LEASE AGREEMENT
This Lease
Agreement is made and entered into as of June 9, 2004 by and
between HEWLETT-PACKARD
COMPANY, a
Delaware corporation, acting by and through its duly authorized
representative, hereinafter
referred to as
"Lessor", and SKILLSOFT CORPORATION, a Delaware corporation,
hereinafter referred to as "Lessee."
In consideration of the mutual covenants as set forth
herein, Lessee and Lessor hereby agree as follows:
SEC. 1. LEASED
PREMISES, COMMON AREAS AND PARKING:
A. Lessor
hereby leases to Lessee and Lessee hereby leases from Lessor,
for
the rental and on the terms and
conditions hereinafter set forth, approximately 37,416
sq.
f t . of "Rentable Area" (as
hereinafter defined), the usable area of which is indicated
on
the plan attached hereto as Exhibit
"A" and made a part hereof (the "Leased Premises")
on the second floor of the office
building 2 (the "Building") located on the parcel(s) of
land known as and numbered 110 Spit
Brook, Nashua, New Hampshire 03062 (the
"Land"). The Building is part of a
three-building complex located on the Land (the
"Complex") that is operated and
managed by Lessor as a single unit for cost center
B. The
term "Rentable Area" as used herein shall mean the total of (i)
the
entire area included within the Leased Premises
covered by this Lease, being the area
bounded by the inside surface of any exterior
glass walls (or the inside surface of the
permanent exterior wall where there is no glass)
of the Building bounding such Leased
Premises, the exterior of all walls separating
such Leased Premises from any public
corridors or other public areas on such floor,
and the centerline of all walls separating
such Leased Premises from other areas leased or
to be leased to other lessees on such
f l oor, and (ii) a pro rata portion of the area
covered by the elevator lobbies, corridors,
restrooms, mechanical rooms serving individual
floors, electrical rooms, janitor and
telephone closets, and other common areas in the
Building. For all purposes of this
Lease, (i) the Rentable Area of the Building
shall be deemed to be 249,750 square feet,
(ii) the Rentable Area of the Complex shall be
deemed to be 751,254 square feet, and (iii)
the Rentable Area contained within the Leased
Premises shall be deemed to be the
number of square feet set forth above. Neither
the Base Rent nor any other obligation of
Lessee hereunder shall be increased or reduced
by a determination that the amount of
Rentable Area in the Leased Premises, the
Building or the Complex is more or less than
as set forth in this Section 1.
C. Lessee
acknowledges that the Leased Premises will be delivered to it
in
their "as is" condition (except for the work to
be performed by Lessor as described in
Paragraph 2 of the Rider attached hereto and
made a part hereof (the "Rider")), that it
has had an opportunity to
inspect the Leased Premises, and that Lessor has made no
warranties or representations
as to the condition of the Leased Premises or as to its
sufficiency for Lessee's
purposes or needs, or its conformity with "Legal
Requirements"
or "Insurance Requirements"
(as hereinafter defined). Lessee's occupancy of the
Leased
Premises shall be deemed an
acknowledgement that the condition of the Leased
Premises
is satisfactory and that
Lessor, to the best knowledge of Lessee, has fulfilled
all
obligations, if any, with
respect to the condition of the Leased Premises. Lessee
shall
have the right to access the
Leased Premises twenty-four (24) hours per day, every day
of
the calendar year, subject to
Lessor's security procedures. Lessee's employees shall
carry building identification
cards at all times within the Building.
D. Lessee
shall have the right, as appurtenant to the Leased Premises, to
use
(i) the ground floor
Building entrance lobby, (ii) the common corridors, elevators
and
stairways providing
access to and egress from the Leased Premises within the
Building,
(iii) common rest rooms
located on the second floor of the Building, and (iv) the
loading
docks serving the
Building during normal business hours, provided that such use does
not
conflict with Lessor's
use of the loading docks. Lessor shall make a small room in
the
area of the loading
dock available to Lessee for its exclusive use in connection
with
Lessee's loading and
unloading activities. Lessee shall have no right of access to or
use
of any other areas
within the Building, including the cafeteria, and shall not enter
into the
E. Lessee,
its employees, and invitees, shall have the right to park
passenger
motor vehicles in the parking area located on the Land while
conducting business in the
Leased Premises; provided that the number of parking spaces
to be used by Lessee, its
employees and invitees at any one time shall not exceed five
spaces per 1,000 square feet
of Rentable Area in the Leased Premises. All parking spaces
shall be unreserved and
A. Subject
to and upon the conditions set forth herein, the initial term of
this
Lease
(the "Initial Term") shall commence on June 15, 2004 (the
"Commencement
Date") and shall end
at midnight on June 14, 2009 (the "Stated Expiration
Date").
B. 1. Subject
to, and in accordance with, the provisions of this
Section
2.B, Lessee shall have
the following options to extend the Lease Term: (i) the option
(the
"First Extension Option") to extend the Lease Term for a period of
up to five (5) years
(the "First Extension Term"), commencing upon the expiration of the
Initial Term; and
(ii) the option (the "Second Extension Option") to extend the Lease
Term for a period of
up to five (5) years (the "Second Extension Term"), commencing upon
the expiration of
the First Extension Term (the First Extension Option and the Second
Extension Option
are sometimes referred to in this Lease, generically, as an
"Extension Option"; the First
Extension Term and the Second Extension Term are sometimes referred
to in this Lease,
generically, as an "Extension Term"). Lessee shall not have the
right to exercise an
Extension Option unless, as of each of (a) the date on which Lessee
gives to Lessor
written notice of its intention to exercise an Extension Option and
(b) the first day of the
corresponding Extension Term, (i) there then exists no "Event of
Default" (as hereinafter
defined) hereunder, nor any event or condition that, with the
giving of notice and/or the
passage
of time, would constitute an Event of Default hereunder, and (ii)
the Lessee
named in the Preamble has not assigned this Lease without Lessor's
consent, or subleased
any portion of the Leased Premises. In addition, Lessee's right to
give to Lessor a
"Notice of Intention to Exercise Extension Option" (as hereinafter
defined) shall
automatically terminate effective upon the conveyance by
Hewlett-Packard Company of title to
the Complex to a third party, and all Extension Options that have
not been validly exercised by
Lessee in accordance with the terms of this Section 2.B shall be
void and of no further force or
effect from and after the date of such conveyance of
title.
2. If
Lessee intends to exercise an Extension Option, Lessee
shall
give written notice to Lessor of such intention (a "Notice of
Intention to Exercise
Extension Option") not earlier than fifteen (15) months prior to
the then-Stated
Expiration Date and not later than nine (9) months prior to such
then-Stated Expiration
Date. Lessee must give a separate Notice of Intention to Exercise
Extension Option
within the time periods stated in the immediately preceding
sentence with respect to each
Extension Option that Lessee intends to exercise. Lessee shall
state in each Notice of
Intention to Exercise Extension Option the number of entire (but
not partial) years (which
shall be not less than one nor more than five years) that Lessee
desires to include in the
Extension Tenn. with respect to which Lessee is giving such Notice
of Intention to
Exercise Extension Option.
3. If
Lessee gives a Notice of Intention to Exercise Extension
Option
in accordance with the provisions of this Section 2.B with respect
to the First Extension
(i)
If the duration of the First
Extension Term specified in the Notice
of Intention to Exercise
Extension Option is one year, then (a) the
Lease Term shall be deemed
extended for a First Extension Term
of one (1) year, which shall
constitute the full exercise of the First
Extension Option and (b) the
parties shall proceed to determine
Base Rent for the First
Extension Term in the manner provided in
(ii)
If the duration of the First
Extension Term specified in the Notice
of Intention to Exercise
Extension Option is more than one year,
then, notwithstanding anything
to the contrary herein contained, in
the event that Lessor
determines in good faith that Lessor will
require the use of some or all
of the Leased Premises for its own
business operations after the
expiration of the Initial Term, Lessor
shall have the right to negate
Lessee's intention to exercise the
First Extension Option as set
forth in such Notice of Intention to
Exercise Extension Option (and
thereby void all Extension Options
and cause the Lease Term to
expire at the end of the Initial Term)
by giving
written notice of the same to Lessee within thirty (30)
days after Lessor receives Lessee's Notice of Intention to
Exercise
Extension Option. If Lessor does not give such written notice
of
negation within such 30-day period, then (a) the Lease Term
shall
be deemed extended for a First Extension Term equal to the
period
set forth in the Notice of Intention to Exercise Extension
Option,
which shall constitute the full exercise by Lessee of the
First
Extension Option, and (b) the parties shall proceed to
determine
Base Rent for the First Extension Term in the manner provided
in
the Rider. For the purposes of this Lease, the phrase "Lessor
will
require the use of some or all of the Leased Premises for its
own
business operations" shall mean that some or all of the
Leased
Premises will be occupied by Lessor and its employees, and not
be
leased to or occupied by third parties.
4. If
Lessee validly exercised the First Extension Option and
Lessor
did not timely give notice to Lessee pursuant to Section 2.B.3(ii)
above to negate the
exercise
of the First Extension Option, then Lessee shall have the right to
give a Notice of
Intention to Exercise Extension Option in accordance with the
provisions of this Section
2.B with respect to the Second Extension Option. If Lessee so gives
a Notice of Intention
to Exercise Extension Option in accordance with the provisions of
this Section 2.B with
respect to the Second Extension Option, then Lessee shall state in
such Notice the desired
duration of the Second Extension Term. Notwithstanding anything to
the contrary herein
contained, in the event that Lessor determines in good faith that
Lessor will require the
use
of some or all of the Leased Premises for its own business
operations after the
expiration of the First Extension Term, Lessor shall have the right
to negate Lessee's
intention to exercise the Second Extension Option as set forth in
such Notice of Intention
to Exercise Extension Option (and thereby void the Second Extension
Option and cause
the Lease Term to expire at the end of the First Extension Term) by
giving written notice
of the same to Lessee within thirty (30) days after Lessor receives
Lessee's Notice of
Intention to Exercise Extension Option with respect to the Second
Extension Option. If
Lessor does not give such written notice of negation within such
30-day period, then (a)
the Lease Term shall be deemed extended for a Second Extension Term
equal to the
period set forth in the Notice of Intention to Exercise Extension
Option, which shall
constitute
the full exercise by Lessee of the Second Extension Option, and (b)
the parties
shall proceed to determine Base Rent for the Second Extension Term
in the manner
C.
All the provisions of this Lease shall apply during each of the
Extension
Terms without any further action by Lessor or Lessee except that
(i) Base Rent during
each
Extension Term shall be the "Fair Market Rent" determined in
accordance with the
Rider, and (ii) there shall in no event be more than two Extension
Terms. As used in this
Lease, (a) the term "Lease Term" shall mean the Initial Term as it
may be extended by
any
Extension Term pursuant to an Extension Option validly exercised by
Lessee in
accordance
with the provisions of Section 2.B, and (b) the term "Stated
Expiration
Date" shall mean the last day of the Initial Term (or, if the Lease
Term has been extended
pursuant to an Extension Option validly exercised by Lessee in
accordance with the provisions of
Section 2.B, the last day of the corresponding Extension
Term).
SEC. 3. USE: The Leased Premises shall be used
and occupied by Lessee solely for general
office and software development purposes (the
"Permitted Uses"), and for no other use or
purpose. In its use of the Leased Premises,
Lessee shall, at its sole cost and expense, comply
with applicable "Legal Requirements" and
"Insurance Requirements" (as hereinafter defined).
SEC. 4. SECURITY DEPOSIT: Upon the execution of
this Lease, Lessee shall deposit with
Lessor the sum of $21,826.00 (the "Security
Deposit") as security for the punctual performance
of each and every obligation of Lessee under
this Lease and not as a prepayment of rent
hereunder. Lessor may commingle the Security
Deposit with Lessor's other funds, and no
interest shall be due thereon. Lessor may use
the Security Deposit to cure any default by Lessee
and, in the event that Lessor so applies all or
any portion of the Security Deposit, Lessee shall
pay to Lessor, as Additional Rent, the amount so
expended by Lessor within (i) ten (10) days of
notice given by Lessor in the case of amounts of
more than $500 so expended, or (ii) fifteen (15)
days of notice given by Lessor in the case of
amounts of not more than $500 so expended, so that
at all times (subject to the grace periods
hereinabove referenced) Lessor shall be entitled to hold
the full Security Deposit. Any failure of Lessee
to restore any amount expended from the
Security Deposit within the applicable grace
period specified in this Section shall immediately
constitute an Event of Default hereunder without
the necessity of any further notice or passage of
time. Lessor shall assign the Security Deposit
to any successor or assign of Lessor under this
Lease, and thereafter Lessor shall have no
further responsibility therefor. Within thirty (30) days
after the expiration or earlier termination of
the Lease Term, Lessor shall inspect the Leased
Premises, make such deductions from the Security
Deposit as may be required to cure any
defaults by Lessee hereunder, and, if Lessee is
not then in default hereunder, pay the balance of
the Security Deposit to Lessee.
SEC. 5. BASE RENT: As
part of the consideration of the execution of this Lease,
Lessee
covenants and agrees
and promises to pay base rent ("Base Rent") for the Initial Term
described
in Section 2.A above,
at the rate of $261,912.00 per year, payable in monthly
installments of
$21,826.00. Base Rent
during an Extension Term shall be the "Fair Market Rent" as defined
in,
and determined pursuant
to, the provisions of the Rider, and shall be payable in equal
monthly
installments. Until
Lessor gives Lessee other instructions, Base Rent and all other
amounts due
under this Lease
(collectively, "Additional Rent") shall be payable by Lessee to
Lessor at the
address of Lessor set
forth below (or at such other address as Lessor may from time to
time
specify in writing to
Lessee):
The Base Rent payable hereunder shall be payable in legal tender of
the United States of
America, in advance, without demand and without offset, abatement
or deduction (except as
otherwise
expressly provided in this Lease), commencing on September 15, 2004
(the "Rent Commencement
Date") and
continuing on the first day of each calendar month during the Lease
Term thereafter; provided,
however
that the first installment of Base Rent shall be paid on September
15, 2004. Base Rent for the
period
September 15 - 30, 2004, and for any partial month at the
expiration or earlier termination of this Lease,
Any Base Rent or Additional Rent (collectively, "Rent") not
received by the Lessor within five
(5) days after the date on which the same is due hereunder,
shall be accompanied by a late charge
of 5% of the amount of such overdue installment of Rent.
Notwithstanding
anything to the contrary contained in this Lease, provided that
no
"Event of Default" (as hereinafter defined) has occurred, Lessee
shall be entitled to a credit
against each monthly installment of Base Rent due and payable
during the Initial Tenn in the
amount of $2,598.33 per month, commencing on the Rent Commencement
Date. In the event
that this Lease is terminated by reason of the occurrence of an
Event of Default hereunder,
Lessee shall not be entitled to such credit with respect to any
period from and after the effective
date of such termination.
SEC. 6.
ESCALATION RENT: For purposes of this Section:
A. "Operational Expenses"
means all expenses, costs and disbursements of
every kind and nature as determined in accordance with
Lessor's accounting practices
which the Lessor shall pay or become obligated to pay because of,
or in connection with,
the
ownership, management, or operation of the Land, the Building, the
Complex, or any
other improvements located on the Land (collectively, the
"Property"), including the
(i) Wages
and salaries of all employees engaged in operation and
maintenance
of the Property, including taxes, insurance and benefits
relating
thereto, and fees for managing the Property; provided, however,
that there shall
be excluded from Operational Expenses for the purposes of this
Lease any
management fee paid by Lessor in excess of that typically paid by
landlords in
connection with the provision of a similar level of management
services to
comparable buildings in the vicinity of the Property in arm's
length transactions
between unaffiliated parties.
(ii) All
supplies, materials and tools used in the operation,
maintenance, repair and security of the Property and Property
facilities (with the
cost of any such supplies, materials and tools that are used at
more than one of Lessor's
properties being pro-rated among such properties).
(iii) Cost
of all utilities, including gas, water, electricity, heating,
air
conditioning, and ventilation, for the Complex, including lighting
the Property.
(iv) Cost
of all janitorial, security, maintenance and service
agreements, including window cleaning, snow removal and elevator
maintenance.
(v) Cost
of casualty and liability insurance applicable to the
Property
and Lessor's personal property used in connection therewith;
provided, however,
that if the cost of such insurance increases by reason of a
specific use being made
of portion(s) of the Property by Lessee, Lessor or another
occupant (rather than by
reason of increases in premiums for such insurance generally
applicable to
office/R&D use), then the amount of such increase attributable
to such specific
use shall be excluded from Operational Expenses and shall be
charged to and
payable by the party(ies) whose use has resulted in such increase
in insurance
(vi) Property
Taxes. The term "Property Taxes" shall mean all ad
valorem
taxes, personal property taxes and all other taxes, assessments,
use and
occupancy taxes, transit taxes, water and sewer charges, excises,
levies, license
and permit fees and all other similar charges (but specifically
excluding federal
and
state taxes on income), if any, whether federal, state, county or
municipal, and
whether they be taxing districts or authorities presently taxing
the Property or any
portion thereof, which are levied, assessed, or imposed upon or
become due and
payable in connection with, or a lien upon, the Land, the Building,
the Complex,
the
Property, or facilities used in connection therewith and rentals or
receipts
therefrom, and all taxes of whatsoever nature that are imposed in
substitution for
or in lieu of any of the taxes, assessments, or other charges
included in this
definition of "Property Taxes."
(vii) Cost
of repairs and general maintenance (excluding repairs
and
general
maintenance paid by proceeds of insurance or by Lessee or other
third
parties, and alterations attributable solely to lessees of the
Complex other than
Lessee);
provided, however, that for the purposes of this Lease (a) there
shall be
excluded from Operational Expenses repairs and general maintenance
costs
incurred by Lessor with respect solely to either Building 1 or
Building 3 of the
Complex and no portion of which is incurred with respect to
Building 2 of the
Complex (i.e., the Building in which the Leased Premises are
located); and (b)
with
respect to costs incurred by Lessor pursuant to Section 8.A below
that would
be classified as "capital" under generally accepted accounting
practices, such
costs (together with interest thereon at an annual rate equal to
the prime rate at the
time of such expenditure plus two (2) percentage points) shall be
amortized on a
straight-line
basis over an appropriate period reasonably selected by Lessor
in
accordance with generally accepted accounting practices, and there
shall be
included in Operational Expenses for each year on account thereof
only the
amount of such year's amortization amount.
B. "Proportionate
Share" shall be the figure obtained, as expressed in
a
percentage, by dividing the Rentable Area of the
Leased Premises by the total Rentable
Area of the Complex. For the purposes for this
Section, the parties hereto agree that
Lessee's Proportionate Share is 4.98%; provided,
however, that with respect to
Operational Expenses incurred with respect to
less than all of the three buildings included
in the Complex, Lessee's Proportionate Share thereof shall be the
figure obtained, as expressed in a percentage,
by dividing the Rentable Area of the Leased Premises by the total
Rentable Area of the buildings of the Complex
with respect to which such Operational Expenses were
incurred.
C. Lessee
shall pay to Lessor as Additional Rent its Proportionate Share of
all
Operational
Expenses in the following manner:
(i) Lessee
shall, for the portion of the Lease Term contained in calendar
year
2004, pay to Lessor on account of Lessee's Proportionate Share of
Operational Expenses
the sum of $22,792.58 per month (computed on the basis of $7.3 1
/sf/year x 37,416 sf), on
the Rent Commencement Date and on the first day of each calendar
month thereafter
during calendar year 2004 (with the first payment on account of
Operational Expenses to
be made on September 15, 2004 and to be in an amount equal to the
pro-rated remainder
for the month of September, 2004). Subsequent payments on account
of Operational
Expenses shall be due and payable on the first day of every
calendar month during the
term of this Lease. Lessee acknowledges that the amount set forth
in the first sentence of
this subsection (i) is only a good faith estimate of the amount of
Lessee's Proportionate
Share of Operational Expenses for calendar year 2004. Within a
reasonable time after the
commencement of each calendar year after 2004 (hereinafter called a
"Subsequent
Year"), Lessor shall notify Lessee in writing of the amount of
Lessor's good faith
estimate of Lessee's Proportionate Share of Operational Expenses
for such Subsequent
Year. In each Subsequent Year, Lessee shall pay to Lessor on the
first day of each and
every month during such Subsequent Year, a sum equal to one-twelfth
of Lessor's
estimate of Lessee's Proportionate Share of the Operational
Expenses for such year;
provided, however, that Lessor shall have the right from time to
time to deliver updated
written estimates to Lessee of the monthly installments to be paid
by Lessee to Lessor on
account of Lessee's Proportionate Share of Operational Expenses, in
which case Lessee
shall
thereafter pay such revised amount to Lessor on the first day of
each calendar month
during the Lease Term. Lessee acknowledges that any such estimate
provided by Lessor
is only a good faith estimate of the amount of Lessee's
Proportionate Share of
Operational Expenses during such period; or in the
alternative
(ii) Within
ninety (90) days after the end of any quarter or calendar
year
included
(in whole or in part) within the Lease Term, Lessor shall give
written notice to
Lessee of the amount of such Additional Rent due from Lessee, and
Lessee agrees to make
payment of the Additional Rent due from Lessee to Lessor within ten
(10) days
following receipt of this notice.
Within
ninety (90) days after the end of calendar year 2004 Lessor shall
give to
Lessee a computation of Lessee's Proportionate Share of Operational
Expenses for the
period
September 15 - December 31, 2004, and within ninety (90) days after
the end of
each
Subsequent Year Lessor shall give to Lessee a computation of
Lessee's
Proportionate
Share of Operational Expenses for such Subsequent Year, and within
ten
days following receipt of such computation Lessee shall pay to
Lessor its Proportionate
Share
of Operational Expenses as shown on such computation less the
payments made by
Lessee to Lessor pursuant to this subparagraph (ii) during the
preceding calendar year, or if Lessee has overpaid
such
Proportionate Share, the Lessor shall refund any overpayment or
credit the same against Lessee's Proportionate
Share of Operational Expenses for the next succeeding
calendar year.
If the Lease Term commences after the beginning of a calendar year
or expires
before the end of a calendar year, Lessee's Proportionate Share of
Operational Expenses
for such year shall be adjusted proportionately. Lessee's
obligations under this Section
6.C shall survive the expiration or earlier termination of this
Lease with respect to the portion of the
calendar year occurring prior to the effective date of such
expiration or earlier
The parties hereby agree that the amount to be paid by Lessee on
account of electricity charges shall be
separately determined in accordance with the provisions of Section
7 below, rather than included in the
amount of Operational Expenses with respect to which Lessee is
obligated to pay Lessee's Proportionate
Share thereof. Notwithstanding the different method of calculation
of the amount of Lessee's obligation
with respect to electricity charges, references in this Lease to
Lessee's obligation to pay "Lessee's
Proportionate Share" of Operational Expenses shall be deemed to
include the amount of Lessee's
obligation with respect to electricity charges as determined in
accordance with the provisions of Section
D. Upon
Lessee's written request made within one hundred twenty
(120)
days after the end of a calendar year, Lessor shall provide to
Lessee (i) copies of Property
Tax bills for the prior calendar year, and (ii) copies of Lessor's
cost center reports
relating to the Complex for the prior calendar year. In the event
that the materials so
provided demonstrate that Lessee has made an overpayment of
Operational Expenses for
such
calendar year, Lessor shall credit the amount of such overpayment
to the next
succeeding payment(s) of Base Rent and Additional Rent due
hereunder (or, if this Lease
has expired without Lessee then being in default hereunder, Lessor
shall refund the
amount of such overpayment to Lessee). Lessor shall have no
obligation to provide any
documentation to Lessee in response to any such request by Lessee
other than those items
expressly identified in this Paragraph D.
SEC. 7.
SERVICES AND UTILITIES: Subject to the provisions of this Lease,
Lessor shall furnish to Lessee the
following
services during the Lease Term:
(a) Janitorial
service for Building standard items, which shall initially be
in
accordance with the standards set forth on Exhibit "C" attached
hereto and made a part
(b) Elevator
service during normal business hours (with reduced passenger
elevator
service made available outside normal business hours).
(c) Air
conditioning and heating as reasonably required in Lessor's
judgment for
comfortable use and occupancy of the Leased Premises under normal
office conditions or
in accordance with applicable governmental regulations or
guidelines; provided, however, that Lessor shall
be obligated to furnish heat or air conditioning to the Leased
Premises only at such times and on such days
as
are necessary, in Lessor's judgment, to meet the needs of the
occupants of the Building; and Lessor shall
not
be required to furnish heat and air conditioning before 7:00 A.M.
or after 7:00 P.M. on week days, or on
weekends or holidays observed by Lessor.
(d) Electricity
for normal office use.
(e) Tempered
and refrigerated water at those points of supply provided for
general
use of other lessees in the Complex.
The cost to Lessor of providing the above-referenced services shall
be included in
Operational
Expenses. No interruption or malfunction of any such services shall
render Lessor
liable for damages or entitle Lessee to be relieved from any of its
obligations hereunder or grant
Lessee any right of set-off or recoupment. Unless expressly set
forth in this Section, Lessor shall
have
no obligation to provide any utility or service to the Leased
Premises or the Building.
For purposes. of calculating the amount of Lessee's payment
obligation with respect to
electricity charges hereunder (the "Electricity Charge"), the base
amount (the "Base Electricity
Charge") of electricity charges to be paid by Lessee shall be $3.18
per year per square foot of
Rentable Area in the Leased Premises ($118,982.88 per year), based
upon the rate charged to
Lessor as of the date of this Lease by the company providing
electricity to the Complex of
$.09/KwH
(the "Base Electricity Rate"). Subject to the provisions of the
last paragraph of
Section 6.C above, the Electricity Charge shall be included in
Operational Expenses and shall be
payable by Lessee to Lessor at the times and in the manner provided
in Section 6 above for the
payment of Lessee's Proportionate Share of Operational Expenses.
If, from time to time, the rate
charged to Lessor for electricity service to the Complex by the
company providing the same (the
"Electricity Rate") should increase above the Base Electricity
Rate,' the Electricity Charge
payable
by Lessee hereunder shall increase effective as of the date of such
increase in the
Electricity Rate, which increased Electricity Charge shall be
calculated by multiplying the Base
Electricity Charge by a fraction, the numerator of which is the
most recent increased Electricity
Rate and the denominator of which is the Base Electricity Rate. The
parties acknowledge and
agree that the Base Electricity Charge has been established based
on the assumption that Lessee
will consume electricity in the Leased Premises at a rate
comparable to that of other occupants of
administrative/office space in comparable buildings in the vicinity
of the Property; if at any time
Lessee's consumption should exceed this amount, Lessor reserves the
right to adjust the amount
of the Electricity Rate accordingly.
In addition, Lessee shall pay to Lessor, as Additional Rent,
monthly as billed, such
charges as may be separately metered or submetered with respect to
the Leased Premises. At the
request of Lessee, or upon Lessor's own initiative, Lessor shall
install a separate meter or
submeter to measure the consumption of one or more utilities in the
Leased Premises. The cost
of installation of such meters or submeters shall be borne equally
by Lessor and Lessee. From
and
after the installation of any such separate meter or submeter,
Lessee shall pay the full
amount for the utility so metered or submetered based on such meter
or submeter reading. In
lieu of requesting the installation of a meter or submeter, Lessee
and Lessor shall each have the right to cause the
applicable utility provider to perform an audit of the consumption
of such provider's utility service within the
Leased Premises, at the sole expense of the party requesting such
audit, the report of which audit shall be shared
with
the other party to this Lease. If such audit report demonstrates
that the actual cost of such utility service as
consumed
within the Leased Premises is less than or more than the amount
paid by Lessee based on its
Proportionate Share of the total charge for such utility to the
Complex (or, in the case of electricity charges,
if such audit report demonstrates that the actual cost of
electricity attributable to the Leased Premises is less
than
or
more than the then-current Electricity Charge as determined in
accordance with the provisions of this Section 7),
Lessee and Lessor shall make an equitable adjustment to the amount
of such charge on a prospective basis.
In the event that Lessee desires air conditioning or heating at any
time or times other than
as specified in subparagraph (c) of this Section 7 and Lessor
consents to the furnishing of such
service at the time or times requested by Lessee, Lessee shall be
charged for such air
conditioning or heating furnished by Lessor during
such periods at Lessor's then standard hourly
rate applicable during the periods when such services are furnished
(which rate shall reflect the
actual cost to Lessor (including depreciation) of operating the air
conditioning or heating system
after
normal business hours). Such rate may be changed by Lessor at any
time and from time to
time during the term of this Lease as Lessor's cost of providing
such service changes.
Lessor shall have the right, exercisable upon reasonable advance
notice to Lessee (except
in
the case of an emergency, when only such notice as is practicable
under the circumstances
need be given), to temporarily suspend any utility service to the
Leased Premises or the Building
(or
any portion thereof) in order to facilitate the performance of
construction, repair, restoration,
or alteration activities. Lessor shall make reasonable efforts to
provide substitute utility service
for any service so suspended, but Lessor shall not be liable to
Lessee for any such suspension.
SEC. 8.
MAINTENANCE, REPAIRS, ACCESS AND USE:
A. Lessor
shall, except as otherwise provided herein, provide for
the
maintenance and repair of the exterior walls, exterior windows,
roof, structural elements,
common areas, and Building systems equipment (other than equipment
installed by any
lessee),
the cost of which shall be included in Operational Expenses. Unless
otherwise
expressly stipulated herein, Lessor shall not be required to make
any improvements or
perform any maintenance or repairs of any kind or character on the
Leased Premises or
the Building during the Lease Term except that Lessor shall make
such modifications to
the Building (including the Leased Premises) as may be required in
order to comply with
"Legal Requirements" (as hereinafter defined) applicable to general
office use that first
become effective after the date of this Lease, the cost of which
modifications shall be
included in Operational Expenses; provided, however, that if such
newly-enacted Legal
Requirements require any modifications to be made to the Leased
Premises by reason of
any
use being made thereof other than general office use (without
intending hereby to
modify the definition of "Permitted Uses" set forth in Section 3
above), then such
modifications shall be made by Lessor at the sole cost of Lessee.
Lessee shall promptly
give Lessor written notice of any damage in the Leased Premises or
the Building
requiring
repair by Lessor, and Lessor shall not be liable for any damages
resulting from the
failure to make
any such repair.
B. Lessor,
its officers, agents and representatives shall have the right to
enter
all parts of the Leased Premises at all reasonable hours to
inspect, clean, make repairs,
alterations
and additions to the Building or Leased Premises which it may
deem
necessary or desirable, or to provide any service which it is
obligated to furnish to
Lessee,
or to show the Leased Premises to prospective lessees during the
last six (6)
months of the Lease Term, and Lessee shall not be entitled to any
abatement or reduction
of Rent by reason thereof. Except in case of emergency, such entry
shall be made upon
at least twenty-four (24) hours' advance written notice to Lessee,
and persons making
such entry shall be accompanied by a representative of Lessee
(unless Lessee fails to
make such a representative available after Lessor timely gives such
notice).
Notwithstanding anything to the contrary contained in this Lease,
in the event of an
emergency, Lessor shall be permitted to enter upon the Leased
Premises at any time and
with only such notice (if any) to Lessee as is practicable under
the circumstances.
C. Lessor
may at its option and at the cost and expense of Lessee, repair
or
replace any damage or injury done to the Building or any part
thereof, caused by Lessee,
Lessee's agents, employees, licensees, invitees or visitors; Lessee
shall pay the cost
thereof
to Lessor as Additional Rent, on demand. Lessee further agrees to
maintain and
keep the interior of the Leased Premises, all alterations,
additions or changes to the
Leased Premises made by Lessee, and all equipment installed by
Lessee in the Building,
in
good repair and condition (reasonable wear and tear excepted), at
Lessee's expense.
Lessee agrees not to commit or allow any waste or damage to be
committed on any
portion
of the Leased Premises, and at the termination of this Lease, by
lapse of time or
otherwise, and to maintain the Leased Premises in as good condition
as on date of first
possession by Lessee, reasonable wear and tear alone
excepted.
D. Lessee
will not: use, occupy or permit the use or occupancy of the
Leased
Premises for any purpose which is not permitted under "Legal
Requirements" or
"Insurance Requirements" (as hereinafter defined), or which may be
dangerous to life,
limb,
or property; or permit the maintenance of any public or private
nuisance; or do or
permit any other thing which may disturb the quiet enjoyment of any
other lessee of the
Building; or keep any substance or carry on or permit any operation
which might emit
offensive odors or conditions into other portions of the Building;
or use any apparatus
which
might make undue noise or set up vibrations in the Building; or
permit anything to
be done which would increase the fire and extended coverage
insurance rate on the
Building or contents, and if there is any increase in such rates by
reason of acts of Lessee,
then -Lessee agrees to pay such increase promptly upon demand
therefor by Lessor.
Lessor
will not use, occupy or permit the use or occupancy of any portion
of the Complex
then occupied by Lessor for its own business purposes, for any
purpose which is not
permitted
under "Legal Requirements" or "Insurance Requirements" (as
hereinafter
defined).
As used in this Lease, (i) the term "Legal Requirements" means,
collectively,
those statutes, by-laws, codes, and ordinances (and all rules and
regulations thereunder),
licenses,
permits, approvals, consents, executive orders and other
administrative orders,
judgments, decrees, and other judicial orders of or by any
governmental authority which
may at any time be applicable to the Land or the Building or to any
condition or use
thereof, and (ii) the term "Insurance Requirements" means,
collectively, the terms of
any policy of insurance maintained by Lessor or Lessee and
applicable to the Land or the
Building or to the use of any portion of either, and all
requirements of the issuer of any
such policy and all orders, rules, regulations and other
requirements of the National
Board
of Fire Underwriters, or any other body exercising similar
functions.
SEC. 9. LIENS:
Lessee shall not permit any mechanics' liens, materialmen's liens,
or other liens to be fixed or
placed against
the Leased Premises or the Building and shall immediately discharge
(either by payment or
by filing of
the necessary bond) any such lien which is allegedly fixed or
placed against the Leased Premises
or the Building
or the Complex by any person or entity claiming against Lessee or
anyone claiming by or through Lessee.
SEC. 10.
ALTERATIONS: All alterations, additions or changes to the Leased
Premises that
Lessee desires
to make shall require Lessor's prior written consent, after
submission to Lessor of
plans and
specifications showing the alterations, additions or changes Lessee
desires to make and
any other
information reasonably requested by Lessor, which consent shall not
be unreasonably
withheld,
delayed or conditioned; provided, however, that Lessor's consent
shall not be required
for painting or
installing removable decorative items (other than wall coverings
and floor
coverings). All
alterations, additions or changes shall: be made by bondable
(unless otherwise
approved by
Lessor) workers and contractors approved in advance in writing by
Lessor, which
approval shall
not be unreasonably withheld, delayed or conditioned (provided,
however, that
with respect to
alterations, additions or changes costing less than $50,000 in the
aggregate being
performed at
any one time, such workers and contractors need not be bondable,
but they shall
still be
subject to Lessor's approval as previously provided); be performed
in accordance with
the plans and
specifications previously delivered to (and where required by this
Lease, as
approved by)
Lessor; be done in a manner so as to create the least possible
disruption or
inconvenience
to Lessor and to other lessees in the Building and other workers
and contractors
performing work
in the Building; and shall be done in a good and workmanlike
manner
employing new
construction materials at least equal in quality to those of the
existing Building,
and in
compliance with all Legal Requirements, Insurance Requirements,
"Rules and
Regulations"
(as hereinafter defined), and the plans and specifications
submitted to (and, where
required,
approved by) the Lessor. Before commencing work, Lessee shall:
secure all necessary
licenses,
permits and approvals required by applicable Legal Requirements,
and furnish copies
thereof to
Lessor; at Lessor's request, provide (or cause its contractor to
provide) such bonds or
other
assurances satisfactory to Lessor protecting Lessor against claims
arising out of the
furnishing of
labor and materials for the work; and carry or cause each
contractor to carry
insurance with
such coverages and in such amounts as Lessor may reasonably require
(all such
insurance to be
written in companies approved by Lessor and Lessee shall deliver to
Lessor
certificates of
all such insurance prior to the commencement of such work). Within
two (2)
weeks after
completion of any alterations, additions or changes involving
Building systems,
hardwall
partitions, or structural changes, Lessee shall submit as-built
drawings or sketches of
the completed
work to Lessor.
Lessee shall indemnify, defend and hold harmless Lessor and its
officers, directors, servants,
agents, employees, contractors and invitees from and against any
and all liability, damage, penalties
or
judgments and from and against any claims, actions, proceedings and
expenses and costs in
connection therewith, including reasonable attorneys' fees,
resulting from any alterations, additions
or improvements undertaken by or on behalf of Lessee, which
obligations shall survive the expiration
or termination of this Lease with respect to work performed by or
on behalf of Lessee prior to such
expiration or termination.
In the course of any work being performed by or on behalf of
Lessee, Lessee agrees to use labor
compatible
with that being employed by Lessor for work in the Building or on
the Property, and not to
employ or permit the use of any labor or otherwise take any action
which might result in a labor dispute
involving personnel providing services in the Building or on the
Property pursuant to arrangements
Lessee shall not, without the specific written consent of Lessor
and Lessee's written
agreement to pay additional costs resulting therefrom, install any
apparatus or device within the
Leased Premises, including electronic data processing machines,
punch card machines or any
other machines, that would (i) weigh in excess of the machines
normally used in comparable
buildings in Nashua, New Hampshire; or (ii) use electrical power in
excess of that available to
the
Leased Premises through the Building's existing electrical system;
or (iii) in any way
increase the amount of electrical power, water, gas heating or air
conditioning used by Lessee in
the Leased Premises to an amount in excess of the amount usually
furnished at such time for use
by lessees in general office space in other similar buildings in
Nashua, New Hampshire.
SEC. 11. FURNITURE, FIXTURES AND PERSONAL
PROPERTY: Lessee may remove its
trade fixtures, office supplies and movable
office furniture and equipment provided: (a) such
removal is made prior to the expiration or
earlier termination of this Lease; and (b) Lessee
promptly repairs all damage caused by such
removal. All other property at the Leased Premises
and any alterations or additions to the Leased
Premises (including wall-to-wall carpeting,
paneling or other wall covering) shall become
the property of Lessor and shall remain upon and be
surrendered with the Leased Premises as a part
thereof at the expiration or earlier termination of this
Lease, Lessee hereby waiving all rights to any
payment or compensation therefor. If, however, Lessor
so requests in writing at the time of its
approval of the plans therefor submitted by Lessee,
Lessee shall, prior to the expiration or earlier
termination of this Lease, remove the alterations,
additions, fixtures, equipment and property
placed or installed by it in the Leased Premises as so
requested by Lessor, and will repair any damage
caused by such removal. If any property which is
required to be removed by Lessee is not
removed within the specified time, Lessor may, in
addition
to its other rights and remedies, treat such
property as abandoned, and may remove such property
and store the same at Lessee's expense, and
Lessee shall reimburse Lessor on demand for the
expenses incurred in doing so.
SEC. 12. SUBLETTING AND
ASSIGNING: Lessee shall not assign or otherwise transfer
this
Lease or any interest
herein, and shall not sublet the Leased Premises or any portion
thereof, or
any right or privilege
appurtenant thereto, or suffer or permit any other party to occupy
or use the
Leased Premises or
any portion thereof, without the prior express written consent of
Lessor,
which consent may be
withheld by Lessor in its sole and absolute discretion. Lessee
shall not
mortgage,
pledge, hypothecate or otherwise encumber this Lease or any
interest herein. Lessee
shall reimburse
Lessor on demand, as Additional Rent, for all reasonable expenses
(including
reasonable
attorneys' fees) incurred by Lessor in connection with any such
assignment or
If Lessee wishes to enter into an assignment or sublease with
respect to all or any portion
of the Premises, Lessee shall deliver to Lessor (i) a true and
complete copy of the proposed
instrument
containing all of the terms and conditions of such proposed
assignment or sublease,
(ii)
a reasonably detailed description of the business operations
proposed to be conducted in the
Leased Premises by such assignee or sublessee, (iii) such financial
information concerning such
proposed assignee or sublessee as Lessor may reasonably require,
(iv) schematic plans and
specifications for any alterations which Lessee or such assignee or
sublessee seeks to make in
connection
with such proposed assignment or sublease (with complete plans and
specifications to
be
submitted and approved prior to the commencement of any
construction, as required under
Section
10), and (v) a written agreement, in form reasonably approved by
Lessor, between such
proposed assignee or sublessee and Lessor in which such assignee or
sublessee agrees with
Lessor to perform and observe all of the terms, covenants and
conditions of this Lease.
Within thirty (30) days after receipt of the notice of the proposed
assignment or subletting and the other
information required to be provided to Lessor hereunder, Lessor
shall notify Lessee in writing whether it
consents to, or withholds its consent to, the proposed
assignment or subletting. Failure of Lessor to
so notify Lessee within such time period shall be deemed to
constitute Lessor's withholding its consent
to such assignment or subletting. If Lessor consents to such
proposed assignment or subletting, then
prior to such assignment or sublease becoming effective (and
as a condition precedent to the effectiveness
thereof), Lessee shall deliver to Lessor an original of the
fully-executed instrument of assignment or sublease
and
of the agreement described in clause (v) above.
Notwithstanding any such consent, the undersigned Lessee shall
remain jointly and
severally liable (along with each approved assignee or sublessee,
who shall automatically
become liable for all obligations of Lessee hereunder), and Lessor
shall be permitted to enforce
the provisions of this Lease directly against the undersigned
Lessee and/or any assignee or
sublessees without proceeding in any way against any other person.
If Lessee enters into an
assignment or sublease, then Lessee shall pay to Lessor as
Additional Rent, within ten (10) days
of receipt by Lessee, fifty (50%) percent of the amount by which
(on a pro-rated basis in the case
of a sublease covering less than all of the Leased Premises) the
consideration, rent, or other
charges payable to Lessee under such assignment or sublease exceed
the sum of (i) the Rent to
be paid hereunder, and (ii) Lessee's actual out-of-pocket payments
to third parties for costs
reasonably incurred in connection with such assignment or sublease
(including advertising,
architect's and engineer's fees and expenses, brokerage fees, legal
fees, and fit-up costs) all
amortized for these purposes over the term of this Lease (in the
case of an assignment) or over
the
term of the sublease (in the case of a sublease). No consent to an
assignment or sublease or
collection of rent by Lessor directly from any assignee or
sublessee, or failure so to collect such
rent, shall be deemed a waiver of the provisions of this Section,
an acceptance of such assignee
or sublessee as a lessee hereunder, or a release of Lessee from
direct and primary liability for the
performance
of all of the covenants of this Lease. Lessor's consent to an
assignment or sublease
shall not relieve Lessee from the obligation of
obtaining the express consent of Lessor to any
modification
of such assignment or sublease, or any further
assignment or sublease. In no event shall any party to
an
assignment or sublease, whether or not
consented to, further assign, sublease or otherwise transfer all
or
any part of its interest in the Leased Premises
without the prior written consent of Lessor in each
instance,
which consent may be withheld by Lessor in its
sole and absolute discretion. Lessee shall not permit
any
other person or entity to occupy the Leased
Premises for any purpose, whether as tenant at will or as
tenant
at sufferance or otherwise, or by license,
concession, or any other written or verbal arrangement, except
in
accordance with the provisions of this
Section.
Notwithstanding the preceding provisions of this Section,
without the necessity of
obtaining
Lessor's prior written consent, Lessee shall be entitled to assign
this Lease to, or to
enter
into a sublease of all or any portion of the Leased Premises to,
(i) an entity into or with
which Lessee is merged or consolidated, or to which substantially
all of Lessee's stock or assets
are transferred, or (ii) any entity which controls or is controlled
by Lessee or is under common
control with Lessee, provided that in any such event: (a) the
successor to Lessee has a net worth,
computed in accordance with generally accepted accounting
principles consistently applied, at
least equal to the greater of (1) the net worth of Lessee
immediately prior to such merger,
consolidation or transfer, or (2) the net worth of the named Lessee
on the date of this Lease; (b)
proof of such net worth satisfactory to Lessor shall have been
delivered to Lessor at least ten (10)
days prior to the effective date of such transaction, and (c) in
the case of an assignment, the
assignee agrees directly with Lessor, by written instrument
in form satisfactory to Lessor, to be
bound by all of the obligations of Lessee hereunder, including the
prohibition against further
assignment and subletting.
SEC. 13. FIRE
AND CASUALTY: If at any time during the Lease Term, the Leased
Premises
or a
substantial portion of the Building shall be damaged or destroyed
by fire or other casualty,
Lessor shall
have the right by giving Lessee written notice thereof at any time
within forty-five
(45) days after
the occurrence of such damage or destruction to terminate this
Lease. If Lessor
does not so
terminate this Lease, then within such 45-day period Lessor shall
deliver to Lessee
Lessor's good
faith estimate of the time required to complete the repair and
restoration of the
Leased Premises
and the Building to substantially the same condition in which they
existed
immediately
prior to such damage or destruction (subject to the exclusions
hereinbelow
described). If
the time set forth in such estimate exceeds nine (9) months from
the date of the
casualty, then
Lessee shall have the right to terminate this Lease by giving
written notice of
termination to
Lessor within thirty (30) days after Lessee's receipt of such
estimate. If this Lease
is not
terminated in accordance with the preceding provisions of this
Section, then this Lease
shall continue
in full force and effect and Lessor shall proceed to repair and
reconstruct the
Leased Premises
and the Building to substantially the same condition in which they
existed
immediately
prior to such damage or destruction (subject to the exclusions
hereinbelow
described),
such repairs and restoration to be made within a reasonable time
thereafter, subject to
delays arising
from the settlement of insurance proceeds, shortages of labor or
material, acts of
God, or other
conditions beyond Lessor's reasonable control. Lessor shall not be
required to
rebuild,
repair, or replace any part of Lessee's alterations, furniture,
furnishings or fixtures or
equipment, and
Lessee shall be obligated to rebuild, repair and replace the same;
provided,
however, that
Lessor shall be responsible, at its expense, for replacing the
furniture described in
Paragraph 4 of the Rider to the extent that the
same is damaged or destroyed by such casualty.
Lessor's restoration obligation shall not
require Lessor to spend an amount in excess of the
insurance proceeds actually received by Lessor
and allocable thereto. If Lessor fails to
substantially complete such repair and
reconstruction within six (6) months after it commenced
the same (subject to delays as aforesaid),
Lessee shall have the right to terminate this Lease by
giving written notice of termination to Lessor
within thirty (30) days after the expiration of such
6-month period. In the event that this Lease is
terminated as herein permitted, Lessor shall
refund to Lessee the prepaid unaccrued Rent, if
any, less any sums then owing to Lessor by
Lessee, or Lessee shall pay all Rent and other
sums owed to Lessor up to the date of such
termination, as the case may be. In any of the
aforesaid circumstances, Rent shall abate
proportionately during the period to the extent
that the Leased Premises are unfit for use by
Lessee in the ordinary conduct of its business.
Notwithstanding the preceding provisions of this
Section, if the Leased Premises or the Building
shall be damaged by fire or other casualty
resulting from the fault or negligence of
Lessee, or the agents, employees, licensees, or invitees
of Lessee, then (i) Lessee shall have no right
to terminate this Lease, (ii) such damage shall be
repaired by and at the expense of Lessee under
the direction and supervision of Lessor, (iii)
Lessee shall be responsible, at its expense, for
replacing the furniture described in Paragraph 4 of
the Rider to the extent that the same is damaged
or destroyed by such casualty, and (iv) Rent
shall continue without abatement.
SEC. 14. CONDEMNATION: If there shall be taken
during the Lease Term any part of the
Leased Premises or the Building, Lessor may
elect to terminate this Lease or to continue this
Lease in effect. If Lessor elects to continue
the Lease, the Rent shall be reduced in proportion to
the area of the Leased Premises so taken and
Lessor shall repair any damage to the remainder of
the Leased Premises or the Building resulting
from such taking, but in no event shall Lessor be
required to spend thereon more than the amount
of the award received by Lessor by reason of
such taking and allocable thereto. All sums
awarded or agreed upon between Lessor and the
condemning authority for the taking of the
interest of Lessor or Lessee, whether as damages or as
compensation, shall be the property of Lessor.
If, following any such condemnation, Lessee
reasonably determines that the portion of the
Leased Premises or the Building remaining after
such condemnation is not sufficient to enable
Lessee to continue the normal operation of its
business as then conducted in the Leased
Premises, Lessee shall have the right to terminate this
Lease by giving written notice of termination to
Lessor within thirty (30) days after Lessee
receives notice of such condemnation, which
notice shall be effective to terminate this Lease
upon the date on which physical possession of
the Leased Premises (or such portion thereof) is
taken by the condemning authority. If this Lease
is terminated under any provision of this
Section 14, Rent shall be payable up to the date
that possession is taken by the condemning
authority and Lessor shall refund to Lessee any
prepaid unaccrued Rent less any sums then
owing by Lessee to Lessor.
SEC. 15. EVENT
OF DEFAULT AND LESSOR'S REMEDIES: Each of the following acts,
omissions or
occurrences
shall constitute an "Event of Default" hereunder:
A. Failure
by Lessee to timely pay any Base Rent, Additional Rent or other
payments
required to be paid hereunder, which failure continues for
at least seven (7) days
after Lessor gives written notice to Lessee of such failure
(provided, however, that
after Lessor
has given two (2) notices to Lessee pursuant to this subsection
within
a 12-month
period, failure to make any payment of Base Rent, Additional Rent
or
other payment
within seven (7) days after the date on which the same is due
hereunder
shall
constitute an immediate Event of Default without the necessity of
Lessor giving any
Failure by
Lessee to perform or observe any other covenant, condition
or
provision of
this Lease to be performed or observed by Lessee, which failure
is
not cured
within thirty (30) days after written notice from Lessor to Lessee
of
C. The
adjudication of Lessee to be bankrupt or insolvent or the filing or
execution
or occurrence
of a petition in bankruptcy or other insolvency proceeding by
or
against Lessee;
or petition or answer seeking relief under any provision of
the
Bankruptcy Code
or any similar acts; or an assignment for the benefit of
creditors
or a
composition; or a petition or other proceeding by or against Lessee
for the
appointment of
a trustee, receiver or liquidator of Lessee or any of
Lessee's
property or a
proceeding by any governmental authority for the dissolution
or
liquidation of
Lessee, unless any such involuntary receivership or
proceeding
against Lessee
is dismissed or stayed within sixty (60) days
thereafter.
D. Abandonment
of the Leased Premises or any significant portion
thereof.
Upon or at any time following the occurrence of
any Event of Default enumerated
above, Lessor may, at its option, in addition to
any and all other rights, remedies or
recourses available to it hereunder or at law or
in equity, do any one or more of the
(a) Terminate
this Lease, in which event Lessee shall immediately
surrender
possession of the Leased Premises to
Lessor.
(b) Enter
upon and take possession of the Leased Premises and expel or
remove
Lessee and any other occupant therefrom, with or
without having terminated the
(c) Alter
locks and other security devices at the Leased Premises.
(d) Discontinue
furnishing heat, air conditioning, cleaning and lighting services
or
any of them,
until all arrears of rent have been paid in full.
Exercise by Lessor of any one or more of the remedies herein
granted or otherwise available shall
not be deemed to be an acceptance of surrender of the Leased
Premises by Lessee, whether by
agreement or by operation of law, it being understood that such
surrender can be effected only
by the written agreement of Lessor and Lessee.
In the event Lessor elects to terminate this
Lease by reason of an Event of Default, then
notwithstanding any such termination Lessee
shall be liable for and shall pay to Lessor the sum
of all Base Rent, Additional Rent and other
indebtedness accrued to the date of such termination,
plus, as damages, all other sums required to be
paid by Lessee to Lessor over the remainder of
the Lease Term (which shall expressly not
include any unexercised Extension Term), diminished
by any net sums thereafter received by Lessor
through reletting of the Leased Premises during
such period (after deducting expenses incurred
by Lessor as hereinafter provided). Such amounts
shall be paid by Lessee to Lessor in monthly
installments on the first day of each calendar month
during the remainder of what would have been the
Lease Term if this Lease had not been so
terminated. In no event shall Lessee be entitled
to any excess of any net sums obtained by
reletting over and above the amounts required to
be paid by Lessee under this Lease. Actions to
collect amounts due by Lessee as provided in
this paragraph may be brought from time to time
on one or more occasions, without the necessity
of Lessor's waiting until the expiration of the
original scheduled Lease Term. In lieu of the
foregoing damages, Lessor may, at any time after
such termination, elect to recover from Lessee
as damages, an amount of money equal to the
amount (if any) by which (i) the total Base Rent
and all other payments due for the balance of the
Lease Term, exceeds (ii) the fair market rental
value of the Leased Premises for the balance of
the Lease Term as of the occurrence of the Event
of Default, such difference to be discounted at
the rate of 6% per annum to present
value.
In the case of an Event of Default, Lessee shall
also be liable for and shall pay to Lessor
upon demand, in addition to any other sums
provided to be paid hereunder: brokers' fees
incurred by Lessor in connection with reletting
all or any portion of the Leased Premises; the
costs of removing and storing Lessee's or other
occupant's property found in the Leased
Premises; the costs of repairing or restoring
the Leased Premises to its condition as of the
Commencement Date, reasonable wear and tear
excepted; the cost of alterations made to the
Leased Premises in connection with such
reletting; and .all reasonable expenses incurred by
Lessor in enforcing Lessor's remedies, including
reasonable attorneys' fees. Past due Base Rent,
Additional Rent and other past due payments
shall bear interest from their respective due dates
until paid at the rate of 6% per
annum.
In the event of termination or repossession of
the Leased Premises upon the occurrence of an
Event of Default, Lessor shall not have any
obligation to relet or attempt to relet the Leased
Premises
or any portion thereof or to collect any rental
after any such reletting. In the event of any such
reletting, Lessor may relet the whole or any
portion of the Leased Premises for any period, to any
Lessee, for any rental and for any use and
purpose.
In calculating the amounts for which Lessee is
liable hereunder, it shall be deemed that
Operational Expenses will continue at the same
level as during the twelve (12) month period
immediately preceding the termination of this
Lease or Lessee's right to possession of the Leased
Lessor shall have the right to invoke any right
and remedy allowed at law or in equity or
by statute or otherwise as though re-entry,
summary proceedings, and other remedies were not
provided for in this Lease. Nothing in this
Lease shall require Lessor to elect any remedy for a
default or Event of Default by Lessee hereunder,
and all rights herein provided shall be
cumulative with
one another and with any other rights and remedies which Lessor may
have at law or in
equity in the
case of such a default or Event of Default. Lessor's remedies under
this Section shall survive
the early
termination of this Lease.
SEC. 16. LIABILITY INSURANCE: During the Lease
Term, Lessee shall maintain a policy of
comprehensive general liability insurance,
including fire legal liability, at Lessee's expense,
insuring Lessor against liability arising out of
the ownership or maintenance of the Property. The
initial amount of such insurance shall be at
least $5,000,000 combined single limit, and such
policy shall be issued by an insurer reasonably
acceptable to Lessor. However, the amount of
such insurance shall not limit Lessee's
liability nor relieve Lessee of any obligation
hereunder.
The policy shall contain cross-liability
endorsements, if applicable. Such policy shall contain a
provision which prohibits cancellation or
modification of the policy except upon thirty (30) days
prior written notice to Lessor. Lessee may
discharge its obligations under this Section by naming
Lessor as an additional insured under a policy
of Comprehensive General Liability maintained
by Lessee and containing the coverage and
provisions described in this Section. Lessee shall
deliver a Certificate of Insurance (or a renewal
thereof) to Lessor prior to the Commencement
Date and thereafter not less than thirty (30)
days prior to the expiration of any such policy.
Lessee shall, at Lessee's expense, maintain such
other property and liability insurance as Lessee
deems necessary to protect Lessee. All insurance
policies shall contain a waiver of subrogation
to the extent of insurance proceeds
payable.
SEC. 17.
HOLD HARMLESS: TO THE FULLEST EXTENT PERMITTED BY LAW,
LESSEE SHALL
DEFEND WITH COUNSEL REASONABLY ACCEPTABLE TO LESSOR,
INDEMNIFY AND
SAVE HARMLESS LESSOR AND ITS MORTGAGEES AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, SERVANTS,
AGENTS, CONTRACTORS, AND
EMPLOYEES, FROM AND AGAINST ANY AND ALL
LIABILITY, DAMAGE,
PENALTIES OR JUDGMENTS, AND FROM AND AGAINST ANY
CLAIMS, ACTIONS,
PROCEEDINGS AND EXPENSES AND COSTS IN CONNECTION
THEREWITH,
INCLUDING REASONABLE COUNSEL FEES, ARISING FROM
(I) INJURY TO PERSONS
OR DAMAGE TO PROPERTY SUSTAINED BY ANYONE ON OR
ABOUT THE LEASED
PREMISES, UNLESS CAUSED BY THE NEGLIGENT OR
WILLFUL ACT OR OMISSION
OF LESSOR OR ITS OFFICERS, DIRECTORS, SERVANTS,
AGENTS, OR EMPLOYEES,
OR (II) ANY BREACH OF ANY PROVISION OF THIS
LEASE BY LESSEE OR ANY
PERSON OR ENTITY CLAIMING BY, THROUGH OR UNDER
LESSEE, OR THEIR
RESPECTIVE OFFICERS, DIRECTORS, SERVANTS,
AGENTS, CUSTOMERS,
CONTRACTORS, EMPLOYEES OR INVITEES, OR (III) ANY
NEGLIGENT OR WILLFUL
ACT OR OMISSION OF LESSEE, ANY PERSON OR ENTITY
CLAIMING BY, THROUGH
OR UNDER LESSEE, OR THEIR RESPECTIVE OFFICERS,
DIRECTORS, SERVANTS,
AGENTS, CUSTOMERS, CONTRACTORS, EMPLOYEES OR
INVITEES. LESSEE SHALL
NOT SETTLE OR COMPROMISE ANY SUIT OR ACTION
WITHOUT LESSOR'S PRIOR
WRITTEN CONSENT, WHICH CONSENT SHALL NOT BE
UNREASONABLY
TO THE FULLEST
EXTENT PERMITTED BY LAW, LESSOR SHALL DEFEND WITH
COUNSEL
REASONABLY ACCEPTABLE TO LESSEE, INDEMNIFY AND SAVE
HARMLESS LESSEE
AND ITS OFFICERS, DIRECTORS, SERVANTS, AGENTS,
CONTRACTORS, AND EMPLOYEES FROM AND AGAINST ANY
AND ALL LIABILITY, DAMAGE,
PENALTIES OR JUDGMENTS, AND FROM AND AGAINST ANY
CLAIMS, ACTIONS, PROCEEDINGS
AND EXPENSES AND COSTS IN CONNECTION THEREWITH,
INCLUDING REASONABLE
COUNSEL FEES, ARISING FROM (I) INJURY TO PERSONS
OR DAMAGE TO PROPERTY SUSTAINED
BY ANYONE ON OR ABOUT THE LEASED PREMISES CAUSED
BY LESSOR, OR (II) ANY
BREACH OF ANY PROVISION OF THIS LEASE BY LESSOR
OR ITS OFFICERS, DIRECTORS, SERVANTS,
AGENTS, OR EMPLOYEES (BUT EXCLUDING OTHER
TENANTS OR OCCUPANTS OF ANY PORTION
OF THE COMPLEX), OR (III) ANY NEGLIGENT OR
WILLFUL ACT OR OMISSION OF LESSOR OR ITS
OFFICERS, DIRECTORS, SERVANTS, AGENTS, OR
EMPLOYEES. LESSOR SHALL NOT SETTLE OR
COMPROMISE ANY SUIT OR ACTION WITHOUT LESSEE'S
PRIOR WRITTEN CONSENT, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED.
SEC. 18.
INTENTIONALLY DELETED.
SEC. 19. NON-WAIVER: Neither acceptance of
Rent by Lessor nor failure by Lessor to
complain of any action, non-action or default of
Lessee, whether singular or repetitive, shall
constitute a waiver of any of Lessor's rights
hereunder. Waiver by Lessor of any right for any
default of Lessee shall not constitute a waiver
of any right for either a subsequent default of the
same obligation or any other default. No act or
thing done by Lessor or its agent, nor receipt by
Lessor of Lessee's keys to the Leased Premises,
shall be deemed to be an acceptance of
surrender of the Leased Premises and no
agreement to accept a surrender of the Leased Premises
shall be valid unless it is in writing and
signed by a duly authorized officer or agent of Lessor.
No acceptance by Lessor of any partial payment
shall constitute an accord or satisfaction but
shall only be deemed a partial payment on
account, nor shall any endorsement or statement on
any check or in any letter accompanying any
check or payment be deemed an accord and
satisfaction. Time is of the essence with
respect to the performance and observance by Lessee
and Lessor of every covenant, condition and
provision of this Lease in which time of
SEC. 20. RULES
AND REGULATION: Such reasonable rules and regulations applying to
all
lessees in the
Building as may be adopted by Lessor from time to time for the
safety, care and
cleanliness of
the Property and the preservation of good order thereon, are hereby
made a part
hereof and
Lessee agrees to comply with all such rules and regulations (the
"Rules and
Regulations").
Lessor shall have the right at all times to change such Rules and
Regulations
or to amend
them in any reasonable manner as may be deemed advisable by Lessor,
all of which
changes and
amendments will be sent by Lessor to Lessee in writing and shall be
thereafter carried
out and
observed by Lessee. The initial Rules and Regulations applicable to
the Property are attached
hereto as
Exhibit "B" and made a part of this Lease.
SEC. 21.
DEFAULT BY LESSOR: In the event of any default by Lessor hereunder,
Lessee's
exclusive
remedy shall be to bring an independent action for damages or other
relief, but prior to
any such action
Lessee shall give Lessor written notice specifying such default
with reasonable
detail, and
Lessor shall thereupon have thirty (30) days in which to cure any
such default. Unless
Lessor fails to
cure any default after such notice, Lessee shall not have any
remedy or cause of
action by reason thereof. If such default cannot
reasonably be cured within such thirty (30) day
period, the length of such period shall be
extended for the period reasonably required therefor if
Lessor commences curing such default within such
thir
