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EXHIBIT 10.19
OFFICE BUILDING
LEASE AGREEMENT
110 SPIT BROOK
NASHUA, NEW HAMPSHIRE
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LEASE AGREEMENT
This Lease
Agreement is made and entered into as of June 9th, 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. ft. 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 purposes.
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 floor, 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
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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
same.
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
non-designated.
SEC. 2. TERM:
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
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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 Term
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 Option, then:
(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 the Rider; or
(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)
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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 provided in the Rider.
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
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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):
Hewlett-Packard Company
c/o MacMunnis, Inc.
1840 Oak Avenue
Suite 300
Evanston, Illinois 60201
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
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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, shall be pro-rated.
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 Term 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 following:
(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.
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(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 costs.
(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
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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 $7.31/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
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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
termination.
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 7
below.
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 hereof.
(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
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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
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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
11
<PAGE>
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,
12
<PAGE>
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.
13
<PAGE>
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 made by Lessor.
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
14
<PAGE>
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 subletting.
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
15
<PAGE>
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
16
<PAGE>
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
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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 notice to Lessee).
B.
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 such failure.
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 following:
(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 Lease.
(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.
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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
rel
