Exhibit 10.49
LEASE
THIS INDENTURE OF LEASE dated as of the 15th day of May, 1996, by and
between 1987 XXXX-XXXXXXX LIMITED PARTNERSHIP, FIVE N ASSOCIATES of 00 Xxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx, and XXXXXXXXX PROPERTIES, L.L.C. of 00 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx (hereinafter called "Lessor") and WHITE PINE
SOFTWARE, a Delaware corporation having an office and place of business at 000
Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, (hereinafter called "Lessee").
WITNESSETH that, in consideration of the mutual covenants and agreements
herein contained, the Lessor has demised and leased, and by these presents does
demise and lease, to the Lessee, for the rental, for the term and upon the other
conditions hereinafter set forth, that parcel of land, together with the
buildings and improvements thereon, situated in Nashua, Hillsborough County, and
State of New Hampshire on the west side of Xxxxxxx Xxxxxx xxxxx 000-X and being
bounded and described as follows:
BEGINNING at the northwest corner of the within conveyed premises at a
stone bound, said bound being S 39 degrees 15' 15" W 402.19 feet from the west
line of Xxxxxxx Xxxxxx Xxxxx 000-X and N 49 degrees 39' 45" W 234.78 feet from
the north line of Capitol Street; thence running N 39 degrees 15' 15" E a
distance of 402.19 feet to a stone bound in the west line of Xxxxxxx Xxxxxx
000-X; thence S 49 degrees 55' 19" E by the west line of Xxxxxxx Xxxxxx a
distance of 163.28 feet to a N.H.H. Bound; thence S 10 degrees 06' 59" E a
distance of 94.18 feet to a point in the north line of Capitol Street; thence S
39 degrees 15' 15" W by the north line of Capitol Street a distance of 342.79
feet to a stone bound; thence N 49 degrees 39' 45" W a distance of 234.78 feet
to the bound of beginning.
SUBJECT to rights of access, air, view and light over, from or to Xxxxxxx
Xxxxxx, Xxxxx 000-X, with the exception of one point of access fifty (50) feet
in width, and the right to extend and maintain slopes and embankments, in
relation to the widening of said Amherst Street, as conveyed to The State of New
Hampshire by deed of Xxxxxx Xxxxxx, dated July 22, 1976 and recorded at Book
2473, Page 500. Reference is further made to the Petition and Commissioners'
Return of Highway Layout, Nashua U-101-1(30)-P-1330-B, 1977, recorded at Book
2561, Page 149, and to Plan #9867, Sheet 3 of 8.
SUBJECT to covenant to maintain drainage swale as recited in easement from
Xxxxxx X. Xxxxxxx et al to Shamrock Construction, dated April 20, 1982 recorded
at Book 2915, Page 56.
SUBJECT to telephone and power line easement from Shamrock Construction to
New England Telephone and Telegraph Company and Public Service Company of New
Hampshire, dated September 3, 1982 and recorded at Book 2948, Page 230.
TOGETHER with all the rights and easements thereunder belonging and
appertaining.
TO HAVE AND TO HOLD the premises hereby leased as above described
(hereinafter called the "Leased Premises") to the Lessee, its successors and
assigns, to and for the purpose for its and their proper use and benefit.
Section 1 - Term. The Term of this Lease shall be a period of five (5)
years, beginning on August 1, 1996, and ending on July 31, 2001.
Section 2 - Rent. (a) The Lessee shall pay to the Lessor as base rent
beginning August 15, 1996 the sum of Eighty Two Thousand Nine Hundred Dollars
($82,900.00), with August rent being prorated so remaining rents will be due on
the first of each month, payable in equal monthly installments of Six Thousand
Nine Hundred Eight
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Dollars and Thirty-Three Cents ($6,908.33) until January 31, 1997 then beginning
February 1, 1997 equal monthly installments of Nine Thousand Seventy-Five
Dollars ($9,075.00) until July 31, 1997. Then beginning August 1, 1997 the
Lessee shall pay to the Lessor as base rent the sum of One Hundred Twenty Two
Thousand Five Hundred Twelve Dollars and Fifty Cents ($122,512.50) per year
payable in equal monthly installments of Ten Thousand Two Hundred Nine Dollars
and Thirty-Eight Cents ($10,209.38), until June 30, 1998. Then beginning August
1, 1998 the Lessee shall pay to the Lessor as base rent the sum of One Hundred
Thirty Six Thousand One Hundred Twenty-Five Dollars ($136,125.00) per year
payable in equal monthly installments of Eleven Thousand Three Hundred
Forty-Three Dollars and Seventy-Five Cents ($11,343.75) until June 30, 1999.
Then beginning August 1, 1999 the Lessee shall pay to the Lessor as base rent
the sum of One Hundred Forty Nine Thousand Seven Hundred Thirty-Seven Dollars
and Fifty Cents ($149,737.50) per year payable in equal monthly installments of
Twelve Thousand Four Hundred Seventy-Eight Dollars and Thirteen Cents
($12,478.13) until June 30, 2000. Then beginning August 1, 2000 the Lessee shall
pay to the Lessor as base rent the sum of One Hundred Sixty Three Thousand Three
Hundred Fifty Dollars ($163,350.00) per year payable in equal monthly
installments of Thirteen Thousand Six Hundred Twelve Dollars and Fifty Cents
($13,612.50) until June 30, 2001. Each monthly installment shall be due and
payable on the first day of each month.
Section 3 - Quiet Enjoyment. The Lessor shall put the Lessee in possession
of the Leased Premises at the beginning of the term hereof, and the Lessee, upon
paying the rent and observing the other covenants and conditions herein upon to
be observed, shall peaceably and quietly hold and enjoy the Leased Premises.
Section 4 - Repairs by Lessor. The Lessor's responsibility for maintenance
or repair of the Leased Premises is limited to repair or replacement
necessitated by defective design or construction of the building. The Lessee
represents that it has examined the Leased Premises and found them to be in
satisfactory condition and the Lessee accordingly accepts the Leased Premises in
"as is, unless resulting from design and construction" condition, except for the
Work Letter attached as Exhibit A.
Section 5 - Repairs by Lessee. (a) The Lessee shall, at its cost and
expense, maintain the Leased Premises and all mechanical and non-mechanical
installations therein and the exterior (including the roof) of that portion
which houses the Leased Premises of the building of which the Leased Premises
are a part, in good condition and repair, and at the expiration of this Lease or
earlier termination hereof for any cause herein provided for shall deliver up
the Leased Premises to the Lessor in the same condition and state of repair as
at the beginning of the term hereof, reasonable wear and tear, taking by eminent
domain and damage insurable under the standard New Hampshire fire insurance
policy with extended coverage excepted.
(b) The Lessee shall make normal repairs to and perform normal maintenance
to the Leased Premises as needed, including, without limitation, the replacement
of broken glass, interior repainting, the repair of floors, the keeping of
windows and doors water tight and the maintenance in good operating condition of
all plumbing, electrical, heating, sprinkling and other utility systems, it
being understood that the Lessee may make any further repairs and replacements
which the Lessee may desire although neither party shall be under obligation to
do so.
(c) The Lessee shall keep in good repair and free from obstructions or
encumbrances all surfaced roadways, walks, loading, unloading and parking areas
which are part of or which serve the Leased Premises; shall keep clear of dirt,
snow and ice all such roadways, walks and areas; shall remove snow and ice from
roof of the building on the Leased Premises when necessary; and shall keep the
exterior of the Leased Premises clean and neat, including cutting and proper
care of lawns and shrubbery.
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(d) The Lessee shall at its expense make any alterations or changes in the
Leased premises which may be necessary, which are caused by Lessee's type of
occupancy, to meet the regulations and standards promulgated and established
under the Occupational Safety and Health Act of 1970.
(e) During the term of this lease, the Lessee shall be responsible for any
repairs or alterations to the leased premises deemed necessary by local, state
or federal officials, in order to meet compliance with any changes made, after
the commencement date of this lease, to any existing local, state or federal
regulations, as well as any new local, state or federal regulations made during
the term of this lease. Lessor shall be responsible for complying with any
required repairs or alterations to the Leased Premises with respect to any
changes to such regulations made prior to the commencement date of this Lease.
(f) During the term of this lease, in the event of a claim brought under
the Americans with Disabilities Act, Lessee shall be responsible for ensuring
satisfaction therewith, which are caused by Lessee's type of occupancy.
In the event Lessee shall fail to perform its obligations hereunder (a
through f above) after ten (10) days written notice by Lessor, or in the event
of an emergency after an attempt by Lessor to give telephone notice to Lessee,
the Lessor may, at its option, perform the same and charge the Lessee the
reasonable expense of said obligation.
SECTION 6 - IMPROVEMENTS BY LESSEE. The Lessee may make such alterations,
additions or improvements to the Leased Premises as it shall deem necessary or
desirable, provided (a) that no such alteration, addition or improvement shall
be made which would affect or change the structural character of the Leased
Premises without first obtaining the written consent and approval of the Lessor
before any work thereon shall be commenced and (b) the Lessee shall not, in any
event, commit, suffer or permit waste upon the Leased Premises. Lessee shall be
responsible for obtaining all necessary local, state and federal government
permits as may be necessary.
SECTION 7 - REMOVAL OF IMPROVEMENTS. At the expiration of this Lease, or at
its earlier termination for any cause herein provided for, the Lessee may, and
provided the Lessor shall so direct in writing not less than thirty (30) days
prior to such termination or ten (10) days following such earlier termination,
the Lessee shall remove any alterations, additions and improvements to the
Leased Premises made by it during the term hereof, and shall restore the Leased
Premises to their condition as at the beginning of the term hereof, reasonable
wear and tear, taking by eminent domain and damage insurable under the standard
New Hampshire fire insurance policy with extended coverage excepted. If the
Lessee shall not exercise its option of removal, and if the Lessor shall not
give such written direction to the Lessee, all such alterations, additions and
improvements shall become and remain the property of the Lessor. If the Lessee
shall fail to remove the alterations, additions and improvements, which are
required hereunder to be removed, then the reasonable cost of removal of such
alterations, additions and improvements, if necessary, shall be the
responsibility and obligation of the Lessee.
SECTION 8 - MACHINERY AND EQUIPMENT - TRADE FIXTURES. The Lessee agrees
that all machinery and equipment, and appurtenances thereto, installed in the
Leased Premises by it or by any employee, agent or subcontractor of the Lessee,
or by any subtenant of the Lessee, which cannot be removed from the Leased
Premises shall be and become part of the realty and shall be and become the
property of the Lessor and shall not be removed from the Leased Premises without
the written consent of the Lessor. The Lessor agrees that (a) all machinery and
equipment, and appurtenances thereto, installed in the Leased Premises by the
Lessee, or by any employee, agent or subcontractor of the Lessee, or by any
subtenant of the Lessee, which may be removed from the Leased Premises without
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permanent and substantial damage to the Leased Premises and (b) all furniture,
furnishings and movable trade fixtures installed in the Leased Premises shall be
deemed to remain personal property and that all such machinery, equipment,
appurtenances, furniture, furnishings and movable trade fixtures of the Lessee
or of any employee, agent or subcontractor or subtenant of the Lessee, may be
removed prior to the expiration of this Lease or its earlier termination for any
cause herein provided for; but the Lessee shall repair any damage occasioned by
such removal and shall restore the facilities on the Leased Premises to their
condition as at the beginning of the term hereof, reasonable wear and tear,
taking by eminent domain, and damage insurable under the standard New Hampshire
fire insurance policy with extended coverage excepted. Any such property which
may be removed pursuant to the preceding sentence and which is not so removed
prior to the expiration or earlier termination of this Lease may be removed from
the Leased Premises by the Lessor and stored for the account of the Lessee; and
if the Lessee shall fail to reclaim such property within sixty (60) days
following such expiration or earlier termination of this Lease such property
shall be deemed to have been abandoned by the Lessee, and may be appropriated,
sold, destroyed or otherwise disposed of by the Lessor without notice to the
Lessee and without obligation to account therefor. The Lessee shall pay to the
Lessor a reasonable cost incurred by the Lessor in removing, storing, selling,
destroying or otherwise disposing of any such property.
Section 9 - Utilities. The Lessee shall provide and shall pay when due all
charges for water, gas, electricity, sewerage, heat, power and any other
services supplied to it at the Leased Premises.
Section 10 - Use of Premises. (a) in its use of the Leased Premises, the
Lessee shall comply with all statutes, ordinances and regulations applicable to
the use thereof, including, without limiting the generality of the foregoing,
the Zoning Ordinances of the City of Nashua, New Hampshire, the Resource
Conservation and Recovery Act of 1976, and the Hazardous Waste Management
Program of the State of New Hampshire (R.S.A. 147:48 et seq).
(b) The Lessee shall not injure or deface the Leased Premises nor occupy or
use, or permit or suffer the Leased Premises or any part thereof to be occupied
or used, for any unlawful or illegal business, use or purpose, nor for any
business, use or purpose which is disreputable or extra-hazardous, nor in such
manner as to constitute a nuisance of any kind nor for any purpose nor in any
manner which would increase the premiums for fire insurance with extended
coverage for the Leased Premises. The Lessee shall, immediately upon discovery
of any such unlawful, illegal, disreputable or extra-hazardous use, take all
necessary steps, legal and equitable, to compel the discontinuance of such use
and to oust and remove any sublessee, occupants or other persons guilty of such
unlawful, illegal, disreputable or extra-hazardous use.
(c) The Lessee shall procure any licenses or permits required by any use
of the Leased Premises by the Lessee.
(d) The Lessee shall indemnify and save the Lessor harmless from and
against any and all claims, demands, liabilities, costs and expenses, including
reasonable counsel fees, asserted by third parties and arising out of or by
reason of any breach or violation by the Lessee of the provisions of this
Section.
Section 11 - Assignment - Sublease. The Lessee shall not, without the prior
written consent of the Lessor, assign this Lease or sublease the Leased
Premises, in whole or in part. Such consent shall not be unreasonably withheld
or delayed, provided Lessor shall be convinced that subtenant or assignee shall
have financial capacity to pay the rent hereunder. Notwithstanding any such
sublet or assignments, the obligations of Lessee hereunder shall not be released
by assignment or sublease and Lessee shall assign such assignment or sublease as
additional security for the performance of this lease.
Notwithstanding anything provided herein, in the event of subtenancy or
assignment, Lessee shall provide Lessor with the
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correct and updated name and mailing address of every assignee or subtenant and
the requirements if any of all Notice to Lessee in this lease shall be
sufficiently satisfied if forwarded in writing to the subtenant or assignee and
Lessee at the address given. In the event of Lessee's default hereunder, should
subtenant or assignee, at its option, cure such defect or default, the Lessee
shall not be relieved of future obligations hereunder.
SECTION 12 -- TAXES AND ASSESSMENTS. (a) The Lessee shall pay and discharge all
real estate taxes, betterment charges and levies, and charges and governmental
impositions, duties and discharges of like kind and nature, which or may during
the term of this Lease be charged, laid, levied or imposed upon or become a lien
or liens upon the Leased Premises or any part thereof, or upon any buildings or
appurtenances thereof, or any part thereof, or which may become due and payable
with respect thereto, and any and all taxes charged, laid or levied in addition
to the foregoing under or by virtue of any present or future laws, rules,
requirements, orders, directions, ordinances or regulations of the United States
of America, or of the state, county or city government, or of any other
municipal government or lawful authority whatsoever. The Lessee shall also be
responsible for the payment of any assessments for improvements; PROVIDED,
HOWEVER, that if any such assessment shall be payable in installments, the
Lessee shall not be required to pay any installment becoming due subsequent to
the termination of this Lease; and PROVIDED, FURTHER, that if any such
assessment shall be payable in a lump sum, the Lessee may submit to arbitration
in accordance with Section 24 hereof the question of the proportion of the
assessment which the Lessee should equitably be required to pay in the light of
the nature of the improvement, the remaining term of this Lease and the
existence of the option to renew set forth in Section 25 hereof. Unless required
by a mortgagee to make payments into an escrow account for taxes, the Lessee
shall, if so requested by the Lessor, pay the Lessor with each installment of
rent an amount equal to one twelfth of the real estate taxes for the current
year, if the amount thereof is known, or of such taxes for the prior year, if
the amount thereof for current year is not known. Such amounts shall be held in
escrow by the Lessor and utilized in partial or complete discharge of the
Lessee's obligations to pay such taxes on or before the date upon which interest
upon such taxes would otherwise start to accrue. If payments into an escrow
account for taxes shall not be required by a mortgagee or by the Lessor, (1) the
Lessee shall make the required payments directly to the appropriate taxing or
other governmental authorities, and (2) the Lessor shall forward all tax bills,
statements and charges to the Lessee in time sufficient to enable the Lessee to
pay the same without incurring interest or penalties and in time so that the
Lessee may contest the same if it so desires. The Lessee shall also punctually
pay and discharge all taxes which shall or may during the term of this Lease be
charged, laid, levied or imposed upon or become a lien upon the stock in trade
or other personal property of the Lessee attached to or used in connection with
the Lessee's business conducted on the premises. Nothing herein contained shall
require the Lessee to pay the Lessor's income or business profits taxes or any
taxes on the rents reserved to the Lessor hereunder or franchise taxes or estate
taxes or transfer taxes. Property taxes for the tax year in which the term
hereof commences and for the tax year in which the term hereof terminates shall
be apportioned between the Lessor and the Lessee in accordance with the number
of months or major fraction thereof during which each party shall be in
possession of the Leased Premises during such tax years.
(b) The Lessee shall have the right to contest or review (in the name of
the Lessee, or of the Lessor, or both, as the Lessee shall elect) by
appropriate proceedings (which if instituted shall be conducted promptly at the
Lessee's own expense free of all expense to the Lessor) any tax, charge or
other governmental imposition aforementioned upon condition that before
instituting any such proceeding the Lessee shall pay (under protest) such tax,
charge or other governmental imposition aforementioned, or furnish
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to the Lessor a surety company performance bond in a company acceptable to the
Lessor or other security satisfactory to the Lessor sufficient to cover the
amount of the contested item or items with interest for the period which such
proceedings may reasonably be expected to take and costs securing the payment of
such contested item or items and all interest and costs in connection therewith
when finally determined. Notwithstanding the furnishing of any such bond or
security, the Lessee shall pay all such items before the date when the Leased
Premises or any part thereof would under applicable law be forfeited. The Lessor
shall timely file the annual inventory required by Chapter 74:7 of the Revised
Statutes Annotated of New Hampshire the filing of which, by virtue of Chapter
76:16 of such revised Statutes Annotated, is a condition precedent to tax
abatement.
(c) The Lessor, at its option may, but shall not be obligated to, contest
or review by any appropriate proceedings, and at the Lessor's expense, any tax,
charge or other governmental imposition aforementioned which shall not be
contested or reviewed as aforesaid by the Lessee, and unless the Lessee shall
promptly join with the Lessor in such contest or review, the Lessor shall be
entitled to receive and retain any refund payable by the taxing authorities with
respect thereto.
SECTION 13 -- MECHANIC'S LIEN. In the event of the filing in Hillsborough
County Registry of Deeds of any notice of a builder's, supplier's or mechanic's
lien on the Leased Premises arising out of any work performed by or on behalf of
the Lessee, the Lessee shall either cause such lien to be discharged or released
or shall initiate legal proceedings to test the validity of the lien claimed;
and if the Lessee shall initiate legal proceedings to test the validity of the
lien, the Lessee shall cause such lien to be discharged or released by the
posting of bond or otherwise and shall completely indemnify the Lessor against
any such claim or lien and all costs of such proceedings wherein the validity of
such lien is contested by the Lessee.
SECTION 14 -- EMINENT DOMAIN. In the event that the Leased Premises shall
be lawfully condemned or taken by any public authority either in their entirety
or in such proportion that they are no longer suitable for the intended use by
the Lessee, this Lease shall automatically terminate without further act of
either party hereto on the date when possession of the Leased Premises shall be
taken by such public authority, and each party hereto shall be relieved of any
further obligation to the other except that the Lessee shall be liable for and
shall promptly pay to the Lessor any rent then in arrears or the Lessor shall
promptly rebate to the Lessee a pro rata portion of any rent paid in advance. In
the event the proportion of the Leased Premises so condemned or taken is such
that they are still suitable for the intended use by the Lessee, this Lease
shall continue in effect in accordance with its terms and a portion of the rent
shall xxxxx equal to the proportion of the rental value of the Leased Premises
so condemned or taken. In either of the above events, the award for the property
so condemned or taken shall be apportioned between the Lessor and the Lessee so
that the Lessor shall receive the then value of his reversionary interest in the
Leased Premises plus the then value of the future rents due under the terms of
this Lease if such taking had not occurred, and the Lessee shall receive the
then value of its leasehold interest including the then value of any mechanical
installations, equipment and appurtenances, if any, constructed or installed by
the Lessee after the beginning of the term hereof.
SECTION 15 -- LIABILITY. The Lessor shall not be liable to the Lessee for
any injury or harm to any person occurring on or about the Leased Premises or
for injury or damage to the Leased Premises or to any property of the Lessee or
to any property of any third person, firm, association or corporation on or
about the Leased Premises except such as may be caused by the willful negligent
act of the Lessor, his servants or agents, and the Lessee shall
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indemnify and save the Lessor harmless from and against any and all liability
and damages and from and against any and all suits, claims and demands of any
kind or nature, by and on behalf of any person, firm, association or
corporation, arising out of or based upon any incident, occurrence, injury or
damage which shall or may happen on or about the Leased Premises and from and
against any matter or thing growing out of the condition, maintenance, repair,
alteration, use, occupation of the Leased Premises or the installation of any
property therein or the removal of any property therefrom except such as may be
caused by the willful negligent act of the Lessor, his servants or agents.
SECTION 16 -- LIABILITY INSURANCE. The Lessee shall throughout the term
hereof procure and carry at its expense comprehensive liability insurance on the
Leased Premises with an insurance company authorized to do business in New
Hampshire and acceptable to the Lessor. Such insurance shall be carried in the
name of and for the benefit of the Lessee and the Lessor, shall be written on an
"occurrence" basis; and shall provide coverage of at least $2,000,000 in case of
death of or injury to one person; $3,000,000 in case of death of or injury to
more than one person in the same occurrence; and at least $100,000 in case of
loss, destruction or damage to property. A single limit policy or policies in
the total amount of $3,000,000 shall be deemed compliance with the preceding
sentence. The Lessee shall comply with requirements of the Boilers Unfired
Pressured Vessels Law (RSA 157-a), if applicable, and in such event the policies
referred to above shall contain an endorsement providing pressure vessels
insurance coverage and naming the Lessor as additional insured. The Lessee shall
furnish to the Lessor a certificate of such insurance which shall provide that
the insurance indicated therein shall not be cancelled without at least ten (10)
days written notice to the Lessor. At the date of each adjustment to the base
rent as provided for in Section 26 hereof, Lessee agrees to increase the
insurance coverages provided for herein, if requested to do so by the Lessor, to
an amount mutually agreeable to Lessor and Lessee which is then adequate to
protect against increases in insurance awards whether caused by inflation or
otherwise. Should the parties be unable to agree on an amount, the matter shall
be the subject of arbitration in accordance with Section 24 hereof.
SECTION 17 -- ALL RISK INSURANCE. (a) The Lessor shall procure and continue
in force during the term hereof such amounts as in its judgment are adequate of
All Risk Replacement Cost Insurance with Agreed Amount Endorsement (the latter
to be adjusted annually) upon the facilities constructed, erected or installed
on the Leased Premises at the beginning of the term hereof. The Lessee shall pay
to the Lessor upon presentation of invoice therefor and as additional rent
during the term hereof, an amount equal to the premiums for such All Risk
Replacement Cost Insurance. During the term hereof the Lessee shall procure and
continue in force All Risk Replacement Cost Insurance with Agreed Amount
Endorsement (the latter to be adjusted annually) upon facilities, machinery,
equipment and appurtenances constructed, erected or installed on or in the
Leased Premises by the Lessee and which have or may become the property of the
Lessor pursuant to Sections 7 and 8 hereof. The policies evidencing such
insurance shall provide that loss, if any, payable thereunder shall be payable
to the Lessor and/or the Lessee and/or any mortgagee of the Leased Premises as
their respective interests may appear, and all such policies together with
evidence of payment of the premiums thereon shall be delivered to the Lessor
and/or any such mortgagee. All such policies shall be taken in such responsible
companies authorized to do business in New Hampshire as the Lessor shall approve
and shall be in form satisfactory to the Lessor. Upon receipt of a copy of
notice of cancellation of any insurance which is the responsibility of the
Lessee hereunder, the Lessor may pay the premiums necessary to reinstate the
same. The amount so paid shall constitute additional rent payable by the Lessee
at the next rental payment date. The payment of premiums by the Lessor shall
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not be deemed a waiver or release by the Lessor of default by the Lessee in
failing to pay the same or of any action the Lessor may take hereunder as a
result of such default. The Lessee shall not violate, nor permit any person,
firm, association or corporation to violate any of the terms, conditions and
provisions of such policies. In the event of loss the Lessor shall promptly
initiate action to effect a settlement with the insurer, the Lessee shall
cooperate with the Lessor and any mortgagee in connection with the processing
and collection of claims and shall execute and deliver to the Lessor such proofs
of loss, releases and other instruments as may be necessary to settle any such
claims and obtain the proceeds thereof, and in the event the Lessee shall fail
or neglect so to cooperate or to execute and deliver any such instrument, the
Lessor may as the agent or attorney in fact of the Lessee, execute and deliver
any such instrument, and the Lessee hereby nominates and appoints the Lessor the
proper and legal attorney in fact of the Lessee for such purposes, hereby
ratifying all that the Lessor may lawfully do as such attorney in fact.
(b) If and to the extent permitted without prejudice to any rights of the
Lessor under applicable insurance policies, the Lessee shall be held free and
harmless from liability for loss or damage to the Leased Premises by fire, the
extended coverage perils, sprinkler leakage, vandalism and malicious mischief if
and to the extent actually insured against, whether or not such loss or damage
be the result of the negligence of the Lessee, its employees or agents. This
subsection does not impose any added obligation or expense upon the Lessor nor
require that it carry insurance of any kind and is to be construed only as a
limitation upon the rights of the insurance carriers to subrogation.
(c) If and to the extent permitted without prejudice to any rights of the
Lessee under the applicable insurance policies, the Lessor shall be held free
and harmless from liability for loss or damage to personal property of the
Lessee in the Leased Premises, by fire, the extended coverage perils, water
leakage, sewer problems, sprinkler leakage, vandalism and malicious mischief if
and to the extent actually insured against, whether or not such loss or damage
be the result of the negligence of the Lessor, its employees or agents. This
subsection does not impose any added obligation or expense upon the Lessee nor
require that it carry any insurance of any kind and is to be construed only as a
limitation upon the rights of the insurance carriers to subrogation.
SECTION 18 -- DESTRUCTION OF PREMISES. In the event that the Leased
Premises shall be totally destroyed by fire or other casualty insured against,
or shall be so damaged that repairs and restoration cannot be accomplished both
(a) within a period of one hundred twenty (120) days, and (b) more than ninety
(90) days prior to the expiration of the term hereof, including any renewal term
for which the option therefor shall have been exercised, or (c) without cost to
Lessor in excess of the insurance proceeds available, if any, this Lease shall
automatically terminate without further act of either party hereto, and each
party shall be relieved of any further obligations to the other except that the
Lessee shall be liable for and shall promptly pay the Lessor any rent then in
arrears or the Lessor shall promptly rebate to the Lessee a pro rata portion of
any rent paid in advance. In the event the Leased Premises shall be so damaged
that repairs and restoration can be accomplished both (a) within a period of one
hundred twenty (120) days, and (b) more than ninety (90) days prior to the
expiration of the term hereof, including renewal term if the option
therefor shall have been exercised, this Lease shall continue in effect in
accordance with its terms; the Lessor shall accomplish such repairs and
restoration as promptly as practicable (utilizing therefor the proceeds of the
insurance applicable thereto without any apportionment therefor for damages to
the leasehold interest created by this Indenture); and until such repairs and
restoration have been accomplished, a portion of the rent shall xxxxx equal to
the proportion of the Leased Premises rendered unusable by the damage. In no
event shall the obligation of the Lessor to repair and restore exceed in amount
the sum of the
8
insurance proceeds paid to Lessor and/or released to Lessor by any mortgagee
with which settlement was made, and the Lessee agrees to execute and deliver to
the Lessor all instruments and documents necessary to evidence the fact that the
right to such insurance proceeds is vested in the Lessor. The Lessor shall
notify the Lessee within thirty (30) days following the date of any such damage
or destruction whether or not repairs and restoration can be accomplished both
(a) within a period of one hundred twenty (120) days and (b) more than ninety
(90) days prior to the expiration of the term hereof, including any renewal term
for which the option therefor shall have been exercised.
SECTION 19 - REPOSSESSION BY LESSOR. At the expiration of this Lease or
upon an earlier termination of this Lease for any cause herein provided for, the
Lessee shall peaceably and quietly quit the Leased Premises and deliver up
possession of same to the Lessor, together with all alterations, additions,
improvements, mechanical installation, equipment and appurtenances thereto not
removed from the Leased Premises pursuant to Sections 7 and 8 hereof. The Lessee
covenants and agrees that at the time of delivery of possession to the Lessor at
the expiration of this Lease, any and all alterations, additions, improvements,
mechanical installations, equipment and appurtenances constructed or installed
on or in the Leased Premises at its expense after the beginning of the term
hereof and which have become the property of the Lessor pursuant to Sections 7
and 8 hereof shall be free and clear of any mortgage, lien, pledge or other
encumbrances or charges.
SECTION 20 - SUBORDINATION. The Lessee agrees that this Lease and all
rights of the Lessee hereunder are and shall be subject and subordinate to the
lien of (a) any mortgage or deed of trust constituting a first lien on the
Leased Premises, or any part thereof, at the date hereof, and (b) the lien of
any mortgage or deed of trust hereafter executed to provide permanent financing
or refinancing of the building of which the Leased Premises are a part, and (c)
any renewal, modification, consolidation or extension of any mortgage or deed of
trust referred to in clause (a) or clause (b). The Lessee shall, upon demand at
any time or times, execute, acknowledge and deliver to the Lessor without any
expense to the Lessor, any and all instruments that may be necessary or proper
to subordinate this Lease and all rights of the Lessee hereunder to the lien of
any mortgage, deed of trust or other instrument referred to in clause (b) or
clause (c) of the preceding sentence; provided, however, that such subordination
of this Lease may at the option of Lessee be conditioned upon the mortgagee or
trustee executing an agreement (i) that so long as the Lessee is not in default
under the terms of this Indenture, the mortgagee or trustee, or any person
succeeding to the rights of the mortgagee or trustee, or any purchaser at a
foreclosure sale under said mortgage or deed of trust, shall not disturb the
peaceful possession of the Lessee hereunder, and (ii) that the proceeds of
insurance policies held by it will be applied to the cost and restoration in
those instances in which the Lessor is obligated to repair and restore pursuant
to the provisions hereof.
SECTION 21 - DEFAULT. In the event (i) any installment of rent shall not
be paid within ten (10) days after the Lessor shall have notified the Lessee in
writing that the same is due and payable; or (ii) the Lessee defaults in the
performance or observation of any covenant or condition in this Indenture and
such default remains unremedied for thirty (30) days after written notice
thereof has been given to the Lessee by the Lessor, or (iii) the holder of a
security interest in all or substantially all of the personal property utilized
by the Lessee in, or generated by the operations of the Lessee in, the Leased
Premises forecloses the same; or (iv) the Lessee makes an assignment for the
benefit of creditors, files a voluntary petition in bankruptcy, is adjudicated
insolvent or bankrupt, petitions or applies to any tribunal for any receiver or
any trustee of or for the Lessee or any substantial part of its property,
commences any proceeding relating to the
9
Lessee or any substantial part of its property under any reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or
statute of any jurisdiction, whether now or hereafter in effect, or there
is commenced against the Lessee any such proceedings which remains
undismissed for a period of sixty (60) days, or any order approving the
petition in any such proceeding is entered, or the Lessee by any act
indicates its consent to, or acquiescence in, any such proceeding or the
appointment of any receiver or trustee for the Lessee or any substantial
part of its property, or suffers any such receivership or trusteeship to
continue undischarged for a period of sixty (60) days, then, in any such
events, the Lessor may immediately or at any time thereafter and without
demand notice enter upon the Leased Premises or any part thereof in the
name of the whole and repossess the same as of the Lessor's former estate
and expel the Lessee and those claiming through or under the Lessee and
remove their effects forcibly if necessary, without being deemed guilty of
any manner of trespass and without prejudice to any remedies which might
otherwise be used for arrears of rent or preceding breach of covenant, and
upon such entry this Lease shall terminate; and the Lessee covenants that,
in case of such termination or in case of termination under the provisions
of statute by reason of the default of the Lessee, the Lessee shall remain
and continue liable to the Lessor in an amount equal to the total rent
reserved for the balance of the term plus all additional rent reserved for
the balance of the term hereof less the net amounts (after deducting the
expenses of repair, renovation or demolition) which the Lessor realizes, or
with due diligence should have realized, from the reletting of the Leased
Premises. As used in this Section, the term "additional rent" means the
value of all considerations other than rent agreed to be paid or performed
by the Lessee hereunder, including, without limiting the generality of the
foregoing, taxes, assessments and insurance premiums. The Lessor shall have
the right from time to time to relet the Leased Premises upon such terms as
he may deem fit, and if a sufficient sum shall not be thus realized to
yield the net rent required under this Lease, the Lessee agrees to satisfy
and pay all deficiencies as they may become due during each month of the
remaining term of this Lease, or the Lessor may require the Lessee to pay
to him as damages such lump sum as will suffice to make the Lessor whole
for the balance of the then term of this Lease. Nothing herein contained
shall be deemed to require the Lessor to await the date whereon this Lease,
or the term hereof, would have expired had there been no default by the
Lessee, or no such termination or cancellation. The Lessee expressly waives
service of any notice of intention to reenter and waives any and all right
to recover or regain possession of the Leased Premises, or to reinstate or
redeem this Lease as may be permitted or provided for by or under any
statute or law now or hereafter in force and effect. The rights and
remedies given to the Lessor in this Lease are distinct, separate and
cumulative remedies, and no one of them, whether or not exercised by the
Lessor, shall be deemed to be in exclusion of any of the others herein or
by law or equity provided. Nothing contained in this Section shall limit or
prejudice the right of the Lessor to prove and obtain, in proceedings
involving the bankruptcy or insolvency of, or a composition with creditors
by, the Lessee the maximum allowed by any statute or rule of law at the
time in effect.
SECTION 22 - ACCESS TO PREMISES. The Lessor or his
representatives shall have free access to the Leased Premises at
reasonable intervals during normal business hours for the purpose of
inspection, or for the purpose of showing the premises to prospective
purchasers or tenants, or for the purpose of making repairs, which the
Lessee is obligated to make hereunder but has failed or refused to
make. The preceding sentence does not impose upon the Lessor any
obligation to make repairs. During the six (6) months next preceding
the expiration of this Lease, the Lessor may keep affixed to any
suitable part of the outside of the building of which the Leased
Premises are a part a notice that the Leased Premises are for sale or
rent.
10
SECTION 23 - HOLDING OVER. In the event the Lessee shall hold over after
the expiration of the term hereof, such holding over shall not extend the term
of this Lease but shall create a month-to-month tenancy upon all the terms and
conditions of this Indenture.
SECTION 24 - ARBITRATION. (a) In the event of any dispute to the meaning or
interpretation of any provision of this Lease, either party may, upon ten (10)
days' written notice to the other party, require that the dispute be determined
by arbitration under the rules, then obtaining, of the Commercial Panel of the
American Arbitration Association.
(b) A decision of an arbitrator made in accordance with the provisions of
this Section shall be final and binding upon both parties hereto and enforceable
in a court of law.
SECTION 25 - OPTION TO RENEW. Provided it be not at the time in default in
payment of the rent or in the performance of any of its other obligations
hereunder, the Lessee, upon not less than six (6) months' written notice to the
Lessor, may renew this Lease for three (3) additional terms of two (2) years
each. Such renewal terms shall be upon all of the terms and conditions of this
Lease except the rent shall be as provided in Section 26 hereof and except that
there shall be no further option of renewal upon expiration of the renewal
terms.
SECTION 26 - BASE RENT FOR RENEWAL TERM. (a) If any option to renew shall
be exercised, the base monthly rent during the renewal term shall be an amount
determined by multiplying the base monthly rent of Thirteen Thousand Six Hundred
Twelve Dollars and Fifty Cents ($13,612.50) by a fraction the numerator of which
shall be the Price Index for the last complete month prior to the expiration of
the original or expiring renewal term hereof, and the denominator of which shall
be the price Index for the month prior to the month in which the original term
hereof began; provided, however, that if such fraction is one or less, the base
monthly rent shall remain at Thirteen Thousand Six Hundred Twelve Dollars and
Fifty Cents ($13,612.50).
(b) As used in this Section the term "Price Index" means (i) the
"Consumers' Price Index - For all urban consumers, U.S. City Average, All Items,
(1982-84=100)" (referred to as CPI-U) published by the Bureau of Labor
Statistics of the United States Department of Labor, or (ii) if the publication
of such Consumers' Price Index shall be discontinued, the comparable index most
clearly reflecting diminution of the real value of the base rent herein provided
for.
In the event of a change in the base for the Consumers' Price Index, the
numerator and denominator of the fraction referred to above shall be
appropriately adjusted to reflect continued use of the 1982-84 base in the case
of the Consumers' Price Index or in the case of such comparable index, the
continued use of the base period in effect at the time of its adoption for use
hereunder. At the request of either party hereto, the other from time to time
shall execute an appropriate instrument supplemental to this Indenture
evidencing the then current monthly rent payable by the Lessee hereunder.
SECTION 27 - HAZARDOUS SUBSTANCES. Lessee shall not generate, store,
dispose of or otherwise handle any hazardous substance or waste or toxic waste
on the premises in any fashion contrary to any federal, state or local statutes,
laws, ordinances, rules and regulations, as the same may be described by
federal, state or local laws. Lessee shall indemnify and save the Lessor
harmless from and against any and all claims, demands, liabilities, costs and
expenses including reasonable counsel fees, asserted by any third parties and
arising out of or by reason of use by Lessee of the premises for or in
conjunction with the disposal of hazardous or toxic waste. To the best of
Lessor's knowledge there is no hazardous waste on the property.
SECTION 27 - NOTICES. Any written notice, request or demand required or
permitted by this Indenture shall, until either party shall notify the other in
writing of a different address, be properly given if sent by certified or
registered first class mail, postage prepaid, and addressed as follows:
If to the Lessor: 1987 Xxxx-Xxxxxxx L.P.
Five N Associates
Xxxxxxxxx Properties L.L.C.
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
If to the Lessee: White Pine Software
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
SECTION 28 - SUCCESSION. This Indenture shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors and assigns of
the parties hereto.
SECTION 29 - WAIVER. Any consent, express or implied by the Lessor to any
breach by the Lessee of any covenant or condition of this Lease shall not
constitute a waiver by the Lessor of any prior or succeeding breach by the
Lessee of the same or any other covenant or condition of this Lease. Acceptance
by the Lessor of rent or other payment with knowledge of a breach of or default
under any term hereof by the Lessee shall not constitute a waiver by the Lessor
of such breach or default.
SECTION 30 - GOVERNING LAW. This Indenture shall be construed and
interpreted in accordance with the laws of the State of New Hampshire and
questions or disputes concerning interpretation shall be determined in the
court of appropriate jurisdiction.
SECTION 31 - FORCE MAJEURE. Except as expressly provided herein, there
shall be no abatement, diminution or reduction of the rent or other charges
payable by the Lessee hereunder based upon, or claimed as a result of, any act
of God, act of the public enemy, governmental action, or other casualty, cause
or happening beyond the control of the parties hereto.
SECTION 32 - BROKERAGE. Each of the parties represents and warrants that
there are no claims for brokerage commissions or finder's fees with respect to
this Lease or the negotiation hereof except as set forth in this Section. The
parties further agree to indemnify the other against, hold harmless from, all
liabilities arising from any such claim (including without limitation, the cost
of counsel fees in connection therewith) except; the broker for this Lease is
Xxxxxxx-Xxxx Real Estate Group, whose fee will be paid by Lessor.
SECTION 33 - COUNTERPARTS. This Indenture may be executed in two (2) or
more counterparts, each of which shall be deemed to be an original, and all
collectively but one and the same instrument.
SECTION 34 - ADDITIONAL PARKING. The Lessor will use it's best efforts to
allow for some additional parking at rear of 000 Xxxxxxx Xxxxxx.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
executed and delivered as of the day and year first above written.
1987 XXXX-XXXXXXX LIMITED PARTNERSHIP
/s/ Q. Xxxxx Xxxx
-------------------------------------
Five N Associates, General Partner
by Q. Xxxxx Xxxx, Managing General
Partner of Five N. Associates
12
/s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------
Xxxxxxxxx Properties, L.L.C., General
Partner by Xxxxxx X. Xxxxxxx, Xx. as
Manager of Xxxxxxxxx Properties L.L.C.
FIVE N ASSOCIATES
By: /s/ Q. Xxxxx Xxxx
-----------------------------------
Q. Xxxxx Xxxx, Managing General
Partner
XXXXXXXXX PROPERTIES L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxxxx, Xx. as Manager
WHITE PINE SOFTWARE
By: [Illegible}
EXHIBIT A
WORK LETTER
1. Repair all damaged walls and paint all interior walls.
2. Replace all damaged ceiling tiles, matching to best of our ability to
existing tiles.
3. All building systems (HVAC, plumbing, lighting and electric) in good
operating condition.
4. Floor Coverings (see Exhibit B)
1. Manufacturing/Assembly, Electric Room, Toilet Rooms and Kitchen --
NONE
2. R&D Lab, Cafeteria and Hall between -- Vinyl tile
3. Balance of building carpet
5. Remove previous tenant's cooling and compressor piping.
6. Bathrooms: remove existing wallpaper and re-paper. Fix broken cabinets and
clean.
7. One time spring landscaping of building's grounds.
8. Construct 7 - 8 X 10 offices and divide one office and add door as per
Exhibit B colored in Red.
9. One year Warranty on all parts and labor of the mechanical systems (HVAC,
plumbing, electrical and roof membrane).
HRB
6/16/96
[FLOORPLAN GRAPHIC]
