Exhibit 10.23
LEASE
THIS INDENTURE OF LEASE dated as of the "25th of May, 2001, by and
between 1987 Tamposi Limited Partnership, a New Hampshire limited partnership
with a place of business at 00 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxx
Xxxxxxxxx 00000 (hereinafter called "Lessor") and Skillsoft Corporation having
an office and place of business at 00 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxx
Xxxxxxxxx 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, known as 000 Xxxxxxxxxxxx
Xxxxxxxxx, situated on Xxx 00, Xxxxx 00, xx Xxxxxx, Xxxxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, more particularly bounded and described as follows:
BEGINNING at an iron pin in the easterly sideline of Northeastern
Boulevard as shown on said Plan; thence North 54 degrees 46' 00" East, along Lot
#17 and #17C as shown on said Plan, a distance of 300.00 feet, more or less, to
an iron pipe; thence North 35 degrees 14' 00" West, along Lot #16 as shown on
said Plan a distance of 300.00 feet, more or less, to an iron pipe; thence South
54 degrees 46' 00" West, along said Lot # 16, a distance of 300.00 feet, more or
less, to a point in the easterly sideline of Northeastern Boulevard; thence
South 35 degrees 14' 00" East, along the easterly sideline of said Northeastern
Boulevard, a distance of 300.00 feet, more or less, to the place of beginning.
CONTAINING 2.1 acres, more or less, with a building containing 25,400
square feet. The Leased Premises are shown on Exhibit A outlined in red and
incorporated herein and made a part hereof.
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 June 15, 2001, and ending on June 14, 2006.
SECTION 2 - RENT. For the first, second and third years of the Lease
term, the Lessee shall pay to the Lessor as base rent the sum of One Hundred
Twenty One Thousand Nine Hundred Twenty Dollars and 00/100 ($121,920.00) per
year payable in equal monthly installments of Ten Thousand One Hundred Sixty
Dollars and 00/ 100 ($10,160.00), the first such installment to be due and
payable on June 15, 2001, and a like installment to be due on the fifteenth day
of each succeeding month for the balance of the first three (3) years of the
term hereof. For the fourth and fifth years of the Lease term, the Lessee shall
pay to the Lessor as base rent the sum on One Hundred Twenty Eight Thousand Two
Hundred Seventy Dollars and 00/100 ($128,270.00) per year payable in equal
monthly installments of Ten Thousand Six Hundred Eighty Nine Dollars and 17/100
($10,689.17), the first such installment to be due and payable on June 15, 2004,
and a like installment to be due on the fifteenth day of each succeeding month
for the balance of the term hereof.
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 responsibility for
repair or replacement necessitated by defective design or construction of the
building of which the Leased Premises are a part. 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" condition.
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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 be responsible for replacement of windows,
overhead doors and parking lot resurfacing, together with other repairs and
replacements, utilizing, as a guideline, the Criterium-Xxxxxx Engineers report
entitled, "Property Condition Assessment, 000-000 Xxxxxxxxxxxx Xxxxxxxxx,
Xxxxxx, Xxx Xxxxxxxxx, prepared for Skillsoft Corporation, 00 Xxxxxxxxxx Xxxx
Xxxxx, Xxxxxx, Xxx Xxxxxxxxx, dated April 16, 2001". (see Appendix B). In the
event Tenant converts existing warehouse portion of building to office space,
Tenant shall not be responsible for the replacement of overhead doors and
other loading dock repairs referenced in the CTE report; however, if Tenant does
not convert warehouse area to office space, Tenant shall be responsible for
replacement of overhead doors and the other loading dock repairs. The specific
repair item referenced within the aforementioned report relating to the
replacement of rooftop air conditioning for the warehouse area shall be
repaired/replaced by Lessee only as required by Lessee's use (see Appendix B).
(d) 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.
(e) The Lessee shall at its expense make any alterations or changes in
the Leased Premises which may be necessary to meet the regulations and standards
promulgated and established under the Occupational Safety and Health Act of
1970.
(f) 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 in
local, state or federal regulations during the term of this lease.
(g) 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.
In the event Lessee shall fail to perform its obligations hereunder (a
through f above) after ten (10) days telephone 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, at the time of
consent by Lessor of Lessee's proposed improvements, Lessor will notify Lessee
what improvements are to be removed at the expiration or earlier termination of
the Lease. The Lessee shall remove any alterations, additions and improvements
to the Leased Premises, as provided above, 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
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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
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
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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 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 Lessee and subtenant or assignee 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. 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 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
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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 loner 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 or grossly
negligent act of the Lessor, his servants or agents, and the Lessee shall
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 or grossly 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
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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
canceled 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 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
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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 the 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 therefore 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 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 the 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 twenty (20) 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
7
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 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.
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
8
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 five (5) additional terms of one (1) year each.
Such renewal terms shall be upon all of the terms and conditions of this Lease
except the actual base rent will be established for each of the respective five
(5) terms of the renewal option by applying the CPI-U as published by the Bureau
of Labor Statistics of the United States Department of Labor for all urban
consumers, Boston-Brockton-Nashua, MA-NH-ME-CT, All Items (1982-84 = 100) to the
preceding year's base rent. In no instance will the increase for each of the
five (5) respective option periods be less than three percent (3%).
SECTION 26 - 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.
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: 0000 Xxxxxxx Limited Partnership
00 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
If to the Lessee: Skillsoft Corporation
00 Xxxxxxxxxx Xxxx Xxxxx
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 a
co-broke between The Xxxxxxx Group and Xxxxxxx-Xxxx Real Estate Group, Inc.,
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
9
same instrument.
SECTION 4 - SECURITY DEPOSIT. The Lessee hereby deposits the sum of Ten
Thousand One Hundred Sixty Dollars ($10,160.00) with the Lessor, the receipt of
which is hereby acknowledged, as security for the full and faithful performance
by the Lessee of each and every term, covenant and condition of this Lease.
Lessee shall maintain the full amount of the security deposit throughout the
term of this Lease. In the event that the Lessee defaults with respect to any
terms, provisions, covenants and conditions of this Lease, including but not
limited to payment of any rentals, the Lessor may use, apply or retain the whole
or any part of the security so deposited for the payment of any such rentals in
default or for any such sums which Lessor may expend or be required to expend by
reason of the Lessee's default, including any damages or deficiency in the
reletting of the Demised Premises, whether such damages or deficiency may accrue
before or after summary proceedings or other re-entry by the Lessor. In the
event that the Lessee shall fully and faithfully comply with all terms,
provisions, covenants and conditions of this Lease, the security or the balance
thereof will be returned to the Lessee after the time fixed as the expiration
thereof. The Lessee shall not be entitled to any interest on the security. In
the absence of evidence satisfactory to the Lessor of any assignment of the
right to receive this security, or the remaining balance thereof, the Lessor may
return the security to the original Lessee, regardless of one or more
assignments of the Lease itself.
Prior to the time when the Lessee shall be entitled to return of the
security deposit, the Lessor shall be entitled to intermingle such deposit with
its own funds and to use such funds for purposes as the Lessor may determine.
In the event of a bona fide sale, subject to this Lease, the Lessor
shall have the right to transfer the security deposit to the vendee for the
benefit of the Lessee, and the Lessor shall be considered released by the Lessee
from all liability for return of such sum, and the Lessee agrees to look to the
new landlord solely for the return of the security, and it is agreed that this
apply to every transfer or assignment made of the security to a new landlord.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
executed and delivered as of the day and year first above written.
LESSOR:
1987 TAMPOSI LIMITED PARTNERSHIP
By its General Partner
Xxxxxxxxx Properties, L.L.C.
/s/ J /s/Xxxxxx X. Xxxxxxx, Xx.
------------------------------- ------------------------------------
Witness By: Xxxxxx X. Xxxxxxx, Xx., Manager
LESSEE:
SKILLSOFT CORPORATION
/s/ Xxxxx X. XxXxxxxx /s/ Xxxxxx X. XxXxxxxx
------------------------------- ------------------------------------
Witness By:
10
Exhibit A
[PLAN OF LEASED PREMISES APPEARS HERE.]
APPENDIX B: ESTIMATED REPAIR/REPLACEMENT COSTS*
IMMEDIATE PHYSICAL NEEDS+
ITEM QUANTITY UNIT UNIT COST COST SOURCE COST
-------------------------------------------------------------------------------------------------------
Replace overhead doors 3 Each 1,500 Means 4,500
Replace loading dock roof and other
repairs 1 Each 1,000 Means 1,000
Roof repair 3 Each 1,000 Means 3,000
Repair front office south furnace 1 Each 1,000 Means 1,000
TOTAL $9,500
LONG-TERM PHYSICAL NEEDS+
ITEM QUANTITY UNIT UNIT COST COST SOURCE YEAR 1 YEARS 2-5 YEARS 6-10
------------------------------------------------------------------------------------------------------------------------------------
Drainage repair 2,000
Resurface parking area 50,000 Square $ 0.50 Means 25,000
foot
Landscaping upgrade 10,000
Structural 2,000
Exterior repairs and trim paint 5,000
Window upgrading 40 Each $ 400 Experience 10,000
Resurface front roof 3,000 Square $ 5 15,000
foot
Upgrade roof drains 3 Each $ 1,000 3,000
Employee/work area restroom upgrading 2 Each $ 8,000 16,000
Replace rooftop air conditioning 4 Each $10,000 40,000
Upgrade installation of restroom exhaust fan 1 Each $ 3,000 3,000
Electrical system repair and upgrading Unknown
Interior upgrading Unknown
------------------------------------------------------------------------------------------------------------------------------------
TOTAL ++ $96,000 $20,000 $15,000
====================================================================================================================================
* The recommendations and comments included in this report are based on the
collective experience of Criterium Engineers. Any costs or other comments
contained herein do not necessarily infer that subcontracts, quotes, or
opinions of other professionals were solicited.
+ This table summarizes estimated costs of repairs or replacements, including
both labor and materials. These estimates are based on our general
knowledge of building systems, local contracting/construction industry
conditions, and other sources such as Means Building Construction Cost
Data. We have performed no design work as part of this study, nor have we
obtained competitive quotations or estimates.
++ Uninflated.
SkillSoft Corporation.
000-000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxxx, XX
