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Exhibit 10.9
THIS LEASE, dated as of the 30th day of September, 1999 between FRANK
J. GILBRIDE II, TRUSTEE, 31 Brookside Drive, Greenwich, Connecticut 06830
(hereinafter referred to as the Landlord), and MEDIA SYNERGY SOFTWARE
CORPORATION (hereinafter referred to as the Tenant).
WITNESSETH: That the Landlord hereby demises and leases unto the
Tenant, and the Tenant hereby hires and takes from the Landlord for the term and
upon the rentals hereinafter specified, the premises described as follows,
situated in the Town of Greenwich, County of Fairfield and State of Connecticut;
Approximately 1,800 square feet of the ground floor of Landlord's
building located at 391 East Putnam Avenue, Cos Cob, Connecticut, and 13 parking
spaces plus basement storage space.
The term of this demise shall be for three (3) years beginning October
15, 1999 and ending October 14, 2002.
The rent for the demised term shall be ONE HUNDRED THIRTY SEVEN
THOUSAND SEVEN HUNDRED AND XX/100 ($137,700.00) DOLLARS, which shall accrue at
the yearly rate of FORTY FOUR THOUSAND ONE HUNDRED AND XX/100 ($44,100.00)
DOLLARS for the year beginning October 15, 1999, FORTY FIVE THOUSAND NINE
HUNDRED ($45,900.00) DOLLARS for the year beginning October 15, 2000 and FORTY
SEVEN
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THOUSAND SEVEN HUNDRED AND XX/100 ($47,700.00) DOLLARS for the year beginning
October 15, 2001.
The said rent is to be payable monthly in advance on the fifteenth day
of each calendar month for the term hereof, in installments as follows:
$3,675.00 per month for the year beginning October 15, 1999; $3,825.00 per month
for the year beginning October 15, 2000; and $3,975.00 per month for the year
beginning October 15, 2001 to Crane Management LLC, 31 Brookside Drive,
Greenwich, Connecticut 06830, or as may be otherwise directed by the Landlord in
writing.
THE ABOVE LETTING IS UPON THE FOLLOWING CONDITIONS:
1. The Landlord covenants that the Tenant, on paying the said rental
and performing the covenants and conditions in this Lease contained, shall and
may peaceably and quietly have, hold and enjoy the demised premises for the term
aforesaid.
2. The Tenant covenants and agrees to use the demised premises as and
for its executive offices and agrees not to use or permit the premises to be
used for any other purpose without the prior written consent of the Landlord.
The Tenant agrees that it may only receive business visitors between 7:30 a.m.
and 8:30 p.m. up to 2 days per week and between 7:30 a.m. and 6:00 p.m. up to 4
days per week and not at all on Sundays and national holidays.
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3. The Tenant shall, without any previous demand therefor, pay to the
Landlord, or its agent, the said rent at the times and in the manner above
provided. In the event of the non-payment of said rent, or any installment
thereof, at the times and in the manner above provided, and if the same shall
remain in default for ten days after becoming due, or if the Tenant shall be
dispossessed for non-payment of rent, or if the leased premises shall be
deserted or vacated, the Landlord or its agents shall have the right to and may
enter the said premises as the agent of the Tenant, either by force or
otherwise, without being liable for any prosecution or damages therefor, and may
relet the premises as the agent of the Tenant, and receive the rent therefor,
upon such terms as shall be satisfactory to the Landlord, and all rights of the
Tenant to repossess the premises under this lease shall be forfeited. Such
re-entry by the Landlord shall not operate to release the Tenant from any rent
to be paid or covenants to be performed hereunder during the full term of this
lease. For the purpose of reletting, the Landlord shall be authorized to make
such repairs or alterations in or to the leased premises as may be necessary to
place the same in good order and condition. The Tenant shall be liable to the
Landlord for the cost of such repairs or alterations, and all expenses of such
reletting. If the sum realized or to be realized from the reletting is
insufficient to satisfy the monthly or term rent provided in this lease, the
Landlord at its option, may require the Tenant to pay such deficiency month by
month, or may hold the Tenant in advance for the entire deficiency to be
realized during the term of the reletting. The Tenant shall not be entitled to
any surplus accruing as a result of the reletting. The Landlord is hereby
granted a lien, in addition to any statutory lien or right to distrain that may
exist, on all personal property of the Tenant in or upon the demised premises,
to secure payment of the rent and performance of the covenants and conditions of
this lease. The Tenant agrees to pay, as
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additional rent, all attorneys' fees and other expenses incurred by the Landlord
in enforcing any of the obligations under this lease.
4. The Tenant shall not sub-let the demised premises nor any portion
thereof, nor shall this lease be assigned by the Tenant without the prior
written consent of the Landlord.
5. The Tenant has examined the demised premises, and accepts them in
their present condition (except as otherwise expressly provided herein) and
without any representations on the part of the Landlord or its agents as to the
present or future condition of the said premises. The Tenant shall keep the
demised premises in good condition, and shall redecorate, paint and renovate the
same premises as may be necessary to keep them in repair and good appearance.
The Tenant shall quit and surrender the premises at the end of the demised term
in as good condition as the reasonable use thereof will permit. The Tenant shall
not make any alterations, additions, or improvements to said premises without
the prior written consent of the Landlord. All erections, alterations, additions
and improvements, whether temporary or permanent in character, which may be made
upon the premises either by the Landlord or the Tenant, shall be the property of
the Landlord and shall remain upon and be surrendered with the premises as a
part thereof at the termination of this Lease, without compensation to the
Tenant. The Tenant further agrees to keep said premises and all parts thereof in
a clean and sanitary condition and free from trash, inflammable material and
other objectionable matter.
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6. In the event that any mechanics' lien is filed against the premises
as a result of alterations, additions or improvements made by the Tenant, the
Landlord, at its option, after thirty days' notice to the Tenant, may terminate
this lease and may pay the said lien, without inquiring into the validity
thereof, and the Tenant shall forthwith reimburse the Landlord the total expense
incurred by the Landlord in discharging the said lien, as additional rent
hereunder.
7. The Landlord shall not be responsible for the loss of or damage to
property, or injury to persons, occurring in or about the demised premises, by
reason of any existing or future condition, defect, matter or thing in said
demised premises or the property of which the premises are a part, or for the
acts, omissions or negligence of other persons or tenants in and about the said
property. The Tenant agrees to indemnify and save the Landlord harmless from all
claims and liability for losses of or damage to property, or injuries to persons
occurring in or about the demised premises unless such loss was caused by the
negligent act or omission of the Landlord or Landlord's agent.
8. Utilities furnished to the demised premises for the benefit of the
Tenant shall be provided and paid for by the Landlord except Tenant shall be
responsible for electricity. Landlord shall be responsible for maintenance of
the grounds and parking area, including snow removal, trash removal and
gardening. Tenant shall be responsible for interior janitorial services. The
Landlord shall not be liable for any interruption or delay in any of the above
services for any reason.
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9. The Landlord, or its agents, shall have the right to enter the
demised premises at reasonable hours in the day or night to examine the same, or
to run telephone or other wires, or to make such repairs, additions or
alterations as it shall deem necessary for the safety, preservation or
restoration of the improvements, or for the safety or convenience of the
occupants or users thereof (there being no obligation, however, on the part of
the Landlord to make any such repairs, additions or alterations), or to exhibit
the same to prospective purchasers. For four months prior to the expiration of
the demised term, the Landlord, or its agents, may similarly exhibit the
premises to prospective tenants.
10. In the event of the destruction of the demised premises or the
building containing the said premises by fire, explosion, the elements or
otherwise during the term hereby created or such partial destruction thereof as
to render the premises wholly untenantable or unfit for occupancy, or should the
demised premises be so badly injured that the same cannot be replaced within
ninety days from the happening of such injury, then and in such case the term
hereby created shall, at the option of the Landlord, cease and become null and
void from the date of such damage or destruction, and the Tenant shall
immediately surrender said premises and all the Tenant's interest therein to the
Landlord, and shall pay rent only to the time of such surrender, in which event
the Landlord may re-enter and re-possess the premises thus discharged from this
lease and may remove all parties therefrom. Should the demised premises be
rendered untenantable and unfit for occupancy, but yet be repairable within
ninety days from the happening of said injury, the Landlord may enter and repair
the same with reasonable speed, and the rent shall not accrue after said injury
or while repairs are being made, but shall recommence
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immediately after said repairs shall be completed. But if the premises shall be
so slightly injured as not to be rendered untenantable and unfit for occupancy,
then the Landlord agrees to repair the same with reasonable promptness and in
that case the rent accrued and accruing shall not cease or determine. The Tenant
shall immediately notify the Landlord in case of fire or other damage to the
premises.
11. The Tenant agrees to observe and comply with all laws, ordinances,
rules and regulations of the Federal, State, County and Municipal authorities
applicable to the demised premises and to Tenant's business to be conducted
therein. The Tenant agrees not to do or permit anything to be done in said
premises, or keep anything therein, which will increase the rate of fire
insurance premiums on the improvements or any part thereof, or on property kept
therein, or which will obstruct or interfere with the rights of other tenants,
or conflict with the regulations of the Fire Department or with any insurance
policy upon said improvements, or any part thereof. In the event of any increase
in insurance premiums resulting from the Tenant's occupancy of the premises, or
from any act or omission on the part of the Tenant, the Tenant agrees to pay
said increase in insurance premiums on the improvements or contents thereof as
additional rent.
12. No sign, advertisement or notice shall be affixed to or placed upon
any part of the demised premises by the Tenant, except in such manner, and of
such size, design and color as shall be approved in advance in writing by the
Landlord.
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13. This lease is subject and is hereby subordinated to all present and
future mortgages, deeds of trust and other encumbrances affecting the demised
premises or the property of which said premises are a part. The Tenant agrees to
execute, at no expense to the Landlord, any instrument which may be deemed
necessary or desirable by the Landlord to further effect the subordination of
this lease to any such mortgage, deed of trust or encumbrance.
14. The rules and regulations regarding the demised premises, affixed
to this lease, if any, as well as any other and further reasonable rules and
regulations which shall be made by the Landlord, shall be observed by the Tenant
and by the Tenant's employees, agents and customers. The Landlord reserves the
right to rescind any presently existing rules applicable to the demised
premises, and to make such other and further reasonable rules and regulations
as, in its judgment, may from time to time be desirable for the safety, care and
cleanliness of the premises, and for the preservation of good order therein,
which rules, when so made and notice thereof given to the Tenant, shall have the
same force and effect as if originally made a part of this lease. Such other and
further rules shall not, however, be inconsistent with the proper and rightful
enjoyment by the Tenant of the demised premises.
15. In case of violation by the Tenant of any of the covenants,
agreements and conditions of this lease, or of the rules and regulations now or
hereafter to be reasonably established by the Landlord, and upon failure to
discontinue such violation within ten days after notice thereof given to the
Tenant, this lease shall thenceforth, at the option of the Landlord, become null
and void, and the Landlord may re-enter without further notice or demand. The
rent
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in such case shall become due, be apportioned and paid on and up to the day of
such re-entry, and the Tenant shall be liable for all loss or damage resulting
from such violation as aforesaid. No waiver by the Landlord of any violation or
breach of condition by the Tenant shall constitute or be construed as a waiver
of any other violation or breach of condition, nor shall lapse of time after
breach of condition by the Tenant before the Landlord shall exercise its option
under this paragraph operate to defeat the right of the Landlord to declare this
lease null and void and to re-enter upon the demised premises after the said
breach or violation.
16. All notices and demands, legal or otherwise, incidental to this
lease, or the occupation of the demised premises, shall be in writing. If the
Landlord or its agent desires to give or serve upon the Tenant any notice or
demand, it shall be sufficient to send a copy thereof by certified mail, return
receipt requested, addressed to the Tenant at the demised premises, or to leave
a copy thereof with a person of suitable age found on the premises, or to post a
copy thereof upon the door to said premises. Notices from the Tenant to the
Landlord shall be send by certified mail, return receipt requested, or delivered
to the Landlord at the place hereinbefore designated by the payment of rent, or
to such party or place as the Landlord may from time to time designate in
writing.
17. It is further agreed that if at any time during the term of this
lease the Tenant shall make any assignment for the benefit of creditors, or be
decreed insolvent or bankrupt according to law, or if a receiver shall be
appointed for the Tenant, then the Landlord may, at its option, terminate this
lease, exercise of such option to be evidenced by notice to that effect served
upon
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the assignee, receiver, trustee or other person in charge of the liquidation of
the property of the Tenant or the Tenant's estate, but such termination shall
not release or discharge any payment of the property of the Tenant or the
Tenant's estate, but such termination shall not release or discharge any payment
of rent payable hereunder and then accrued, or any liability then accrued by
reason of any agreement or covenant herein contained on the part of the Tenant,
or the Tenant's legal representatives.
18. In the event that the Tenant shall remain in the demised premises
after the expiration of the term of this lease without having executed a new
written lease with the Landlord, such holding over shall not constitute a
renewal or extension of this lease. The Landlord may, at its option, elect to
treat the Tenant as one who has not removed at the end of his term, and
thereupon be entitled to all the remedies against the Tenant provided by law in
that situation, or the Landlord may elect, at its option, to construe such
holding over as a tenancy from month to month, subject to all the terms and
conditions of this lease, except as to duration thereof, and in that event the
Tenant shall pay monthly rent in advance at the rate provided herein as
effective during the last month of the demised term.
19. If the property or any part thereof wherein the demised premises
are located shall be taken by public or quasi-public authority under any power
of eminent domain or condemnation, this lease, at the option of the Landlord,
shall forthwith terminate and Tenant shall have no claim or interest in or to
any award of damages for such taking.
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20. The Tenant has this day deposited with the Landlord the sum of
$11,025.00 as security for the full and faithful performance by the Tenant of
all the terms, covenants and conditions of this lease upon the Tenant's part to
be performed, which said sum shall be returned to the Tenant after the time
fixed as the expiration of the term herein, provided the Tenant has fully and
faithfully carried out all of said terms, covenants and conditions on Tenant's
part to be performed. In the event of a bona fide sale, subject to this lease,
the Landlord shall have the right to transfer the security to the vendee for the
benefit of the Tenant and the Landlord shall be considered released by the
Tenant from all liability for the return of such security; and the tenant agrees
to look to the new Landlord solely for the return of the said security, and it
is agreed that this shall apply to every transfer or assignment made of the
security to a new Landlord. The security deposited under this lease shall not be
mortgaged, assigned or encumbered by the Tenant without the written consent of
the Landlord.
21. Any dispute arising under this lease shall be settled by
arbitration. The Landlord and Tenant shall each choose an arbitrator, and the
two arbitrators thus chosen shall select a third arbitrator. The findings and
award of the three arbitrators thus chosen shall be final and binding on the
parties hereto.
22. No rights are to be conferred upon the Tenant until this lease has
been signed by the Landlord, and an executed copy of the lease has been
delivered to the Tenant.
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23. The foregoing rights and remedies are not intended to be exclusive
but as additional to all rights and remedies the Landlord would otherwise have
by law.
24. All of the terms, covenants and conditions of this lease shall
inure to the benefit of and be binding upon the respective heirs, executors,
administrators, successors and assigns of the parties hereto. However, in the
event of the death of the Tenant, if an individual, the Landlord may, at its
option, terminate this lease by notifying the executor or administrator of the
Tenant at the demised premises.
25. This lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in no way be affected, impaired or excused because Landlord
is unable to supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make, or is delayed in making any
repairs, additions, alterations or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of governmental preemption in connection with
the National Emergency declared by the President of the United States or in
connection with any rule, order or regulation of any department or subdivision
thereof of any governmental agency or by reason of the conditions of supply and
demand which have been or are affected by the war.
26. This instrument may not be changed orally.
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27. Tenant agrees to obtain public liability insurance covering the
premises in the amount of $2,000,000.00 and to have said policy protect the
Landlord to the limits of the policy against liability to, or loss by, any
person(s) and to deliver proof of said policy and payment of premiums thereunder
to the Landlord.
28. Prior to the commencement of the lease, Landlord will, at its
expense, complete the renovation of the premises in a good and workmanlike
manner so as to obtain a certificate of occupancy from the Town of Greenwich.
Anything hereinbefore to the contrary notwithstanding, the Tenant's obligation
to pay rent hereunder shall not begin until such certificate of occupancy is
issued.
IN WITNESS WHEREOF, the said Parties have hereunto set their hands and
seals the day and year first above written.
LANDLORD
/s/ Frank J. Gilbride II, Trustee
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Frank J. Gilbride II, Trustee
TENANT
MEDIA SYNERGY SOFTWARE CORPORATION
By: /s/ Martha Ainsley
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Martha Ainsley
Its Controller
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