Connecticut-Stamford-3 Landmark Square Lease - Reckson Operating Partnership LP and @Plan Inc.
RECKSON OPERATING PARTNERSHIP, L.P.
LANDLORD
and
@PLAN, INC.
TENANT
THREE LANDMARK SQUARE, ANNEX
STAMFORD, CONNECTICUT
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LEASE
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TABLE OF CONTENTS
Article Page
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1. Demise, Premises, Term, Rents
2. Use
3. Preparation of the Demised Premises
4. When Demised Premises Ready for Occupancy
5. Security Deposit
6. Adjustments of Rent for Changes in Real Estate Taxes
7. Adjustments of Rent for Changes in Operating Costs
8. Subordination, Attornment, Notice to Lessors and Mortgages
9. Quiet Enjoyment
10. Assignment, Mortgaging, Subletting
11. Compliance with Laws and Requirements of Public Authorities
12. Insurance
13. Rules and Regulations
14. Alterations and Tenant's Property
15. Repairs and Maintenance
16. Electrical Energy
17. Heat, Ventilation and Air Conditioning
18. Landlord's Other Services
19. Access, Changes in Building Facilities, Name
20. Shoring, Notice of Accidents, Etc.
21. Non-Liability and Indemnification
22. Destruction or Damage
23. Eminent Domain
24. Surrender
25. Conditions of Limitation
26. Re-Entry by Landlord-Default Provisions
27. Damages
28. Waivers
29. No Other Waivers or Modification
30. Curing Tenant's Defaults
31. Consents-Broker
32. Notices
33. Estoppel Certificate, Memorandum
34. No Other Representations, Construction, Governing Law
35. Parties Bound
36. Certain Definitions and Constructions
37. Subordination and Miscellaneous
38. Relocation
39. Parking
40. Rider
Exhibit
A. Floor Plan(s)
B. Cleaning Schedule
C. Rules and Regulations
D. Work Letter
E. Electricity Schedule
F. Common Areas
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LEASE
Lease dated _______________ between RECKSON OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership, having an address at 660 White Plains
Road, Tarrytown, New York, 10591 (hereafter referred to as "Landlord"), and the
lessee, @PLAN, INC. a Tennessee corporation having its principal place of
business at Three Landmark Square, Annex, Suite 400, Stamford, Connecticut
06901 (hereinafter referred to as the "Tenant").
ARTICLE 1
Demise, Premises, Term, Rents
1.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, that certain space in the premises hereinafter described, in the
building (referred to herein as the "Building") known as Three Landmark Square,
Annex in the City of Stamford, Connecticut (the "City", together with the
nonexclusive right to use the Common Areas (hereinafter defined) of the Building
for ingress/egress purposes only, for the term hereinafter stated, for the rents
hereinafter reserved and upon and subject to the conditions (including
limitations, restrictions and reservations) and covenants hereinafter provided.
Each party hereto expressly covenants and agrees to observe and perform all of
the conditions and covenants herein contained on its part to be observed and
performed.
1.02 Landlord and Tenant hereby agree and stipulate that for purposes
of this Lease, the space consists of a total of 6,460 rentable square feet on
the 4th floor in the Building which is outlined on the floor plan(s) annexed as
Exhibit "A" and hereby made a part hereof. The premises constitute and are
hereinafter called the "Demised Premises."
1.03 The term of this Lease, for which the Demised Premises are hereby
leased, shall commence on a date (the "Commencement Date"), which shall be the
earlier of (i) March 1, 1997, or (ii) the day Tenant or anyone claiming under or
through Tenant shall take possession of any part of the Demised Premises,
whichever occurs earlier, and shall end at noon of the last day of the calendar
month in which occurs the end of a four (4) year period from the Commencement
Date (the "Expiration Date") or shall end on such earlier date upon which the
term may expire or be cancelled or terminated pursuant to any of the conditions
or covenants of this Lease or pursuant to law. Promptly following the
Commencement Date, Landlord shall send to Tenant a notice fixing the
Commencement Date.
1.04 Tenant shall pay to Landlord without notice or demand and without
abatement, deduction or setoff, in lawful money of the United States of America,
at the office of the Landlord or at such other place as Landlord may designate
in writing, the fixed rent and additional rent reserved under this Lease for
each year of the term thereof, which payments shall consist of:
(a) Fixed rent (the "fixed rent") as follows:
Fixed
Lease Base Rent Monthly Fixed Annual Fixed
Years Per RSF Rent Amount Rent Amount
1-2 $18.50 $ 9,959.17 $119,510.04
3-4 $20.50 $11,035.83 $132,429.96
payable in equal monthly installments in advance on the first day of each month
and every calendar month during the term of this Lease, and
(b) Additional rent (the "additional rent") consisting of all
other sums of money as shall become due from and payable by Tenant to Landlord
hereunder (for default in payment of which Landlord shall have the same remedies
as for a default in payment of fixed rent).
A "Lease Year" shall be comprised of a period of twelve (12) consecutive months.
The first Lease Year shall commence on the Commencement Date but,
notwithstanding the first sentence of this paragraph, if the Commencement Date
is not the first day of a month, then the first Lease Year shall include the
additional period from the Commencement Date to the end of the then current
month. Each succeeding Lease Year shall end on the anniversary date of the last
day of the preceding Lease Year. For example, if the Commencement Date is May 1,
1997, the first Lease Year would begin on May 1, 1997 and end on April 30, 1998
and each succeeding Lease Year would end on April 30th. If, however, the
Commencement Date is May 2, 1997, the first Lease Year would end on May 31,
1998, the second Lease Year would commence on June 1, 1998, and each succeeding
Lease Year would end on May 31st.
1.05 If Tenant substantially renovates or alters the Demised Premises
or any part thereof after the initial fit-up, Tenant shall pay Landlord the real
estate taxes attributable to the increased assessment
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resulting from such renovation or alteration, in excess of the then assessment
for building standard. The real estate taxes resulting from such excess
assessment shall be computed separately and billed to Tenant and shall be
payable by Tenant as additional rent within ten (10) days of the rendition of a
bill at each time that real estate taxes are payable by Landlord with respect to
the Demised Premises during the term of the Lease.
1.06 Tenant shall pay the fixed rent and additional rent herein
reserved promptly as and when the same shall become due and payable. If the
Commencement Date shall occur on a day other than the first day of a calendar
month, the fixed rent for such calendar month shall be prorated for the period
from the Commencement Date to the last day of the calendar month and shall be
due and payable on the Commencement Date. Notwithstanding the provisions of the
next preceding sentence or of Section 4.01(a), Tenant shall pay the first full
calendar monthly installment of fixed rent on the execution of this Lease. If
Tenant shall fail to pay within five (5) days after the same becomes due any
fixed rent or additional rent, such unpaid amounts shall bear interest at the
annual rate equal to two percentage points (2%) above the Prime Rate of
Citibank, N.A., New York, New York.
ARTICLE 2
USE
2.01 Tenant shall use and occupy the Demised Premises for executive
offices, sales offices and/or general offices for the conduct of any lawful and
reputable business not prohibited by Section 2.02, or any rule or regulation of
governmental authority, and for no other purposes.
2.02 The use of the Demised Premises for the purposes specified in this
Article shall not in any event be deemed to include, and Tenant shall not use,
or permit the use of, the Demised Premises or any part thereof for:
(a) sale of, or traffic in, any spirituous liquors, wines, ale
or beer kept in the Demised Premises;
(b) sale at retail of any other products or materials kept in
the Demised Premises, by vending machines or otherwise, or demonstrations to the
public, except as may be specifically agreed to by Landlord in writing;
(c) manufacturing, printing or electronic data processing,
except for the operation of normal business office reproducing or printing
equipment, electronic data processing equipment and other business machines for
Tenant's own requirements at the Demised Premises; provided only that such use
shall not exceed that portion of the mechanical or electrical capabilities of
the Building equipment allocable to the Demised Premises;
(d) the rendition of medical, dental or other diagnostic or
therapeutic services;
(e) the conduct of a public auction of any kind;
(f) a restaurant, bar, or the sale of confectionery, tobacco,
newspapers, magazines, soda, beverages, sandwiches, ice cream, baked goods or
similar items, or the preparation, dispensing or consumption of food and
beverages in any manner whatsoever.
2.03 Tenant shall not suffer or permit the Demised Premises or any
part thereof to be used in any manner, or anything to be done therein, or suffer
or permit anything to be brought into or kept therein, which would in any way
(i) violate any of the provisions of any grant, lease or mortgage to which this
Lease is subordinate, (ii) violate any laws or requirements of public
authorities, (iii) make void or voidable any fire or liability insurance policy
then in force with respect to the Building, (iv) make unobtainable from
reputable insurance companies authorized to do business in the State of
Connecticut at standard rates any fire insurance with extended coverage, or
liability, elevator or boiler or other insurance required to be furnished by
Landlord under the terms of any lease or mortgage to which this Lease is
subordinate, (v) cause, or in Landlord's reasonable opinion be likely to cause,
physical damage to the Building or any part thereof, (vi) constitute a public or
private nuisance, (vii) impair, in the reasonable opinion of the Landlord, the
appearance, character or reputation of the Building, (vii) discharge
objectionable fumes, vapors or odors into the Building air conditioning system
or into Building flues or vents not designed to receive them or otherwise in
such manner as may unreasonably offend other occupants, (ix) impair or interfere
with any of the Building services or the proper and economic heating, cleaning,
air conditioning or other servicing of the Building or the Demised Premises or
impair or interfere with or tend to impair or interfere with the use of any of
the other areas of the Building by, or occasion discomfort, annoyance or
inconvenience to, Landlord or any of the other tenants or occupants of the
Building, or (x) cause Tenant to default in any of its other obligations under
this Lease. The provisions of this Section, and application thereof, shall not
be deemed to be limited in any way to or by the provisions of the following
Sections of this Article or any of the Rules and Regulations referred to in
Article 13 or Exhibit "C" attached hereto, except as may therein be expressly
otherwise provided.
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2.04 If any government license or permit, other than a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises, or any part thereof and if failure to secure
such license or permit would in any way affect Landlord, then Tenant, at its
expense, shall duly procure and thereafter maintain such license or permit and
submit the same to inspection by Landlord. Tenant shall at all times comply with
the terms and conditions of each such license or permit, but in no event shall
failure to procure and maintain same by Tenant affect Tenant's obligations
hereunder.
2.05 Tenant shall not at any time use or occupy or suffer or permit
anyone to use or occupy the Demised Premises, or do or permit anything to be
done in the Demised Premises, in violation of the Certificate of Occupancy for
the Demised Premises or for the Building.
2.06 Tenant shall not place a load upon any floor of the Demised
Premises exceeding the floor load per square foot which such floor was designed
to carry and which is allowed by certificate, rule, regulation, permit or law.
Landlord reserves the right to prescribe the weight and position of all safes
and vaults, which must be placed by Tenant, at Tenant's expense. Business
machines and mechanical equipment shall be placed and maintained by Tenant, at
Tenant's expense, in such manner as shall be sufficient in Landlord's judgment
to absorb and prevent vibration, noise and annoyance.
ARTICLE 3
Preparation of the Demised Premises
3.01 Tenant has examined the Demised Premises and agrees to accept
possession of the Demised Premises in its present "as is" condition, reasonable
wear and tear excepted, and, except as otherwise required in this Lease,
Landlord shall not be required to perform any work in the Demised Premises in
order to make same ready for occupancy by Tenant. Notwithstanding the
foregoing, Landlord shall repaint and recarpet the Demised Premises (except that
that portion of the Demised Premises to be used as a computer room by Tenant (as
shown on the floor plans annexed hereto as Exhibit A) shall be equipped with a
tile floor rather than carpeting) with Landlord's building standard colors and
materials (to be selected by the Tenant); re-adhere the laminate in the kitchen
area of the Demised Premises; paint the spline in the "bridge" area of the
Demised Premises (with a building standard color to be selected by Tenant);
remove existing telephone boxes (and thereafter patch walls where made necessary
thereby); and install a supplemental HVAC unit sufficient to heat, cool and
ventilate Tenant's computer room, provided that such unit is a standard
mechanical unit, and further provided that the cost of installing said unit
shall not exceed $4,000.00 (such work being hereinafter referred to collectively
as "Landlord's Work").
3.02 Landlord's agreement to do the Landlord's Work in the Demised
Premises shall not require it to incur overtime costs and expenses and shall be
subject to unavoidable delays due to acts of God, governmental restrictions,
strikes, labor disturbances, shortage of materials and supplies and for any
other causes or events beyond Landlord's reasonable control.
3.03 Landlord may afford Tenant and its employees, agents and
contractors access to the Demised Premises, at reasonable times prior to the
Commencement Date and at Tenant's sole risk and expense, for the purposes of
making preparations for Tenant's occupancy. Access for such purposes shall not
be deemed to constitute possession or occupancy accelerating the Commencement
Date or Tenant's obligation to pay fixed rent under this Lease.
3.04 If Tenant employs or uses any contractor or subcontractor other
than Landlord in the performance of any work in connection with Tenant's initial
occupancy, all of Tenant's duties and obligations set forth in Sections 14.05
and 14.06 (relating to Tenant's duties and obligations in making alterations)
shall be applicable to and binding upon Tenant with respect to any such work.
3.05 To the extent not currently in the Demised Premises, Tenant, at
its expense, shall, within thirty (30) days after the Commencement Date, install
drapes or vertical blinds, as approved by Landlord, on all windows. Such
Landlord's approval shall not be unreasonably withheld, provided such drapes or
blinds shall be a solid, light color or have a solid light color lining facing
the exterior of the Building. Tenant agrees that no other type of window
covering will be used.
ARTICLE 4
When Demised Premises Ready for Occupancy
4.01 The Demised Premises shall be deemed ready for occupancy on the
earliest date on which all of the following conditions have been met:
(a) A Certificate of Occupancy (temporary or final or a
permission to occupy) has been issued not inconsistent with Tenant's use of the
Demised Premises as permitted under Section 2.01 hereof.
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(b) The Landlord's Work or any work on behalf of Tenant to be
performed by Landlord has been substantially completed.
(c) Adequate means of access have been provided, and the use,
without material interference, of the facilities necessary to Tenant's occupancy
of the Demised Premises, including corridors, elevators and stairways and
heating, ventilating, air conditioning, sanitary, water, and electrical lighting
and power facilities, are available to Tenant in accordance with Landlord's
obligations under this Lease.
(d) The facilities and systems serving the Building and passing
through the Demised Premises have been completed to the extent required to
provide adequate services to the Demised Premises.
(e) Five (5) days after Landlord shall give Tenant written
notice estimating when the conditions listed in subsections (a) through (d)
above will be met, and provided that the conditions shall have been met by the
expiration of such five (5) day period, the Demised Premises shall be deemed
ready for occupancy on the date of expiration of the period, or in the event
Landlord's estimate was inaccurate, on the date when the conditions in fact
shall have been met.
4.02 If the occurrence of any of the conditions listed in Section 4.01,
and thereby the making of the Demised Premises ready for occupancy, shall be
delayed due to any act or omission of Tenant or any of its employees, agents or
contractors, Including but not limited to failure by Tenant to act promptly when
any consent or approval may be requested by Landlord, or to plan or execute work
to be performed by Tenant diligently and expeditiously, the Demised Premises
shall be deemed ready for occupancy on the date when it would have been ready
but for any such delay,
4.03 The Commencement Date of this Lease is scheduled to be on or
before March 1, 1997 and Landlord shall use its best efforts to have the Demised
Premises ready for Tenant's occupancy on or before such date. If Landlord
diligently performs Landlord's Work and the Demised Premises are not ready for
Tenant's occupancy on or before said date, this Lease shall remain in full force
and effect and the Commencement Date shall occur when the Demised Premises
shall be deemed ready for occupancy under Section 4.01; provided, however, that
if the Demised Premises are not deemed ready for occupancy on or before June 1,
1997, Tenant may terminate this Lease.
4.04 If the whole of the Demised Premises shall not be ready for
occupancy at approximately the same time, Tenant may, with the written consent
of Landlord, take possession of any part or parts of the Demised Premises for
its use and occupancy before the Commencement Date, provided that a temporary or
permanent Certificate of Occupancy shall have been obtained for the part or
parts of the Demised Premises in respect of which Tenant desires to take
possession. Tenant shall be deemed to have taken possession of a part of the
Demised Premises for use and occupancy (herein called "actual possession") when
any personnel of Tenant or anyone claiming under or through Tenant shall first
occupy such part for the conduct of business. Tenant's actual possession of any
part of the Demised Premises prior to the Commencement Date shall be subject to
all of the obligations of this Lease including the payment of fixed and
additional rent, which payment shall be reasonably apportioned.
4.05 On the Commencement Date or at such time as Tenant shall take
actual possession of the whole or part of the Demised Premises, whichever shall
be earlier, it shall be conclusively presumed that the same were in satisfactory
condition as of the Commencement Date or the date or dates of such taking of
possession, unless within thirty (30) days after such date Tenant shall have
given Landlord notice specifying in which respects the Demised Premises were not
in satisfactory condition. However, nothing contained in this Section shall be
deemed to relieve Landlord from, and Landlord shall perform, its obligation to
complete, with reasonable speed and diligence, such details of construction,
mechanical adjustment and decoration as shall have been unperformed at the time
Tenant took actual possession, but Tenant shall not be entitled to any rent
abatement on account of any such incomplete work.
ARTICLE 5
Security Deposit
5.01 Tenant, upon or prior to the execution of this Lease, has
deposited with Landlord the sum of Fifty-Nine Thousand Seven Hundred Fifty-Five
and 02/100 ($59.755.02) Dollars (the "Security Deposit"), receipt of which is
hereby acknowledged by Landlord. The Security Deposit shall be held by Landlord
in a segregated account with a bank or other financial institution, without
liability for interest, as security for the faithful performance by Tenant of
all of the terms, covenants, and conditions of this Lease by Tenant to be kept
and performed during the term hereof. If at any time during the term of this
Lease any of the rent herein reserved shall be overdue and unpaid, or any other
sum payable by Tenant to Landlord hereunder shall be overdue and unpaid then
Landlord may, at the option of Landlord (but Landlord shall
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not be required to), appropriate and apply any portion of the Security Deposit
toward any such overdue rent or other sum.
5.02 In the event of the failure of Tenant to keep and perform any of
the terms, covenants and conditions of this Lease to be kept and performed by
Tenant, then Landlord, at its option, may appropriate and apply the entire
Security Deposit, or so much thereof as may be necessary to compensate the
Landlord for loss or damage sustained or suffered by Landlord due to such breach
on part of Tenant. Should the entire Security Deposit, or any portion thereof,
be appropriated and applied by Landlord for the payment of overdue rent or other
sums due and payable to Landlord by Tenant hereunder, then Tenant shall, upon
the written demand of Landlord, forthwith remit to Landlord a sufficient amount
of cash to restore the Security Deposit to the original sum deposited, and
Tenant's failure to do so within five (5) days after receipt of such demand
shall constitute a breach of this Lease. Should Tenant comply with all of the
terms, covenants and conditions of this Lease and promptly pay all of the rent
herein provided for as it falls due, and all other sums payable by Tenant to
Landlord hereunder, the Security Deposit shall be returned in full to Tenant at
the end of the term of this Lease, or upon the earlier termination of this
Lease.
5.03 Notwithstanding the foregoing, in the event that Tenant has not
exercised its option to terminate this Lease as provided in Article 40
hereunder, and Tenant has not been, and is not then, in default under this Lease
beyond any applicable notice and cure period, then at any time after the
Cancellation Date (as such term is defined in Article 40 hereof) Tenant may,
upon 20 days' notice to Landlord, reduce the amount of the Security Deposit to
$29,877.51, which amount is to be held pursuant to this Article throughout the
remaining term of this Lease. Upon any such reduction, Landlord shall promptly
refund to Tenant any excess Security Deposit then being held by Landlord.
5.04 Landlord may deliver the Security Deposit to the purchaser of
Landlord's interest in the Building, and, provided notice of such delivery is
given to Tenant, Landlord shall thereupon be discharged from any further
liability with respect to the Security Deposit.
ARTICLE 6
ADJUSTMENTS OF RENT FOR CHANGES IN REAL ESTATE TAXES
6.01 (a) The term "Tax Base Year" shall mean the tax fiscal year of
July 1, 1997 to June 30, 1998.
(b) The term "Common Areas" shall mean the land and pedestrian
deck, as shown on Exhibit "F", together with the parking garage and loading dock
facility.
(c) The term "Real Estate Taxes" shall mean 100% of the taxes
and assessments levied, assessed or imposed at any time by any governmental
authority upon or against the Building and 20.33% of such taxes and assessments
levied against the Common Areas, and also any tax or assessment levied, assessed
or imposed at any time by any governmental authority in connection with the
receipt of income or rents from the Building and Common Areas, to the extent
that same shall be in lieu of or in addition to all or a portion of any of the
aforesaid taxes or assessments upon or against the Building and Common Areas.
The term "Real Estate Taxes" shall not mean any interest or penalties which may
become due by reason of the failure to pay any such taxes when due and payable;
or any municipal, state or federal income, estate, inheritance, transfer,
corporate or franchise taxes assessed against Landlord unless and to the extent
that same is assessed in lieu of part or all of real estate taxes as presently
constituted and are computed as if Landlord owned no other property.
(d) The term "Tenant's Proportionate Share" shall be 5.13%.
(e) The phrase "Real Estate Taxes payable by Landlord" shall
not include Real Estate Taxes for which Landlord is reimbursed by Tenant under
Section 1.05 or by other tenants of the Building under similar provisions of
their leases.
(f) In the event that, after a statement has been sent to
Tenant, an assessment or valuation which had been utilized in computing the Real
Estate Taxes for a tax fiscal year is reduced (as a result of settlement, final
determination or legal proceedings or otherwise), and as a result thereof a
refund of Taxes is actually received by or on behalf of Landlord, promptly after
receipt of such refund, Landlord shall send Tenant a statement adjusting the
Real Estate Taxes for such tax fiscal year (taking into account the expenses
mentioned in the last sentence of this subparagraph (f) and setting forth
Tenant's Proportionate Share of such refund) and Tenant shall be entitled to
receive such share by way of a credit against the Additional Rent next becoming
due after the sending of such statement; provided, however, that Tenant's
Proportionate Share of such refund shall be limited to the amount, if any, which
Tenant had theretofore paid to Landlord as increased Additional Rent for such
tax fiscal year on the basis of the assessed valuation before it had been
reduced. All expenses, including attorneys' and appraisers' fees and
disbursements, expenses and other witnesses' fees, incurred in contesting the
validity or amount of any
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Real Estate Taxes or in obtaining a refund shall be considered as part of the
Real Estate Taxes for such year.
(g) In the event that any time during a tax fiscal year after
the Tax Base Year the assessment or valuation which had been utilized in
computing the Real Estate Taxes for the additional rent for any Tax Year is
reduced (as a result of settlement, final determination or legal proceedings or
otherwise), so that the Taxes payable for such tax fiscal year is less than the
Taxes payable by Tenant for the Tax Base Year then and in such event: (i) the
Taxes for the Tax Base Year shall become the lower assessment or valuation
effective as of the tax fiscal year in which said settlement or final
determination was reached (hereinafter the "Updated Tax Base Year"); and (ii)
Tenant shall pay as additional rent its Proportionate Share of the amount by
which the Taxes for each succeeding tax fiscal year after the Updated Tax Base
Year, exceeds the taxes for the Updated Tax Base Year. Landlord promptly shall
send to Tenant a statement setting forth the basis for the Updated Tax Base
Year and all adjustments and additional rent payments.
6.02 (a) In addition to the fixed rent, Tenant agrees to pay as
additional rent an amount equal to Tenant's Proportionate Share of the excess of
Real Estate Taxes payable by Landlord for each tax fiscal year of the City which
is subsequent to the Tax Base Year, over the Real Estate Taxes payable by
Landlord for the Tax Base Year. Such additional rent shall be appropriately
prorated, however, in the last Lease Year of the term hereof.
(b) Tenant's obligation to pay such additional rent under (a)
above, shall commence on the July 1st or January 1st (whichever comes first)
after the Tax Base Year; and Tenant shall pay such additional rent, with respect
of each fiscal year subsequent to the Tax Base Year, in two equal installments,
on such July 1st or January 1st (as the case may be) and each subsequent July
1st and January 1st during the balance of the term of this Lease.
(c) Within thirty (30) days after the Expiration Date, Tenant
shall pay to Landlord an amount equal to the portion, if any, of such additional
rent which is attributable to the period prior to the Expiration Date.
(d) The dates for the payment of taxes, July 1st and January
1st, are based on the present dates for the payment of real estate taxes in the
City. If the City or other governmental authority changes the dates for the
payment of Real Estate Taxes, then the changed dates shall be sequentially
substituted for the July 1 and January 1 dates contained herein.
6.03 Upon Tenant's request, Landlord shall furnish to Tenant a copy of
the Assessor's report or reports showing the assessment for the Building and the
Common Areas and the report or reports showing the increased assessment therefor
and all applicable tax bills, or such other evidence coming from the Assessor's
and/or Tax Collector's office which will show the assessments and tax involved
or some other reasonable documentation of the matter.
ARTICLE 7
ADJUSTMENT OF RENT FOR CHANGES IN OPERATING COSTS
7.01 (a) In the event that the Operating Costs for an Operating Year
shall exceed the Operating Costs for the Base Year, Landlord shall, by written
notice to Tenant, adopt a date (the "Adjustment Date"), in the succeeding
Operating Year, and within ten (10) days of the Adjustment Date, Tenant shall
pay to Landlord an amount equal to the Tenant's Proportionate Share of such
excess (without setoff or deduction of any kind and as additional rent), less
the amount of additional rent, if any, which Tenant paid to Landlord, as
additional rent under subparagraph (b) below, during the Operating Year in
question.
(b) Tenant also shall pay to Landlord, as additional rent (in
equal monthly installments) in each Operating Year after the Base Year,
retroactive to the first month of such year, a sum equal to Tenant's
Proportionate Share of the amount by which the projected Operating Costs for the
current Operating Year exceed the Operating Costs for the Base Year. Tenant's
responsibility for Operating Costs hereunder shall be appropriately prorated in
the last Lease Year.
(c) If the Operating Costs for any Operating Year shall be
less than the Operating Costs for the Base Year plus all amounts paid by Tenant
under subparagraph (b) above during the applicable Operating Year, Landlord
shall credit such amount of Tenant's Proportionate Share to Tenant.
7.02 For the purposes of this Article, the following terms shall have
the following meanings:
(a) The term "Base Year" shall mean January 1, 1997, through
December 31, 1997.
(b) The term "Operating Year" shall mean each twelve month
period adopted (by written notice to Tenant) by the Landlord subsequent to the
Commencement Date.
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(c) The term "Common Areas" shall mean the land and pedestrian
deck, as shown on Exhibit "F", together with the parking garage and loading dock
facility.
(d) The term "Adjustment Date" shall be a date adopted by the
Landlord subsequent to each Operating Year.
(e) The term "Tenant's Proportionate Share" shall be 5.13%.
(f) The term "Operating Costs" shall mean the aggregate of all
expenses paid or incurred by Landlord for the operation of the Building, and
20.33% of such expenses paid or incurred by Landlord for the operation of the
Common Areas, and shall include without limitation the following:
(i) Wages and salaries paid by Landlord, including
all fringe benefits and taxes related thereto paid by Landlord, of employees
directly engaged in cleaning, maintenance and repair of the Building, Building
equipment and Common Areas, and performing the functions of garbage and snow
removal, landscaping and security, including a customary managing agent's fee,
or cost to Landlord of an Independent contractor performing any such services;
(ii) Any and all supplies and materials utilized by
Landlord or independent contractors of Landlord in the performance of the items
set forth in subparagraph (i) immediately preceding;
(iii) The cost of supplying utilities to the
Building and Common Areas;
(iv) Insurance premiums paid by Landlord with
respect to the Building and Common Areas;
(v) Expenditures incurred by Landlord after
substantial completion of the Building for any equipment, device or capital
improvement which is required by any law, statute or regulation or a requirement
of the insurance carrier or which is designed as a labor-saving measure or
designed to effect other economies or efficiencies in the operation or
maintenance of the Demised Premises, Common Areas or the Building Equipment
except to the extent such expenses exceed $200,000, in which case the annual
amortization (on a straight-line basis over a depreciable life in accordance
with generally accepted accounting principles consistently applied, with
interest calculated at an annual rate of one (1) percentage point above the
prime rate at the time of Landlord's having made such expenditure) of such
expenses shall be included In Operating Costs; and
(vi) Legal and accounting fees and disbursements,
and any other expense or charge of any nature whatsoever which, in accordance
with generally accepted accounting principles with respect to the operation of a
first-class office building, would be construed as an operating expense,
excluding, however, real property taxes, depreciation, interest on and
amortization of debt, and any items otherwise properly constituting such an
operating expense to the extent payment therefor is received from or payable by
tenants for services rendered or performed directly for the account of such
tenants or for which a tenant pays directly under an electricity schedule.
(g) In the event that the Building is less than 90% occupied
at any time during the Base Year or any Operating Year, the Operating Costs for
such year shall be those which, with equitable adjustment, would have been paid
or incurred by Landlord for the operation of the Building and Common Areas if
the Building had been 90% occupied throughout the whole of such year.
7.03 Landlord shall advise Tenant by written statement, certified to be
correct by Landlord or its agent, of increased Operating Costs for any Operating
Year. The statement shall delineate the amount of Tenant's Proportionate Share
caused by such increase, shall establish the Adjustment Date, and shall set
forth the manner in which the adjustment is computed. Upon written request
therefor by Tenant, Landlord shall provide Tenant with an itemized list
indicating the allocation and calculation of such Operating Costs. Landlord's
failure to render a statement with respect to increases in Operating Costs for
any Operating Year shall not prejudice Landlord's right to thereafter render a
statement with respect thereto or with respect to any subsequent Operating Year.
Furthermore, nothing herein contained shall restrict Landlord from issuing a
statement or from revising an estimate at any time that there is an increase in
Operating Costs during any Operating Year or at any time thereafter. The rights
and obligations of Landlord and Tenant under the provisions of this Article with
respect to any additional rent shall survive the termination of this Lease.
7.04 Tenant and Landlord agree that for all purposes in any way
connected with or arising out of this Article, the statement delivered by
Landlord pursuant to Section 7.03 shall be binding and conclusive on both
parties hereto unless objected to by Tenant in writing within twenty (20) days
after receipt thereof. Tenant's objection shall be in writing and specify the
respects in which the statement is claimed to be incorrect. Tenant shall have
the right to require the production of Landlord's books which
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relate to these items of cost and the right, within ten (10) days subsequent to
the production of Landlord's books, to deliver notice of disagreement with
respect to any item of Operating Costs.
7.05 Anything to the contrary herein notwithstanding, Landlord shall
have the right at any time to calculate Operating Costs for the Building and the
other Buildings separately rather than together and to collect from Tenant as
additional rent Tenant's Proportionate Share of the excess of the Building's
Operating Costs for the Operating Year in question over the Building's Operating
Costs for the Base Year; in such event Landlord shall give Tenant at least
thirty (30) days advance notice of the said manner of calculation ("Landlord's
Change Notice"). At the time said adjustments are made in calculating Operating
Costs for the Operating Years (or portions thereof) falling after the effective
date of Landlord's Change Notice, appropriate adjustment shall be made in
Operating Costs for the Base Year.
7.06 Notwithstanding that in certain provisions of this Lease, it is
specified that Landlord shall perform certain obligations and services as an
Operating Cost, whereas the Lease is silent in regards to other obligations and
services, all obligations and services to be performed by Landlord shall be
included as an Operating Cost to the extent that they fall within the definition
of Operating Costs in Section 7.02(g) hereof. The costs of any services included
in Operating Costs, which services are performed by subsidiaries or affiliates
of Landlord or Landlord's agents, shall be competitive in price for comparable
contracts and transactions with unaffiliated entities for the performance of
such services in comparable buildings.
ARTICLE 8
SUBORDINATION, ATTORNMENT, NOTICE TO LESSOR AND MORTGAGEES
8.01 Landlord hereby represents and warrants to Tenant that there is
currently no ground lease affecting the land or Building of which the Demised
Premises form a part. This Lease, and all rights of Tenant hereunder, are and
shall be subject and subordinate in all respects to all future ground leases,
over-riding leases and underlying leases and/or grants of term of the land
and/or the Building or the portion thereof in which the Demised Premises are
located in whole or in part now or hereafter existing and to all mortgages and
building loan agreements, including leasehold mortgages and building loan
agreements, which may now or hereafter affect the land and/or the Building
and/or any of such leases, whether or not such mortgages shall also cover other
lands and/or buildings, to each and every advance made or hereafter to be made
under such mortgages, and to all renewals, modifications, replacements and
extensions of such leases and such mortgages and spreaders, consolidations and
correlations of such mortgages. This Section shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver an instrument, in
recordable form, it required, that Landlord, the lessor of any such lease or the
holder of any such mortgage or any of their respective successors in interest
may request to evidence such subordination, and Tenant hereby constitutes and
appoints Landlord attorney-in-fact for Tenant to execute any such instrument for
and on behalf of Tenant. The leases to which this Lease is, at the time referred
to, subject and subordinate pursuant to this Article are hereinafter sometimes
called "superior leases" and the mortgages to which this Lease is at the time
referred to, subject and subordinate are hereinafter sometimes called "superior
mortgages" and the lessor of a superior lease or its successor in interest at
the time referred to is hereinafter sometimes called a "lessor".
8.02 Landlord hereby notifies Tenant that in accordance with the terms
of a superior mortgage, this Lease may not be modified or amended so to reduce
the rent, shorten the term, or adversely affect in any other respect to any
material extent the rights of the Landlord hereunder, or be cancelled or
surrendered without the prior written consent of the holder of the superior
mortgage in each instance, except that said holder's consent shall not be
required to the institution or prosecution of any action or proceedings against
Tenant by reason of a default on the part of Tenant under the terms of this
Lease.
8.03 This Lease shall not terminate or be terminable by Tenant by
reason of any termination of the ground lease, by summary proceedings,
foreclosure of a superior mortgage, or otherwise. Tenant agrees without further
instruments of attornment in each case, to attorn to the lessor under the ground
lease, or the mortgagee under the superior mortgage, as the case may be, to
waive the provisions of any statute or rule of law now or hereafter in effect
which may give or purport to give Tenant any right of election to terminate this
Lease or to surrender possession of the Demised Premises in the event the ground
lease is terminated or a superior mortgage is foreclosed, and that unless and
until the lessor, or mortgagee, as the case may be, shall elect to terminate
this Lease, this Lease shall not be affected in any way whatsoever by any such
proceeding or termination, and Tenant shall take no steps to terminate this
Lease without giving written notice to the lessor under the ground lease, or
mortgagee under a superior mortgage, and a reasonable opportunity to cure
(without such lessor or mortgagee being obligated to cure), any default on the
part of the Landlord under this Lease.
8.04 If any act or omission by Landlord would give Tenant the right,
immediately or after lapse of time, to cancel or terminate this Lease or to
claim a partial or total eviction, Tenant will not exercise any such right until
(a) it has given written notice of such act or omission to each holder of a
superior mortgage and to each holder of a superior lease, whose name and address
shall have previously been furnished to
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Tenant, by delivering notice of such act or omission addressed to each such
party at its last address so furnished and (b) a period of thirty (30) days for
remedying such act or omission shall have elapsed following such giving of
notice and following the time when such senior interest holder shall have become
entitled under such senior interest, as the case may be, to remedy the same
(which period shall immediately follow, the full period to which Landlord would
be entitled under this Lease to effect such remedy) provided such senior
interest holder shall, within thirty (30) days of receipt of such written
notice, give Tenant notice of its intention to remedy such act or omission and
shall commence and continue to act upon such intention. Notwithstanding the
foregoing, nothing shall impose any obligation on such holder actually to remedy
such act or omission.
ARTICLE 9
QUIET ENJOYMENT
9.01 Landlord covenants that if, and so long as, Tenant pays all of the
fixed and additional rent due hereunder, and keeps and performs each and every
covenant, agreement, term, provision and condition herein contained on the part
and on behalf of Tenant to be kept and performed, Tenant shall quietly enjoy the
Demised Premises without hindrance or molestation by Landlord or by any other
person lawfully claiming the same, subject to the covenants, agreements, terms,
provisions and conditions of this Lease.
ARTICLE 10
ASSIGNMENT, MORTGAGING, SUBLETTING
10.01 Neither this Lease, nor the term and estate hereby granted, nor
any part hereof or thereof, nor the interest of Tenant in any sublease or the
rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant, by operation of law or otherwise, and neither
the Demised Premises, nor any part thereof, shall be encumbered in any manner by
reason of any act or omission on the part of Tenant or anyone claiming under or
through Tenant, nor shall be sublet to be used or occupied or permitted to be
used or occupied, or utilized for desk space or for mailing privileges, by
anyone other than Tenant or its employees or for any purpose other than as
permitted by this Lease, without the prior written consent of Landlord in every
case, except as expressly otherwise provided in this Article.
Furthermore, no assignment shall be binding on Landlord unless
the assignee shall execute, acknowledge and deliver to Landlord (a) a duplicate
original instrument of assignment in form and substance reasonably satisfactory
to Landlord, duly executed by Tenant, and (b) an agreement, in form and
substance satisfactory to Landlord, duly executed by the assignee, whereby the
assignee shall unconditionally assume in accordance with the terms and
conditions of this Lease observance and performance of, and agree to be bound by
all of the terms, covenants and conditions of this Lease on Tenant's part to be
observed or performed, including, without limitation, the provisions of this
Article with respect to all future assignments; but the failure or refusal of
the assignee to execute or deliver such an agreement shall not release the
assignee from its liability for the obligations of Tenant hereunder assumed by
acceptance of the assignment of this Lease.
10.02 If this Lease is assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Demised Premises or any part thereof is sublet or is used or occupied by anybody
other than Tenant, whether or not in violation of this Lease, Landlord may,
after default by Tenant, and expiration of Tenant's time to cure such default,
collect rent from the subtenant or occupant. In either event, Landlord may apply
the net amount collected to the rents herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Section 10.01, or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord to
assignment, mortgaging, subletting or use or occupancy by others shall not in
any way be considered to relieve Tenant from obtaining the express written
consent of Landlord to any other or further assignment, mortgaging or subletting
or use or occupancy by others not expressly permitted by this Article.
References in this Lease to use or occupancy by others, that is anyone other
than Tenant, shall not be construed as limited to subtenants and those claiming
under or through sub-tenants but as including also licensees and others claiming
under or through Tenant, immediately or remotely.
10.03 Tenant, upon written notice to Landlord, but without Landlord's
written consent, may permit any corporations or other business entities which
control, are controlled by, or are under common control with Tenant (herein
called "related corporations") to use the whole or part of the Demised Premises
for any of the purposes permitted to Tenant, subject however to compliance with
Tenant's obligations under this Lease. Such use shall not be deemed to vest in
any such related corporation any right or interest in this Lease or in the
Demised Premises, nor shall such use release, relieve, discharge or modify any
of Tenant's obligations hereunder.
10.04 Tenant, upon Landlord's prior written consent, which shall not
unreasonably be withheld, may assign or transfer its entire interest in the
Lease and the leasehold estate hereby created or sublet
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the whole of the Demised Promises on one or more occasions to a "wholly owned
subsidiary" or "affiliate" of Tenant or to a "successor corporation" of Tenant,
as such terms are hereinafter defined, provided that Tenant shall not be in
default in any of the terms, covenants, conditions and agreements of this Lease,
including but not limited to the payment of the fixed rent or additional rent
payable by Tenant hereunder. A "wholly owned subsidiary" of Tenant shall mean
any corporation all of whose outstanding voting stock shall at the time be
owned, directly or indirectly, by Tenant or by one or more of its wholly owned
subsidiaries. An "affiliate" of Tenant shall mean any corporation which directly
or indirectly controls or is controlled by or is under common control with
Tenant. For purposes of this definition, "control" (including "controlling,"
"controlled by" and "under common control with") is used with respect to any
corporation, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities, or by contract
or otherwise. A "successor corporation" as used in this Article, shall mean (i)
a corporation into which or with which Tenant, its corporate successors or
assigns, is merged or consolidated, in accordance with applicable statutory
provisions for the merger or consolidation of corporations, provided that by
operation of law or by effective provisions contained in the instruments of
merger or consolidation the liabilities of the corporations participating in
such merger or consolidation are assumed by the corporation surviving such
merger or consolidation, or (ii) a corporation acquiring this Lease and the term
hereby demised, the good will and all or substantially all of the other property
and assets of Tenant, its corporate successors or assigns, and assuming all or
substantially all of the liabilities of Tenant, its corporate successors and
assigns, or (iii) any corporate successor to a successor corporation becoming
such by either of the methods described in Clauses (i) and (ii); provided that,
immediately after giving effect to any such merger or consolidation, or such
acquisition and assumption as the case may be, the corporation surviving such
merger or created by such consolidation or acquiring such assets and assuming
such liabilities, as the case may be, shall have assets, capitalization, and a
net worth as determined in accordance with generally accepted principles of
accounting at least equal to the assets, capitalization and net worth, similarly
determined, of Tenant, at the beginning of the term of this Lease or Tenant, its
corporate successors or assigns, immediately prior to such merger or
consolidation or such acquisition and assumption, as the case may be, whichever
is the greater. The acquisition by Tenant, its corporate successors or assigns,
of all or substantially all of the assets, together with the assumption of all
or substantially all of the obligations and liabilities of any corporation,
shall be deemed to be a merger of such corporation into Tenant for the purpose
of this Article.
10.05 If Tenant is a corporation or partnership, and if at any time
during the term of this Lease the person or persons who, as of the date this
Lease is executed by Tenant, own or owns a majority of such corporation's voting
stock (as hereinafter defined) or the general partner's interest in such
partnership, as the case may be, cease or ceases to own a majority of such a
voting stock or general partner's interest, as the case may be, then the
occurrence of any such event shall be deemed to be an assignment of this Lease
with respect to which the Landlord's prior written consent shall be required,
except, however, that this provision shelf not be applicable to any corporation,
all the outstanding voting stock of which is listed on a National Securities
Exchange. For the purpose of this Section, stock ownership shall be determined
in accordance with the principles set forth in Section 544 of the Internal
Revenue Code of 1986, as amended, and the term "voting stock" shall refer to
share of stock regularly entitled to vote for the election of directors of the
corporation.
10.06 Notwithstanding anything contained in Sections 10.01 and 10.02
hereof, but subject to the right of Tenant under Sections 10.03 and 10.04
hereof, in the event that at any time or from time to time prior to or during
the term of this Lease Tenant desires to sublet all or any part of the Demised
Premises, Tenant (a) shall notify Landlord in writing of the term of the
proposed subletting and the area so proposed to be sublet, (b) shall be deemed
to have granted Landlord the option to sublet from Tenant such space so proposed
to be sublet upon the covenants, agreements, terms, provisions and conditions
hereinafter set forth, (c) shall not offer such space for subletting to anyone
other than Landlord until thirty (30) days have elapsed after the receipt of
such notice by Landlord. Such option on the part of Landlord to sublet from
Tenant such space so proposed to be sublet shall be exercisable by Landlord in
writing during such 30 day period referred to in clause (c) of the next
preceding sentence. If Landlord fails to exercise such option within said thirty
(30) days and Tenant fails to complete a sublease with a third party (as
hereinafter provided within ninety (90) days thereafter), Tenant shall again
comply with all the conditions of this Section, as if the notice and option
hereinabove referred to had not been given and received.
In the event Landlord exercises Landlord's option to sublet such space,
such sublease by Tenant to Landlord shall be at an annual fixed rent equal to
the fixed rent and additional rent as provided in this Lease for the entire
Demised Premises or equal to an equitable apportionment of such fixed and
additional rent if such sublease shall be in respect of less than the whole of
the Demised Premises, and shall be for the same term as that of the proposed
subletting, and it is hereby expressly agreed that:
(a) the sublease shall be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease except such as are
not relevant or applicable, and except as otherwise expressly set forth to the
contrary in this Section.
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(b) such sublease to Landlord shall give Landlord the
unqualified and unrestricted right, without Tenant's permission, to assign such
sublease or any interest therein and/or sublet the space covered by such
sublease or any part or parts of such space and to make any and all changes,
alterations, and improvements in the space covered by such sublease;
(c) such sublease to Landlord shall provide that any assignee
or subtenant of the Landlord may, at the election of the Landlord, be permitted
to make alterations, decorations and installments in such space or any part
thereof and shall also provide in substance that any such alterations,
decorations and installations therein made by any assignee or subtenant for the
Landlord may be removed, in whole or in part, by such assignee or subtenant, at
its option, prior to or upon the expiration or other termination of such
sublease provided that such assignee or subtenant, at its expense, shall repair
any damage and injury to such space or sublet caused by such removal.
Notwithstanding the foregoing, in the event Tenant is scheduled to re-occupy
such space, such sublease shall provide that such alterations, decorations and
installations must be removed prior to or upon expiration or termination of such
sublease; and
(d) such sublease to Landlord shall also provide that the
parties to such sublease expressly negate any intention that any estate created
under such sublease be merged with any other estate held by either of said
parties. Tenant covenants and agrees (i) that any such assignment or subletting
by the subtenant may be for any purpose or purposes that Landlord, in Landlord's
uncontrolled discretion, shall deem suitable or appropriate, (ii) that Tenant,
at Tenant's expense, shall and will at all times provide and permit reasonably
appropriate means of ingress to and egress from such space so sublet by Tenant
to Landlord, and (iii) that at the expiration of the term of such sublease,
Tenant will accept the space covered by such sublease in its then existing
condition, subject to the obligations of Landlord to make such repairs thereto
as may be necessary to preserve the premises demised by such sublease in good
order and condition.
10.07 In the event Landlord does not exercise its option to so sublet
such space, Landlord covenants not to unreasonably withhold its consent which
must be in writing, to a subletting, provided, however, that Landlord shall not,
in any event, be obligated to consent to any such proposed subletting unless:
(a) Tenant shall furnish Landlord with the name and business
address of the proposed subtenant, a counterpart of the proposed subleasing
agreement, and satisfactory information with respect to the nature and character
of the business of the proposed subtenant together with current financial
information and references reasonably satisfactory to Landlord;
(b) in the reasonable judgment of Landlord the proposed
subtenant is of a character and engaged in a business such as are in keeping
with the standards of Landlord in those respects for the Building; and
(c) the purposes for which the proposed subtenant intends to
use the portion of the Demised Premises sublet to it are uses expressly
permitted by and not expressly prohibited by this Lease; and
(d) Tenant shall not have (i) advertised or publicized in any
way the availability of all or part of the Demised Premises without prior notice
to and approval by Landlord, (ii) listed or publicly advertised the rental rate
less than the fixed rent and additional rent (pursuant to Articles 6 and 7) then
payable hereunder for such space; but the provisions of this subsection,
however, shall not be deemed to prohibit Tenant from negotiating a sublease at a
lesser rate of rent and consummating the same insofar as it may be permitted
under the provisions of this Article; and
(e) the proposed subtenant is not an existing tenant of
Landlord who leases space in the Building or in the Complex.
(f) Tenant shall pay to Landlord immediately upon receipt
thereof, a sum equal to the amount of (i) all fixed rent and additional rent and
any other consideration paid to Tenant by any subtenant which is in excess of
the fixed rent and additional rent then being paid by Tenant to Landlord
pursuant to the terms hereof, and (ii) any other profit or gain realized by
Tenant from any such subletting (after first deducting, in either such instance.
the reasonable costs and expense incurred by Tenant in connection with such
subletting); if only a part of the Demised Premises is sublet, then the fixed
rent and additional rent paid therefor by Tenant to Landlord shall be deemed to
be the traction thereof that the area of the sublet space bears to the entire
Demised Premises.
(g) Tenant shall together with requesting Landlord's consent
hereunder, have paid Landlord any costs incurred by Landlord to review the
proposed subletting including reasonable attorneys' fees incurred by Landlord.
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(h) In the case of a subletting of a portion of the Demised
Premises, the portion so sublet shall be regular in shape and suitable for
normal renting purposes; and
(i) Tenant shall have reimbursed Landlord for Landlord's costs
incurred in the plan review or plan approval should Tenant propose the
alterations to the Demised Premises to make same suitable for the occupancy by
Tenant's subtenant.
Except for any subletting by Tenant to Landlord pursuant to
the provisions of this Article, each subletting pursuant to this Article shall
be subject to all the covenants, agreements, terms, provisions and conditions
contained in this Lease. Tenant covenants and agrees that notwithstanding any
such subletting to Landlord or any such subletting to any other subtenant and/or
acceptance of rent or additional rent by Landlord from any subtenant, Tenant
shall and will remain fully liable for the payment of the fixed rent and
additional rent due and to become due hereunder and for the performance of all
the covenants, agreements, terms, provisions and conditions contained in this
Lease on the part of Tenant to be performed and all acts and omissions of any
licensee or subtenant or anyone claiming under or through any subtenant which
shall be in violation of any of the obligations of this Lease and any such
violation shall be deemed to be a violation by Tenant. Tenant further covenants
and agrees that notwithstanding any such subletting, no other and further
subletting of the Demised Premises or any part thereof shall or will be made
except upon compliance with and subject to the provisions of this Article.
10.08 With respect to each and every sublease or subletting authorized
by the provisions of this Article:
(a) No subletting shall be for a term ending later than one
day prior to the Expiration Date of this Lease, and that part, if any, of the
proposed term of any sublease or any renewal or extension thereof which shall
extend beyond a date one day prior to the Expiration Date or the earlier
termination of the term of this Lease, is hereby deemed to be a nullity.
(b) Upon the execution of any such sublease as may be
authorized by this Article, Tenant shall promptly deliver to Landlord a copy of
each such sublease.
10.09 Landlord's approval is required for the use of any name other
than Tenant's name for identification on any signs or directory listings in the
Building.
The listing of any name other than that of Tenant, even though
approved by Landlord, shall not:
(i) Constitute a waiver of Landlord's right to withhold
consent to any sublet or assignment pursuant to this Article;
(ii) Be deemed an implied consent by Landlord to any sublet of
the Premises or any portion thereof, to any assignment or transfer of the lease,
or to any unauthorized occupancy of the Premises, except in accordance with the
express terms of the Lease; or
(iii) Operate to vest any right or interest in the Lease or in
the Premises.
The use of any such other name or listing as provided above
shall constitute a privilege extended by Landlord to Tenant, and shall be
revocable at Landlord's will by notice to Tenant.
ARTICLE 11
Compliance with Laws and Requirements of Public Authorities
11.01 Tenant shall promptly notify Landlord of any written notice it
receives of the violation of any law or requirements of any Federal, State,
Municipal or other public authority, and at its expense Tenant shall comply with
all laws and requirements of such public authorities which shall, with respect
to the Building or the Demised Premises or the use and occupation thereof or the
abatement of any nuisance, impose any violation, order or duty on Landlord or
Tenant, arising from (i) the manner of conduct of Tenant's business or operation
of its installations, equipment or other property within the Demised Premises,
to the extent such manner of conduct is inconsistent with the manner of conduct
of a majority of other tenants of the Building, (ii) any cause or condition
created by or at the instance of Tenant (other than Landlord's Work), or (iii)
breach of any of Tenant's obligations hereunder. Landlord hereby represents and
warrants to Tenant that Landlord has not received any written notice of
violation of any such law or requirements which affects the Building and remains
uncured.
ARTICLE 12
Insurance
12.01 Tenant shall not do, or permit anything to be done, or keep or
permit anything to be kept in the Demised Premises which would increase the fire
or other casualty insurance rate on the Building
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or the property therein over the rate which would otherwise then be in effect
(unless Tenant pays the resulting increased amount of premium as provided in
Section 12.02) or which would result in insurance companies of good standing
refusing to insure the Building or any of such property in amounts and at normal
rates reasonably satisfactory to Landlord.
12.02 If, by reason of any act or omission on the part of Tenant, the
rate of fire insurance with extended coverage on the Building or equipment or
other property of Landlord shall be higher than it otherwise would be, Tenant
shall reimburse Landlord, on demand, for that part of the premiums for fire
insurance and extended coverage paid by Landlord because of such act or omission
on the part of Tenant, which sum shelf be deemed to be additional rent and
collectible as such.
12.03 In the event that any dispute should arise between Tenant and
Landlord concerning rates, a schedule or make up of rates for the Building or
the Demised Premises, as the case may be, issued by a Fire Insurance Rating
Organization or other similar body making rates for fire insurance and extended
coverage for the premises concerned, shall be presumptive evidence of the facts
therein stated and of the several items and charges in the fire insurance rates
with extended coverage then applicable to such premises.
12.04 Tenant shall obtain and keep in full force and effect during the
term of this Lease at its own cost and expense comprehensive General Public
Liability Insurance on an occurrence basis with combined single minimum limits
of liability in an amount of not less than $3,000,000.00 for bodily injury or
death including personal injury, and with respect to damage to property, water
damage and sprinkler leakage including legal liability arising out of any one
occurrence, which insurance shall contain contractual liability insurance
covering the matters set forth in Article 21. Landlord shall maintain
throughout the term of this Lease fire and other casualty insurance with
replacement cost coverage for the Building.
12.05 All policies of insurance to be obtained and furnished by Tenant
hereunder shall be issued and carried in the name of Landlord and Tenant, as
their respective interests may appear, together with such other party or parties
as may be designated by Landlord, as their interests may appear. All such
policies of insurance shall be issued by a financially responsible company or
companies, authorized to issue such policy or policies, and licensed to do
business in the State of Connecticut, which shall be reasonably satisfactory to
Landlord, and shall contain endorsements providing as follows: (a) that any such
insurance shall not be subject to cancellation, termination, reduction or
change, except with 30 days' prior written notice sent by registered mall to
Landlord by the insurance company; and (b) that Landlord shall not be liable
for any damage by fire or other casualty covered by such insurance, regardless
of the cause, it being understood that Tenant shall look solely to its insurer
or insurers for reimbursement. Landlord and Tenant waive their right to recover
damages against each other for any reason whatsoever to the extent the damaged
party recovers from its insurance carrier. Any insurance policy procured by
Landlord or Tenant which does not name the other as an additional insured shall
contain an express waiver of any right of subrogation by the insurance company
against such other party. All public liability and property damage policies
shall contain an endorsement that Landlord, although named as an insured, shall
nevertheless be entitled to recover under said policies for any loss or damage
occasioned to it, its servants, agents and employees. The original policy or
policies together with satisfactory evidence of payment of the premium thereof,
shall be delivered to Landlord on or before the commencement of any Work under
this Lease, and upon renewals of such policies, not less than 30 days prior to
the expiration of the term of any such coverage. The minimum limits of any
insurance coverage required herein to be carried by Tenant shall not limit
Tenant's liability under Article 21 hereof.
12.06 In the event that Tenant at any time or times shall fail to
obtain or maintain in full force and effect any or all of the insurance policies
and coverage required of it hereunder, or should Tenant violate any of the
provisions of Section 12.05 herein, Landlord, at its election after ten (10)
days written notice to Tenant, and as agent for Tenant, may obtain such
insurance or coverage, or additional insurance or coverage as the case may be,
pay the premiums thereon or take such other steps as may be necessary to meet
the requirements of this Article and thereafter, upon demand, obtain
reimbursement of the costs so expended from Tenant. The failure of Landlord to
obtain evidence of the required insurance coverage shall not relieve Tenant of
its obligations under this Article.
ARTICLE 13
Rules and Regulations
13.01 Tenant and its employees and agents shall faithfully observe and
comply with the rules and regulations set forth in the attached Exhibit "C" (the
"Rules and Regulations"), and such reasonable changes therein (whether by
modification, elimination or addition) as Landlord at any time or times
hereafter may make and communicate in writing to Tenant, which do not
unreasonably affect the conduct of Tenant's business in the Demised Premises;
provided, however, that in case of any conflict or inconsistency between the
provisions of this Lease and any Rules and Regulations enacted subsequent to the
date of this Lease the provisions of this Lease shall control.
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13.02 Notwithstanding anything to the contrary in any of the Rules and
Regulations set forth in Exhibit "C":
(a) Tenant may bring into and keep in the Demised Premises
such small quantities of inflammable or combustible objects or materials as are
permitted by local law and as are incidental to the use of the Demised Premises
for the purposes permitted by Article 2, but this shall not be deemed to relieve
Tenant of responsibility to comply with all other obligations of this Lease that
may be applicable to or result from the introduction or maintenance of such
objects or materials in the Demised Premises, including but not limited to
compliance with the provisions of Sections 12.01 and 12.02.
(b) Subject to the provisions of Paragraph 2.02(c), Landlord
shall not unreasonably withhold its consent to the installation, maintenance and
operations by Tenant in the Demised Premises of data processing machines, office
duplicating machines, teletypewriter machines and other business machines and
machinery customarily used in offices in the ordinary course of business,
provided, however, that Tenant shall comply with all other obligations of this
Lease that may be applicable to or result from such installation, maintenance or
operation.
(c) Landlord shall not unreasonably withhold from Tenant any
approval provided for in the Rules and Regulations.
(d) Whenever Landlord shall claim, by written notice to
Tenant, that Tenant is violating any of the provisions of the Rules and
Regulations, and Tenant shall in good faith dispute such claim by written notice
given to Landlord within ten (10) days after service of Landlord's notice of the
violation, the dispute shall be determined by arbitration pursuant to Article
33.
(e) Tenant shall utilize only security and cleaning services
approved in writing by Landlord.
ARTICLE 14
Alterations and Tenant's Property
14.01 Tenant shad not make any alterations, decorations, installations,
additions, or improvements in or to the Demised Premises without Landlord's
prior written consent, which consent Landlord agrees shall not be unreasonably
withheld or delayed.
14.02 All work done by or on behalf of Tenant ("Tenant work") shall be
done at Tenant's sole expense and shall be done only by Landlord's contractors,
or Tenant's contractors approved by the Landlord.
14.03 All alterations, decorations, installations, additions or
improvements upon the Demised Premises made by any party shall at the expiration
of the term hereof become the property of the Landlord and be surrendered with
the Demised Premises as part thereof at the end of the term. Tenant's special
chandeliers, business and trade fixtures, machinery and equipment, whether or
not attached to the Demised Premises, which are installed by or for the account
of Tenant, and can be removed without permanent structural damage to the Demised
Premises or the Building, and all furniture, furnishings and other articles of
movable personal property shall be and shall remain Tenant's property and may be
removed by it prior to the expiration date of this Lease; provided, however,
that if any of Tenant's property is removed, Tenant shall repair or pay the cost
of repairing any damage to the Demised Premises resulting from such removal. Any
equipment or other property for which Landlord shall have granted any allowance
or credit to Tenant shall not be deemed to have been installed by or for the
account of Tenant and shall not be considered Tenant's property.
14.04 At or before the Expiration Date, or the date of any earlier
termination of this Lease, Tenant at its expense, shall remove from the Demised
Premises all of Tenant's property (including telecommunications and data wiring)
except such items thereof as Tenant shall have expressly agreed in writing with
Landlord were to remain and to become the property of Landlord, and shall repair
any damage to the Demised Premises or the Building resulting from such removal.
Any other items of Tenant's property (except money or securities) which shall
remain in the Demised Premises after the Expiration Date or after a period of
fifteen (15) days following an earlier termination date, may, at the option of
the Landlord, be deemed to have been abandoned, and in such case either may be
retained by Landlord as its property or may be disposed of, without
accountability, in such manner as Landlord may see fit at Tenant's expense. If
carpet (other than carpet existing in the Demised Premises on the Commencement
Date or installed as part of Landlord's Work) is glued down with an adhesive
substance not previously approved by Landlord, then at Landlord's option, Tenant
may be required to remove the carpet at Tenant's expense.
14.05 All Tenant's work, at all times, shall comply with laws, orders
and regulations of governmental authorities having jurisdiction thereof and all
rules and regulations of Landlord. Tenant, at its expense, shall obtain all
necessary governmental permits and certificates for the commencement and
prosecution of Tenant's work and for final approval thereof upon completion, and
shall cause Tenant's
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work to be performed in compliance therewith and with all applicable
requirements of insurance bodies, and in a good and first class workmanlike
manner, using materials and equipment at least equal in quality to the original
installation of the Building. Tenant's work shall be performed in such a manner
so as not to interfere with the occupancy of any other tenant in the Building,
nor delay or impose any additional expense upon Landlord in the construction,
maintenance or operation of the Building. Throughout the performance of Tenant's
work, Tenant, at its expense, shall carry, or cause to be carried, workmen's
compensation insurance in statutory limits, and general liability insurance for
any occurrence in or about the Building, on which Landlord and its managing
agent shall be named as parties insured, in such limits as Landlord may
reasonably prescribe, with insurers reasonably satisfactory to Landlord. Tenant
shall furnish Landlord with reasonably satisfactory evidence that such insurance
is in effect at or before the commencement of Tenant's work and, on request, at
reasonable intervals thereafter during the continuance of Tenant's work. No
Tenant's work shall involve the removal of any fixtures, equipment or other
property in the Demised Premises which are not Tenant's property, unless
Landlord's prior written consent is first obtained and unless such fixtures,
equipment or other property shall be promptly replaced at Tenant's expense and
free of superior title, liens and claims, with fixtures, equipment or other
property (as the case may be) of like utility and at least equal value (which
replaced fixture, equipment or other property shall thereupon become the
property of Landlord), unless Landlord shall otherwise expressly consent in
writing.
14.06. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation, arising from
or otherwise connected with Tenant's work which shall be issued by any public
authority having or asserting jurisdiction. Tenant shall defend, indemnify and
save harmless Landlord against any and all mechanics and other liens in
connection with Tenant's work, repairs or installation, including but not
limited to the liens of any conditional sale of, or chattel mortgages upon, any
materials, fixtures, or articles installed in and constituting part of Demised
Premises and against all costs, attorney's fees, fines, expenses and liabilities
reasonably incurred In connection with any such lien, conditional sale or
chattel mortgage or any action or proceeding brought thereon.
Tenant, at its expense, shall procure the satisfaction or
discharge of all such liens within ten (10) days of the filing of such lien
against the Demised Premises or the Building. If Tenant shall fail to cause such
lien to be discharged within the period aforesaid, then, in addition to any
other right of remedy, Landlord may, but shall not be obligated to, discharge
the same either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit or by bonding proceedings, and in any such
event Landlord shall be entitled, if Landlord so elects, to compel the
prosecution of an action for the foreclosure of such lien by the lienor and to
pay the amount of the judgment in favor of the lienor with interest, costs and
allowances. Any amount so paid by Landlord and all costs and expenses incurred
by Landlord, in connection therewith, together with interest thereon at the rate
of one percent per month or portion thereof from the respective dates of
Landlord's making of the payment or incurring of the cost and expense shall
constitute additional rent payable by Tenant under this Lease and shall be paid
by Tenant on demand. It Tenant makes any such payment it shall not be entitled
to any set-off against rent due hereunder. Tenant agrees that it will not at any
time prior to or during the term of this Lease, either directly or indirectly,
use any contractors, labor or materials in the Demised Premises, if the use of
such contractors, labor or materials would, in the Landlord's opinion, create
any difficulty with other contractors or labor engaged by Tenant or Landlord or
others or would in any way disturb harmonious labor relations in the
construction, maintenance or operation of the Building or any part thereof.
ARTICLE 15
Repairs and Maintenance
15.01 Subject to Landlord's obligations under Section 15.02, Tenant
shall take good care of the interior of the Demised Premises and the fixtures
and appurtenances therein, and at its sole cost and expense shall make all
repairs thereto, as and when needed to preserve them in good working order and
condition. In addition, Tenant, at its expense, shall promptly make all repairs,
ordinary or extraordinary, interior or exterior, structural or otherwise, in and
about the Demised Premises and the Building as shall be required by reason of
(i) the performance or existence of work by Tenant necessary to suit the Demised
Premises to Tenant's initial occupancy or Tenant's work, (ii) the installation,
use of operation of Tenant's property in the Demised Premises, (iii) the moving
of Tenant's property in or out of the Building, or (iv) the misuse or neglect of
Tenant or any of its employees, agents or contractors. Tenant shall not be
responsible, and Landlord shall be responsible, for any repairs to the Demised
Premises as are required by reason of Landlord's neglect or other fault in the
manner of performing any work as part of Landlord's Work or Tenant's work which
may be undertaken by Landlord for Tenant's account or as are otherwise required
by reason of neglect or other fault of Landlord or its employees, agents or
contractors.
15.02 Landlord shall keep and maintain the Building and its fixtures,
appurtenances, systems (including, HVAC, plumbing and electrical systems
providing service to the Demised Premises) and facilities serving the Demised
Premises and the Common Areas, in good working order, condition and repair and
shall make all structural repairs, interior and exterior, except as indicated in
Section 15.01, as and when needed in the Building, except for those repairs for
which Tenant is responsible pursuant to any
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other provisions of this Lease, and subject to all other provisions of this
Lease, including but not limited to the provisions of Article 21.
15.03 Except as expressly otherwise provided In this Lease, Landlord
shall have no liability to Tenant by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord or any tenant making
any repairs or changes or performing maintenance services, whether or not
Landlord is required or permitted by this Lease or by law to make such repairs
or changes or to perform such services in or to any portion of the Building or
the Demised Premises, or in or to the fixtures, equipment or appurtenances of
the Building or the Demised Premises, provided that Landlord shall be reasonably
diligent with respect thereto and shall perform such work, except in case of
emergency, at times reasonably convenient to Tenant and otherwise in such manner
and to the extent practical as will not unreasonably interfere with Tenant's use
and occupancy of the Demised Premises.
ARTICLE 16
Electrical Energy
16.01 Landlord shall furnish electrical energy for use by the Tenant in
the Demised Premises for lighting and operation of its business machines.
16.02 Tenant shall pay to Landlord such amounts and at such times as is
set forth in Exhibit "E", attached hereto and made a part hereof.
16.03 Landlord shall in no way be liable for any failure of or defect
in the character or supply of electrical energy supplied to the Demised
Premises.
16.04 Tenant shall at its expense, install all lamps (including, but
not limited to, incandescent and fluorescent), starters and ballasts used in the
Demised Premises.
ARTICLE 17
Heat, Ventilation and Air Conditioning
17.01 Landlord shall maintain and operate the heating, ventilation and
air conditioning systems in the Building and shall furnish heat, ventilation and
air conditioning in the Demised Premises through such systems during regular
business hours, but not before 8:00 A.M., or after 6:00 P.M. on business days
(which term is used herein to mean all days except Saturdays, Sundays and the
days observed by the Federal or the Connecticut government as legal holidays).
If Tenant shall require ventilating and air conditioning service or heating
service at any other time (hereinafter called "after hours", Landlord shall
furnish after hours ventilating and air conditioning service or heating service
upon reasonable advance notice from Tenant, and Tenant shall pay Landlord's then
established charges therefor on Landlord's demand, which charge is currently
$11.00 per hour. Such charge may be increased by landlord as the costs to
Landlord of providing such after hours service increases from time to time but
such charges shall not exceed 121% of Landlord's actual cost of labor, utilities
and equipment depreciation used in providing such after hours air conditioning
or heating service. If any of the other tenants of the Building shall request
and receive after hours heating or air conditioning service pursuant to
Landlord's obligation to provide the same to them, at the same time as Tenant,
only that equitably pro-rated portion of such labor and utilities costs as shall
be incurred for such common service shall be charged to Tenant.
17.02 Landlord will not be responsible for the failure of the air
conditioning system to meet performance specifications as stated in the "HVAC
Specifications" annexed hereto as Exhibit D, if such failure results from the
occupancy of the Demised Premises with more than an average of one person for
each 100 square feet or if the Tenant installs and operates machines and
appliances, the installed electrical load of which when combined with the load
of all lighting fixtures exceeds seven watts per square foot of floor area in
any one room or other area. If due to use of the Demised Premises in a manner
exceeding the aforementioned occupancy and electrical load criteria, or due to
rearrangement of partitioning after the initial preparation of the Demised
Premises, interference with normal operation of the air conditioning in the
Demised Premises results, necessitating changes in the air conditioning system
servicing the Demised Premises, such changes shall be made by Landlord upon
written notice to Tenant at Tenant's sole cost and expense. Tenant agrees to
lower and close window coverings when necessary because of the sun's position
whenever the air conditioning system is in operation, and Tenant agrees at all
times to cooperate fully with Landlord and to abide by all the regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of the air conditioning system. Landlord, throughout the term of this
Lease, shall have free and unrestricted access to any and all air conditioning
facilities in the Demised Premises. Landlord shall not be required to furnish,
and Tenant shall not be entitled to receive, any air conditioning during any
period wherein Tenant shall be in default, beyond applicable notice and grace
periods contained herein for the cure thereof, in any material provision of this
Lease.
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ARTICLE 18
Landlord's Other Services
18.01 Landlord, at its expense, shall provide public elevator
service, by elevators serving the floors on which the Demised Premises are
situated as specified and shown in the Building plans and specifications,
during regular hours of business days, and shall have at least one passenger
elevator subject to call at all other times. The elevators, or any of them, may
be operated by automatic control and/or by manual control, as Landlord shall
determine at any time or from time to time. Landlord shall not be obligated to
furnish an operator for any automatic elevator and shall have no liability to
Tenant for discontinuing the service of any operator theretofore furnished. If
Tenant shall require Saturday or after hours service of elevators or of the
loading area in the Building under such circumstances as in Landlord's
reasonable judgment, will require service or attention by Landlord's personnel,
Tenant shall pay Landlord, on demand, a reasonable charge attributable to such
service or attention.
18.02 Provided that Tenant shall keep the interior of the Demised
Premises in good order, Landlord, at its expense, shall cause the Demised
Premises, including the exterior and the interior of the windows thereof
(subject to Tenant maintaining unrestricted access to such windows), to be
cleaned in accordance with the standards set forth in the attached Exhibit "B"
(the "Cleaning Schedule"). Tenant acknowledges that Landlord shall have no
responsibility to clean the kitchen area of the Demised Premises. Tenant shall
pay to Landlord on demand the costs incurred by Landlord for (a) cleaning work
in the Demised Premises or the Building required because of (i) misuse or
neglect on the part of the Tenant or its employees or visitors, (ii) use of
portions of the Demised Premises for preparation, serving, or consumption of
food or beverages, reproducing operations, private lavatories or toilets or
other special purposes requiring greater or more difficult cleaning work than
office areas, (iii) unusual quantity of interior glass surfaces, (iv)
non-standard building materials or finishes installed by Tenant or at its
request, (v) increases in frequency or scope in any of the items set forth in
Exhibit "B" as shall have been requested by Tenant, and (b) removal from the
Demised Premises and the Building of (i) so much of any refuse and rubbish of
Tenant as shall exceed that normally accumulated daily in the routine of
ordinary business office occupancy, and (ii) all of the refuse and rubbish of
Tenant's business machines and the refuse and rubbish of any other eating
facilities requiring special handling (known as "wet garbage"). Landlord and
its cleaning contractor and their employees shall have after hours access to
the Demised Premises and the use of Tenant's light, power and water in the
Demised Premises as may be reasonably required for the purpose of cleaning the
Demised Premises.
18.03 Landlord, at its expense, shall furnish adequate hot and cold
water for sink, drinking, lavatory, toilet, and ordinary cleaning purposes to
the plumbing fixtures of central Facilities of the Building serving the Demised
Premises.
18.04 Landlord shall keep and maintain the public areas and the
public facilities of the Building clean and in good order and the sidewalks,
driveways and parking areas adjoining the Building shall be kept in good repair
and free of accumulation of snow and ice or unlawful obstructions.
18.05 Landlord, subject to its prior written approval, at its
expense, and on Tenant's request, shall maintain listings on the Building
directory of the names of Tenant, its organizational divisions and any other
person or business entities lawfully occupying the Demised Premises or any part
thereof, and the names of any of their officers and employees, provided that
the names so listed shall not take up more than Tenant's Proportionate Share of
the space on the Building directory, the size of which shall be determined by
Landlord. Landlord and Tenant agree that, initially, such Tenant's
Proportionate Share shall entitle Tenant to the use of a total of twelve (12)
directory lines, allocated as follows: four (4) lines to display Tenant's
corporate name on the directory board in the Building; one (1) line to display
Tenant's corporate name on the main directory board in the building in the
Complex known as One Landmark Square; and the remaining seven (7) lines may be
used for individual names of Tenant's executives or employees, as selected by
Tenant. The listing of any name other than that of Tenant on the Building
directory or on any of the doors of the Demised Premises shall not be deemed to
vest in the person or entity so listed any right or interest in this Lease or
in the Demised Premises or to constitute the consent of Landlord required under
Article 10, or a waiver thereof. Notwithstanding anything to the contrary
herein, initial listings on the Building directory shall be at Landlord's
expense, and any subsequent changes and/or additions shall be at Tenant's
expense.
18.06 Landlord reserves the right, without any liability to Tenant,
except as otherwise expressly provided in this Lease, and without being in
breach of any covenant of this Lease, to stop, interrupt or suspend service of
any of the heating, ventilating, air conditioning, electric, sanitary, elevator
or other Building systems serving the Demised Premises, or the rendition of any
of the other services required of Landlord under this Lease, whenever and for
so long as may be necessary, by reason of accidents, emergencies, strikes or
the making of repairs or changes which Landlord is required by law to make or
in good faith deems advisable, or by reason of difficulty in securing proper
supplies of fuel, steam, water, electricity, labor or supplies, or by reason of
any other cause beyond Landlord's reasonable control, including Governmental
restrictions on the use of materials or the use of any of the Building systems.
In each instance Landlord shall exercise reasonable diligence to eliminate the
cause of stoppage and to effect
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restoration of service and shall give Tenant reasonable notice, when
practicable, of the commencement and anticipated duration of such stoppage, and
if any work is required to be performed in or about the Demised Premises for
such purpose, the provisions of Section 15.03 shall apply. Tenant shall not be
entitled to any diminution or abatement of rent or other compensation nor shall
this Lease or any of the obligations of Tenant be affected or reduced by reason
of the interruption, stoppage or suspense of any of the Building systems or
services arising out of the causes set forth in this Section.
ARTICLE 19
Access, Changes In Building Facilities, Name
19.01 All walls, windows and doors bounding the Demised Premises
(including exterior Building walls, corridor walls and doors and any corridor
entrance), except the inside surfaces thereof, any terraces or roofs adjacent
to the Demised Premises, and any space in or adjacent to the Demised Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof, as well as
access thereto through the Demised Premises for the purposes of operation,
maintenance, decoration and repair are reserved to Landlord; provided that
Landlord shall use reasonable efforts to avoid material interference with
Tenant's business in exercising such right of access.
19.02 Tenant shall permit Landlord to install, use and maintain
pipes, ducts and conduits within or through the Demised Premises, or through
the walls, columns and ceilings therein, provided that the installation work is
performed at such times and by such methods as will not unreasonably interfere
with Tenant's use and occupancy of the Demised Premises, or damage the
appearance thereof, reduce the floor area thereof by more than two percent (2%)
(without an appropriate adjustment in rent) or materially affect Tenant's
layout. Where access doors are required for mechanical fixtures in or adjacent
to the Demised Premises, Landlord shall furnish and install such access doors
and confine their location, wherever practical to closets, coat rooms, toilet
rooms, corridors and kitchen or pantry rooms. Landlord and Tenant shall
cooperate with each other in the location of Landlord's and Tenant's facilities
requiring such access doors.
19.03 Landlord or Landlord's agents or employees shall have the
right upon request made on reasonable advance notice to Tenant, or to an
authorized employee of Tenant at the Demised Premises, to enter and/or pass
through the Demised Premises or any part thereof, at reasonable times during
reasonable hours, (i) to examine the Demised Premises or to show them to the
fee owners, lessors of superior leases, holders of mortgages, insurance
carriers, or prospective purchasers, mortgagees or lessees of the land or the
Building, and (ii) for the purpose of making such repairs or changes or doing
such repainting in or to the Demised Premises or in or to the Building or its
facilities as may be provided for by this Lease or as Landlord may deem
necessary or as Landlord may be required to make by law or in order to repair
and maintain the Building or its fixtures or facilities. Landlord shall be
allowed to take all materials into and store such materials upon the Demised
Premises which may be required for such repairs, changes, repainting or
maintenance. Landlord's rights under this Section shall be exercised in such a
manner as will not unreasonably interfere with Tenant's use and occupancy of the
Demised Premises. Landlord, its agents or employees, shall also have the right
to enter on and/or pass through the Demised Premises, or any part thereof
without notice at such times as such entry shall be required by circumstances of
emergency affecting the Demised Premises or the Building.
19.04 During the period of 9 months prior to the Expiration Date
Landlord may exhibit the Demised Premises to prospective tenants upon the same
notice and subject to the same conditions as are provided in Section 19.03. If,
during the last month of the term hereof, Tenant shall have removed all of
Tenant's property therefrom, Landlord may, upon at least 48 hours notice to
Tenant, enter and alter, renovate and redecorate the Demised Premises without
incurring any liability to Tenant therefor.
19.05 Landlord reserves the right, at any time after completion of
the Building, without incurring any liability to Tenant therefor, to make such
changes in or to the Building and the fixtures and equipment thereof, as well
as in or to the street entrances, halls, passages, elevators, and stairways
thereof, as it may deem necessary or desirable; provided that there be no
unreasonably lengthy interference with the use of the Demised Premises or in
the services furnished to the Demised Premises, and no reduction in the area of
the Demised Premises in excess of two percent without an appropriate adjustment
in rent, nor material reduction in the number of parking spaces available for
Tenant's use (unless Landlord provides substitute parking within reasonable
walking distance from the Building).
19.06 The Landlord reserves the right to select a name for the
Building and to make such change or changes of name as it may deem appropriate
during Tenant's occupancy (but only upon thirty (30) days' written notice), and
Tenant agrees not to refer to the Building by any other name than (i) the name
selected by Landlord, or (ii) the postal address approved by the U.S. Post
Office.
19.07 Landlord may limit and restrict, as provided in the Rules and
Regulations attached hereto, the means of access to the Demised Premises
outside of normal business hours, so long as Tenant's employees and authorized
agents have reasonable access to all parts of the Demised Premises. Tenant
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and its agents, employees and visitors shall be entitled to access from the
Demised Premises to, and the right to use, the toilets, lavatories and powder
rooms only on the floor (or floors) on which the Demised Premises are located.
ARTICLE 20
Shoring, Notice of Accidents, etc.
20.01 If an excavation or other substructure work shall be
undertaken or authorized upon land adjacent to the Building or in the vaults
beneath the Building or in subsurface space adjacent to the said vaults, Tenant,
without liability on the part of the Landlord therefor, shall afford to the
person causing or authorized to cause such excavation or other substructure work
license to enter upon the Demised Premises for the purpose of doing such work as
such person shall deem necessary to protect or preserve any of the walls or
structures of the Building or surrounding lands from injury or damage and to
support the same by proper foundations, pinning and/or underpinning, and, except
in case of emergency, if so requested by Tenant such entry shall be accomplished
in the presence of a representative of Tenant, who shall be designated by Tenant
promptly upon Landlord's request. The said license to enter shall be afforded by
Tenant without any claim for damages or indemnity against the Landlord and
Tenant shall not be entitled to any diminution or abatement of rent on account
hereof.
20.02 Tenant shall give notice to Landlord promptly after Tenant
learns of (i) any accident in or about the Demised Premises or the Building,
(ii) any fire in the Demised Premises, (iii) all damages to or defects in the
Demised Premises, including the fixtures, equipment and appurtenances thereof,
for the repair of which Landlord might be responsible or which constitutes
Landlord's property, and (iv) all damage to or defects in any parts of the
Building's sanitary, electrical, heating, ventilating, air conditioning,
elevator and other systems located in or passing through the Demised Premises.
ARTICLE 21
Non-Liability and Indemnification
21.01 Neither Landlord nor any agent or employee of Landlord shall
be liable to Tenant, its employees, agents, contractors and licensees, and
Tenant shall hold Landlord harmless for any injury or damage occurring on or
about the Demised Premises during the term of this Lease to Tenant or to any
other person or for any damage to, or loss (by theft or otherwise) of, any
property of Tenant and/or of any other person, irrespective of the cause of such
injury, damage or loss, unless (with respect to personal injury only) such
injury was caused by or due to the negligence of Landlord, its agents or
employees without contributory negligence on the part of Tenant; it being
understood that no property, other than such as might normally be brought upon
or kept in the Demised Premises as incident to the reasonable use of the Demised
Premises for the purposes herein permitted, will be brought upon or be kept in
the Demised Premises. Landlord shall not be liable in any event for loss of, or
damage to, any property entrusted to any of Landlord's employees or agents by
Tenant without Landlord's specific written consent.
21.02 Landlord and Tenant shall defend, indemnify and save each
other harmless and their respective agents and employees against and from all
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including reasonable architects' and attorneys' fees, which may be
imposed upon or incurred by or asserted against such other party and/or its
agents or employees by reason of any of the following occurring during the term
of this Lease, or during any period of time prior to the Commencement Date that
Tenant may have been given access to or possession of all or any part of the
Demised Premises pursuant to Section 3.03:
(a) Any work or thing done in or about the Demised Premises or
any part thereof by or at the instance of the indemnifying party, its agents,
contractors, subcontractors, servants, employees, licensees or invitees;
(b) any negligence or otherwise wrongful act or omission on
the part of the indemnifying party or any of its agents, contractors,
subcontractors, servants, employees, subtenants, licensees or invitees;
(c) any accident, injury or damage to any person or property
occurring in, on or about (1) the Demised Premises or any part thereof (with
regard to Tenant) or (2) the Common Areas (with regard to Landlord);
(d) any failure on the part of the indemnifying party to
perform or comply with any of the covenants, agreements, terms, provisions,
conditions or limitations contained in this Lease on its part to be performed or
complied with.
In case any action or proceeding is brought against
the party to be indemnified by reason of any such claim, the indemnifying party
upon written notice from the other, shall at the indemnifying party's expense
resist or defend such action or proceeding by counsel approved by the other
party in writing, which approval such other party shall not unreasonably
withhold.
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21.03 Whenever either party shall be obligated under the terms of
this Lease to indemnify the other party, the indemnifying party may select
legal counsel (subject to the consent of the indemnified party, which consent
shall not be unreasonably withheld) and shall keep the indemnified party fully
apprised at all times of the status of such defense. Legal counsel of the
insurer for either party is hereby deemed satisfactory to both parties.
21.04 Except as otherwise expressly provided herein, this Lease and
the obligations of Tenant to pay rent hereunder and perform all of the other
covenants, agreements, terms, provisions and conditions hereunder on the part
of Tenant to be performed shall in no way be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this Lease
or is unable to supply or is delayed in supplying any service, express or
implied, to be supplied or is unable to make or is delayed in supplying any
equipment or fixtures if Landlord is prevented or delayed from so doing by
reason of any cause whatsoever beyond Landlord's reasonable control, including,
but not limited to, Acts of God, strikes, labor troubles, governmental
preemption in connection with a national emergency or by reason of 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 war, hostilities or other similar emergency;
provided that Landlord shall in each instance exercise reasonable diligence to
effect performance when and as soon as possible.
21.05 Notwithstanding any contrary provisions of this Lease
whatsoever, including, without limitation, those pertaining to use and
Permitted Use, Tenant shall not use, or permit the use of the Demised Premises,
the Building or the complex so as to create or result in, directly or
indirectly, (a) any sudden or gradual spill, leak, discharge, escape, seepage,
infiltration, abandonment, dumping, disposal or storage (except in compliance
with applicable laws) of any hazardous or industrial waste, substance or
contamination, effluent, sewage, pollution or other detrimental or deleterious
material or substance (including without limitation asbestos), or the disposal,
storage or abandonment on the Complex of any material, tank or container
holding or contaminated by any of the foregoing residues thereof, or the
installation of any material or product containing or composed of any of the
foregoing, in, on, from, under or above the Complex (the foregoing occurrences
being hereinafter collectively called "Environmental Hazard"), or (b) any
violation, or state of facts or condition which would result in a violation, of
any Federal, State or local statute, law, code, rule, regulation or order
applicable to any Environmental Hazard (the foregoing being hereinafter
collectively call "Legal Violation"). In the event of the violation of the
foregoing by Tenant, in addition to all other rights and remedies of Landlord
under this Lease, regardless of when the existence of the Environmental Hazard
or Legal Violation is determined, and whether during the Term or after the
Expiration Date, (1) Tenant shall, immediately upon notice from Landlord, at
Tenant's sole cost and expense, at Landlord's option, either (x) take all
action necessary to test, identify and monitor the Environmental Hazard and to
remove the Environmental Hazard from the Complex and dispose of the same and
restore the Complex to the condition existing prior to such removal, and/or to
remedy any Legal Violation, all in accordance with applicable Federal, State
and local statutes, laws, codes, rules, regulations or orders or (y) reimburse
Landlord for all costs and expenses incurred by Landlord for engineering or
environmental consultant or laboratory services, in testing, investigating,
identifying and monitoring the Environmental Hazard and in removing and
disposing of the Environmental Hazard and in restoring the Complex, and/or in
remedying any Legal Violation, and (ii) Tenant shall, and hereby does agree to
defend with legal counsel acceptable to Landlord, indemnify and save harmless
Landlord and Others in Interest against and from all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses, including architects'
and attorneys' fees and disbursements which may be imposed upon or incurred by
or asserted against Landlord and Others in Interest, whether by any
governmental authority, Tenant or other third party, by reason of any violation
or alleged violation of any of the foregoing provisions of this Section.
Notwithstanding the foregoing, Tenant shall have no responsibility nor
liability to Landlord on account of any Environmental Hazard or Legal Violation
relating to those portions of the Complex or the Building outside of the
Demised Premises unless same (i) was caused, directly or indirectly, by Tenant
or its employees, agents, licensees or invitees or (ii) resulted, directly or
indirectly from conditions within the Demised Premises.
Landlord hereby warrants and represents to Tenant that Landlord has
not received any written notice of (i) any Legal Violation with respect to the
Building or the Demised Premises, or (i) the existence of any Environmental
Hazard at the Building or the Demised Premises.
ARTICLE 22
Destruction or Damage
22.01 If the Demised Premises and/or access thereto shall be
partially or totally damaged or destroyed by fire or other casualty, then,
Landlord shall, subject to its rights under Section 22.03 hereof, repair such
damage and restore and rebuild the Demised Premises and/or access thereto as
nearly as may be reasonably practical to its condition and character
immediately prior to such damage or destruction, with reasonable diligence
after notice to it of the damage or destruction.
22.02 If the Demised Premises and/or access thereto shall be
partially or totally damaged or destroyed by fire or other casualty not
attributable to the fault, negligence or misuse of the Demised
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Premises by the Tenant, its agents or employees under the provisions of this
Lease, the rents payable hereunder shall be abated to the extent that the
Demised Premises shall be rendered untenantable from the date of such damage or
destruction to the date the damage shall be substantially repaired, restored or
rebuilt. Should Tenant reoccupy a portion of the Demised Premises during the
period that the repair, restoration, or rebuilding is in progress and prior to
the date that the same are made completely tenantable, rents allocable to such
portion shall be payable by Tenant from the date of such occupancy to the date
the Demised Premises are made tenantable.
22.03 In case the Building shall be so damaged by such fire or
other casualty that substantial renovation, reconstruction or demolition of the
Building shall, in Landlord's sole opinion, be required (whether or not the
Demised Premises shall have been damaged by such fire or other casualty), then
Landlord may, at its option, terminate this Lease and the term and estate
hereby granted, by notifying Tenant in writing of such termination, within 60
days after the date of such damage. If at any time prior to Landlord giving
Tenant the aforesaid notice of termination or commencing the repair and
restoration pursuant to Section 22.01, the holder of a superior mortgage or any
person claiming under or through the holder of such superior mortgage takes
possession of the Building through foreclosure or otherwise, such holder or
person shall have a further period of 60 days from the date of so taking
possession to terminate this Lease by appropriate written notice to Tenant. In
the event that such a notice of termination shall be given pursuant to either
of the two immediately preceding sentences, this Lease and the term and estate
hereby granted shall expire as of the date of such termination with the same
effect as if that were the date hereinbefore set for the expiration of the term
of this Lease, and the fixed and additional rent due and to become due
hereunder shall be apportioned as of such date if not earlier abated pursuant
to Section 22.02. Nothing contained in this Section shall relieve Tenant from
any liability to Landlord or to its insurers in connection with any damage to
the Demised Premises or the Building by fire or other casualty if Tenant shall
be legally liable in such respect.
22.04 No damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy.
22.05 Landlord will not carry insurance of any kind on Tenant's
property, and, except as provided by law or its breach of any of its
obligations hereunder, shall not be obligated to repair any damage thereto or
replace the same.
22.06 The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises
by fire or other casualty, and any law to the contrary, now or hereafter in
force, shall have no application in such case.
22.07 Notwithstanding any of the foregoing provisions of this
Article, if Landlord or the holder of any superior mortgage shall be unable to
collect all of the insurance proceeds (including rent insurance proceeds)
applicable to damage or destruction of the Demised Premises or the Building by
fire or other cause, by reason of some action or inaction on the part of the
Tenant or any of its employees, agents or contractors, then, without prejudice
to any other remedies which may be available against Tenant, the abatement of
Tenant's rents provided for in this Article shall not be effective to the
extent of the uncollected insurance proceeds.
ARTICLE 23
Eminent Domain
23.01 In the event that the land, Building or any part thereof or
the Demised Premises or any part thereof shall be taken in condemnation
proceedings or by the exercise of any right of eminent domain or by agreement
between the Landlord on the one hand and any governmental authority authorized
to exercise such right on the other hand, Landlord shall be entitled to collect
from any condemnor the entire award or awards that may be made in any such
proceeding without deduction therefrom for any estate hereby vested in or owned
by Tenant, to be paid out as in this Article provided. Tenant hereby expressly
assigns to Landlord all of its right, title and interest in or to every such
award and also agrees to execute any and all further documents that may be
required in order to facilitate the collection thereof by Landlord.
23.02 At any time during the term of this Lease if title to the
whole or substantially all of the land, Building and/or Demised Premises shall
be taken in condemnation proceedings or by the exercise of any right of eminent
domain or by agreement between the Landlord on the one hand and any
governmental authority authorized to exercise such right on the other hand,
this Lease shall terminate and expire on the date of such taking and the fixed
rent and additional rent provided to be paid by Tenant shall be apportioned and
paid to the date of such taking. For the purposes of this Article
"substantially all of the land, Building and/or Demised Premises" shall be
deemed to have been taken if the remaining portion of such land, Building or
Demised Premises not so taken cannot reasonably or practicably be repaired or
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reconverted so as to permit the use thereof for substantially the same purposes
for which such land, Building or Demised Premises were used immediately prior
to such taking.
23.03 However, if substantially all of the land or Building is not
so taken and if only a part of the entire Demised Premises shall be so taken,
this Lease nevertheless shall continue in full force and effect, except that
Tenant may elect to terminate this Lease if that portion of the Demised
Premises then occupied by Tenant shall be reduced by more than 25%. Tenant
shall give notice of such election to Landlord not later than thirty (30) days
after (i) notice of such taking is given by Landlord to Tenant, or (ii) the
date of such taking, whichever occurs first. Upon the giving of such notice by
Tenant this Lease shall terminate on the date of service of Tenant's notice and
the fixed rent and additional rent due and to become due, shall be prorated and
adjusted as of the date of the taking. If Tenant fails to give such notice upon
such partial taking, and this Lease continues in force as to any part of the
Demised Premises not taken, the rents apportioned to the part taken shall be
prorated and adjusted as of the date of taking and from such date the fixed
rent and additional rent shall be reduced to the amount apportioned to the
remainder of the Demised Premises.
23.04 In the event of any such taking of less than the whole of the
Building which does not result in a termination of this Lease, or in the event
of such a taking of all or any part of the Demised Premises which does not
result in a termination of this Lease, Landlord, at its expense, shall proceed
with reasonable diligence to repair, alter and restore the remaining parts of
the Building and the Demised Premises to substantially the same condition as it
was in immediately prior to such taking to the extent that the same may be
feasible, so as to constitute a tenantable Building and Demised Premises,
provided that Landlord's liability under this Section shall be limited to the
proportionate amount received by Landlord as an award arising out of such
taking.
ARTICLE 24
Surrender
24.01 On the last day of the term of this Lease, or upon any earlier
termination of this Lease, or upon any reentry by Landlord upon the Demised
Premises, Tenant shall quit and surrender the Demised Premises to Landlord
broom clean, in the same condition it was delivered to Tenant on the
Commencement Date, except for ordinary wear and tear and damage by
condemnation, fire or other insured casualty; Tenant shall remove Tenant's
property subject to the provisions of Article 14 hereof; and Tenant shall
surrender to Landlord all keys to offices, lavatories and mail boxes and all
Building identification and parking cards possessed by Tenant's employees.
24.02 In the event Tenant remains in possession of the Demised
Premises after the termination of this Lease without the execution by Landlord
and Tenant of a new lease, Tenant, at the option of Landlord, shall at
Landlord's option, be deemed to be occupying the Demised Premises as a tenant
from month to month, at a monthly rental equal to one hundred fifty (150%)
percent of the fixed rent and additional rent payable during the last month of
the term, subject to all of the other terms of this Lease insofar as the same
are applicable to a month to month tenancy.
24.03 In the event Tenant remains in possession of the Demised
Premises following the termination of this Lease, Tenant hereby indemnifies and
agrees to hold Landlord harmless from and against any loss, cost, liability,
claim, damage, fine, penalty, and expense, including attorneys' fees and
disbursements, resulting from such delay by Tenant in surrendering the Demised
Premises upon the termination of this Lease as provided in this Article 24,
including without limitation, any claims made by any succeeding tenant or
prospective tenant based upon such delay. In the event Tenant remains in
possession of the Demised Premises for any period of time following the
Expiration Date, Tenant shall be in default, and in addition to the rent
provided in Section 24.02 hereof, Landlord shall be entitled to all of its
rights and remedies provided in this Lease.
ARTICLE 25
Conditions of Limitation
25.01 (a) This Lease and the term and estate hereby granted are
subject, inter alia, to the limitation that whenever Tenant shall make an
assignment for the benefit of creditors, or shall file a voluntary petition
under any bankruptcy or insolvency law, or an involuntary petition alleging an
act of bankruptcy or insolvency is filed against Tenant, or whenever a petition
shall be filed by or against Tenant seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or any future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, or shall seek or consent to
or acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any substantial part of its properties, or whenever a
permanent or temporary receiver of Tenant or of or for the property of Tenant
shall be appointed, or if Tenant shall plead bankruptcy or insolvency as a
defense in any action or proceeding, then, Landlord (a) at any time after
receipt of notice of the occurrence of any such event, or (b) if such event
occurs without the acquiescence of Tenant, at any time after event continues
for 60 days, may give Tenant a notice of intention to end the term of this
Lease at the expiration of five (5) days from the service of such notice of
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intention, and upon the expiration of said five (5) day period this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 27.
(b) If this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et
seq. (the Bankruptcy Code(M)), any and all consideration payable or otherwise
to be delivered in connection with such assignment shall be paid or delivered
to Landlord, shall be and remain the exclusive property of Landlord and shall
not constitute property of Tenant or of the estate of Tenant within the meaning
of the Bankruptcy Code. Any and all monies and other consideration constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly
paid to or turned over to Landlord.
(c) If, pursuant to the provisions of the Bankruptcy
Code, Tenant assumes this Lease and proposes to assign the same to any person
or entity who shall have made a bona fide offer to accept an assignment of this
Lease on terms acceptable to Tenant then notice of such proposed assignment,
setting forth (i) the name and address of such person, (ii) all of the terms
and conditions of such offer, and (iii) the adequate assurance to be provided
Landlord to assure such person's future performance under this Lease,
including, without limitation, the assurance referred to in Section 365(b)(3)
of the Bankruptcy Code, shall be given to Landlord by Tenant no later than
twenty (20) days after receipt by Tenant but in any event no later than ten
(10) days prior to the date that approval to enter into such assignment and
assumption, and Landlord shall thereupon have the prior right and option,
subject to all legal restrictions under the Bankruptcy Code and to be exercised
by notice to Tenant given at any time prior to the effective date of such
proposed assignment, to accept an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the bona fide offer
made by such person, less any brokerage commissions which may be payable out of
the consideration to be paid by such person for the assignment of this Lease.
25.02 This Lease and the term and estate hereby granted are subject
to the further limitation that:
(a) whenever Tenant shall default in the payment of any
installment of fixed rent, or in the payment of any additional rent, on any day
upon which the same shall be due and payable and such default shall continue
for ten (10) days after the date on which the same was due and payable,
provided that Landlord shall give written notice to Tenant of such nonpayment
not more than twice in any lease year, and thereupon and in such event Tenant
shall not be in default until ten days after Landlord shall have given such
notice; or
(b) whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within fifteen (15) days after Landlord shall have given to the Tenant a
notice specifying the same, or, in the case of a happening or default which
cannot with due diligence be cured within a period of fifteen (15) days and the
continuance of which for the period required for cure will not subject Landlord
to the risk of criminal liability or termination of any superior lease or
foreclosure of any superior mortgage, if Tenant shall not duly institute within
such fifteen (15) day period and promptly and diligently prosecute to
completion all steps necessary to remedy the same; or
(c) whenever any event shall occur or any contingency shall
arise whereby this Lease or any interest therein or the estate hereby granted
or any portion thereof or the unexpired balance of the term hereof would by
operation of law or otherwise, devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted in Article 10.
Then in any such event at any time thereafter,
Landlord may give to Tenant a notice ending the term of this Lease on the date
of the service of such notice and thereupon this Lease and the term and estate
hereby granted, whether or not the term has theretofore commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 27.
ARTICLE 26
Re-entry by Landlord - Default Provisions
26.01 If this Lease shall terminate for any reason whatsoever,
Landlord or Landlord's agents and employees may without further notice
immediately or at any time thereafter enter upon and reenter the Demised
Premises or any part thereof, and possess or repossess itself thereof either by
summary dispossess proceedings, ejectment or by any suitable action or
proceeding at law, or by agreement, or by force and otherwise and may
dispossess and remove Tenant and all other persons and property from the
Demised Premises without being liable to indictment, prosecution or damage
therefor, and may repossess the Demised Premises and the right to receive all
rental income again as and of its first estate
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and interest therein. The words "enter" or "reenter", "possess" or "repossess"
as herein used, are not restricted to their technical legal meaning. In the
event of any termination of this Lease, or of reentry by summary dispossess
proceedings, ejectment or by any suitable action or proceeding at law, or by
agreement, or by force or otherwise by reason of default hereunder on the part
of Tenant, Tenant shall thereupon pay to Landlord a fixed rent and additional
rent due up to the time of such termination of this Lease, or such recovery of
possession of the Demised Premises by Landlord, as the case may be, and shall
also pay to Landlord damages as provided in Article 27.
26.02 In the event of any breach or threatened breach by Tenant of
any of the agreements, terms, covenants or conditions contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right and remedy allowed at law or in equity or by
statute or otherwise as though reentry, summary proceedings, and other remedies
were not provided for in this Lease.
26.03 Each right and remedy of Landlord provided for in this Lease
shall be cumulative and shall be in addition to every other right or remedy
provided for in this Lease or now or hereafter existing at law or in equity or
by statute or otherwise, and the exercise or beginning of the exercise by
Landlord of any one or more of the rights or remedies provided for in this Lease
or now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later exercise by Landlord of any or all
other rights or remedies provided for in this Lease or now or hereafter existing
at law or in equity or by statute or otherwise.
26.04 If this lease shall terminate under the provisions of Article
25, or if Landlord shall reenter the Demised Premises under the provisions of
this Article, or in the event of the termination of this Lease or of reentry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such monies shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or reentry or, at Landlord's option, against any damages
payable by Tenant under Article 27 or pursuant to law.
ARTICLE 27
Damages
27.01 If this Lease is terminated under the provisions of Article
25, or if Landlord shall reenter the Demised Premises under the provisions of
Article 26 or in the event of the termination of this Lease, or of reentry by
summary dispossess proceedings, ejectment or by any suitable action or
proceeding at law, or by agreement, or by force or otherwise, by reason of
default hereunder on the part of Tenant, Tenant shall pay Landlord as damages,
at the election of Landlord, either:
(a) on demand, a sum which at the time of such termination of
this Lease or at the time of any such reentry by Landlord, as the case may be,
represents the excess of (i) the aggregate of the fixed rent and the additional
rent payable hereunder which would have been payable by Tenant (conclusively
presuming the additional rent to be the same as was payable for the year
immediately preceding such termination) for the period commencing with such
earlier termination of this Lease or the date of such reentry, as the case may
be, and ending with the Expiration Date, had this Lease not so terminated or
had Landlord not so reentered the Demised Premises, over (ii) the aggregate
rental value (calculated as of the date of such termination or reentry) of the
Demised Premises for the same period; or
(b) sums equal to the fixed rent and the additional rent (as
above presumed) payable hereunder which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so reentered the Demised
Premises, payable quarterly, in advance, but otherwise upon the terms therefor
specified herein following such termination or such reentry and until the
Expiration Date, provided, however, that if Landlord shall relet the Demised
Premises or any portion or portions thereof during said period, Landlord shall
credit Tenant with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents as and when
received by Landlord from such reletting the expenses incurred or paid by
Landlord in terminating the Lease or in reentering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including
altering and preparing the Demised Premises or any portion or portions thereof
for new tenants, brokers' commissions, advertising expenses, and all other
expenses properly chargeable against the Demised Premises and the rental
therefrom; it being understood that any such reletting may be for a period
shorter or longer than the remaining term of this Lease, but in no event shall
Tenant be entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any
suit for the collection of damages pursuant to this subsection to a credit in
respect of any net rents from a reletting, except to the extent that such net
rents are actually received by Landlord. If the Demised Premises or any part
thereof should be relet in combination with other space, then proper
apportionment shall be made of the rent received from such reletting and of the
expenses of reletting, and Landlord shall have the right to grant reasonable
rent concessions to attract one or more now tenants and
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to permit the term of any new lease covering part or all of the Demised
Premises to be for a shorter or longer period than provided for herein.
It the Demised Premises or any part thereof be relet
by Landlord for the unexpired portion of the term of this Lease, or any part
thereof, before presentation of proof of such damages to any court, commission
or tribunal, the amount of rent reserved upon such reletting shall, prima
facie, be the fair and reasonable rental value for the Demised Premises, or
part thereof, so relet during the term of the reletting. Landlord, however,
shall in no event and in no way be responsible or liable for any failure to
relet the Demised Premises or any part thereof or for failure to collect any
rent due upon any such reletting.
27.02 In the event Landlord elects to collect damages from Tenant
under Section 27.01 (b) at any time subsequent to such election and upon ten
days prior written notice to Tenant, Landlord may elect to collect a lump sum
under Section 27.01 (a), crediting Tenant with amounts theretofore received by
Landlord as damages. Landlord shall have no obligation to relet part or all of
the Demised Premises subsequent to termination of the Lease and upon Tenant's
default.
27.03 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated under the provision of Article 25, or under any
provision of law, or had Landlord not reentered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder or otherwise on the part of Tenant. Nothing herein contained
shall be construed to limit or prejudice the right of the Landlord to provide
for and obtain as liquidated damages by reason of the termination of this Lease
or reentry on the Demised Premises for the default of Tenant under this Lease,
an amount equal to the maximum allowed by any statute or rule of law in effect
at the time, and governing the proceedings in which such damages are to be
proved whether or not such amount be greater, equal to, or less than any of the
sums referred to in Section 27.01.
27.04 The foregoing Sections of this Article shall apply even if the
default by Tenant has occurred prior to the Commencement Date and/or prior to
Tenant taking possession of the Demised Premises. The parties acknowledge that
this Instrument is a lease and not a contract to make a lease.
ARTICLE 28
Waivers
28.01 Tenant, for itself, and on behalf of any and all persons
claiming through or under Tenant, including creditors of all kinds, does hereby
waive and surrender all right and privilege so far as is permitted by law,
which they or any of them might have under or by reason of any present or
future law, of the service of any notice of intention to reenter and also
waives any and all right to redemption or reentry or repossession in case
Tenant shall be dispossessed or ejected by process of law or in case of reentry
or repossession by Landlord upon any expiration or termination of this Lease as
herein provided.
28.02 Tenant waives Tenant's rights, if any, to designate the items
against which any payments made by Tenant are to be credited, and Tenant agrees
that Landlord may apply any payments made by Tenant to any items it sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items against which any such payments shall be credited.
28.03 Tenant waives Tenant's rights, if any, to assert a
counterclaim in any summary proceeding brought by Landlord against Tenant, and
Tenant agrees to assert any such claim against Landlord only by way of a
separate action or proceeding.
28.04 TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, OR TENANT'S
USE OR OCCUPANCY OF THE DEMISED PREMISES, OR ANY EMERGENCY OR OTHER STATUTORY
REMEDY WITH RESPECT THERETO.
ARTICLE 29
No Other Waivers or Modifications
29.01 The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the agreements,
terms, covenants, conditions or obligations of this Lease, or to exercise any
right, remedy or election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect
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to any subsequent breach, act or omission. The manner of enforcement or the
failure of Landlord to enforce any of the Rules and Regulations set forth
herein, or hereafter adopted against the Tenant and/or any other tenant in the
Building shall not be deemed a waiver of any such Rules and Regulations. No
executory agreement hereafter made between Landlord and Tenant shall be
effective to change, modify, waive, release, discharge, terminate or effect an
abandonment of this Lease, in whole or part, unless such executory agreement is
in writing, refers expressly to this Lease and is signed by the party against
whom enforcement of the change, modification, waiver, release, discharge or
termination or effectuation of the abandonment is sought.
29.02 The following specific provisions of this Section shall not be
deemed to limit the generality of the foregoing provisions of this Article:
(a) No agreement to accept a surrender of all or any part of
the Demised Premises shall be valid unless in writing and signed by Landlord.
The delivery of keys to an employee of Landlord or of its agent shall not
operate as a termination of this Lease or a surrender of the Demised Premises.
If Tenant shall at any time request Landlord to sublet the Demised Premises for
Tenant's account, Landlord or its agent is authorized to receive said keys for
such purposes without releasing Tenant from any of its obligations under this
Lease, and Tenant hereby releases Landlord of any liability for loss or damage
to any of Tenant's property in connection with such subletting.
(b) The receipt or acceptance by Landlord of rents with
knowledge of breach by Tenant of any term, agreement, covenant, condition or
obligation of this Lease shall not be deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser
amount than the correct fixed rent or additional rent due hereunder shall be
deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
to effect or evidence an accord and satisfaction, and Landlord may accept such
check on payment without prejudice to Landlord's right to recover the balance or
pursue any other remedy in this Lease or at law provided.
(d) If, in connection with obtaining, continuing or renewing
financing, for which the Building, land or the leasehold or any interest therein
represents collateral in whole or in part, a banking, insurance or other lender
shall request reasonable modifications of this Lease as a condition of such
financing, Tenant will not unreasonably withhold, delay or defer its consent
thereto, provided that such modifications do not increase the obligations of
Tenant hereunder or adversely affect to a material degree the Tenant's leasehold
interest hereby created.
ARTICLE 30
Curing Tenant's Defaults
30.01 If Tenant shall default in the performance of any covenant,
term, provision or condition herein contained, Landlord, without thereby waiving
such default, may perform the same for the account and at the expense of Tenant
without notice in a case of emergency and in any other case if such default
continues after three days from the date of the giving by Landlord to Tenant of
written notice of intention so to do. Bills for any reasonable and necessary
expense incurred by Landlord in connection with any such performance by Landlord
for the account of Tenant, and reasonable and necessary bills for all costs,
expenses and disbursements, including (without being limited to) reasonable
counsel fees, incurred in collecting or endeavoring to collect the fixed rent or
additional rent or other charge or any part thereof or enforcing or endeavoring
to enforce any rights against Tenant under or in connection with this Lease, or
pursuant to law, including (without being limited to) any such cost, expense and
disbursement involved in instituting and prosecuting summary proceedings, as
well as bills for any property, material, labor or services provided, furnished
or rendered, or caused to be provided, furnished or rendered, by Landlord to
Tenant including (without being limited to) electric lamps and other equipment,
construction work done for the account of Tenant, water, ice, drinking water,
drinking cups, towel and other services, as well as for any charges for any
additional elevator, heating, air conditioning or cleaning services and any
charges for other services incurred by Tenant under this Lease, may be sent by
Landlord to Tenant monthly, or immediately, at Landlord's option, and shall be
due and payable by Tenant in accordance with the terms of said bills and if not
paid when due, the amounts thereof shall immediately become due and payable as
additional rent under the Lease together with interest thereon at the rate of
12% per annum from the date of the said bills which should have been paid in
accordance with their terms. Landlord reserves the right, without liability to
Tenant and without constituting any claim of constructive eviction, to suspend
furnishing or rendering to Tenant any property, material, labor, utility or
other service, whenever Landlord is obligated to furnish or render the same at
the expense of Tenant, in the event that (but only for so long as) Tenant is in
arrears in paying Landlord therefor.
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ARTICLE 31
Consents - Broker
31.01 It is hereby agreed that whenever it is provided in this Lease
that consent or approval is not to be unreasonably withheld, such consent or
approval (hereinafter referred to collectively as "consent") shall also not be
unreasonably delayed or conditioned.
31.02 Any provision of this Lease which requires Landlord not to
unreasonably withhold or delay its consent shall never be the basis for an
award of damages or give rise to a right of setoff to Tenant, but shall only be
the basis for a declaratory judgment or specific injunction with respect to the
matter in question.
31.03 Tenant represents and warrants that the sole broker with whom
it has dealt with in this transaction is Sound Commercial Real Estate Group,
LLC, and that no other broker interested Tenant in the Demised Premises.
Landlord shall be responsible for the payment of any real estate commission
to said broker but Tenant shall hold Landlord harmless from the claim of any
other real estate broker or salesman claiming to have interested or have been
responsible for Tenant's execution of this Lease.
ARTICLE 32
Notices
32.01 Any notice, statement, demand, request or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Lease or pursuant to any applicable law or requirement
of public authority, shall be in writing (whether or not so stated elsewhere in
this Lease) and shall be deemed to have been properly given, rendered or made,
if sent by registered or certified mail, return receipt requested, postage
prepaid, addressed to the other party at the address hereinabove set forth
(except that after the Commencement Date, Tenant's address, unless Tenant shall
give written notice to the contrary, shall be the Building), and shall be deemed
to have been given, rendered or made on the day so mailed, unless mailed outside
of the State of Connecticut, in which case it shall be deemed to have been
given, rendered or made on the expiration of three business days after
mailing. Either party may, by notice as aforesaid, designate a different
address or addresses for notices, statements, demands or other communications
intended for it. Any notice given by Tenant to Landlord under this Lease shall
be sent as required under this Section to the attention of Landlord's Chief
Financial Officer.
32.02 However, notices requesting after hours service pursuant to
Sections 17.01 and 18.01 may be delivered, provided they are in writing, to the
Building Superintendent or any other person in the Building designated by
Landlord to receive such notices, and notice of fire, accident or other
emergency shall be given by telegraph or by personal delivery of written notice
to that address designated for this purpose from time to time by the respective
parties hereto.
32.03 Whenever either party shall consist of more than one person or
entity, any notice, statement, demand, or other communication required or
permitted to be given, rendered or made to or by, and any payment to be made to
such party, shall be deemed duly given, rendered, made or paid if addressed to
or by (or in the case of payment by check, to the order of) any one of such
persons or entities who shall be designated from time to time as the authorized
representative of such party. Such party shall promptly notify the other of the
identity of such person or entity who is so to act on behalf of all persons and
entities then comprising such party and of all changes in such identity.
ARTICLE 33
Estoppel Certificate, Memorandum
33.01 Tenant agrees, at any time, and from time to time, as
requested by Landlord, upon not less than five (5) days prior notice, to execute
and deliver, without cost or expense to the Landlord, a statement certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), certifying the dates to which the fixed rent and
additional rent have been paid, and stating whether, to the best knowledge of
the Tenant, the Landlord is in default in performance of any of its obligations
under this Lease, and, if so, specifying each such default of which the Tenant
may have knowledge, it being intended that any such statement delivered pursuant
thereto may be relied upon by any other person with whom the Landlord may be
dealing.
33.02 Should the Tenant fail to execute and deliver to the Landlord
the certificate and statement set forth in Section 34.01, above, then the
Landlord may execute the statement as attorney-in-fact for the Tenant specifying
to the best of Landlord's knowledge, the items called for in said Section 34.01.
33.03 At the request of either party, Landlord and Tenant shall
promptly execute, acknowledge and deliver a memorandum with respect to this
Lease sufficient for recording. Such memorandum shall
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not be deemed, under any circumstances, to change or otherwise affect any of
the obligations or provisions of this Lease.
ARTICLE 34
No Other Representations, Construction, Governing Law
34.01 Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant in executing and delivering this Lease is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in the Lease, or in any other
written agreement which may be made and executed between the parties
concurrently with the execution and delivery of this Lease, which agreement
shall expressly refer to this Lease.
34.02 If any of the provisions of this Lease, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
34.03 This Lease shall be governed in all respects by the laws of
the State of Connecticut.
ARTICLE 35
Parties Bound
35.01 The obligations of this Lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to, except that no violation of
the provisions of Article 10 shall operate to vest any rights in any successor
or assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 25.
However, the obligations of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in the event of such
transfer the obligations thereafter shall be binding upon each transferee of the
interest of Landlord herein named as such owner or lessee of the Building, but
only with respect to the period ending with a subsequent transfer within the
meaning of this Article, and such transferee, by accepting such interest, shall
be deemed to have assumed such obligations except only as may be expressly
otherwise provided in this Lease. A lease of Landlord's entire interest in the
Building as owner or lessee thereof shall be deemed a transfer within the
meaning of this Article.
35.02 Tenant shall look solely to the estate and interest of
Landlord, its successors and assigns, in the land and Building (or the proceeds
thereof) for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder, and no other property or assets of Landlord shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to either this Lease, the relationship of
Landlord and Tenant hereunder or Tenant's use and occupancy of the Demised
Premises.
ARTICLE 36
Certain Definitions and Constructions
36.01 For the purposes of this Lease and all agreements supplemental
to this Lease, unless the context otherwise requires:
(a) The term "Mortgage" shall include any indenture of
mortgage and deed of trust to a trustee to secure an issue of bonds and
debentures, and the term "Mortgagee" shall include such a trustee.
(b) The terms "include" and "such as" shall each be construed
as if followed by the phrase "without being limited to."
(c) The term "obligations of this Lease" and words of like
import, shall mean covenants to pay rent and additional rent under this Lease
and all of the other covenants and conditions contained in this Lease. Any
provision in this lease that one party or the other or both shall do or not do,
or shall cause or permit or not cause to permit a particular act, condition or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
(d) The term "Tenant's obligations hereunder" and words of
like import, and the term "Landlord's obligations hereunder" and words of like
import, shall mean the obligations to this Lease which are to be performed or
observed by Tenant, or by Landlord, as the case may be. Reference to
"performance" of either party's obligations under this Lease shall be construed
as "performance and
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observance." Tenant's obligations hereunder shall be construed in every instance
as conditions as well as covenants.
(e) Reference to Tenant being or not being "in default
hereunder" or words of like import, shall mean that Tenant is in default in the
performance of one or more of Tenant's obligations hereunder, or that Tenant is
not in default in the performance of any of Tenant's obligations hereunder, or
that a condition of the character described in Section 25.01 has occurred and
continues or has not occurred or does not continue, as the case may be.
(f) References to Landlord as having "no liability to Tenant"
or being "without liability to Tenant" shall mean that Tenant is not entitled to
terminate this Lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any of its other obligations hereunder, or to be compensated for
loss or injury suffered or to enforce any other kind of liability whatsoever
against the Landlord under or with respect to this Lease or with respect to
Tenant's use or occupancy of the Demised Premises.
(g) The term "laws and/or requirements of public authorities"
and words of like import shall mean laws and ordinances of any or all of the
federal, state, city and county governments and rules, regulations, orders and
or directives of any or all departments, subdivisions, boards, agencies or
offices thereof, or any other governmental, public or quasipublic authorities,
having jurisdiction in the premises, and/or the direction of any public officer
pursuant to law.
(h) The term "requirements of insurance bodies" and words of
like import shall mean rules, regulations, orders and other requirements of the
Board of Fire Underwriters and/or the Fire Insurance Rating Organization in
Connecticut and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance of the Building and/or the
Demised Premises.
(i) The term "repair" shall be deemed to include restoration
and replacement as may be necessary to achieve and/or maintain good working
order and condition, and the term "untenantable" shall be deemed to include
being inaccessible.
(j) Reference to "termination of this Lease" includes
expiration or earlier termination of the term of this Lease or cancellation of
this Lease pursuant to any of the provisions of this Lease or pursuant to law.
Upon a termination of this Lease, the term and estate granted by this Lease
shall end at noon on the date of termination as if such date were the date of
expiration of the term of this Lease and neither party shall have further
obligation or liability to the other after such termination (i) except as shall
be expressly provided for in this Lease, or (ii) except for such obligations as
by their nature or under the circumstances can only be, or by the provisions
of this Lease, may be, performed after such termination, and, in any event,
unless expressly otherwise provided in this Lease, any liability for a payment
which shall have accrued to or with respect to any period ending at the time of
termination shall survive the termination of this Lease.
(k) The term "in full force and effect" when herein used in
reference to this Lease as a condition to the existence or exercise of a right
on the part of Tenant shall be construed in each instance as including the
further condition that at the time in question no default on the part of Tenant
exists, and no event has occurred which has continued to exist for such period
of time (after the notice, if any, required by this Lease), as would entitle
Landlord in either such instance to terminate this Lease or to dispossess
Tenant.
(l) The term "Landlord" as used in this Lease means only the
owner, or other mortgagee in possession, for the time being of the land and
Building (or the owner of a lease of the Building or of the land and Building)
of which the Demised Premises form a part, so that in the event of any sale or
sales of said land and Building or of said Lease, or in the event of a lease of
said Building, or of the land and Building, the said Landlord shall be and
hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder, and it shall be deemed and construed without further
agreement between the parties or their successors in interest, or between the
parties and the purchaser, at any such sale, or the said lessee of the Building,
or of the land and Building, that the purchaser or the lessee of the Building
has assumed and agreed to carry out any and all covenants and obligations of
Landlord, hereunder.
(m) The term "Tenant" shall mean Tenant herein named or any
assignee or other successor in interest (immediate or remote) of Tenant herein
named, when Tenant herein named or such assignee or other successor in interest,
as the case may be, is in possession of the Demised Premises as owner of the
Tenant's estate and interest granted by this Lease, and also if Tenant is not an
individual or corporation, all of the individuals, firms and/or corporations and
other entities comprising Tenant.
(n) Words and phrases used in the singular shall be deemed to
include the plural and vice versa, and nouns and pronouns used in any particular
gender shall be deemed to include any other gender.
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(o) The rule of "ejusdem generis" shall not be applicable to
limit a general statement following or referable to an enumeration of specific
matter or matters similar to the matters specifically mentioned.
(p) All references in this Lease to numbered Articles,
numbered Sections and Subsections and lettered Exhibits are references to
Articles and Sections and Subsections of this Lease, and Exhibits annexed to
(and thereby made a part of) this Lease, as the case may be, unless expressly
otherwise designated in the context.
(q) The term "rent" or "rents" shall, except where the context
expressly implies to the contrary, be deemed to mean fixed rent and additional
rent as such terms are defined in Section 1.04.
36.02 The various terms which are defined in other Articles of this
Lease or are defined in exhibits annexed hereto, shall have the meaning
specified in such other Articles and such exhibits for all purposes of this
Lease and all agreements supplemental thereto, unless the context shall
otherwise require.
36.03 The Article headings in this Lease and Index prefixed to this
Lease are inserted only as a matter of convenience or reference, and are not to
be given any effect whatsoever in construing this Lease.
ARTICLE 37
Subordination and Miscellaneous
37.01 (a) This Lease, and all rights of Tenant hereunder, are and
shall be subject and subordinate in all respects to all covenants, agreements
and restrictions of record as of the date hereof, with respect to the land
and/or the Building, including but not limited to those restrictions and
conditions contained in the deed from the City of Stamford, Connecticut to
Landlord or Landlord's predecessor in title. Landlord hereby represents and
warrants to Tenant that none of such covenants and restrictions would prohibit
or restrict the transactions contemplated hereby. In said deed, Landlord agrees
in part, that in the sale, lease or occupancy of the property, it would not
effect or execute any agreement, lease, conveyance or other instrument whereby
the property or any part thereof is restricted upon the basis of race, sex,
religion, color or national origin, and it would comply with all state and local
laws in effect from time to time prohibiting discrimination or segregation by
reason of race, sex, religion, color or national origin.
(b) Tenant shall not take or permit any action with respect to
the Demised Premises which would violate any covenants, agreements and
restrictions of record with respect to the land and/or the Building.
ARTICLE 38
[INTENTIONALLY OMITTED.]
38.01
ARTICLE 39
Parking
39.01 (a) Tenant shall receive twelve (12) parking cards for
undesignated spaces in the Landmark Square parking garage at no cost to Tenant.
Tenant must provide name and registration of vehicle of each person in its
employment who will have the right to use said parking cards and all such
persons shall be subject to all rules and regulations regarding the use of said
parking cards in the parking garage.
(b) All parking by Tenant's employees shall be on a "first
come, first serve" basis.
(c) All parking garage spaces, ramps and driveways, walkways,
lobbies and elevators used by Tenant, its employees and patrons will be
specifically and exclusively at their own risk, and Landlord shall not be liable
for any damage to any vehicle or its contents, resulting from theft, collision,
vandalism or any other cause whatsoever or for harm or injury to any person from
any cause whatsoever, the failure of any garage attendant or other personnel or
device to patrol, monitor, guard or service such parking garage, and Landlord
shall in no way be liable for any acts or omissions of such personnel, or device
in failing to prevent any such theft, vandalism or loss or damage by other
cause. Tenant's indemnity in Section 21 hereof shall include the parking garage
and all related parts thereof and thereto as though specifically set forth
therein.
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ARTICLE 40
Cancellation of Lease
40.01 Provided Tenant has complied with all the terms, covenants and
conditions of this Lease, Tenant shall have the right to cancel this lease term
at the expiration of the twenty-fourth (24th) month following the last day of
the calendar month in which the Commencement Date shall have occurred (the
"Cancellation Date") by notifying Landlord, in writing, at least six (6) months
prior to the Cancellation Date, of Tenant's intent to exercise this cancellation
option and by paying to Landlord, no later than two (2) months prior to the
Cancellation Date, by bank or certified check, the amount of (a) those portions
of all costs incurred by Landlord in connection with this Lease which have not
been amortized as of the Cancellation Date (the "Unamortized Costs"), which
Unamortized Costs shall include, without limitation, the unamortized portion of
each of the following: (i) the cost of Landlord's Work; (ii) legal fees; (iii)
real estate brokerage commission fees; and (iv) architectural and engineering
fees; which Unamortized Costs shall be amortized as if the original amount of
such costs were a 4 year self-amortizing loan bearing an interest rate of 10%
per annum; and (b) the product of (i) the difference between the average fixed
rent per rentable square foot for the first two (2) years of the Term and the
average fixed rent per rentable square foot for the full four (4) year Term,
multiplied by (ii) the total number of rentable square feet contained within the
Demised Premises.
Upon satisfaction by Tenant of each of the above conditions and upon the
Demised Premises having been surrendered to Landlord and vacated by Tenant on
or before the Cancellation Date (in the manner required under this Lease as if
the Cancellation Date were the Expiration Date), this Lease shall be deemed
canceled and terminated as of the Cancellation Date. Time is of the essence
with respect to all time periods referenced in this Article. In the event that
Tenant shall fail to fully and timely comply with each of the conditions herein
contained, Tenant will be deemed to have waived all of its rights contained in
this Article.
This cancellation option is personal to @ Plan, Inc. and may not be assigned,
pledged or otherwise transferred. Should Tenant fail to terminate the Lease as
permitted hereunder, the Lease shall remain in full force and effect.
ARTICLE 41
Right of First Offer
41.01 In the event space on the third floor in the Building
consisting of 6,500 rentable square feet (the "Offer Premises") becomes
available during the Term, Tenant shall have the right to lease all of the Offer
Premises, provided the following terms and conditions are fully and completely
satisfied:
(i) Tenant shall be occupying the Demised
Premises at such time and no event of default shall have occurred and is
continuing under this lease;
(ii) Tenant shall give written notice to Landlord
of its intent to exercise its right to lease the Offer Premises hereunder within
twelve (12) business days after Landlord gives Tenant notice of the availability
of the Offer Premises; TIME BEING OF THE ESSENCE WITH RESPECT TO ALL OF TENANT'S
OBLIGATIONS HEREUNDER;
(iii) Tenant shall (i) be occupying the Demised
Premises for a period which exceeds twenty-four (24) months after the last day
of the month of the Commencement Date and Tenant shall not have exercised the
Cancellation Option set forth in Article 40 above, or (ii) agree in writing to
waive all rights granted Tenant under such Article 40.
In the event that Tenant elects to lease the Offer Premises, the term "Combined
Premises" shall, from and after the Effective Date (as hereinafter defined),
include both the Demised Premises and the Offer Premises. In the event that
Tenant elects not to lease the Offer Premises, or fails to deliver to Landlord
written notice of Tenant's intent to exercise its rights to lease the Offer
Premises in strict accordance with the terms hereof, Tenant's option to lease
the Offer Premises shall automatically expire and be of no further force or
effect.
41.02 For purposes hereof, the term "Effective Date" shall mean
thirty (30) days from the receipt by Landlord of timely notice by Tenant of its
intention to lease the Offer Premises.
41.03 Upon the exercise by Tenant of its option hereunder, Landlord
and Tenant shall enter into a lease modification agreement, to be effective as
of the Effective Date, which shall reflect the lease by Tenant of the Combined
Premises, as then constituted, in accordance with all of the terms and
conditions of this lease, except that (i) the rental rate per square foot for
the Offer Premises shall be equal to the rate per square foot of Rent for the
Demised Premises as of the Effective Date, and (ii) Tenant's "Proportionate
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Share" shall be equal to a fraction, the numerator of which shall be the total
number of rentable square feet contained in the Combined Premises, as then
constituted, and the denominator of which shall be the total rentable square
footage in the Building.
41.04 In the event Tenant shall exercise its option to lease the
Offer Premises in accordance with this Article, Tenant shall take the Offer
Premises in its "as is" condition as of the Effective Date and Landlord shall
have no obligation to perform any work in, on or to the Offer Premises in order
to prepare same for occupancy by Tenant.
41.05 This option to lease the Offer Premises is personal to @ Plan,
Inc. and shall not be transferable by operation by law or otherwise, except to a
permitted assignee or sublessee under Article 10.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their duly authorized officers and their corporate
seal to be hereunder affixed the date and year first above written.
WITNESSES RECKSON OPERATING PARTNERSHIP, L.P.
By: RECKSON ASSOCIATES REALTY CORP.,
its General Partner
By: /s/ F. D. Rich III
-------------------- -----------------------------------------------
Name: F. D. Rich III, SVP
Title: Managing Director
Reckson Associates Realty Corp.
TENANT:
@ PLAN, INC.
/s/ Donna J. Hooper By: /s/ Mark K. Wright
-------------------- -----------------------------------------------
Name:
Title: CEO
STATE OF TN )
)ss:
COUNTY OF Davidson )
Before me the undersigned, this 28th day of January, 1997,
personally appeared Mark Wright, known to me to be the CEO of @ Plan, Inc., a
___________ corporation, and that as such officer, signer and sealer of the
foregoing instrument, acknowledged the execution of the same to be a free act
and deed individually and as such officer, and the free act and deed of said
professional corporation.
In Witness Whereof, I hereunto set my hand.
/s/ Margaret C. Lutimore
--------------------------------------------------
Notary Public/Commissioner of the
Superior Court
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