Exhibit 10.4
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 31st day of May, 1999, by and between
AIRMOUSE HOUSE LTD. PARTNERSHIP, a Vermont limited partnership with a principal
place of business in Williston, County of Xxxxxxxxxx and State of Vermont
(hereinafter called "Landlord"), and xXXXX.XXX,INC., a Delaware corporation with
a place of business in Burlington, County of Xxxxxxxxxx and State of Vermont,
(hereinafter called "Tenant").
W I T N E S S E T H :
SECTION 1. Demise, Description of Premises.
Landlord does hereby demise, let, rent and lease unto Tenant, and the
Tenant hereby hires and rents from the Landlord, premises described as
Condominium A and all appurtenances thereto as described in the Declaration of
Condominium for Xxxx'x Farms Commercial Center (the "Declaration") and are
hereafter referred to as "Leased Premises" or "Premises" or "Unit." The Leased
Premises include a building containing a total of 14,548 square feet of floor
space. The footprint of the building is depicted on a plat entitled "Xxxx'x
Farms Commercial Center, Xxxxx Xxxxx Lane, Williston, VT, Condominium Plan,"
prepared by Xxxxxxx Consulting Engineers, Inc., dated November 8, 1993. This
Lease and the obligations of the parties are subject to the terms and conditions
of the Declaration, including, but not limited to, Exhibit E, Bylaws, Article V,
Section I, Paragraph 2, Lease, thereof (the "Demised Premises or Premises").
A portion of the premise (containing 10,168 square feet) is two stories
in height. The second floor (5,000 square feet) will be unfinished. A portion of
the Premises (containing 4,380 square feet) is a single-story structure. The
demise herein includes the right of Tenant to finish and to fit up the second
floor of the building, at its own expense and subject to Landlord's approval of
the plans, which shall not be unreasonably withheld.
The Leased Premises include the exclusive use of the Unit's Limited
Common Elements as defined and described in the Declaration and the right in
common with other members of the Condominium to the Common Elements as defined
and described in the Declaration, including the parking areas.
The Leased Premises and the rights and obligations of the parties
hereto are subject to and benefitted by all covenants, restrictions, and
conditions set forth in the Declaration, Land Use permit No. 4C0720-R-10, the
terms and conditions of the May 25, 1993, approval of the Williston Planning
Commission, Waste Water Permit No. WW-4-0297, and as each may be amended from
time to time, and to all easements and restrictions depicted on the
above-referenced plat and of record.
SECTION 2. Initial Term of Lease.
Said Premises are hereby leased to Tenant, subject to all of the terms
and conditions contained herein, for an initial term of five (5) years
commencing on June 1, 1999, the "Commencement Date", unless said term be sooner
terminated as hereinafter provided (the "Initial Term").
SECTION 3. Base Rent.
(a) Tenant agrees to pay to Landlord on the 1st day of each month, in
advance, commencing on the Commencement Date and continuing each and every month
thereafter during the Initial Term, rent in the amount of $8,333.34 per month
(the "Base Rent").
(b) Interest shall accrue on any Base Rent, Additional charges, or other
charges not paid within ten (10) days from the date due at the rate of the Wall
Street Journal Price plus (2%) but not more than (12%) per annum, unless
Landlord's financing for the Facility exceeds 12% per annum in which case the
interest assessed to Tenant hereunder shall equal Landlord's financing interest
rate.
SECTION 4. Base Rent Adjustments.
Base Rent Escalation. The initial Base Rent of $8,333.34 per month as
set forth in Section 3(a) above shall be adjusted as of June 1, 2000 and the
Base Rent shall be adjusted annually on every June 1 thereafter during the term
hereof by a percentage equal to one-half the percentage increase, if any, in the
CPI-U, as defined herein for the preceding 12 month period. Notwithstanding the
foregoing, no annual adjustment pursuant to the increase in the CPI-U shall
exceed __% for any 12 month period. For these purposes, the Consumer Price Index
is defined to be the "Consumer Price Index - All Urban Consumers -Northeast
Region - Population Size Class C (50,000 - 500,000), All Items, (1982 - 1984
equal 100 hereinafter called the 'Index')", published by the Bureau of Labor
Statistics, United States Department of Labor. In the event that the Department
of Labor ceases to publish the CPI-U Index during the lease term or during any
renewal thereof, the Landlord shall select an alternative index and shall so
notify Tenant. Said alternative index shall use comparable statistics on the
purchasing power of the consumer dollar, including the same or comparable region
and population.
SECTION 5. Taxes and Utilities.
It is the intent of the Landlord and Tenant that the Base Rent set forth
in Section 3, be net to the Landlord (except for Landlord's debt service) and
that beginning on the Commencement Date and continuing during the Lease term,
all costs associated with taxes, utilities, operation and maintenance of the
premises be the sole responsibility of the Tenant except for Landlord's
obligations as set forth in Section 10(a) hereof as follows:
(a) Tenant shall pay all real estate and personal property taxes and
other municipal charges and assessments levied against the Demised Premises.
Landlord shall make a good
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faith estimate of real estate taxes to be assessed against and equitably
allocated to the Demised Premises and shall xxxx the same to Tenant on a monthly
basis and Tenant shall pay said taxes in the same manner that the Base Rent is
paid as set forth in Section 3 hereof. Upon receipt of the actual tax xxxx from
the Town of Williston, the Landlord will adjust the Tenant's monthly tax payment
to conform to the actual tax assessed against and equitably allocated to the
Demised Premises for each tax year during the initial term and any extension
thereof. It is agreed that all such amounts shall be paid by Tenant to Landlord,
who shall be responsible for and shall pay the tax bills to the Town of
Williston on the real estate of which the Demised Premises are a part, when and
as such bills are due.
Tenant or its designee shall have the right to contest and review all
such taxes by legal proceedings, or in such other manner as it may deem suitable
(which, if instituted, Tenant or its designee shall conduct promptly at its own
cost and expense, and free of any expense to Landlord and, if necessary, in the
name of and with the cooperation of Landlord and Landlord shall execute all
documents necessary to accomplish the foregoing). Landlord agrees that if there
shall be any refunds or rebates on account of the taxes paid by Tenant under the
provisions of this section, such refund or rebate shall belong to Tenant.
(b) Tenant shall pay the cost of all insurance to be furnished by Tenant
or Landlord pursuant to Sections (a), (b) and (c) of Section 7 hereof;
(c) Tenant shall pay all costs of utility services including without
limitation charges for electricity, gas, telephone, cable television and water
and sewer service metered to the Demised Premises;
(d) Tenant shall pay for proper lawn care and snow removal.
SECTION 6. Use of the Property.
Tenant may use the Demised Premises for any lawful purpose. If the
Tenant's use of the Premises necessitates application for zoning or planning
approval or compliance with other municipal or state regulations, or
installation of additional or new fixtures, systems or improvements at any time
during the term of this Lease or any renewals thereof, Tenant will prosecute and
bear the cost of such applications, installation and/or changes necessary to
obtain compliance and approval and Landlord will cooperate and join in such
proceedings as owner thereof.
The Premises shall not be used for any illegal purpose, nor in violation
of any valid regulation of any governmental body, nor in any manner to create
nuisance or trespass, nor in any manner to invalidate the insurance.
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SECTION 7. Insurance.
The Tenant shall provide on or before the Commencement Date and keep in
force during the Lease Term the insurance described herein or at Landlord's
option, Landlord may provide such insurance and xxxx Tenant therefore but not at
a cost to Tenant that would exceed Tenant's cost if Tenant acquired the
following insurance:
(a) Comprehensive general liability insurance with respect to the
Demised Premises insuring the Tenant and the Landlord (as an additional insured)
against any liability covered by a standard liability insurance policy that may
accrue against them or either of them on account of any occurrences in or about
the Demised Premises in consequence of Tenant's occupancy thereof, and shall
provide Landlord with copies of all such applicable policies. Such insurance
shall be maintained in the amount of at least $3,000,000.00 for bodily injury
and $100,000.00 with respect to loss or damage to property;
(b) Fire and casualty insurance, with extended coverage, in amount equal
to the replacement value of the Building; and
(c) Adequate insurance for loss of fixtures and leasehold improvements
of Tenant.
Each party shall provide the other with certificates of insurance and/or
policies upon request. All insurance policies shall be issued by insurance
companies licensed to do business in the State of Vermont with assets sufficient
to cover the potential losses, and shall otherwise be reasonably acceptable to
both parties. The Tenant's fire and casualty policy shall name Landlord and
Landlord's permitted mortgagees as additional insureds, as their interest may
appear under this Agreement and to the extent permitted by such policies of each
and without voiding the insurance provided thereby, the Landlord and Tenant
hereby waive their rights of subrogation. This paragraph shall not, however, in
any manner limit the liability of the Tenant or the Landlord for damage to
property or persons as a result of the willful or wanton negligence on the part
of either party.
SECTION 8. Option to Extend.
So long as Tenant is not in default hereunder Tenant shall have the
option to extend the Initial Term for one (1) additional five (5) year term
under all the same conditions as set forth herein with the exception of the
amount of the Base Rent as described in Section 3 hereof. In the event that the
Tenant intends to exercise the option granted hereunder, the Tenant shall give
the Landlord written notice of Tenant's intent to exercise said option to extend
the term of the Lease as provided in Section 29 hereof at least six (6) months
but no more than twelve (12) months prior to the expiration of the then current
term. The Base Rent at the commencement of each extension term shall be the Base
Rent as adjusted for the previous year and shall be adjusted annually as set
forth in Section 4 hereof.
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SECTION 9. Repairs, Maintenance and Alteration.
(a) Landlord's Obligations.
Landlord covenants and agrees, during the Initial Term and any extension
if this lease is extended, to repair and replace, at its cost and expense, all
structural components of the building, including the roof. Landlord shall be
responsible for necessary replacement of HVAC, and shall bear any expenses in
excess of $2,000.00 in a rental year required for repair of HVAC. Upon the
default of Landlord in making such repairs and replacements, the Tenant may, but
shall not be required to, make such repairs and replacements for the Landlord's
account. Landlord shall not be required to make any such repairs, replacements,
or bear any expenses where same were caused or occasioned by an act or omission
or negligence of Tenant, any sub-Tenant or their employers, agents, invitees,
licensees, visitors or contractors. Except for Landlord's negligence or that of
its agents or employees in the performance of Landlord's obligations as set
forth in this Section, Landlord shall not be liable for interruption in or
cessation of any service rendered to the Premises due to any cause beyond the
Landlord's control including, but not limited to: any accident; the making of
repairs, alterations, or improvements; labor difficulties; fuel and electric
supplies or shortages.
(b) Tenant's Obligations.
Except for maintenance and repair pursuant to Sections 15 and 9(a)
hereof, Tenant covenants and agrees, during the Lease Term and any extensions
thereof, to maintain the Demised Premises in a good condition, normal wear and
tear excepted, including but not limited to, interior and exterior wall
surfaces, floor surfaces, ceiling surfaces, windows, doors, electrical,
plumbing, mechanical and HVAC systems, furniture, fixtures and hardware. All
repairs and replacements shall be in quality and class at least equal to the
original work properly executed. Upon the default of Tenant in making such
repairs and replacements, the Landlord may, but shall not be required to, make
such repairs and replacements for the Tenant's account and the expenses thereof
shall be collectable against Tenant as additional rent.
During the Lease Term, Tenant shall not install, operate or maintain
any electrical equipment which will overload the electrical system, or any, part
thereof, beyond its reasonable capacity for safe and proper operation as
determined by the Landlord, or which does not bear underwriter's approval;
Tenant shall not perform, or permit to be performed, any act or carry on any
practice which may damage, mar or deface the Premises; Tenant shall not store
materials or equipment outside the buildings on the Premises; and Tenant shall
place all trash in receptacles in areas designated by Landlord and provide for
removal of same.
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SECTION 10. Force Majeure.
During the Lease Term, Landlord or Tenant shall not be required to
perform any term, condition, or covenant in this Lease so long as such
performance is delayed or prevented by force majeure, which shall mean acts of
God, epidemics, cyclones, floods, drought, or by reason of war, declared or
undeclared revolution, civil commotion or strife, acts of public enemies,
blockade or embargo, or by reason of any new law, proclamation, regulation,
ordinance or demand by any government authority, and any other cause not
reasonably within the control of Landlord or Tenant and which, by the exercise
of due diligence, Landlord or Tenant is unable, wholly or in part, to prevent or
overcome.
SECTION 11. Reserved Access Rights of Landlord.
Landlord reserves the right to enter the Demised Premises at reasonable
hours to make reasonable inspections, to make such repairs, alterations or
additions as may be required or permitted under the provisions of this
Agreement; to exhibit reasonably the same to prospective purchasers or to
perform any act related to the safety, protection or preservation of the demised
Premises; and during the three month period prior to the end of the leased term,
for the purposes of exhibiting reasonably the demised Premises to prospective
Tenants.
SECTION 12. Quiet Enjoyment.
Landlord covenants that the Tenant upon paying the rent and complying
with the provisions of this Lease, shall peaceably and quietly have, hold and
enjoy the Demised Premises for the term of this Lease.
SECTION 13. Alterations, Improvements, and Additions.
No alterations, improvements or additions to the Demised Premises shall
be made by Tenant without the prior written consent of Landlord which shall not
be unreasonably withheld or delayed. At the option of Landlord, any fixtures
installed by the Tenant shall remain the property of the Tenant.
SECTION 14. Hazardous Materials.
(a) Tenant shall not use, transport, store, dispose of or in any manner
deal with hazardous materials on the Demised Premises or any adjacent lands and
premises of Landlord (collectively the "Property"), except in compliance with
all applicable federal, state and local laws, ordinances, rules and regulations.
The term "hazardous materials" as used in this Lease shall include, without
limitation, gasoline, petroleum products, explosives, radioactive materials, or
any other substances or materials defined as a hazardous or toxic substance or
material by any federal, state or local law, ordinance, rule or regulation.
(b) Except as provided in Section 14(c), Tenant unconditionally and
irrevocably indemnifies and agrees to defend and hold harmless Landlord and its
officers, employees,
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agents, contractors and those claiming by, through or under Landlord, from and
against all loss, cost and expense (including attorneys' fees) of whatever
nature suffered or incurred by Landlord on account of the existence at or on the
Property, or the release or discharge at, on, from or to the Property, during
the Lease Term, of any hazardous material, including any claims, costs, losses,
liabilities and expenses arising from the violation (or claimed violation) of
any law, rule, regulation or ordinance or the institution of any action by any
party against Tenant, Landlord or the Property based upon nuisance, negligence
or other tort theory alleging liability due to the improper generation, storage,
disposal, removal, transportation or treatment of any hazardous material or the
imposition of a lien on any part of the Property under any law pursuant to which
a lien or liability may be imposed on Landlord due to the existence of any
hazardous material. Tenant unconditionally and irrevocably guarantees the
payment of any fees and expenses incurred by Landlord in enforcing the liability
of Tenant and this indemnification should Landlord prevail in such action. If
any Remedial Work is required because of, or in connection with, any occurrence
event covered by the indemnity set forth in this Paragraph 14(b), Tenant shall
either perform or cause to be performed the Remedial work in compliance with the
applicable law, regulation, order or agreement, or shall promptly reimburse
Landlord for the cost of such Remedial Work. If Tenant elects to perform the
Remedial Work, all Remedial Work shall be performed by one or more contractors
selected by Tenant and approved in advance in writing by Landlord and under the
supervision of a consulting engineer, selected by Tenant and approved in advance
in writing by Landlord. Otherwise, Landlord shall select the contractor(s) and
the consulting engineer. All costs and expenses of such Remedial Work shall be
paid either directly, or in the form of reimbursement to Landlord, by Tenant
including without limitation, the charges of such contractor(s) and the
consulting engineer, and Landlord's reasonable attorneys' fees and costs
incurred in connection with monitoring or review of such Remedial Work. If
Tenant shall fail to timely commence, or cause to be commenced, or fail to
diligently prosecute to completion, such Remedial Work, Landlord may cause such
Remedial Work to be performed, and all costs and expenses thereof, or incurred
in connection therewith, shall be covered by the indemnity set forth in this
Paragraph 14(b). All such costs and expenses shall be due and payable upon
demand therefor by Landlord.
(c) Landlord unconditionally and irrevocably indemnifies and agrees to
defend and hold harmless Tenant and its officers, employees, agents, contractors
and those claiming by, through or under Tenant, from and against all loss, cost
and expense (including attorneys' fees) of whatever nature suffered or incurred
by Tenant on account of the existence at or on the Property, or the release or
discharge at, on, from or to the Property, prior to the Commencement Date or
thereafter if such release or discharge is caused by the Landlord, its officers,
employees, agents or contractors, of any hazardous material, including any
claims, costs, losses, liabilities and expenses arising from the violation (or
claimed violation) of any law, rule, regulation or ordinance or the institution
of any action by any party against Tenant, Landlord or the Property based upon
nuisance, negligence or other tort theory alleging liability due to the improper
generation, storage, disposal, removal, transportation or treatment of any
hazardous material or the imposition of a lien on any part of the Property under
any law pursuant to which a lien or liability may be imposed on Tenant due to
the existence of any hazardous material. Landlord unconditionally and
irrevocably guarantees the
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payment of any fees and expenses incurred by Tenant in enforcing the liability
of Landlord and this indemnification should Tenant prevail in such action. If
any Remedial Work is required because of, or in connection with, any occurrence
event covered by the indemnity set forth in this Paragraph 14(c), Landlord shall
either perform or cause to be performed the Remedial Work in compliance with the
applicable law, regulation, order or agreement, or shall promptly reimburse
Tenant for the cost of such Remedial Work. If Landlord elects to perform the
Remedial Work, all Remedial Work shall be performed by one or more contractors
selected by Landlord and approved in advance in writing by Tenant and under the
supervision of a consulting engineer, selected by Landlord and approved in
advance in writing by Tenant. Otherwise, Tenant shall select the contractor(s)
and the consulting engineer. All costs and expenses of such Remedial Work shall
be paid either directly, or in the form of reimbursement to Tenant, by Landlord
including without limitation, the charges of such contractor(s) and the
consulting engineer, and Tenant's reasonable attorneys' fees and costs incurred
in connection with monitoring or review of such Remedial Work. If Landlord shall
fail to timely commence, or cause to be commenced, or fail to diligently
prosecute to completion, such Remedial Work, Tenant may cause such Remedial Work
to be performed, and all costs and expenses thereof, or incurred in connection
therewith, shall be covered by the indemnity set forth in this Paragraph 14(c).
All such costs and expenses shall be due and payable upon demand therefor by
Tenant.
(d) The obligations of Landlord and Tenant under this Section 14 shall
survive the termination of this Agreement.
SECTION 15. Fire and Other Casualty.
(a) If the Premises are destroyed or damaged by fire or other casualty
covered by the insurance required in Paragraph 7(b), then the Landlord shall
promptly repair and restore same to substantially the condition in which they
were immediately prior to the occurrence of such casualty, using the proceeds of
such insurance. If the Landlord does not complete said repair and restoration
within one hundred and twenty (120) days from the date of said casualty, then
the Tenant may terminate this Agreement retroactive to the date of casualty by
notice to the Landlord.
(b) If the Premises are damaged or destroyed by casualty not covered by
the insurance required in Paragraph 7(b), the Landlord may, if it so elects,
repair and restore same to substantially the condition in which they were
immediately prior to the occurrence of such casualty. The Landlord shall notify
the Tenant of its decision to restore the Premises within fourteen (14) days
from the date of the casualty, and upon failure of the Landlord to provide such
notice, it is conclusively presumed that it elected not to restore the Premises.
If the Landlord does not elect to restore the Premises, or if Landlord elects to
restore the Premises and it does not restore same within one hundred twenty
(120) days from the date of the casualty, then the Tenant may terminate this
Agreement retroactive to the date of casualty by notice to Landlord.
(c) During the period from the date of casualty until the premises are
repaired and restored, Tenant's obligation to pay any rent due hereunder shall
xxxxx in proportion to the
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amount of space of the Demised Premises rendered unusable for Tenant's purposes
as a result of the damage or destruction.
(d) Termination of this Lease in accordance with the foregoing
provisions shall not prejudice the rights and remedies of Landlord and Tenant
under this agreement prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant.
(e) In the event that during the last two (2) years of the Initial Term
or last two (2) years of any renewal term, the Premises are more than fifty
percent (50%) destroyed, nothing contained in this section shall be construed to
require Landlord to restore the Premises to a condition that existed immediately
prior to such destruction, unless the Tenant agrees to extend this lease
agreement for an additional five (5) year term.
SECTION 16. Eminent Domain.
During the term of this Lease, if the whole of the premises or such
portion of which materially adversely effect the Tenant's use and enjoyment of
the premises is taken in a condemnation proceeding or by any right of eminent
domain, this agreement shall terminate on the date of such taking, and the rent
and any additional rent reserved herein shall be apportioned and paid to the
date of such taking. The Tenant shall have no interest in any damages awarded
the Landlord in compensation for any taking in condemnation or eminent domain
with respect to the value of the Property and the Facility. The Tenant may
maintain a separate action for any damages sustained by Tenant by reason of said
condemnation or proceeding for the taking of Tenant's leasehold estate.
SECTION 17. Default after Occupancy.
If any one or more of the following events ("Events of Default") shall
occur:
(a) If the Tenant shall fail to pay any Basic Rent; or other sum payable
hereunder as the same becomes due and payable; or
(b) If the Tenant shall fail to perform or comply with any terms of this
Lease other than those referred to in paragraph (a) above or with any term of
any other agreement between the parties, and such failure shall continue for
more than 15 days after the Tenant receives notice or knowledge of such failure;
or
(c) If the Tenant shall make a general assignment for the benefit of
creditors or shall admit in writing its inability to pay its 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 not contesting the material allegations of a petition filed
against it in any such
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proceeding, or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of the Tenant or any material part of its
properties; or
(d) if, within 60 days after the commencement of any proceeding against
the Tenant seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed or stayed (or
within 60 days after the expiration of any such stay such proceeding shall not
have been dismissed), or if, within 60 days after the appointment without the
consent or acquiescence of the Tenant of any trustee, receiver or liquidator of
the Tenant or of any material part of its properties, such appointment shall not
have been vacated or stayed (or within 60 days after the expiration of any such
stay such appointment shall not have been vacated); or
(e) If the Tenant shall default in the payment of any indebtedness for
borrowed money, or shall fail to perform or comply with any of the terms of any
such indebtedness, or of any instruments relation thereto, and such default or
failure shall continue beyond any grace period provided with respect thereof,
and such default or failure shall not have been waived, bonded or cured; or
(f) If the Tenant or its shareholder or directors shall take any action
looking to the dissolution or liquidation of the Tenant; or
(g) If a final judgment which, with other than outstanding final
judgments against the Tenant, exceeds an aggregate of $100,000 shall be rendered
against the Tenant, and if, within 30 days after the expiration of such stay,
such judgment shall not have been discharged.
Then and in such event, regardless of the pendency of any proceeding which has
or might have the effect of preventing the Tenant from complying with the terms
of this Lease, the Landlord may at any time thereafter, during the continuance
of any such default, give a written termination notice to the Tenant specifying
a date (not less than ten days from the date of giving such notice) on which
this Lease shall terminate, and on such date, subject to the provisions of this
Lease relating to the survival of Tenant's obligations, the term of this Lease
shall terminate by limitation and all rights of the Tenant under this Lease
shall cease unless before such date (1) all arrears of Basic Rent, Additional
Rent and all other sums payable by the Tenant under this Lease, together with
interest thereon at the rate of 12% per annum, and all costs and expenses
(including, without limitation, attorneys' fees and expenses) incurred by or on
behalf of the Landlord shall have been paid by the Tenant, and (2) all other
defaults at the time existing under the Lease shall have been fully, remedied to
the satisfaction of the Landlord. All costs and expenses incurred by or on
behalf of the Landlord (including, without limitation, attorneys' fees and
expenses) occasioned by the default by the Tenant under this Lease shall
constitute Additional Rent hereunder.
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SECTION 18. Liability and Indemnification.
(a) Tenant shall indemnify Landlord and save Landlord harmless from
suits, actions, damages, liability and expense in connection with loss of life,
bodily or personal injury or property damage arising from or out of the use or
occupancy of the Premises or any part thereof, or occasioned wholly or in part
by any act or omission of Tenant, its agents, contractors, employees, servants,
invitees, licensees, or concessionaires, and Tenant shall indemnify Landlord and
save Landlord harmless from such suits, actions, damages, liability and expense
arising out of or caused by such breach, act or omission.
(b) Tenant shall give prompt notice to Landlord in case of fire or
accidents on the Premises or of defects therein or in any fixtures or equipment.
(c) Landlord shall indemnify Tenant and save Tenant harmless from suits,
actions, damages, liability and expense in connection with loss of life, bodily
or personal injury or property damage arising from any act or omission of
Landlord, its agents, contractors, employees, servants, invitees, licensees, or
concessionaires, and Landlord shall indemnify Tenant and save Tenant harmless
from such suits, actions, damages, liability and expense arising out of or
caused by such breach, act or omission.
SECTION 19. Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a less amount than the
monthly rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall an endorsement or statement on any check
or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in the Lease provided. Partial payment shall only be construed as an accord and
satisfaction if specifically set forth in a separate instrument signed by
Landlord.
SECTION 20. Subordination, Attornment and Collateral Assignment.
(a) At the option of Landlord or any mortgagee, this Agreement and the
Tenant's interest hereunder, shall be subject and subordinate, upon terms and
conditions consistent with this Agreement, to any mortgage, deed of trust, or
any method of financing or refinancing now or hereafter placed against the
Premises and to all renewals, modifications, replacements, consolidations and
extensions thereof, provided that no subordination or subjecting of this
Agreement and Tenant's interest shall be effective until Landlord has obtained
and delivered to Tenant a fully executed non-disturbance agreement as described
in paragraph 20(d) below.
(b) If the holder of record of a first mortgage of Landlord's interest
in the Premises shall have given prior written notice to Tenant that it is the
holder of said mortgage and that such notice includes the address at which
notices to such mortgagee are to be sent, then Tenant agrees to give notice to
the holder of record of such first mortgage,
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simultaneously with any notice given to Landlord to correct any default of
Landlord as hereinabove provided, and shall permit the holder of record and such
first mortgage to, within thirty (30) days after receipt of said notice, correct
or remedy such default before Tenant may take any action under this Lease by
reason of such default.
(c) Tenant shall, in the event of the sale or assignment of Landlord's
interest in the Premises, or in the event of the issuance of a certificate of
non-redemption in any proceedings brought for the foreclosure of a mortgage of
Landlord's interest in the Premises, or in the event of exercise of the power of
sale under any mortgage made by Landlord covering the Premises, attorn to the
purchaser or foreclosing mortgagee and recognize such purchaser or foreclosing
mortgagee as Landlord under this Lease, provided that any defaults are cured as
provided in Paragraph 20(b) above.
(d) Landlord shall use its best efforts to obtain from any mortgagee or
other Lender holding an interest in the Premises superior to Tenant's interest
under this Agreement: (i) a nondisturbance agreement in form and substance
reasonably satisfactory to Tenant, providing that so long as the Tenant performs
all of its obligations hereunder and agrees to attorn to such mortgagee or
beneficiary of deed of trust, then Tenant's right to possession under this
Agreement shall remain in full force and effect for the full term hereof, as
extended; (ii) further assurances from said mortgagee that it will claim no
interest in Tenant's personal property of any kind or nature.
(e) Notwithstanding any provision elsewhere in this Lease Agreement, the
Tenant shall have the right to mortgage, grant a security interest in, or assign
its interest in this Lease Agreement as collateral for loans (including
renewals, modifications, replacements, consolidations and extensions thereof)
from time to time without Landlord's prior consent or the prior consent of any
mortgagee holding a mortgage on the Demised Premises, provided that no such
mortgage, security interest or assignment shall extend to or affect the fee, the
reversionary interest, or the estate of the Landlord or any mortgagee in and to
the fee to the Demised Premises.
SECTION 21. Estoppel Certificates.
Either party, upon written request of the other, shall furnish to the
other party, a statement duty executed and acknowledged, to any mortgagee or
purchaser, or any other person or entity specified in such request:
(a) as to whether this Lease has been amended and the
substance of such amendment;
(b) as to the validity and force and effect of this Lease;
(c) as to the existence of any default hereunder;
(d) as to the existence of any offsets, counterclaims or
defenses hereto on the part of the party executing the certification; and
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(e) as to any other matters as may reasonably be so requested.
This statement must be furnished within ten (10) days after receipt of
the request and the contents thereof shall be binding upon the party executing
the certification.
SECTION 22. Surrender of Premises; Holding Over.
(a) At the expiration of the Initial Term or any Extension Term, Tenant
shall surrender the Premises in the same condition in which they were upon the
Commencement Date, reasonable wear and tear excepted, and shall deliver all keys
and combinations to locks to Landlord. Before surrendering said Premises, Tenant
shall remove all personal property including all trade fixtures, and shall
repair any damage caused thereby as provided in Section 9(b). Tenant's
obligation to perform this provision shall survive the Lease Term. If Tenant
fails to remove its property upon the expiration of the Lease Term, Landlord
may, among other remedies, cause such properties to be removed and disposed of
with the costs of such removal and disposal to be borne by the Tenant.
(b) Any holding over after the expiration of the Lease Term or any
renewal term shall be construed to be a tenancy at will, and shall be on the
terms herein so far as is applicable, except that Landlord reserves the right to
increase the Base rent upon thirty (30) days' advance written notice to Tenant.
SECTION 23. Successors and Assigns.
All rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several respective heirs,
executors, administrators, successors and assigns of the said parties; and if
there shall be more than one Tenant, they shall all be bound jointly and
severally by the terms, covenants and agreements herein. No rights, however,
shall inure to the benefit of any assignee of the Tenant unless the assignment
to such assignee has been approved by Landlord in writing, as provided in
Section 24 hereof.
SECTION 24. Assignment, Subletting.
(a) Except as provided in Section 20(e) hereof, the Tenant shall not
assign or sublet this Lease, without the written consent of the Landlord;
provided, however, that such consent shall not be unreasonably withheld or
delayed upon the Landlord, in the case of assignment, having been provided
adequate information to make an informed judgment that any assignee has the
financial ability to carry out the terms and obligations of this Lease; and, in
the case of sublet, upon being provided the terms of a proposed sublease and
securing written confirmation from Tenant that it shall remain fully liable for
the performance by any sublessee of this Lease.
The term "assign", as used herein, shall include:
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(i) an assignment of all of Tenant's interest hereunder in a
part of the Demised Premises, an assignment of an undivided percentage interest
hereunder in all of the Demised Premises, as well as any assignment from one
co-Tenant to another;
(ii) an assignment to any prior owner of the Tenant's interest
herein or part hereof; and
(iii) any merger, consolidation, transfer (singly or in
combination) of shares constituting more than one-third of the total shares
outstanding or any other transaction the effect of which is directly or
indirectly to transfer to any third party the benefits of this Lease.
(b) Notwithstanding the foregoing, Landlord hereby consents to the
proposed sublease of approximately 2,500 square feet of the Demised Premises to
NYBOR Corporation, and Tenant shall remain fully liable for the performance of
such sublessee.
SECTION 25. Non-Waiver.
(a) No agreement to accept a surrender of the Demised Premises prior to
the expiration of the Lease Term shall be valid unless in writing and signed by
an authorized representative of Landlord. The delivery of keys by or on behalf
of Tenant for any part of the Demised Premises to any employee or partner of
Landlord or to Landlord's agent or any employee of such agent shall not operate
as a termination of this Lease or as a surrender of the Premises.
(b) The failure of Landlord or Tenant to seek redress for violation or
breach of, or to insist on the strict performance of, any covenant of this Lease
whether by express waiver or otherwise, shall not be construed as a waiver of
any subsequent violation or breach or the same covenants.
(c) The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach.
(d) The failure of Landlord to enforce any of the rules and regulations
against Tenant or any other tenant in the Property shall not be deemed a waiver
of any such rule or regulation.
(e) Landlord's consent to, or approval of, any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent similar act by
Tenant.
SECTION 26. Severability.
It is the intention of the parties hereto that if any provision of this
Agreement is capable of two constructions, one of which would render the
provision valid, then the provision shall have the meaning which renders it
valid. If any term or provision or any
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portion thereof 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, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and each term and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
SECTION 27. Entire Agreement, Applicable Law.
This Lease with any exhibits and riders attached hereto contains the
entire agreement of the parties and no representations, inducements, promises or
agreements not embodied herein shall be of any force or affect, unless the same
are in writing and signed by or on behalf of the party to be charged. The
captions of particular sections are inserted as a matter of convenience and in
no way affect or define the scope or intent of this Lease or any provision
thereof. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Vermont.
SECTION 28. Captions.
The captions and numbers appearing herein are inserted only as a matter
of convenience and are not intended to define, limit, construe, or describe the
scope or intent of any section or paragraph, nor in any way affect this Lease.
SECTION 29. Notices.
Any notice required to be given by the terms of this Lease shall be
deemed received three (3) days after deposit in the United States mails, sent by
Certified Mail, Return Receipt Requested,
If to Landlord: Airmouse House Ltd. Partnership
X.X. Xxx 000
Xxxxxxxxx, XX 00000
With a Copy to: _______________________________
_______________________________
_______________________________
_______________________________
If to Tenant: xXxxx.xxx, Inc.
_______________________________
_______________________________
With a Copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx Associates
000 Xxxx Xxxxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
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SECTION 30. Recording.
Landlord and Tenant agree that this Agreement shall not be recorded. At
Tenant's option and expense, a memorandum of lease may be recorded in accordance
with 27 V.S.A. ss. 341(c).
SECTION 31. Waiver of Jury Trial.
In the event the Landlord shall commence any summary proceedings or
action for nonpayment of rent or additional rent hereunder, the parties hereto
waive a trial by jury on any and all issues arising in connection therewith, or
the Tenant's use or occupancy of the Premises. In the event Tenant shall
commence any action against Landlord for failure to perform any of the covenants
or agreements herein contained to be kept and fulfilled on the part of the
Landlord, the parties hereto waive a jury trial on any and all issues arising in
connection therewith.
SECTION 32. Landlord Not Personally Liable.
Except as to the indemnification provided in Sections 15 and 19 hereof,
if Landlord or any successor in interest of Landlord shall be a mortgagee, or an
individual, joint venture, tenancy in common, firm or partnership, general or
limited, it is specifically understood and agreed that there shall be absolutely
no personal liability on the part of such mortgagee or such individual or on the
part of the members of such firm, partnership or joint venture with respect to
any of the terms, covenants and conditions of this Lease and that Tenant shall
look solely to the equity of Landlord or such successor in interest in the
Premises for the satisfaction of each and every remedy of Tenant in the event of
any breach by Landlord or by his successor of any of the terms, covenants and
conditions of this Lease to be performed by Landlord, such exculpation of
personal liability to be absolute and without any exception whatsoever.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Agreement, as of the date first above-written.
IN PRESENCE OF:
AIRMOUSE HOUSE LTD. PARTNERSHIP,
Landlord
By: /s/
--------------------------------------
Its Duly Authorized Agent
xXXXX.XXX, INC., Tenant
By: /s/
--------------------------------------
Its Duly Authorized Agent
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STATE OF VERMONT
XXXXXXXXXX COUNTY, SS.
At Williston said County and State, this 2nd day of August 1999,
personally appeared ____, Duly Authorized Agent of AIRMOUSE HOUSE LTD.
PARTNERSHIP, and he/she acknowledged the foregoing instrument, by him/her
subscribed, to be his free act and deed and the free act and deed of AIRMOUSE
HOUSE LTD. PARTNERSHIP.
Before me, /s/
------------------------------------
Notary Public
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