 1.
"Lease" -- this Lease, as at the time amended, modified or
supplemented.
"Lease Term" -- as defined in Article 1, as the same may be
extended or renewed.
11
"Legal Requirements" -- all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions
and requirements of all governments, departments,
commissions, boards, courts, authorities, agencies,
officials and officers, foreseen or unforeseen, ordinary or
extraordinary, which now or at any time hereafter may be
applicable to the Demised Premises or any part thereof, or
the Improvements now or hereafter located thereon, or the
facilities or equipment therein, or any of the adjoining
sidewalks, curbs, vaults or vault space, if any, streets or
ways, or the appurtenances to the Demised Premises or the
franchises and privileges connected therewith, or any use or
condition of the Demised Premises or any part thereof. Legal
Requirements shall include the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. Section
9601 et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq., and all other applicable
environmental laws and regulations, and all requirements to
be complied with pursuant to any certificate of occupancy
affecting the Demised Premises.
"Lessee's Equipment" -- all fixtures, machinery, apparatus,
furniture, furnishings and other equipment and all temporary
or auxiliary structures installed by or at the request of
Lessee or any Occupancy Tenant, if any, in or about the
Demised Premises or any part thereof, which (a) are not used
and are not procured for use, in whole or in part, in
connection with the operation, maintenance or protection of
the Demised Premises, and (b) are removable without damage
to the Demised Premises.
"Occupancy Lease" -- any lease of any space constituting
part of the Demised Premises.
"Occupancy Tenant" -- any tenant or occupant under any
Occupancy Lease.
"Occupancy Tenants' Equipment" -- all Lessee's Equipment
which under the terms of any Occupancy Lease or otherwise is
the property of an Occupancy Tenant.
"person" -- an individual, a corporation, an association, a
partnership, a joint venture, an organization, or other
business entity, or a governmental or political unit or
agency.
"Rent Payment Date" -- as defined in Article 2.
"Restoration" -- all restorations, replacements,
rebuildings, alterations, additions, temporary repairs and
property protection to be performed in connection with a
Taking of the Demised Premises or the damage to or
destruction of the Demised Premises.
"Taking" -- a taking during the Lease Term of all or any
part of the Demised Premises, or any leasehold or other
interest therein or right accruing thereto, as the result of
the exercise of the right of condemnation or eminent domain
or a sale in lieu or in anticipation of such exercise or a
change or grade affecting the Demised Premises or any part
thereof.
"Total Taking" -- as defined in Article 16.
"Unavoidable Delays" -- delays due to strikes, acts of God,
governmental restrictions, enemy action, riot, civil
commotion, fire, unavoidable casualty or other causes beyond
the control of Lessee, provided that no delay shall be
deemed an Unavoidable Delay if the Demised Premises or any
part thereof or interest therein or any Rent would be in any
danger of being sold, forfeited, lost or interfered with, or
if any Occupancy Tenant, Lessor or Lessee would be in danger
of incurring any civil or criminal liability for failure to
perform the required act. Lack of funds shall not be deemed
a cause beyond the control of Lessee.
38. Notices
All notices, demands, elections and other
communications desired or required to be delivered or given
under this Lease shall be in writing, and shall be deemed to
have been delivered and given when delivered by hand, or on
the third business day after the same have been mailed by
first class registered or certified mail, return receipt
requested, postage prepaid, enclosed in a securely sealed
envelop addressed to the party to which the same is to be
delivered or given at such party's address as set forth in
this Lease or at such other address as said party shall have
designated in writing in accordance with this Article 38.
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39. Miscellaneous
All rights, powers and remedies provided herein may be
exercised only to the extent that the exercise thereof does
not violate any applicable law, and are intended to be
limited to the extent necessary so that they will not render
this Lease invalid, unenforceable or not entitled to be
recorded under any applicable law. If any term, covenant or
condition of this Lease shall be held to be invalid, illegal
or unenforceable, the validity of the other terms, covenants
and conditions of this Lease shall in no way be affected
thereby.
The headings in this Lease are for purposes of
reference only and shall not limit or define the meaning
hereof.
This Lease may be changed or modified only by an
instrument in writing signed by the party against which
enforcement of such change or modification is sought.
Subject to Articles 29 and 32, this Lease shall be
binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties
hereto.
IN WITNESS WHEREOF, Lessor and Lessee have executed
this Lease as of the date first above written.
LESSOR: CATALYST OPERATIONS, INC.
By /s/
----------------------------
Xxxxxx X. Xxxxxxx, President
LESSEE: 0xxxxxxxx.xxx, Inc.
By /s/
----------------------------
Xxxxxx X. Xxxxxxx, President
EXHIBIT A
The Demised Premises
A portion, but no less than fifty percent (50%), of the
leasable space known as 00 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxxxxx 00000, which is more fully described
in Master Lease.
13
===========================================
SUB-LEASE
dated January 30, 2001
between
Catalyst Operations, Inc.
Lessor
and
0xxxxxxxx.xxx, Inc.
Lessee
===========================================
14
