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LEASE AGREEMENT
00 XXXXXXXXXX XXXXXX REALTY CORP.
"Landlord"
to
Pequot Systems, Inc. and Cybernet Data Services, Inc.
00 Xxxxxxxxxx Xx.
Xxxxx Xxxxxxx, XX. 00000
"Tenant"
This lease (the "lease") is made and dated April 4, 1997, by and
between 00 XXXXXXXXXX XXXXXX REALTY CORPORATION, as landlord, ("Landlord") 00
Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX. and Pequot Systems, Inc. and Cybernet Data
Systems, Inc. as Tenant, 00 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX. ("Tenant").
W I T N E S S E T H:
1. DEFINITIONS. In addition to terms described elsewhere in this Lease, the
following terms have the following meanings:
(A) "Demised Premises": 6600 sq. ft., 9th Floor (See Exhibit A)
(B) "Base Rent": $12.00 per sq. ft., $79200.00 annually,
$6600.00 per month. Payment of the first
month's rent is payable upon Tenant's
execution of the lease.
(C) "Term" Three (3) years.
(D) "First Option" Tenant has the right to renew this Lease
Agreement for an additional two (2) years
upon receipt of a written notification by
the Landlord 90 days prior to the
expiration of this agreement at the rate
of $13.50 per sq. ft.
(E) "Term Commencement Date": May 1, 1997
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(F) "Term Ending Date": April 30, 2000
(G) "Rent Commencement Date": May 1, 1997
(H) "Occupancy": Upon full execution of the lease by both
parties.
(I) "Tenant Use of Electric" Tenant will pay to the Landlord the
amount billed by the South Norwalk
Electric Company for the energy used by
the tenant and billed to that Tenant
space. A copy of the xxxx will be
provided for verification.
(J) "Permitted Use" Computer systems and operations company.
(K) "Parking Spaces" 21 spaces.
(L) "Security Deposit" $13200.00 due at time of tenant execution
of the lease.
(M) "Demolition Clause" Tenant agrees not to commence any
demolition of the premises without the
written permission of the Landlord.
(N) "Landlord Improvements" Landlord agrees to build-out the space as
follows:
1). Install a fire-safe door at the
entrance of the restroom corridor.
(See Exhibit B).
2). Construct a wall approximately 9 ft
by 28 ft, taped, primed, and painted
to match existing color. (See Exhibit
B).
3). Remove shower stall and sinks in
the training room. (See Exhibit B).
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4). Inspect HVAC system for proper
operation.
5). Inspect lighting and replace any
burned-out bulbs or ballasts.
(O) "Tenant's Work" Tenant will renovate part of the office
space to enable the build-out for two
(2) new offices. Landlord agrees to pay
for this build-out and xxxx-back the
Tenant for the build-out in 36 equal
payments commencing with the first rent
payment on May 1, 1997 and ending with
the last rental payment on April 1, 2000
(See Exhibit C).
(P) "Signage" Landlord will provide signs in lobby
directory and in the elevators. Tenant
has the right to install a sign,
approved by the Landlord in advance as to
size, in the 9th floor lobby area as a
directional sign to their space.
(Q) "Interior Cleaning" Provided by the Landlord.
(R) "Pro-rata Share" Tenant will pay their pro-rata share
(.0351%) of any increase in the Common
Area Maintenance expense and Real
Estate Tax over the base year of 1997.
(S) "Right of First Refusal" Tenant has the right of first refusal
for any adjacent space that is or becomes
available to lease.
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Executed on this 4th day of April 1997.
LANDLORD: TENANT:
00 XXXXXXXXXX XX. REALTY CORP. Pequot Systems, Inc.
Cybernet Data Systems, Inc.
By: /s/ Illegible signature By: /s/ Xxxxxxx Xxxxxxx
Name: /s/ Illegible signature Name: /s/ Xxxxxxx Xxxxxxx
Title: President Title: VP
Cybernet Data Systems, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
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TABLE OF CONTENTS
FOR OFFICE BUILDING LEASE
Page
ARTICLE 1 Demised Premises 1
ARTICLE 2 Term 1
ARTICLE 3 Use 2
ARTICLE 4 Rent 3
ARTICLE 5 Services Provided by Landlord 3
ARTICLE 6 Quiet Enjoyment 5
ARTICLE 7 Repairs and Maintenance 5
ARTICLE 8 Adjustment of Base Rental 5
ARTICLE 9 Alterations and Improvements 7
ARTICLE 10 Assignment and Subletting 8
ARTICLE 11 Compliance with Laws 10
ARTICLE 12 Fire or Other Casualty 11
ARTICLE 13 Eminent Domain 11
ARTICLE 14 Indemnity 11
ARTICLE 15 Waiver of Subrogation 12
ARTICLE 16 Subordination 12
ARTICLE 17 Access by Landlord 13
ARTICLE 18 Landlord's Lien 13
ARTICLE 19 Defaults and Remedies 13
ARTICLE 20 Nonwaiver 16
ARTICLE 21 Holding Over 16
ARTICLE 22 Notice 16
ARTICLE 23 Limitation of Landlord's Liability 17
ARTICLE 24 Estoppel Certificate 17
ARTICLE 25 Attorneys' Fees 17
ARTICLE 26 Administrative Charge for Late Payment 18
ARTICLE 27 Relocation and Substitution of Premise 18
ARTICLE 28 Miscellaneous 18
ARTICLE 29 Signage 20
ARTICLE 30 Parking 21
ARTICLE 31 Redevelopment Regulations 21
ARTICLE 32 Mechanics Liens 21
ARTICLE 33 Option to renew 22
EXHIBITS
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EXHIBIT "A" Floor Plan Showing Demised premises
EXHIBIT "B1" Rules and Regulations
EXHIBIT "B" Landlord's Work
EXHIBIT "C" Tenant's Work
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LEASE
AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between the
Landlord and Tenant, whether one or more.
WITNESSETH:
1. Demised Premises
1.1. Subject to and upon the terms, provisions and conditions
hereinafter set forth, Landlord hereby leases the Demised Premises to Tenant in
the Building. The area hereby leased in the Building is hereafter called the
"Demised premises" and is shown outlined on the floor plan drawings which are
attached hereto marked Exhibit "A-1" and made a part hereof and incorporated in
here by reference for all purposes. The rentable area contained within the
Demised premises shall be deemed for all purposes, to be the number of square
feet set forth herein above.
2. Term
2.1. Subject to and upon the terms and conditions set forth
herein and as noted on the Lease Cover Page, or in any exhibit or addendum
hereto, this Lease is for a term to commence on the Term Commencement Date which
shall be either the date upon which the Demised premises are ready for occupancy
(as defined in Article 2.2 below) or the date Tenant or anyone claiming under or
through Tenant first occupies the Demised premises for the conduct of its
business, whichever date occurs earlier, and shall end on the Term Ending Date,
or on such date as the term of this Lease shall sooner cease and terminate as
hereinafter provided. Promptly following the Commencement Date, Landlord and
Tenant shall, upon request of Landlord (and not otherwise) enter into a
supplementary agreement fixing the Commencement Date of this Lease, but the
failure of Landlord and Tenant to execute such supplementary agreement shall
have no effect whatsoever on Landlord's and Tenant's obligations hereunder. This
lease is not recordable by the Tenant.
2.2. The Demised Premises shall be completed and prepared for
Tenant's occupancy in the manner, and subject to the terms, conditions and
covenants set forth in Exhibit "B" which is attached hereto and made a part
hereof for all purposes. The installations, facilities, materials and work so to
be furnished, installed and performed in the Demised Premises by Landlord at its
expense are hereinafter (and in Exhibit "B") referred to as "Landlord's Work."
All other installations, facilities, materials and work which may be undertaken
by or for the account of Tenant to prepare, equip, decorate and furnish the
Demised Premises for Tenant's occupancy, shall be at Tenant's sole cost and
expense, and are hereinafter (and in Exhibit "B")
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called "Tenant's Finish Work."
2.2.l. In connection with Landlord's Work and/or
Tenant's Finish Work, Landlord and Tenant further covenant as follows:
2.2.1.1. The Demised Premises shall be
deemed ready for occupancy on the date that Landlord's Work in the Demised
Premises shall have been substantially completed and it shall be so deemed,
notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment or decoration remain to be performed, the non-completion
of which do not materially interfere with Tenant's use of the Demised premises.
2.2.1.2. Paragraph deleted.
2.2.1.3. If and when Tenant shall take
actual possession of the Demised Premises, it shall be conclusively presumed
that the same were in satisfactory condition as of the date of such taking of
possession, unless, within seven (7) days after such date Tenant shall give
Landlord written notice specifying with particularity the respects in which the
Demised Premises were not in satisfactory condition. After taking possession of
the Demised Premises, any such notice from Tenant shall in no manner whatsoever
relieve Tenant from the payment of rent, or allow a delay in the payment of rent
by Tenant, or otherwise excuse Tenant from performance of its obligations under
this Lease.
2.3. The effective date of this Lease shall be the date of
acceptance of this Lease by Landlord.
2.4. Not withstanding the fact that the "Commencement Date" of
this Lease shall be a date subsequent to the effective date of this Lease,
Landlord and Tenant intend and agree that each shall have vested rights
immediately upon execution of this Lease and it is intended that this Lease
shall be fully binding upon the parties hereto and shall be in full force and
effect from and after execution hereof by both Tenant and Landlord.
2.5. Tenant covenants and agrees to pay Landlord a Security
Deposit, upon execution of this Lease. Upon the occurrence of any event of
default (hereinafter described) by Tenant, Landlord may, from time to time and
without prejudice to any other remedy, apply said Security Deposit to the extent
necessary to pay any arrears of Base Rental or any other damages,
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injury, expense or liability caused to Landlord by such event of default.
Landlord shall, subject to the terms of this Lease, return to Tenant any
remaining balance of such Security Deposit within a reasonable period of time
not exceeding thirty (30) days after the termination of this Lease. The Security
Deposit shall not be considered an advance payment of Base Rental or a measure
of Landlord's damages in case of default by Tenant. If at any time during the
term hereof, the Security Deposit, or any portion thereof, is applied to
delinquent Base Rent, or as otherwise permitted by the terms of this Lease,
Tenant shall, not later than ten (10) days after written notice from Landlord,
restore the Security Deposit to its original amount as set out in the first
sentence of this Article 2.5.
3. Use
3.1. The Demised Premises are to be used and occupied by
Tenant solely for the purpose of general and executive offices, and the Tenant
shall not use the Demised Premises for any other purpose unless noted on the
Lease Cover Page or without the express prior written consent of Landlord, which
consent Landlord may deny at Landlord's sole discretion.
4. Rent
4.1. As rental for the use and occupancy of the Demised
Premises (hereinafter sometimes called "Annual Base Rent") Tenant shall pay (and
hereby agrees to pay) in lawful money of the United States of America, to
Landlord, at the Building office (or at such other address as designated by
Landlord), in advance, without demand, deduction, set-off or abatement, the
following:
4.1.1. For each month of the primary term hereof,
(plus the partial month, if any, at the commencement date of this Lease),
payable in advance, on the first day of each such month, the sum of one-twelfth
of the Annual Base Rent per month, and
If the commencement date is not the first day of a calendar month, or the term
of this Lease does not end on the last day of a calendar month, Tenant will pay,
in advance, on the commencement date, or the first day of the last month of the
term of this Lease, a pro rata part of such monthly amount as rental for the
first or last partial month, as the case may be. Tenant shall also pay to
Landlord, as additional rent, all other sums of money as shall become due from
and payable by Tenant to Landlord under the terms of this Lease. Landlord shall
have the same remedies for default for the payment of additional rent as are
available to Landlord in the case of a default in the payment of Annual Base
Rent.
4.2. Any payment of Annual Base Rent received after
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the tenth (10th) day of the month, or any payment of additional rent, or any
other sums due to Landlord hereunder received later than ten (10) days after the
due date, shall be considered a late payment, and such amounts shall bear
interest from the due date until paid at the lesser of: (1) twelve percent (12%)
per annum; or (2) two percent (2%) below the highest nonusurious interest rate
permitted by applicable law. Any such interest shall be payable as additional
rent hereunder and shall be payable to Landlord immediately on demand.
5. Services Provided by Landlord
5.1. Subject to the terms of this Lease, Landlord agrees to
furnish to Tenant:
5.1.1. Air conditioning and heating in season, Monday
through Friday 8:00 a.m. to 8:00 p.m. and Saturdays 9:00 a.m. to 3:00 p.m. and
at such temperatures and in such amounts as are commercially reasonable. Since
this system is under the control of Energy Management, Tenant will pay any cost
increase in the heat or air conditioning for their space for the extended time
period between shutdown at 7:00 PM and 8:00 PM.
5.l.2. Hot and cold water at those points of general
supply provided on the floor on which the Demised Premises are located.
5.l.3. Janitor service on a five (5) day week basis;
provided however, if Tenant's floor covering or other improvements in the
Demised Premises is other than Building standard, Tenant shall pay the
additional cleaning costs attributable thereto as additional rent hereunder.
Tenant shall pay additional rent provided for in this paragraph not later than
ten (10) days after presentation of a statement therefor by Landlord, and
Tenant's failure to timely pay such amount shall constitute a default under this
Lease.
5.l.4. Building standard fluorescent bulb replacement
in all common areas and all incandescent bulb replacement in public areas,
restrooms, and stairwells. Tenant shall pay for all bulb replacement within the
Demised Premises.
5.1.5. Electrical facilities to furnish sufficient
power for typewriters, calculating machines and other machines of similar low
electrical consumption; but not including electricity required for duplicating
and electronic data processing equipment, special lighting in excess of Building
standard, or any other item of electrical equipment, the electrical power
requirement of which singly consumes more than 0.25 kilowatts
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per hour at rated capacity or requires a voltage other than 120 volts single
phase; and provided further that if any installation of said electrical
equipment requires additional air conditioning capacity above that provided by
the Building's standard system, then the additional air conditioning
installation and operating costs shall be the sole obligation of Tenant. Tenant
shall pay to Landlord, monthly as billed, such charges as may be separately
metered or fairly allocated if the Demised Premises are less than the area
covered by the meter (the cost of any such meter and its installation to be
borne by Tenant) or as Landlord's engineer may compute for any electrical
service in excess of that stated above.
5.2. Failure by Landlord to any extent to furnish these
defined services, or any cessation or interruption thereof, resulting from
causes beyond the reasonable control of Landlord, shall not render Landlord
liable in any respect for damages to either persons or property, nor shall the
same be construed an eviction of Tenant, nor work an abatement of rent, nor
relieve or excuse Tenant from fulfillment or performance of any covenant or
agreement hereof. Should any of the equipment or machinery break down, or for
any cause cease to function properly, Tenant shall have no claim for rebate of
rent or damages on account of an interruption of services occasioned thereby or
resulting therefrom. In the event of any such interruption of such services,
Landlord shall use, reasonable diligence to restore such service in any
circumstance in which such restoration is within reasonable control of Landlord.
5.3. Should Tenant desire any additional services beyond those
described in Subarticle 5.1 above, or desire rendition of such services outside
the normal times such services are provided by Landlord, then Landlord may (at
Landlord's option), upon reasonable advance notice from Tenant to Landlord,
furnish such services and Tenant agrees to pay Landlord such charges as may be
agreed upon between Landlord and Tenant, but in no event at a charge less than
Landlord's actual cost, plus overhead for the additional services provided, it
being agreed that the cost to Landlord of such additional services shall be
excluded from the "Basic Cost" as that term is defined in Article 8 of this
Lease.
5.4.1 Landlord shall furnish Tenant with two keys for each
corridor door entering the Demised Premises. Additional keys will be furnished
at a charge determined by Landlord on a written order signed by Tenant or
Tenant's duly authorized representative. All keys shall remain the property of
Landlord. No additional locks shall be allowed on any door of the Demised
Premises without the express written permission of Landlord first received, and
Tenant shall not make or permit to be made any duplicate keys. Upon termination
of this Lease, Tenant shall deliver to Landlord all keys to
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the Demised Premises and shall give to Landlord a full explanation of any
combinations for all locks for safes, and vault doors, if any, in the Demised
Premises.
5.4.2 Landlord shall furnish Tenant with access cards upon
tenant's request. Each card shall require a $7.00 deposit, which will be
refundable at the time of returning those cards. Tenant shall review the
instructions of the access cards which is part of rules and regulation, and
follow it carefully.
5.5. Landlord shall provide and install, at Tenant's cost, all
signs, letters or numerals on the doors in the Demised Premises; all such signs,
letters and numerals shall be in the Building's standard as determined by the
Landlord, and no others shall be used or permitted on the Demised Premises.
Landlord shall also provide and install, at Tenant's expense, a listing for
Tenant's business on the Building directory board.
5.6. All installations now or hereafter placed on the Demised
Premises in excess of "Building standard items," as determined by Landlord,
shall be for Tenant's account and at Tenant's cost (and Tenant shall pay all
taxes related to their improvements and increases in insurance thereon), which
costs shall be payable by Tenant to Landlord as additional rent hereunder
promptly on being invoiced therefor; and failure by Tenant to pay the same in
full within thirty (30) days after receipt of a statement therefor shall
constitute an event of default by Tenant hereunder, giving rise to all remedies
available to Landlord under this Lease and at law for nonpayment of rent.
6. Quiet Enjoyment
6.1. Provided Tenant complies with its covenants, duties,
agreements and obligations hereunder, Tenant shall quietly have, hold and enjoy
the Demised Premises subject to the terms and provisions of this Lease.
7. Repairs and maintenance
7.1. Landlord shall, at Landlord's expense (except as may be
otherwise provided for herein) make the necessary repairs of damage to the
building corridors, lobby. structural members of the Building, HVAC systems,
lighting systems, and equipment used to provide services referred to herein,
unless any such damage is caused by the acts or omissions of Tenant, its agents,
employees, representatives or invitees, in which event Tenant agrees to pay the
costs of such repairs. Tenant will promptly give Landlord written notice of any
damage requiring repair by Landlord as provided above.
7.2. Tenant shall not injure the Demised Premises or
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the Building, but Tenant shall maintain and keep the Demised Premises in a
clean, attractive condition, and in good repair, excepting only damage to be
repaired by Landlord as provided for above. Upon termination of this Lease,
Tenant will surrender and deliver the Demised Premises to Landlord in the same
condition in which they existed at the commencement of the Lease, excepting only
ordinary wear and tear and damage arising from any cause not required to be
repaired by Tenant.
8. Adjustment of Annual Base Rent
8.1. The Annual Base Rent provided for herein includes the
Basic Cost (as that term is hereafter defined) for the last full calendar year
ending on December 31, preceding the Commencement Date of the lease. The Basic
Cost for the calendar year set out in the preceding sentence is herein called
the "Basic Year Cost."
8.2. The term "Basic Cost," as used herein, shall mean all
operating expenses incurred and/or paid with respect to ownership, maintenance
and operation of the Building. All operating expenses shall be determined in
accordance with generally accepted accounting principles applicable to the real
estate industry. The term "operating expenses" as used herein shall mean all
expenses, costs and disbursements (not including specific costs especially
billed to and paid by specific tenants, nor rental commissions) of every kind
and nature which Landlord shall pay or become obligated to pay because of, or in
connection with, the ownership, maintenance and operation of the Building,
including, but not limited to, the following:
8.2.l. Wages and salaries of all employees engaged in
operation and maintenance of the Building, or access control to and from the
Building, including taxes, insurance, and benefits relating thereto.
8.2.2. All supplies, tools, equipment, and material
used in operation and maintenance of the Building.
8.2.3. Management fees relating to management of the
Building.
8.2.4. Costs of all utilities for the Building,
including but not limited to, costs of water and power, heating, lighting, air
conditioning, and ventilating for the Building.
8.2.5. Costs of all maintenance, cleaning,
janitorial, and service agreements relating to the Building and all equipment
and systems therein (including, without limitation, elevator maintenance and
security); and costs of window cleaning.
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8.2.6. Costs of all insurance relating to the
Building including but not limited to, the cost of casualty and liability
insurance and rent insurance and insurance covering Landlord's personal property
used in connection therewith.
8.2.7. All taxes and assessments and other
governmental charges whether federal, state, county or municipal and whether
they be by taxing districts or authorities presently taxing the Demised Premises
or by others subsequently created or otherwise, and any other taxes and
improvement assessments attributable to the Building (and the parcel of land on
which it is erected) or its operation, excluding, however, federal and state
taxes on Landlord's income. It is agreed and understood that Tenant will be
responsible for all ad valorem taxes on its personal property and on the value
of leasehold improvements to the extent that the same exceed Building standard
allowances.
8.2.8. Paragraph deleted.
8.2.9. The cost of capital expenditures made to the
Building by reason of the laws and requirements of any public authorities or the
requirements of any insurance companies or bodies.
If Landlord shall purchase any item of capital equipment or
make any capital expenditure designed to result in savings or reductions in
operating expenses, then the cost thereof shall be included in operating
expenses. The costs of capital equipment or capital expenditures are so to be
included in operating expenses (for each year during the term of this Lease) on
a straight line basis, to the extent that such items are amortized over such
period of time as reasonably can be estimated as the time in which such savings
or reductions in operating expenses are expected to equal Landlord's costs for
such capital equipment or capital expenditure, with an interest factor equal to
the prime interest rate then charged by the Chase Manhattan Bank, plus one
percent (1%), at the time of Landlord's having incurred said costs. If Landlord
shall lease any such item of capital equipment designed to result in savings and
reductions in operating expenses, then the rentals and other costs paid or
incurred in connection with such leasing shall be included in operating expenses
for the year in which they were incurred.
8.3. At the end of each calendar year during the term of this
Lease, Landlord shall compute the Basic Cost (calculated as herein provided) for
such calendar year or portion thereof. The Base Year Cost shall then be
subtracted from the actual Basic Cost for the applicable year, and the remainder
shall be multiplied by the Tenant's Prorata share, the product of
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such multiplication being herein called the "Escalation Payment." Tenant shall
thereupon be obligated to pay to Landlord such Escalation Payment as additional
rent within ten (10) days after Landlord shall have submitted to Tenant a xxxx
or invoice therefor.
8.4. After Landlord shall have submitted to Tenant a xxxx or
invoice for the first Escalation Payment due under Subarticle 8.3 above,
Landlord may thereafter submit to Tenant a xxxx or invoice each month for
one-twelfth (1/12) of such last previous Escalation Payment, or for one-twelfth
(1/12) of such greater amount as may be later estimated by Landlord to be due by
Tenant under this Article 8 as the Escalation Payment for such then current
year. The amount of the first such xxxx or invoice shall be determined by
multiplying the monthly amount due by the number of calendar months of the then
current year which shall have commenced as of the date of the xxxx or invoice.
In the event of such billing or invoicing procedure by Landlord, then Tenant
shall be bound and obligated (and hereby agrees) to pay such indicated amounts
contemporaneously with each required payment of rental hereunder, on the first
day of each calendar month, monthly in advance, for each and every month in the
term of this Lease in lawful money of the United States of America.
8.5. Once each calendar year, Landlord shall perform such
computations as are necessary to determine the Escalation Payment properly
payable by Tenant under this Article 8, whereupon, if Tenant shall have overpaid
pursuant to the monthly estimates referred to above, Landlord shall refund to
Tenant the amount of the excess (less any sums due and owing by Tenant to
Landlord); but if Tenant shall have underpaid, Landlord shall invoice Tenant for
the amount of the underpayment and such underpayment shall be due from Tenant to
Landlord within thirty (30) days thereafter.
8.6. Whenever the term "Tenant's Prorata Share", it shall be
deemed (and it is agreed by Tenant) that such share or proportion is the percent
on the Lease Cover Page.
9. Alterations and Improvements
9.1. Tenant will make no alteration, change, improvement,
repair, replacement or addition to the Demised Premises without the prior
written consent of Landlord which will not be unreasonably withheld. If Landlord
grants such prior written consent, then the work to be done in connection
therewith shall be done at Tenant's sole cost and expense, but by workmen of
Landlord or workmen and/or contractors approved in advance, in writing, by
Landlord and in a manner and upon terms and conditions and at a time
satisfactory to Landlord. In any instance where Landlord grants such consent,
Landlord may grant such consent contingent and conditioned upon Tenant's
contractors, laborers, material, men and others furnishing labor or
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materials for Tenant's job working in harmony and not interfering with any labor
utilized by Landlord, Landlord's contractors or mechanics or by any other tenant
or such tenant's contractors or mechanics; and if at any time such entry by one
or more persons furnishing labor or materials for Tenant's work shall cause
disharmony or interference, the consent granted by Landlord to Tenant may be
withdrawn immediately upon notice to Tenant.
9.2. Any and all permitted alterations, additions,
improvements, or changes (when made to the Demised Premises by Tenant) shall at
once become property of Landlord and shall be surrendered to Landlord upon
termination of this Lease by lapse of time or otherwise; provided, however, this
clause shall not apply to moveable equipment or furniture owned by Tenant.
Tenant hereby expressly waives all rights to any payment or compensation for any
alterations, changes or improvements to the Demised Premises. Notwithstanding
the provision that such alterations, improvements and changes will remain in the
Demised Premises upon termination of this Lease, if Landlord so requests in
writing, Tenant, shall prior to termination of this Lease, remove any and all
alterations, fixtures and property placed or installed by Tenant in the Demised
Premises and will repair any damages caused by such removal.
9.3. Tenant may remove its trade fixtures, moveable office
furniture, and equipment not attached to the Building provided:
9.1.1. Such removal is made not later than two (2)
days following termination of this Lease.
9.3.2. Tenant is not in default of any obligation or
covenant of this Lease at the time of such removal.
9.3.3. Tenant shall promptly repair all damage caused
by such removal.
9.4. If any property not belonging to Landlord
remains at the Demised Premises after expiration of the term of this lease,
tenant hereby authorizes landlord to make such disposition of such property as
landlord may desire without liability for compensation or damages to Tenant in
the event that such property is property of Tenant; and in the event that such
property is the property of someone other than Tenant, Tenant agrees to
expressly indemnify and hold Landlord harmless from any and all claims, damages,
suits, liability, loss and expenses in connection therewith or incident to any
such removal, exercise of dominion over and/or disposition of such property by
Landlord.
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10. Assignment and Subletting
10.1. Neither the Tenant nor Tenant's legal representatives or
successors in interest by operation of law or otherwise shall assign this Lease
or sublease the Demised Premises or any part thereof, or mortgage, pledge, or
hypothecate its leasehold interest or grant any concession or license within the
Demised Premises without the express prior written consent of Landlord which
consent will not be unreasonably withheld and any attempt to do any of the
foregoing, without the express prior written consent of Landlord, shall be null,
void, and of no force and effect. In the event Tenant should desire to assign
this Lease or to sublet the Demised Premises, Tenant shall give Landlord written
notice of such desire at least sixty (60) days in advance of the date on which
Tenant desires to make such assignment or sublease (and Tenant shall deliver to
Landlord with such notice true and correct copies of any written proposal,
memorandum, offer, sublease, or assignment which Tenant has received or which is
proposed) and Tenant shall also deliver to Landlord the names and addresses of
all proposed subtenants or assignees, together with financial statements,
certified by a certified public accountant, and other credit information as
required by Landlord to determine the credit worthiness of the proposed
subtenant or assignee. Landlord shall then have a period of thirty (30) days
following receipt of such notice and information within which to notify Tenant,
in writing, that Landlord elects either (i) to terminate this Lease as to the
space so affected as of the date so specified by Tenant (as to when the proposed
assignment or sublease would take effect), in which event Tenant shall be
relieved of all further obligations hereunder as to such affected space (and in
such event; and at the request of Landlord, Tenant agrees to execute and deliver
to Landlord a written instrument acknowledging that this Lease has been
terminated): or (ii) permit Tenant to assign this Lease or to sublet the
affected space, subject however, to the written approval of the proposed
assignee or sublessee by Landlord; and further subject to the requirement that
Tenant shall enter into a written agreement with Landlord and with such assignee
or sublessee providing that any profit realized by Tenant as a result of such
assignment or sublease ("profit" meaning the consideration agreed upon between
Tenant and the assignee, or the difference between the rental rate agreed upon
between Tenant and sublessee and the rent then required to be paid under this
Lease multiplied by the number of months in the term of the sublease) shall, to
the extent such profit is immediate, be due and payable by Tenant to Landlord
upon the execution of an assignment or sublease, and, to the extent such profit
is deferred, shall be payable to Landlord by the assignee or sublessee as it
accrues; or (iii) to refuse to consent to Tenant's assignment of this Lease or
sublease of the Demised Premises and to continue this Lease in full force and
effect as to the entire Demised Premises. If Landlord should fail to notify
Tenant in writing of its election within the aforesaid thirty (30) day period,
Landlord shall be deemed to have elected option (iii) above. No consent by
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Landlord to any assignment or sublease shall be deemed to be consent to a use
not permitted under this Lease, to any act in violation of the terms of this
Lease, or to any other subsequent assignment or sublease; and no assignment or
sublease by Tenant shall relieve Tenant of any obligations under this Lease. Any
attempted assignment or sublease by Tenant in violation of the terms and
covenants of this Article 10 shall be void and of no force and effect. Landlord
hereby consents to an initial subtenant who will take possession at the
commencement date without further compliance with this paragraph.
10.2. No permitted or consented to assignment or sublease
shall be effective or valid for any purpose whatsoever unless and until a
counterpart of the assignment or a counterpart of the sublease shall have been
first delivered to Landlord, and in the event of an assignment, the Tenant shall
have delivered to Landlord a written agreement, in form and substance acceptable
to Landlord, executed and acknowledged by Tenant and such assignee, in
recordable form, wherein the assignee shall assume, jointly and severally with
Tenant, the due and punctual performance of all of the terms and provisions of
this Lease on Tenant's part to be performed through the end of the term of this
Lease notwithstanding any other or further assignment. Tenant agrees to pay to
Landlord the attorney's fees incurred by Landlord in connection with any
approved sublease or assignment, and any agreements or documents related
thereto.
10.3. If this Lease is assigned, or if the Demised Premises is
sublet or occupied by any person or entity other than Tenant, Landlord may,
after default by Tenant, collect rent and other sums directly from the assignee,
subtenant or other occupant, and apply the net amount collected to the rent
herein reserved; but it is understood and agreed that no such assignment,
subletting or occupancy, or any such collection, shall be deemed a waiver by
Landlord of any of Tenant's covenants contained in this Article 10 or otherwise
under the terms of this Lease, or acceptance of such assignee, subtenant or
occupant as "Tenant," or a release of Tenant from further performance by Tenant
of the covenants on the part of Tenant herein contained.
10.4. Any sublease agreement as permitted under this Lease
shall contain a provision specifying that upon termination of the Lease by
reason of eviction, Landlord shall have the option to either terminate any
sublease permitted hereunder, or to require the subtenant thereunder to enter
into a new lease directly with Landlord on the same terms and conditions as the
sublease. At Landlord's request, the subtenant under any sublease permitted
hereunder shall enter into a written agreement with Landlord confirming the
provisions of this Subarticle 10.04.
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10.5. If Tenant is a corporation, then any transfer of this
Lease from Tenant by merger, consolidation or dissolution or any change in
ownership or power to vote a majority of the voting stock in Tenant
outstanding at the time of execution of this Lease shall constitute an
assignment for the purposes of this Article 10; provided however, that the
acquisition of all stock of a corporate tenant by any corporation, the stock of
which is registered pursuant to the Securities Exchange Act of 1934 or the
merger of a corporate tenant into such a corporation, the stock of which is so
registered shall not itself be deemed a violation of this Article 10. For the
purposes of this Article 10, the term "voting stock" shall refer to shares of
stock regularly entitled to vote for the election of directors of the
corporation involved. If Tenant is a general partnership having one or more
corporations as partners, or if Tenant is a limited partnership having one or
more corporations as general partners, the provisions above shall apply to each
of such corporations as if such corporation had been the Tenant hereunder. If
Tenant is a general partnership (whether or not having any corporations as
partners) or if Tenant is a limited partnership (whether or not having any
corporations as general partners), the transfer of partnership interests
constituting a majority [fifty one percent (51%) or more of the ownership
interest in the partnership] shall be deemed an assignment for the purposes of
this Lease.
10.6. It is understood and agreed by Tenant that no sublease
or assignment shall be permitted to any party which is currently a tenant in the
Building, or any partners, associates, officers, directors, shareholders,
affiliates, or employees of any current tenant in the Building.
10.7. The Tenant agrees that Tenant shall not, under any
circumstances, advertise the space it desires to sublet or assign for a rental
rate less than the "market rate" (as that term is hereafter defined). The term
"market rate" for the purposes of this Subarticle 10.07 is defined to mean the
per square foot rental rate for similar office space in similar buildings
situated within a five-mile radius of the Building.
11. Compliance With Laws
11.1. Tenant, at its own cost and expense, shall comply with
all federal, state, municipal and other laws, ordinances, rules, and regulations
applicable to the Demised Premises and the business conducted therein by Tenant
(including specifically, without limitation, any temperature control
restrictions, or environmental requirements); and Tenant shall not engage in any
activity which would cause Landlord's fire and extended coverage insurance to be
canceled or the rate therefor to be increased (or, at
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Landlord's option, Tenant will pay such increase on demand). Further, Tenant
shall not commit any act which is a nuisance or annoyance to Landlord or to
other tenants, or which might, in the exclusive judgment of Landlord,
appreciably damage Landlord's goodwill or reputation or tend to injure or
depreciate the Building, and Tenant will not commit or permit waste in the
Demised Premises or the Building and will comply with all rules and regulations
applicable to the Building from time to time promulgated by Landlord. The
initial Rules and Regulations of the Building are attach hereto as Exhibit "C"
and made a part hereof for all purposes. Tenant will not paint, erect or
display, any advertisement, placard, or lettering which is visible in the
corridors or in the lobby of the Building or from the exterior of the Building
without Landlord's express prior written approval.
12. Fire Or Other Casualty
12.1. If at any time during the term of this Lease, the
Demised Premises or any portion of the Building shall be damaged or destroyed by
fire or other casualty, then Landlord shall have the election to terminate this
Lease or to repair and reconstruct the Demised Premises and Building to the
condition in which they existed immediately prior to such damage or destruction
and Landlord shall give Tenant notice of such election within sixty (60) days
from the date of such damage or destruction.
12.2. In any of the circumstances provided for in Article 12.1
above, rental shall xxxxx proportionately during the period and to the extent
that the Demised Premises are unfit for use by Tenant in the ordinary conduct of
its business. If Landlord has elected to repair and restore the Demised
Premises, this Lease shall continue in full force and effect and such repairs
will be made within a reasonable time thereafter, subject to delays arising from
shortages of labor or material, acts of God, war, or other conditions beyond
Landlord's reasonable control. In the event this Lease is terminated as herein
permitted, Landlord shall refund to Tenant any prepaid rent (unaccrued as of the
date of damage or destruction) less any sum then owing to Landlord by Tenant. If
Landlord has elected to repair and reconstruct the Demised Premises, then the
Lease term shall be extended by a period of time equal to the period of repair
and reconstruction.
13. Eminent Domain
13.1. If any part of the Demised Premises or the Building
shall be taken by the exercise of the power of eminent domain during the term of
this Lease, Landlord may elect to terminate this Lease or to continue the same
in effect. If Landlord elects to continue this Lease, the rental shall be
reduced in proportion to the area of the Demised Premises so taken and the
Landlord shall repair any damage to the Demised Premises or Building resulting
from such taking. All sums awarded or agreed upon between
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Landlord and the condemning authority for taking of the interest of Landlord or
Tenant, whether as damages or compensation, will be the property of Landlord
without prejudice however, to the claims of Tenant against the condemning
authority on account of the unamortized cost of leasehold improvements paid for
by Tenant taken by the condemning authority. If this Lease should be terminated
under any provision of this Article 13.1. rental shall be payable to the date
that possession is taken by the condemning authority, and Landlord will refund
to the Tenant any prepaid unaccrued rent less any sum then owing by Tenant to
Landlord.
14. Indemnity
14.1. Except for injury, death, or property damage resulting
solely from the negligence of Landlord for which Landlord is legally liable,
Tenant agrees to expressly indemnify and save Landlord harmless from all claims
(including costs and expenses of defending against such claims) arising or
alleged to arise from any act or omission of Tenant or Tenant's agents,
employees, contractors, or invitees, or resulting from any injury to any person
or damage to any property of any person occurring during the term of this Lease
in the Building or in the Demised Premises. Tenant agrees to use and occupy the
Demised Premises and other facilities of the Building at its own risk and hereby
releases Landlord, its agents or employees, from all claims for any damage
or injury to the full extent permitted by law.
14.2. Tenant agrees that Landlord shall not be responsible or
liable to Tenant, its employees, agents, customers or invitees for bodily
injury (fatal or nonfatal) or property damage occasioned by the acts or
omissions of any other tenant or such tenant's employees, agents, contractors,
customers, or invitees within the Building.
14.3. Tenant shall, at its sole cost and expense, procure and
maintain throughout the term of this Lease, a policy of general comprehensive
liability insurance insuring Landlord (Landlord shall be a named insured) as
well as Tenant, against any and all liability for injury to or death of a person
or persons and for damage to or destruction of property occasioned by or arising
out of or in connection with the use or occupancy of the Demised Premises or by
the condition of the Demised Premises. Such policy shall contain a blanket
contractual liability endorsement (including the contractual liability of Tenant
to indemnify Landlord) and shall contain a combined single limit of not less
than $1,000,000.00 with respect to injuries to or death of any person(s) or
property damaged or destroyed or such other limits as may from time to time be
required by Landlord, and shall be written by an insurance company or companies
satisfactory to Landlord and licensed to do business in the State of
Connecticut, with the Landlord named as an additional insured. Tenant shall
obtain a written obligation on the part of
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the insurance company issuing such policy to notify Landlord at least thirty
(30) days prior to cancellation of such insurance. Such policy or duly executed
certificates of insurance relating thereto, shall be promptly delivered to
Landlord and renewals thereof shall be delivered to Landlord at least thirty
(30) days prior to the expiration of the term of such policy. If Tenant shall
fail to comply with the foregoing requirements, or any of them, Landlord may,
but shall not have the obligation to, obtain such insurance for Tenant and
Tenant shall pay to Landlord, upon demand, the premium cost thereof as
additional rental hereunder.
15. Waiver of Subrogation
15.1. In the event that either Landlord or Tenant sustains a
loss by reason of fire or other casualty which is a type of risk covered by such
parties fire and extended coverage insurance policy and such fire or casualty is
caused in whole or in part by acts or omissions of the other party, its agents,
servants, or employees, then the party sustaining such loss agrees that to the
extent that the party sustaining such loss is compensated for such loss by its
aforesaid insurance proceeds, the party sustaining such loss shall have no right
of recovery against the other party, or the agents, servants, or employees of
the other party; and no third party shall have any right of recovery by way of
subrogation or assignment or otherwise.
16. Subordination
16.1. This Lease is and shall be subject and subordinate to
all ground or underlying leases which may now or hereafter affect the real
property of which the Demised Premises is a part, and to all deeds of trust and
mortgages which may now or hereafter affect any such leases or such real
property, and to all renewals, modifications, replacements, and extensions
thereof. Tenant agrees that any such ground lessor or any mortgagee and/or
beneficiary of any deed of trust or other lien shall have the right at any time
to subordinate such lease, mortgage, deed of trust or other lien to this Lease
on such terms and subject to such conditions as they shall deem appropriate, in
their sole discretion. Upon demand, Tenant agrees to execute any further
instruments subordinating this Lease as Landlord, or any ground lessor or
mortgagee or beneficiary of any deed of trust affecting the Demised Premises may
request. The provisions of this Article 16 shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver, at its cost and
expense, any instrument, in recordable form if required, that Landlord, the
lessor of any ground lease, or the holder of any mortgage, or the beneficiary of
any deed of trust or any of their respective successors in interest may request
to evidence such subordination.
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17. Access By Landlord
17.1. Landlord, its agents, representatives and employees
shall have access to and the right to enter upon the Demised Premises at any
reasonable time and with 24 hour notice to examine the condition thereof, to
make any repairs or alterations required to be made by Landlord hereunder, to
show the Demised Premises to prospective purchasers or tenants, and for any
other purpose deemed reasonable by Landlord and the Landlord may enter the
premises at any time for purposes of an emergency.
18. Landlord's Lien
18.1. To secure the payment of all rent due and to become due
hereunder, and the faithful performance of all of the other covenants of this
lease required by tenant to be performed, tenant hereby gives to landlord an
express contract lien on and a security interest in, all property, fixtures,
equipment, furnishings and merchandise which may be placed in the demised
premises and also upon all proceeds of any insurance which may accrue to tenant
by reason of damage to or destruction of any such property. The provisions of
this paragraph relating to said lien and security interest shall constitute a
security agreement under the uniform commercial code so that the landlord shall
have and may enforce a security interest on all property of tenant now or
hereafter placed in or on the demised premises, including, but not limited to,
machinery, equipment, fixtures, furnishings, and other articles of personal
property now or hereafter placed in or upon the demised premises by tenant.
Tenant agrees to execute, as debtor, such financing statements as landlord may
now or hereafter reasonably request in order that such security interest or
interests may be protected pursuant to the uniform commercial code. Landlord
may, at its election at any time, file a copy of this lease as a financing
statement. Landlord, as secured party, shall be entitled to all of the rights
and remedies afforded a secured party under the uniform commercial code in
addition to and cumulative of the landlord's liens and rights provided by law or
by the other terms and provisions of this lease. Tenant hereby waives all
exemption laws. Tenant hereby unconditionally agrees to execute, concurrent with
this lease and from time to time as required by Landlord, all forms necessary
for filing with the Secretary of State for the State of Connecticut to perfect
such lien and security interest. Tenant's failure to execute such forms shall
constitute a default hereunder.
19. Default and Remedies
19.1. If default be made in the payment of any sum to be paid
by Tenant to Landlord under this Lease, and such default shall continue for
ten(10) days; or default shall be made in the performance of any of the other
covenants or conditions which Tenant is required to observe and
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to perform, and such default shall continue for fifteen (15) days; or if the
interest of Tenant under this Lease shall be levied on under execution or other
legal process, or if any petition shall be filed by or against Tenant to declare
Tenant a bankrupt or to delay, reduce or modify Tenant's debt or obligations; or
if any petition shall be filed or other action taken to reorganize or modify
Tenant's capital structure if Tenant be a corporation or other entity; or if
Tenant be declared insolvent according to law, or if any assignment of Tenant's
property shall be made for the benefit of creditors; or if a receiver or trustee
is appointed for Tenant or its property; or if Tenant shall abandon the Demised
Premises during the term of this Lease or any renewals or extensions thereof,
then Landlord may treat the occurrence of any one or more of the foregoing
events as a breach of this Lease (provided that no such levy, execution, legal
process or petition filed against Tenant shall constitute a breach of this Lease
if Tenant shall vigorously contest the same by appropriate proceedings and shall
remove or vacate the same within thirty (30) days from the date of its
creation, or filing) and thereupon, at Landlord's option, Landlord may have any
one or more of the following described remedies in addition to all other rights
and remedies provided at law or in equity:
19.1.1. Landlord may terminate this Lease and forthwith
repossess the Demised Premises and be entitled to recover forthwith as damages a
sum of money equal to the total of:
19.1.1.1. The cost of recovering the Demised
Premises.
19.1.1.2. The unpaid rent earned at the time of
termination, plus interest thereon at the maximum applicable lawful interest
rate from the due date.
19.1.1.3. The balance of the rent for the
remainder of the term of the Lease, less the fair market rental value of the
Demised Premises for said period.
19.1.1.4. Any other sum of money and damages
owed by Tenant to Landlord.
19.1.2. Landlord may terminate Tenant's right of
possession (but not the Lease) and may repossess the Demised Premises by
forcible entry or detainer suit or otherwise, without demand or notice of any
kind to Tenant and without terminating this Lease, in which event Landlord may,
but shall be under no obligation to do so, relet the same for the account of
Tenant for such rent and upon such terms as shall be satisfactory to Land-
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lord. For the purpose of such reletting Landlord is authorized to decorate or to
make any repairs, changes, alterations or additions in or to the Demised
Premises that may be necessary or convenient, and if Landlord shall fail or
refuse to relet the Demised Premises, or if the same are relet and a sufficient
sum shall not be realized from such reletting after paying the unpaid Annual
Base Rent and additional rent due hereunder earned but unpaid at the time of
reletting plus interest thereon at the maximum lawful interest rate, the cost of
recovering possession, and all of the costs and expenses of such decorations,
repairs, changes, alterations and additions and the expense of such reletting
and of the collection of the rent accruing therefrom to satisfy the rent
provided for in this Lease to be paid, the Tenant shall pay to Landlord as
damages a sum equal to the amount of the rental reserved in this Lease for such
periods, or if the Demised Premises have been relet, the Tenant shall satisfy
and pay any such deficiency upon demand therefor from time to time and Tenant
agrees that Landlord may file suit to recover any sums falling due under the
terms of this Article 19 from time to time, and that no delivery to or recovery
of any portion due Landlord hereunder shall be any defense in any action to
recover any amount not theretofore reduced to judgment in favor of Landlord nor
shall such reletting be construed as an election on the part of Landlord to
terminate this Lease unless a written notice of such intention be given to
Tenant by Landlord. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for any such
previous breach.
19.2. Failure of Landlord to declare any default immediately
upon occurrence thereof, or delay in taking any action in connection therewith,
shall not waive such default, but Landlord shall have the right to declare any
such default at any time and take such action as might be lawful or authorized
hereunder, either in law or equity.
19.3. In the event of default by Tenant in any of the terms or
covenants of this Lease or in the event the Demised Premises are abandoned by
Tenant, Landlord shall have the right, but not the obligation, to relet same for
the remainder of the term provided for herein, and if the rent received through
reletting does not at least equal the rent provided for herein, Tenant shall pay
and satisfy the deficiency between the amount of the rent so provided for and
that received through reletting, including, but not limited to, the cost of
renovating, altering and decorating for a new occupant. Nothing herein shall be
construed as in any way denying Landlord the right, in the event of abandonment
of the Demised Premises or other breach of this Agreement by Tenant, to treat
the same as an entire breach and at Landlord's option to terminate this Lease
and/or immediately seek recovery for the entire breach of this Lease, and any
and all damages which Landlord suffers thereby.
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19.4. Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies herein provided or any other
remedies provided by law, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent or other sums due to Landlord
hereunder or of any damages accruing to Landlord by reason of the violation of
any of the terms, provisions and covenants herein contained. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to constitute a waiver
of any other violation or breach of any of the terms, provisions and covenants
herein contained. Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default.
19.5. In the event of any default by Landlord, Tenant's
exclusive remedy shall be an action for damages (Tenant hereby waiving the
benefit of any laws granting it a lien or claim upon Landlord's property and/or
rent due Landlord), but prior to any action Tenant will give Landlord (and any
mortgagee of Landlord whose name and address is made known to Tenant) written
notice specifying in detail such default, and Landlord (or Landlord's mortgagee)
shall thereupon have forty-five (45) days (plus such additional reasonable
period as may be required in the exercise by Landlord or Landlord's mortgagee of
due diligence) in which to cure any such default. Unless and until Landlord
fails to so cure any default after such notice, Tenant shall not have any remedy
or cause of action by reason thereof. In the event Landlord's mortgagee elects
to cure any default by Landlord (which Landlord's mortgagee may elect to do, but
shall not be obligated to do), Tenant will accept such curative action as if
such action had been taken by Landlord. All obligations of Landlord hereunder
will be construed as covenants, not conditions; and all such obligations will be
binding upon Landlord only during the period of its possession and ownership of
the Building and not thereafter.
19.6. Paragraph deleted.
19.7. Landlord at any time and without notice, may, but shall
not be obligated to, cure any default by Tenant. All costs and expenses incurred
by Landlord in curing any such default by Tenant, including reasonable
attorney's fees and interest (at the maximum rate allowed by applicable law)
from the date such costs and expenses were incurred, shall be paid by Tenant to
Landlord on demand and shall be recoverable as rent.
20. Nonwaiver
20.1. Neither acceptance of rent by Landlord nor
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failure by Landlord to complain of any action, nonaction or default of Tenant
shall constitute a waiver of any of Landlord's rights hereunder. Waiver by
Landlord of any right for any default of Tenant shall not constitute a waiver of
any default of any right for either a subsequent default of the same obligation
or any other default.
21. Holding Over
21.1. If Tenant should remain in possession of the Demised
Premises after the expiration or termination of the term of this Lease, without
the execution by Landlord and Tenant of a new Lease, then Tenant shall be deemed
to be occupying the Demised Premises as a tenant-at-sufferance, subject to all
the covenants and obligations of this Lease and at a daily rental of two times
the per day rental provided hereunder (and which is applicable for the month
preceding the month in which the date of expiration or termination occurs),
computed on the basis of a thirty (30) day month.
22. Notice
22.1. Any notice which may or shall be given under the terms
of this Lease shall be in writing and shall be either sent by United States
Registered, Certified Mail, postage prepaid, with return receipt requested or by
third party courier, such as Federal Express, if for Landlord, to the Building
office, or if for Tenant, to the Demised Premises. Such addresses may be changed
from time to time by either party by giving notice as provided above. Notice
shall be deemed given when delivered or when postmarked.
23. Limitation of Landlord's Liability
23.1. Tenant agrees to look solely to Landlord's estate and
interest in the land and Building [or the (ground) lease of the Building, if
applicable] and the Demised Premises, for the satisfaction of any right or
remedy of Tenant or the collection of any judgment (or other judicial process)
requiring the payment of money by Landlord, in the event of any liability by
Landlord, and no other property or assets of Landlord (or the partners or
members thereof if Landlord is other than an individual or corporation) shall be
subject to levy, execution or attachment or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant's use and occupancy of
the Demised Premises or the Building, or any other liability of Landlord to
Tenant. The term "Landlord" as used in this Lease means only the owner, or the
mortgagee in possession, for the time being of the land and the Building (or the
owner of any lease of the Building or the land upon which it is situated and the
Building) so that in the event of any transfer of title to the land and Building
or said lease, or in the event of a
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lease of the Building or of the land and Building, upon notification to Tenant
of such transfer or lease the said transferor Landlord shall be and hereby is
entirely freed and relieved of any and all covenants, obligations and
liabilities of Landlord, hereunder and it shall be deemed and construed as a
covenant running with the land without further agreement between the parties or
their successors in interest, or between the parties or any transferee of title
to the land and Building (or any applicable ground lease, or any lease of the
Building) that the transferee or the lessee has assumed and agreed to carry out
any and all such covenants, obligations, and liabilities of Landlord hereunder.
24. Estoppel Certificate
24.1. At Landlord's request, Tenant shall execute, acknowledge
and deliver to Landlord (or any third party designated by Landlord), within five
(5) days after such request, a statement in writing certifying that this Lease
is unmodified and in full force and effect (or if there has been any
modifications, that the same is in full force and effect, as modified, and
stating with particularity the nature of each modification) and the dates to
which rent and other charges may have been paid in advance, it being intended
that any such statement delivered pursuant to this Article 24 may be relied upon
by any prospective purchaser, assignee or encumbrancer of the Building and/or
the Demised Premises. Any such statement shall contain, in addition to matters
set forth above, and upon the designation by Landlord, the following:
24.1.1. Any rent deposits, security deposits, or
advance rentals paid.
24.1.2. The fact that no default exists hereunder by
either Landlord or Tenant, or if any default is claimed, specify the nature of
such default.
25. Attorneys' Fees
25.1. In the event Tenant shall default in the performance of
any of the terms, covenants, agreements, or conditions contained in this Lease
and Landlord places the enforcement of this Lease, or a part thereof, or the
collection of any rent due hereunder or to become due hereunder, or recovery of
possession of the Demised Premises in the hands of an attorney, or files suit
upon the same, Tenant agrees to pay to Landlord the reasonable attorneys' fees
incurred by Landlord in connection therewith, together with all court costs and
expenses related thereto.
26. Administrative Charge for Late Payment
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26.1. Any payment of Annual Base Rent received by Landlord
after the tenth (10th) day of the month shall be considered a late payment, and
an administrative charge of $25.00 (per late payment) shall become due and
payable to Landlord on demand, to compensate Landlord for the cost, time, and
inconvenience of collecting late rents, which administrative charge shall be
deemed as additional rent due hereunder. The date the payment is received, in
good and sufficient funds, shall be considered the effective date for purposes
of determining the administrative charge. Any payments made by check shall be
considered late, and the terms of this Lease shall be considered breached by
Tenant, should such check not be paid upon first presentation to Tenant's
indicated bank. Acceptance by Landlord of late rent and administrative charges
due therefor shall not constitute a waiver of Landlord's rights and remedies
available in connection with any subsequent failure of Tenant to pay the Annual
Base Rent (or any additional rents due hereunder) or to make any other payment
due Landlord hereunder in the manner or time provided for herein. Landlord shall
have the same remedies for default for the payment of additional rent as are
available to Landlord in the case of a default in payment of Annual Base Rent.
27. Relocation and Substitution of Premises
27.1. Landlord shall have the right to relocate Tenant in
other space within the Building, provided that such space is comparable in size
and sufficient for Tenant's intended use in Landlord's reasonable judgment. In
the event Landlord shall elect to relocate Tenant pursuant to the provisions of
this paragraph, Landlord shall give Tenant not less than sixty (60) days'
written notice, indicating the location of Tenant's new space and the date on
which Tenant shall move to Tenant's new space in the Building. Upon receipt of
notice from Landlord that Landlord elects to relocate Tenant pursuant to the
provisions hereof, Tenant shall notify Landlord, not later than twenty (20) days
after receipt of such notice, that Tenant will move to the space designated by
Landlord in the Building or will not accept such move and elects to terminate
this Lease, such termination to be effective thirty (30) days after Tenant so
notifies Landlord. If Tenant does not so notify Landlord that Tenant either
accepts relocation designated by Landlord or terminates this Lease, all within
twenty (20) days after receipt of notice from Landlord that Landlord has elected
to relocate Tenant, then this Lease shall terminate effective thirty (30) days
after Tenant receives notice from Landlord to relocate. Landlord agrees to pay
the cost of moving Tenant's furniture and equipment to the new space. In the
event Tenant elects not to relocate and to terminate this Lease, Landlord shall
have no liability to Tenant for earlier termination of this Lease or for any
cost or expense of moving from the Demised Premises. When Tenant has moved, the
new space shall be the "Demised Premises" which is the subject of this Lease.
Otherwise, neither the terms and provisions hereof nor Tenant's duties and
obligations
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hereunder shall be affected by relocation of Tenant to other space in the
Building.
28. Miscellaneous
28.1. In any circumstance where Landlord is permitted to enter
upon the Demised Premises during the lease term, whether for the purpose of
curing any default of Tenant, repairing damage resulting from fire or other
casualty or an eminent domain taking or is otherwise permitted hereunder or by
law to go-upon the Demised Premises, no such entry shall constitute an eviction
or disturbance of Tenant's use and possession of the Demised Premises or a
breach by Landlord of any of its obligations hereunder or render Landlord liable
for damages for loss of business or otherwise or entitle Tenant to be relieved
from any of its obligations hereunder or grant Tenant any right of set-off or
recoupment or other remedy; and in connection with any such entry incident to
performance of repairs, replacements, maintenance or construction, all of the
aforesaid provisions shall be applicable notwithstanding that Landlord may elect
to take building materials in, to or upon the Demised Premises that may be
required or utilized in connection with such entry by Landlord.
28.2. Landlord may restrain or enjoin any breach or threatened
breach of any covenant, duty, or obligation of Tenant herein contained without
the necessity of proving the inadequacy of any legal remedy or irreparable harm.
The remedies of Landlord hereunder shall be deemed cumulative and no remedy of
Landlord, whether exercised by Landlord or not, shall be deemed to be in
exclusion of any other.
28.3. Except as may be otherwise herein expressly provided, in
all circumstances under this Lease where prior consent or permission of one
party ("first party") is required before the other party ("second party") is
authorized to take any particular type of action, the matter of whether to grant
such consent or permission shall be within the sole and exclusive judgment and
discretion of the first party; and it shall not constitute any nature or breach
by the first party hereunder or any defense to the performance of any covenant,
duty or obligation of the second party hereunder that the first party delayed
or withheld the granting of such consent or permission, whether or not the delay
or withholding of such consent or permission was prudent or reasonable or based
on good cause.
28.4. In all instances where Tenant is required hereunder to
pay any sum or do any act at a particular indicated time or within an indicated
period, except as expressly otherwise provided herein, it is understood that
time is of the essence.
28.5. The obligation of Tenant to pay all rent and
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other sums hereunder provided to be paid by Tenant and the obligation of Tenant
to perform Tenant's other covenants and duties hereunder constitute independent,
unconditional obligations to be performed at all times provided for hereunder,
save and except only when an abatement thereof or reduction therein is
hereinabove expressly provided for and not otherwise. Tenant waives and
relinquishes all rights which Tenant might have to claim any nature of lien
against or withhold, or deduct from or offset against any rent and other sums
provided hereunder to be paid Landlord by Tenant. Tenant waives and relinquishes
any right to assert, either as a claim or as a defense, that Landlord is bound
to perform or is liable for the nonperformance on any implied covenant or
implied duty of Landlord not expressly herein set forth.
28.6. Absent intentional, willful or reckless conduct,
Landlord shall not be liable for consequential damages or special damages.
28.7. Tenant agrees that no food, soft drinks, or other
vending machine will be installed within the Demised Premises without the
written consent of Landlord first received which consent will not be
unreasonably withheld.
28.8. All monetary obligations of Landlord and Tenant
(including, without limitation, any monetary obligation of Landlord or Tenant
for damages for any breach of the respective covenants, duties or obligations of
Landlord or Tenant hereunder) are performable exclusively in South Norwalk,
Connecticut.
28.9. If any provision of this Lease shall ever be held to be
invalid or unenforceable, such invalidity or unenforceability the remainder
shall not affect thereby and each and every other term, covenant and provision
of the Lease shall be valid and enforceable to the fullest extent permitted by
law.
28.10. Landlord shall have the right, at any time and from
time to time, to change the name of the Building.
28.11. Nothing herein contained shall be deemed or construed
by the parties hereto, or by any third party, as creating the relationship of
principal and agent or of a partnership or joint venture between the parties
hereto, it being understood and agreed that neither the provisions hereof nor
the acts of the parties shall be deemed to create any relationship between the
parties hereto other than the relationship of Landlord and Tenant.
28.12. Tenant hereby acknowledges that landlord
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makes no warranties of any kind or nature, express or implied, not specifically
set forth above in this lease, whether with respect to the physical condition of
the demised premises or the building or any other matter whatsoever. To the
maximum extent permitted by law, landlord disclaims any such warranties,
specifically including, but not limited to, any warranty of habitability or
fitness for any particular purpose.
28.13. If there be more than one person or entity named as
"Tenant" in this Lease, the obligations imposed upon Tenant shall be joint and
several. If there shall be any Guarantor(s) of Tenant's obligations hereunder,
the obligations hereunder imposed upon Tenant shall be joint and several
obligations of Tenant and such Guarantor(s); and Landlord need not first proceed
against Tenant hereunder before proceeding against any such Guarantor(s) nor
shall any such Guarantor(s) be released from its, or their, guarantee, for any
reason whatsoever.
28.14. This Lease and any work letter, exhibits or addenda
signed by the parties and attached hereto constitute the entire agreements
between Landlord and Tenant. No prior written or prior contemporaneous oral
promises or representations shall be binding.
28.15. This Lease shall not be amended, changed or extended
except by written instrument signed by Landlord and Tenant.
28.16. The provisions of this Lease shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors and
assigns of the parties hereto, provided however this provision shall in no way
whatsoever alter the restriction herein regarding assignment and subletting by
Tenant.
28.17. Paragraph captions herein are for convenience only and
shall neither limit or amplify the provisions of this Lease.
28.18. The submission of this Lease by Landlord for
examination shall not constitute a reservation or option for the Demised
Premises and this Lease shall become effective only upon execution hereof by all
parties hereto and delivery of a fully executed copy to Landlord.
28.19. If any guaranty of this Lease by a third party
designated by Landlord is required by Landlord, such designated third party
guaranty shall be of the form and substance of Exhibit "E" attached hereto and
made a part hereof for all purposes. Landlord may terminate this Lease at any
time after Landlord requests such guaranty to be delivered by Tenant until
Landlord receives such guaranty fully executed by the third party Guarantors
designated by Landlord.
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29. Signage
29.1. It is understood and agreed that all other aspects of
Tenant's signs, including but not limited to size, materials and color, must be
first approved by Landlord, in writing, and is also subject to all restrictions,
codes, regulations and ordinances which affect the property upon which the
Building is situated. The cost and maintenance of Tenant's signs shall be paid
by Tenant.
30. Parking
30.1. Landlord shall make available to Tenant the number of
Parking Permits listed on the Lease Cover Page.
31. Redevelopment Regulations
31.1 The Tenant understands that the premises is subject to an
Urban Renewal Act, as amended and as such agrees to be bound by these
regulations as enforced by the Norwalk Redevelopment Agency or any other
governmental agency.
32. Mechanics Liens
32.1 If any act or omission by Tenant, its successors or
assigns, sub-lessee or any other party occupying the Demised Premises, results
in any mechanics lien or other lien, being filed against Landlord or the Demised
Premises, Tenant shall at its sole cost, discharge or bond the same within
thirty (30) days after Tenant receives written notice thereof or Landlord
receives written notice thereof and Landlord notifies Tenant in writing. Tenant
hereby indemnifies and holds Landlord harmless against all costs, liabilities,
suits, penalties, claims and demands, including reasonable attorney's fees,
which may result therefrom.
33. OPTION TO RENEW
33.1 Landlord hereby grants to Tenant the option to extend
this Lease for such renewal terms as are shown at 1.(d) on the lease cover page
upon the same terms, conditions, covenants and provisions as are herein
contained except for this Option to Renew and for the Annual Base Rent specified
on the lease cover page. This option to renew shall be exercised by the Tenant's
delivery to the Landlord a written notice of the Tenant's uncon-
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ditional exercise of this option, prior to the day specified at 1.(e), Option
Date. The Annual Base Rent for the Renewal Term shall be in accordance with the
calculation or Annual Base Rent at 1.(f) on the lease cover page.
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EXECUTED on this 4th day of April, 1997
LANDLORD:
00 Xxxxxxxxxx Xx. Realty Corp.
By: /s/ Illegible signature
Name: /s/ Illegible signature
Title: President
TENANT:
Pequot Systems, Inc.
Cybernet Data Systems, Inc.
By: /s/ Xxxxxxx Xxxxxxx
Name: /s/ Xxxxxxx Xxxxxxx
Title: Vice President
Cybernet Data Systms, Inc.
By: /s/ Xxxx Xxxxxxxxxx
Name: /s/ Xxxx Xxxxxxxxxx
Title: CO-CEO
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EXHIBIT "B"
RULES AND
REGULATIONS
1. Tenant will refer all contractors, contractors representatives and
installation technicians rendering any service for Tenant to Landlord's
supervision and/or approval before performance of any such installation
of telephones, telegraph equipment, electrical devices and attachments,
and installations of any and every nature affecting floors, walls,
woodwork, trim, windows, ceiling, equipment or any other physical
portion of the Building. None of this work will be done by Tenant
without Landlord's prior written approval which consent will not be
unreasonably withheld.
2. The work of the janitor or cleaning personnel shall not be hindered by
Tenant after 5:30 P.M., and such work may be done at any time when the
offices are vacant. The windows, doors, and fixtures may be cleaned at
any time. Tenant shall provide adequate waste and rubbish receptacles,
cabinets, bookcases, map cases, etc,. necessary to prevent unreasonable
hardship to Landlord in discharging its obligation regarding cleaning
service.
3. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which
requires the use of elevators or stairways, or movement through the
Building entrance or lobby shall be restricted to the hours designated
by Landlord from time to time; all such movement shall be as directed by
Landlord and in a manner to be agreed upon between Tenant and Landlord
by prearrangement before performance; such prearrangement initiated by
Tenant shall include determination by Landlord and subject to its
decision and control of the time, method, and routine of movement.
Limitations imposed by safety or other concerns which may prohibit any
article, equipment or any other item being brought into the Building.
Tenant expressly assumes all risk of damage to any and all articles so
moved, as well as injury to any person or persons or the public engaged
or not engaged in such movement, including equipment, property and
personnel of Landlord if damaged or injured as a result of any acts in
connection with carrying out this service for Tenant from the time of
entering property to completion of the work, and Landlord shall not be
liable for the act or acts of any person or persons so engaged in, or
any damage or loss to any property or persons resulting directly or
indirectly from any act in connection with such service performed by or
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for Tenant.
4. No sign or signs in any form will be allowed on the exterior of the
Building or on any window or windows inside or outside of the Building;
and no sign or signs will be permitted in any atrium, plaza, hallway,
tunnel, public corridor or on corridor doors or entrances to the Demised
Premises, except for those signs which receive the prior written
approval of Landlord; and no signs shall be permitted on the interior of
the Demised Premises which are visible from the exterior of the Demised
Premises, without the express, prior written approval of Landlord.
Notwithstanding the foregoing, it is understood by Tenant that all
signage in the Demised Premises or on any portion of the Demised
Premises must first receive the written approval of Landlord.
5. Tenant shall not place, install or operate on the Demised Premises or in
any part of the Building, any engine, stove or machinery, or conduct
mechanical operations or xxxx thereon or therein, or place or use in or
about the Demised Premises any explosives, gasoline, kerosine, oil,
acids, caustics, or any other flammable, explosive, or hazardous
material or conduct activities that produce loud or obnoxious sounds, or
cause any odors whatsoever without the prior written consent of
Landlord.
6. No portion of any Tenant's leased area shall at any time be used for
cooking, sleeping, or lodging quarters. No birds, animals or pets of any
type, with the exception of guide dogs accompanying visually handicapped
persons, shall be brought into or kept in, on or about Tenant's leased
area.
7. Landlord may permit entrance to Tenant's offices by use of pass keys
controlled by Landlord or employees, contractors, or service personnel
supervised or employed by Landlord.
8. None of the entries, passage doors, elevators, elevator doors, hallways,
or stairways shall be blocked or obstructed, or any rubbish, litter,
trash or material of any nature placed, emptied or thrown into these
areas, or such areas be used any time except for access or egress by
Tenant's agents, employees or invitees.
9. Tenant shall obtain Landlord's and mortgagee's approval for structural
changes and/or alterations of the Building exterior or interior of any
nature.
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10. The location, weight and supporting devices for any safes and other
heavy equipment shall in all cases be approved by Landlord prior to
initial installation or relocation.
11. Corridor doors, when not in use, shall be kept closed.
12. To insure orderly operation of the Building, Landlord reserves the right
to approve all concessionaires, vending machine operators or other
distributors of cold drinks, coffees, foods or other concessions, water,
towels, or newspapers.
13. Landlord shall not be responsible to the Tenant, its agents, employees
or invitees for any loss of money, jewelry or other personal property
from the Demised Premises or public areas or for any damages to any
property therein from any cause whatsoever whether or not such loss or
damage occurs when an area is locked against entry.
14. Tenant shall exercise reasonable precaution in the protection of its
personal property from loss or damage by keeping doors or unattended
areas locked. Tenant shall also report any thefts or losses to the
Building Manager and security personnel as soon as reasonably possible
after discovery.
15. Tenant, its employees, guests and invitees may be called to show
suitable identification and sign a building register when entering or
leaving the Building at times other than normal building operating hours
and all tenants shall cooperate fully with building security personnel
in complying with such requirements.
16. Tenant shall not solicit or circulate advertising material among other
tenants of the Building except through the regular use of U.S. Mail
Service. Tenant shall notify the Building Manager or the building
security personnel promptly if it comes to Tenant's attention that any
unauthorized persons are soliciting from or causing annoyance to
tenants, their employees, guests or invitees.
17. Landlord reserves the right to deny entrance to the Building or remove
any person or persons from the Building in any case, where the conduct
of such person or persons, in the sole opinion of Landlord, involves a
hazard or nuisance to any tenant of the Building, tenants or the general
public.
18. Landlord shall not be liable for any damages from the stoppage of
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elevators for necessary or desirable repairs or improvements, or delays
of any duration in connection with the elevator service. Temporary
inconvenience occasioned in connection with construction shall not be
deemed to disturb Tenant as a part of the covenant of quiet enjoyment
and possession.
19. Tenant shall not alter any lock or install any new locks or bolts on any
doors or windows of the Demised Premises, without the prior written
consent of the Landlord.
20. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever, shall be thrown therein and
the expense, stoppage or damage resulting from the violation of this
rule shall be borne by Tenant who, or whose agents, officers, employees,
contractors, servants, invitees or guests, shall have caused such
damage.
21. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Demised Premises, or permit to suffer
the Demised Premises to be occupied or used in a manner offensive or
objectionable to the Landlord or other occupants of the Building by
reason of noise, odors, and/or vibrations, or interfere in any way with
other tenants or those having business therein.
22. All requests for overtime air conditioning or heating must be submitted
in writing to the management office by 2:00 P.M. on the prior business
day for weekday requests and by 2:00 P.M. Friday for weekend requests.
23. All tenant modifications resulting from remodeling in or to the Demised
Premises must conform to all local and governmental laws and codes.
24. Tenants shall not tamper with or attempt to adjust temperature control
thermostats in the Demised Premises. Landlord shall adjust thermostats,
as necessary, to maintain the Building standard temperature.
25. Rules concerning parking:
(a) All tenants must park in the designated area.
(b) With the exception of certain designated, reserved,
handicappedpersons and car-pool areas, there will be no
assigned parking spaces.
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(c) Vehicles must be parked within the marked spaces.
(d) Persons using the parking area do so at their own risk. The
landlord specifically disclaims all liability, except when
caused solely by its gross negligence or willful misconduct,
for any personal injury incurred by users of the parking area,
their agents, employees, family, friends or guests, or as a
result of damage to, theft of, or destruction of, any vehicle
or any contents thereof as a result of the operations of
parking vehicles in the parking area.
26. Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further rules and regulations as
in its judgment shall from time to time be necessary for the safety,
protection, care and cleanliness of the Building, the operation thereof,
the preservation of good order therein and the protection and comfort of
the tenants and their guests, employees and invitees, which rules and
regulations, when made and written notice thereof is given to the
Tenant, shall be binding upon it in like manner as if originally herein
prescribed.
27. Landlord desires to maintain high standards of environment, comfort and
convenience for its tenants. It will be appreciated if any undesirable
conditions, lack of courtesy or attention by its employees is reported,
in writing, to Landlord.
28. Smoking: we would like to remind everyone that the building common area
shall be free from smoking. Smoking can be done either in the offices or
outside the building.
29. Waste: No waste is allowed to be left in the common area at any time.
30. Access cards: The access card is the only means to enter the building
after hours. It automatically turns on and off the alarm and allows
access to the building. The following instructions are essential for the
access to the building, please make sure you follow the instructions
carefully.
(1) In the event of a lost or stolen card, please contact the
management immediately so we can terminate the card. In the
event that you the employer eliminates any of your employees
please so the same.
(2) Assign the employees the exact cards that will be designated
to them based on the number printed on the card, this is
important for it will be easier to identify the card later
on.
(3) If you wish to transfer a card from one employee to another
contact the management so we can upgrade our file.
(4) The cost of a replacement card is $15.00.
Operation of the access system:
(1) Use only the main lobby door, since all other doors will be
locked and alarmed.
(2) Slide your card in the card reader located on your right hand
side.
(3) Enter the building and make sure that the door behind you is
locked.
(4) When you leave the building press the push bar on your left
hand side, and when you leave please make sure that the door
is locked behind you.
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AGREEMENT
Made this 24 day of June, 1997 by and between Cybernet Data Systems,
Inc. acting herein by Xxxx Xxxxxxxxxx its President duly authorized ("Cybernet")
and Pequot Systems, Inc., acting herein by its President. Xxxxxx Xxxxxx, duly
authorized ("Pequot"), wherein the parties agree as follows:
WHEREAS, Cybernet Data Systems, Inc. is an on-line computer service
provider previously operating out of offices in Wilton, Connecticut;
WIHEREAS, Pequot Data Systems, Inc. is a computer service company
previously operating out of offices in Westport, Connecticut;
WHEREAS, Cybernet and Pequot have leased office space on the 9th floor
of 00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx;
WHEREAS, Cybernet and Pequot will each be jointly and severally liable
on all obligations to the landlord pursuant to the lease for the premises; and
WHEREAS, Cybernet and Pequot desire to fix their rights and
responsibilities under such lease.
NOW, THEREFORE, inconsideration of the mutual promises and obligations
undertaken herein, the parties agree as follows:
1. All rents, expenses, common area maintenance charges and assessments
required under the terms of that certain lease by and between 00 Xxxxxxxxxx
Xxxxxx Realty and Cybernet/Pequot ("Lease") shall be borne equally by Cybernet
and Pequot and each shall be responsible for Fifty (50%) Percent of all of such
expenses, charges and assessments.
42
2. Cybernet and Pequot will each be responsible for Fifty (50%) Percent
of the monthly utility operating expenses for the premises, said utilities
including electricity, water and gas only. Telephone charges and internet
connections are specifically excluded from the foregoing sentence. Cybernet and
Pequot shall each be responsible for their respective telephone and internet
connection charges.
3. Cybernet and Pequot shall each be solely responsible for all loss,
damage, cost, or expense caused by it to the other arising out of or relating to
use or occupancy of premises at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx
pursuant to the Lease, and each shall indemnify, hold harmless, and defend the
other from all loss, damage, cost, or expense to the other (including, but not
limited to, court costs and attorneys' fees) arising out of or relating to such
use or occupancy, whether such loss, damage cost, or expense is from an act of
commission or omission, whether negligent or intentional, and whether or not
such act constitutes a default under the terms of the Lease.
4. In the event that either Pequot or Cybernet vacates the premises
prior to the expiration of the lease term, such company shall continue to be
responsible and liable for Fifty (50%) Percent of the rent and operating
expenses of the premises as aforesaid, notwithstanding the fact that such
company is not utilizing the utilities or space at such time.
5. Cybernet and Pequot shall each maintain a premises liability
insurance policy in the amount of $1,000,000.00, each naming the other company
as an additional insured.
6. In the event that a dispute arises under the terms of the lease or
this agreement, the parties agree that any and all disputes shall be resolved by
arbitration as follows:
Cybernet appoints Attorney Xxxx X. Xxxxxx as its representative, Pequot
appoints Attorney Xxxxx Xxxxxx as its representative, and each of them
shall choose a neutral third arbitrator. Thereafter, the Companies will
present their
43
arguments within thirty (30) days and such a panel shall resolve same
within fourteen (14) days thereafter.
WHEREFORE, the parties have hereunto set their hand and seal this 24
day of June, 1997
Cybernet Data Systems, Inc. Peguot Systems, Inc.
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxxx Xxxxxx
------------------------------- -------------------------------
Xxxx Xxxxxxxxxx Xxxxxx Xxxxxx
President President
44
ADDENDUM TO LEASE
Agreement made this 4th day of April, 1997, by and between 00
Xxxxxxxxxx Xxxxxx Realty Corp. (hereinafter "Landlord"), Pequot Systems, Inc.
and Cybernet Data Systems, Inc. (hereinafter collectively "Tenant") wherein the
parties agree as follows:
1. Paragraph "O" on page 3 of the Lease Cover Page is hereby deleted in
its entirety and replaced as follows:
Tenant will renovate part of the office space to enable the build out
of two (2) additional (new) offices ("Tenant's Work"). The cost of the
Tenant's Work is estimated to be $13,451.00, which amount and any
additional amounts shall be Landlord's responsibility and obligation.
Tenant hereby agrees to pay to Landlord $13,451.00 in thirty-six (36)
monthly payments of $373.64 each commencing with the first rent
payment on May 1, 1997 and ending with the last rent payment on April
1, 2000 (See Exhibit C). Notwithstanding the foregoing, should the
cost of Tenant's Work be less than $13,451.00, then Landlord shall
credit to the Tenant an amount equal to the difference between the
reduced amount and $13,451.00.
2. Paragraph 2.2.1.4. is hereby added to the Lease as follows:
Notwithstanding anything herein to the contrary, Landlord shall
complete all of Landlord's Work and Tenant's Work on or before April
30, 1997. In the event that either or both of Landlord's Work and
Tenant's Work is incomplete on May 1, 1997, then all payments due
under the terms of the Lease (including, but not limited to, rent,
maintenance charges and repayment of the cost of Tenant's Work) shall
xxxxx and be forever discharged on a per diem allocation basis until
such time as both the Landlord's Work and Tenant's Work is complete.
The parties expressly agree that Tenant may take possession of the
Premises on May 1, 1997, provided, however, that such possession does
not interfere with the completion of either or both of Landlord's Work
and Tenant's Work.
00 XXXXXXXXXX XXXXXX REALTY CORP. PEQUOT SYSTEMS, INC.
/s/ Illegible signature /s/ Xxxxxxx Xxxxxxx
---------------------------------- -----------------------------------
By: /s/ Illegible signature By: /s/ Xxxxxxx Xxxxxxx
Its: President, duly authorized Its: , duly authorized
CYBERNET DATA SYSTEMS, INC.
/s/ Xxxx Xxxxxxxxxx
-----------------------------------
By:/s/ Xxxx Xxxxxxxxxx
Its: , duly authorized
