EXHIBIT 10.11
AGREEMENT OF LEASE
by and between
LOCUST AVENUE ASSOCIATES LIMITED PARTNERSHIP,
as Landlord,
and
CENTURY COMMUNICATIONS CORP.,
as Tenant
00 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxxxx
Dated as of January 1, 1997
TABLE OF CONTENTS
Page
----
1. LEASED PREMISES................................................ 1
A. Premises and Building................................. 1
B. Parking............................................... 3
2. TERM POSSESSION AND USE........................................ 4
A. Term.................................................. 4
B. Option to Extend Term................................. 4
C. Use of Premises....................................... 6
3. RENT........................................................... 6
A. Base Rent............................................. 7
B. Additional Rent....................................... 7
C. Estimate of Additional Rent.......................... 12
D. Audit Rights......................................... 13
E. Disputed Amounts..................................... 13
F. Late Charges......................................... 13
G. Covenant to Pay Rent/Operating Expenses/Real
Estate Taxes......................................... 14
4. IMPROVEMENTS AND SERVICES..................................... 14
A. Improvements......................................... 14
B. Customary Services................................... 18
C. Additional Services.................................. 18
5. QUIET ENJOYMENT............................................... 19
6. LEASE SUBJECT TO SUPERIOR RIGHTS.............................. 19
A. Subject to Superior Rights........................... 19
B. Non-Disturbance Agreement............................ 20
7. ESTOPPEL CERTIFICATE BY TENANT................................ 20
8. RIGHTS RESERVED TO LANDLORD AND TENANT........................ 20
A. Landlord............................................. 20
B. To Tenant............................................ 22
9. TENANT'S AND LANDLORD'S ADDITIONAL COVENANTS.................. 22
A. Landlord Covenants................................... 22
B. Tenant Covenants..................................... 23
10. WAIVER OF PROPERTY AND LIABILITY CLAIMS....................... 25
A. Damage from Other Causes............................. 25
B. Loss of Business, Etc................................ 26
C. Indemnification...................................... 26
11. INSURANCE..................................................... 27
A. By Tenant............................................ 27
B. By Landlord.......................................... 28
C. Additional Insurance Provisions...................... 28
12. ASSIGNMENT AND SUBLETTING..................................... 28
A. Consent.............................................. 28
B. Excess Rent.......................................... 30
C. Tenant Not Released.................................. 30
D. Assignment or Sublet to Affiliate.................... 31
13. CONDITION OF PREMISES......................................... 31
14. OBLIGATION TO REPAIR.......................................... 31
A. Tenant's Obligation.................................. 31
B. Landlord's Obligation................................ 32
15. LIABILITY..................................................... 32
16. DAMAGE TO LEASED PREMISES..................................... 33
A. Casualty Damage...................................... 33
B. Damage Termination................................... 33
C. Landlord Will Not Insure............................. 33
17. CONDEMNATION.................................................. 34
A. Entire Award......................................... 34
B. More Than 25% Taking................................. 34
C. Less than 25% Taking................................. 34
D. Rights to Condemnation Award......................... 00
X. Xxxxxxxx to Repair................................... 35
18. NOTICES....................................................... 35
19. DEFAULT AND REMEDIES.......................................... 36
A. Default.............................................. 36
B. Remedies............................................. 37
C. Specific Performance................................. 38
20. BANKRUPTCY.................................................... 38
21. LANDLORD AND TENANT DEFINED................................... 39
A. Definition........................................... 39
B. Limitations of Assets Liable for Collection of
Judgment: No Personal Liability..................... 39
22. RECORDING LEASE PROHIBITED.................................... 39
23. PREVAILING PARTY IN LEGAL PROCEEDINGS......................... 40
24. SEVERABILITY.................................................. 40
25. HOLDING OVER.................................................. 40
26. RE-ENTRY BY LANDLORD.......................................... 40
27. NO WAIVER..................................................... 40
28. OTHER REMEDIES................................................ 41
A. No Obligation to Cure................................ 41
B. Judgment Offset...................................... 41
29. NOTICE OF MORTGAGEES.......................................... 42
30. ENVIRONMENTAL LAWS............................................ 42
A. Compliance........................................... 42
B. Indemnity............................................ 43
31. MISCELLANEOUS................................................. 43
A. Taxes................................................ 43
B. Accord and Satisfaction.............................. 43
C. Representations by Landlord.......................... 44
D. Intentionally Omitted................................ 00
X. Xxxxxx of Jury Trial and Right to Counterclaim/
Prejudgment Remedy Waiver.............................44
F. Intentionally Omitted................................ 44
G. Unavoidable Delays................................... 44
H. Brokerage............................................ 45
I. Successors and Assigns............................... 45
J. Consents and Approvals............................... 45
K. Interpretation....................................... 46
L. Complete Agreement................................... 46
M. Time of Essence...................................... 46
N. Authority............................................ 46
O. Attorney's Fee....................................... 46
P. Building Hours of Operation.......................... 46
Q. HVAC................................................. 47
R. Compliance with Applicable Laws...................... 47
32. ADDITIONAL SPACE.............................................. 47
33. STATUS OF LEASE............................................... 48
34. SECURITY SYSTEM............................................... 48
36. ARBITRATION................................................... 48
A. Disputed Defaults.................................... 48
B. Disputed Amount...................................... 48
C. Arbitrators; Award................................... 49
D. Failure to Appear.................................... 49
E. Reimbursement........................................ 49
LEASE
THIS AGREEMENT OF LEASE (hereinafter referred to as the
"Lease"), made as of the 1st day of January, 1997, by and between LOCUST AVENUE
ASSOCIATES LIMITED PARTNERSHIP, acting herein by XXXXXXX XXXXXX XX., of the Town
of New Canaan, County of Fairfield and State of Connecticut, its General
Partner, duly authorized (hereinafter referred to as "Landlord") and CENTURY
COMMUNICATIONS CORP., a Texas corporation with a place of business in the Town
of New Canaan, County of Fairfield and State of Connecticut, acting herein by
XXXXX X. XXXXXXXXX, its Senior Vice President and Treasurer, duly authorized
(hereinafter referred to as "Tenant").
W I T N E S S E T H :
1. LEASED PREMISES
A. Premises and Building
(i) Landlord does hereby lease to Tenant and
Tenant does hereby lease from Landlord those certain premises which the parties
deem to contain approximately 31,740 rentable square feet (hereinafter called
the "Premises"). The Premises presently exist as designated on the Plan attached
hereto as EXHIBIT 1.A(i)-1 and made a part hereof, and are located on the first
and second floors in that certain building located at 00 Xxxxxx Xxxxxx, Xxx
Xxxxxx, Xxxxxxxxxxx 00000 (hereinafter called the "Building"). The legal
description of the property on which the Building is situated (hereinafter
referred to as the "Property") is set forth on EXHIBIT 1.A(i)-2 attached hereto
and made a part hereof. Landlord hereby reserves and Tenant shall have no right,
except as may be otherwise set forth herein (or as may be reasonably necessary
for Tenant to conveniently and efficiently operate its business in the Demised
Premises), in and to (a) the use of the exterior faces of all perimeter walls;
(b) the use of the roof; and (c) the use of the land, improvements and space
below the bottom of the lower floor slabs and above the interior surface of the
ceiling of the Premises. In addition to the aforementioned and described
Premises, Tenant shall have the right to use approximately 400 square feet of
storage space located in the lower parking area of the Building during the term
of this Lease and any extension periods for the additional consideration set
forth in this Lease. Said letting and renting is upon and subject to the terms,
covenants, and conditions set forth herein, and Tenant covenants as a material
part of the consideration for this Lease to keep and perform each and all of the
said terms, covenants, and conditions by it to be kept and performed. This Lease
is made upon the conditions of such performance.
(ii) This Lease replaces all existing Leases
between the parties or otherwise covering all or any part of the
Building.
(iii) In consideration of the parties entering
into this replacement Lease, Landlord has agreed to expand the space occupied by
the Tenant on the second floor by incorporating into the space occupied by
Tenant on the second floor the so-called "Xxx Xxxxxxx Space," which space is
approximately 3,720 square feet, and the so-called "Xxxx Space," which space is
approximately 935 square feet; said spaces are shown on EXHIBIT 1.A(iii)
attached hereto. Landlord hereby represents, warrants and covenants to Tenant
that (i) the lease for the Xxx Xxxxxxx Space has expired and that no party has a
valid claim of right thereto, (ii) Landlord has entered into a stipulated
judgment of eviction with the occupant of such space, and pursuant to such
stipulation the latest date by which such occupant shall vacate such space shall
be September 1, 1997, and (iii) Landlord shall use its best efforts to deliver
the Xxx Xxxxxxx Space to Tenant as soon as possible and shall cause the Xxx
Xxxxxxx Commencement Date (as hereinafter defined) to occur as soon as possible,
but in any event no later than September 15, 1997. The Xxx Xxxxxxx Space shall
become part of the Premises (the "Xxx Xxxxxxx Commencement Date") thirty (30)
days following the first date all of the following shall have occurred: (a)
Landlord shall have obtained sole possession of the Xxx Xxxxxxx Space free and
clear of all tenants, occupants and any claims of right of any individual or
entity, (b) the Xxx Xxxxxxx Space shall be in its "as-is" condition on the date
hereof, reasonable wear and tear excluded, and (c) Landlord has delivered to
Tenant written notice of those matters set forth in clause (a). Notwithstanding
clause (c), Landlord may in good faith send the thirty (30) day notice in
anticipation that Landlord will be able to deliver space in compliance with
clause (a), in which event the Xxx Xxxxxxx Commencement Date (assuming
compliance with clause (a) and clause (b) above) shall be the later of (i) the
thirtieth (30th) day following Tenant's receipt of such notice, or (ii) three
(3) Business Days following the date upon which the terms of clause (a) and
clause (b) hereof shall have been satisfied.
As of the Xxx Xxxxxxx Commencement Date, the Xxx Xxxxxxx Space
shall be deemed to be part of the Premises for all purposes, including but not
limited to the payment of Rent, except, that Base Rent payable for the Xxx
Xxxxxxx Space shall be equal to Twenty-Three and 25/100 ($23.25) Dollars per
square foot per annum, or Eighty-Six Thousand Four Hundred Ninety and 00/100
($86,490.00) Dollars per annum payable monthly at the rate of Seven Thousand Two
Hundred Seven and 50/100 ($7,207.50) Dollars. All representations and warranties
of Landlord regarding the Premises shall be deemed to include the Xxx Xxxxxxx
Space as of the Xxx Xxxxxxx Commencement Date. As of the Xxx Xxxxxxx
Commencement Date, Tenant's Proportionate Share shall be increased accordingly.
Further as of the Xxx Xxxxxxx
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Commencement Date, Tenant shall be entitled to additional exclusive parking at
the rate of 3 parking spaces per 1,000 square feet rounded up to the next
highest full parking space, such parking spaces shall, to the extent practical,
be contiguous to all other parking spaces of Tenant.
The Xxxx Space shall become a part of the Premises (the "Xxxx
Commencement Date") as of February 1, 1997. On such date: (a) Landlord shall
have obtained sole possession of the Xxxx Space free and clear of all tenants,
occupants and any claims of right of any individual or entity, and (b) the Xxxx
Space shall be in its "as-is" condition on the date hereof, reasonable wear and
tear excluded.
As of the Xxxx Commencement Date, the Xxxx Space shall be
deemed to be part of the Premises for all purposes, including but not limited to
the payment of Rent, except that Base Rent payable for the Xxxx Space shall be
equal to Twenty-Three and 25/100 ($23.25) Dollars per square foot per annum, or
Twenty-One Thousand Seven Hundred Thirty-Eight and 75/100 ($21,738.75) Dollars
per annum payable monthly at the rate of One Thousand Eight Hundred Eleven and
00/100 ($1,811.00) Dollars. All representations and warranties of Landlord
regarding the Premises shall be deemed to include the Xxxx Space as of the Xxxx
Commencement Date. As of the Xxxx Commencement Date, Tenant's Proportionate
Share shall be increased accordingly. Further as of the Xxxx Commencement Date,
Tenant shall be entitled to ninety-nine (99) parking spaces as opposed to the
original ninety-five (95) parking spaces.
Notwithstanding anything in this Lease to the contrary (and in
particular, notwithstanding any provision of this Lease regarding Landlord's
control over Common Areas), throughout the Term of this Lease, Tenant shall have
the right to maintain reception and/or secretarial stations in the lobby areas
of the Building. In addition thereto, Tenant shall have the right, subject to
Section 4 of this Lease, to make such improvements and utility hookups as may be
desired by Tenant in connection with maintenance of such reception and/or
secretarial stations.
B. Parking. Landlord covenants and agrees that throughout the
Term, Landlord shall provide no fewer than ninety-five (95) parking spaces for
the exclusive use of Tenant, which shall be marked, and lighted in a manner
acceptable to Tenant and pursuant to EXHIBIT 1.B hereto, in the Building parking
area, and the same is to be kept by the Landlord in a well-maintained condition
throughout the term of this Lease. "Well maintained condition" shall be defined
to include being in a first class condition (although Landlord shall not be
required to pave same, unless same is paved as of the date hereof, or same is
subsequently paved), with freshly painted lines and numbers, well lighted and
free of debris. In the event that the number of square feet rented by Tenant
during the Term or any Extension Period hereof shall increase (including without
limitation
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addition of the Xxx Xxxxxxx Space and the Xxxx Space), Landlord shall provide
additional exclusive use parking spaces in the Building parking area such that
Tenant shall have at least three (3) parking spaces for every 1,000 rentable
square feet then rented by Tenant. It should be noted that Exhibit 1-B shows 109
parking spaces for Tenant; Tenant shall only receive three (3) parking spaces
per 1,000 rentable square feet, rounded up to the next highest full parking
space based upon the size of the Demised Premises at a given time (i.e., as of
the date hereof, 95 parking spaces; as of the Xxxx Commencement Date, 99 parking
spaces; as of the Xxx Xxxxxxx Commencement Date, 109 parking spaces).
2. TERM POSSESSION AND USE
A. Term. This Lease shall commence as of January 1, 1997, the
"Commencement Date", and shall terminate on December 31, 2004, the "Initial
Term".
B. Option to Extend Term. So long as Tenant shall not be in
default beyond applicable notice and grace periods hereunder, Tenant shall have
the right, at its election, to extend the Term for two (2) additional five (5)
year periods (each respectively referred to herein as an "Extension Period").
The first five-year option shall be from January 1, 2005 through December 31,
2009, and the second five-year option shall be from January 1, 2010 through
December 31, 2014. The Base Rent to be paid during each Extension Period shall
be the then fair market rental value for renewal rentals in the "market" (as
defined below), taking into consideration, without limitation, the condition of
the Premises, the amount of Rent being paid during the initial term of other
leases used as comparables (i.e., to determine if extension rents paid in
comparables reflect discounts attributable to an above market initial term
rent), any free rent provided, work letter obligations, the base year for
escalations and other tenant inducements, such amount to be mutually agreed to
by the parties. The market shall be defined as the commercial office leasing
areas of New Canaan, Westport and Darien, Connecticut. In addition to the Base
Rent in any Extension Period, Tenant shall pay the Additional Rent as required
under this Lease; however, the base year shall be adjusted as provided for in
Section 3.B (i.e., the base year for Taxes and Operating Expenses (as each such
term is hereinafter defined) shall be the first year of each respective
Extension Period). The Tenant shall notify the Landlord of its intention to
exercise its options to extend (such notice shall be in writing and provided in
a manner required by this Lease), if at all, not earlier than twelve (12) months
prior (except in the case of an exercise of such option pursuant to Section 32
below, in which event the exercise of said option may occur prior to said twelve
(12) month period) to the termination of the Initial Term or first Extension
Period, as the case may be, nor later than 8 months prior thereto. Prior to the
exercise by Tenant of an election to extend the Term, the expression "Term" or
"term"
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or any equivalent expression shall mean the Term or Extension Period then in
effect; after the exercise by Tenant of any such election, the expression "Term"
or any equivalent expression shall mean the Term as it may have been then
extended. All agreements and conditions in this Lease contained shall apply to
the Extension Period to which the Term shall be extended as aforesaid excepting
such provisions of this Lease which by their terms are only applicable to the
Initial Term, excluding any further right of extension. If Tenant shall give
notice of the exercise of an election in the manner and within the time provided
aforesaid, the Term shall be extended upon the giving of notice without the
requirement of any action on the part of Landlord. If Tenant shall exercise its
renewal option in conjunction with Section 32, at Tenant's option to be
exercised simultaneously with the exercise of the renewal option, the "market"
Base Rent for the Premises for the Extension Period shall be fixed either (i) at
the time of the exercise of the renewal option, or (ii) at a time which is six
(6) months prior to the commencement of the renewal term; if Tenant shall fail
to elect either option (i) or (ii), then Tenant shall be deemed to have elected
option (ii).
If Tenant shall have exercised its renewal option as aforesaid
and Landlord and Tenant cannot agree upon the "market" Base Rent for the
Premises under the terms of this Lease during the Extension Period, then the
dispute as to the "market" Base Rent for the Premises shall be submitted to
arbitration in accordance with the provisions of Section 36 of this Lease. The
arbitrators shall select either Landlord's estimate or Tenant's estimate of the
"market" Base Rent of the Premises.
Notwithstanding anything in this Lease to the contrary, in no
event shall the Base Rent for any Extension Period be reduced below the Base
Rent payable during the Initial Term.
If upon the commencement of the Extension Period the Base Rent
to be paid by Tenant during such Extension Period shall not have been
determined, Tenant shall, effective as of the commencement of such Extension
Period, pay as Base Rent the sum of (i) the amount estimated by Landlord as the
appropriate Base Rent for the Premises during such Extension Period in
accordance with the terms of this Lease, plus (ii) all other amounts due and
payable pursuant to this Lease. Upon the determination of such Base Rent, in the
event of any overpayment of such Base Rent by Tenant since the beginning of such
Extension Period, Landlord shall pay to Tenant the amount of such overpayment.
If Landlord shall not pay same to Tenant within ten (10) days of such
determination, in addition to any other rights and remedies of Tenant, upon
fifteen (15) days prior written notice to Landlord, Tenant shall have the right
to offset any amounts due to Tenant plus interest thereon at the Interest Rate
from the date such overpayment was made.
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C. Use of Premises. Tenant covenants and agrees to occupy the
Premises for general office and related use. Tenant shall use the Premises in a
careful, safe, and proper manner and, subject to the provisions of Sections 9,
11 and 16 hereof, Tenant agrees to pay promptly on demand for any damage to the
Building or the Premises caused by misuse or abuse by Tenant, its agents or
employees, or by any other person entering upon the Building and/or the Premises
under the express or implied invitation of Tenant. Subject to Section 31.C
below, Tenant shall not conduct any activity or perform any act prohibited by
the laws of the United States of America or the State of Connecticut or the
ordinances of the Town of New Canaan and shall not commit waste nor suffer waste
to be committed, not permit any nuisance on or in the Premises. Tenant
understands that all common elements of the Building are to be shared in common
with all other tenants and that they shall be subject to the exclusive control
and management of the Landlord. Tenant shall have the right to the non-exclusive
use, in common with other tenants, of driveways, walks, loading and other
facilities as may be provided for use of the tenants (hereinafter called "Common
Areas"). Landlord may not at any time increase, decrease or change in any manner
the Common Areas without Tenant's prior written consent, which consent shall not
be unreasonably withheld or delayed if such changes shall not materially
adversely affect Tenant's use of the Premises as contemplated herein. Landlord
may at any time temporarily close the Common Areas to make repairs or changes or
to effect construction, repairs or changes within the Building, provided,
however, that the same shall not materially adversely affect Tenant's use of the
Premises as contemplated herein. No such action (provided such closure shall be
limited to the minimum time required for such repair and/or permissible change)
of Landlord, unless due to Landlord's negligence, shall be deemed to be an
eviction of Tenant, or breach of this Lease, nor give rise to any claim for
damages or for a reduction of any Base or Additional Rent; provided, however, no
action shall be taken by Landlord which would eliminate or substantially reduce
access to the Premises, and provided further that Landlord shall use due
diligence to complete any such work in a reasonable time and with minimum
interference with Tenant's business.
3. RENT. Tenant shall pay to Landlord, at Landlord's office, or such
other location as directed from time to time by Landlord's notice, as rent
during each year of the Term hereof, without prior notice, demand, recoupment or
offset whatsoever, except as may be otherwise set forth herein, rent as provided
in this Section 3. As used in this Lease, the following terms shall have the
following meanings:
(i) "Rent" shall mean Base Rent, Additional Rent, and other
amounts payable hereunder.
(ii) "Base Rent" shall have the meaning given in Section 3.A
below.
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(iii) "Lease Year" shall mean (i) the twelve (12) month period
commencing on the first day of the month immediately succeeding the month in
which the Commencement Date occurs, unless the Commencement Date occurs on the
first day of the month, in which event such twelve (12) month period shall
commence on the Commencement Date, and (ii) each twelve (12) month period
commencing on each Anniversary Date. The first "Lease Year" of this Lease shall,
if the Commencement Date shall not occur on the first day of the month, in
addition to the aforesaid twelve (12) month period, also include the period from
the Commencement Date until the first day of the month immediately succeeding
the month in which the Commencement Date occurs.
(iv) "Anniversary Date" shall mean the month and day of the
Tenant's Commencement Date, or if the Tenant's Commencement Date shall not occur
on the first day of the month, the first day of the month immediately succeeding
the Tenant's Commencement Date, in each succeeding year of the Term hereof.
(v) "Additional Rent" shall have the meaning given in
Section 3.B below.
(vi) For purposes of this Lease, unless otherwise stated
herein, Tenant's proportionate share of any amount due hereunder shall be
determined by multiplying such amount applicable to all of the Property and/or
the Building by the percentage determined by dividing the number of square feet
in the Premises by the total number of rentable square feet in the Building
(hereinafter referred to as "Tenant's Proportionate Share"). The parties hereby
agree that, at the time of the Commencement Date of this Lease, Tenant's
Proportionate Share shall be seventy-seven and 41/100 (77.41%) percent (as of
February 1, 1997, the Xxxx Commencement Date, Tenant's Proportionate Share shall
be seventy-nine and 70/100 (79.70%) percent).
A. Base Rent
(i) Tenant shall pay annualized "Base Rent" of
Six Hundred Eighty-Two Thousand Four Hundred Ten and 00/100 ($682,410.00)
Dollars in monthly installments of Fifty-Six Thousand Eight Hundred Sixty-Seven
and 50/100 ($56,867.50) Dollars. Said installments shall be paid at the office
of the Landlord at 00 Xxxxxx Xxxxxx, Xxx Xxxxxx, XX 00000, or at such other
location as directed by Landlord's notice pursuant hereto.
(ii) All Base Rent shall be payable in advance on
or before the first day of each and every calendar month during
the Term hereof.
B. Additional Rent. With respect to the Initial
Term, Tenant's Additional Rent shall include (i) its
Proportionate Share of any increases of Operating Expenses (as
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hereinafter defined) above the actual "Base Year Operating Expenses" of calendar
year 1996 (if the Building is not 100% occupied during calendar year 1996, the
Operating Expenses shall be "grossed up" as reasonably agreed to by the parties
in order to reflect 100% occupancy), exclusive of Taxes; (ii) its Proportionate
Share of any increases in Taxes above those Taxes incurred upon the Grand List
of October 1995 (the "Base Tax Year"), payable in July 1996 and January 1997;
(iii) $200.00 per month, each and every month, during the Term of this Lease and
any Extension Periods for the 400 square feet of storage space located in the
lower parking area, as set forth in Section 1.A of this Lease; and (iv) $1.60
per square foot of space in the Premises per annum (the "ERIF") for electric
use, payable in twelve (12) equal monthly installments each and every month of
this Lease Term and any Extension Periods. With respect to the Extension
Periods, the "Base Tax Year" and "Base Year Operating Expenses" for the purpose
of calculating that portion of Additional Rent relating to Operating Expenses
and Taxes shall be the twelve (12) month period during the first full year of
each five-year Extension Period (Operating Expenses shall be "grossed up" as
provided above to provide for 100% occupancy).
(i) Operating Expenses. Tenant covenants and
agrees to pay during each Lease Year as Additional Rent an amount equal to
Tenant's Proportionate Share of the amount by which Operating Expenses for such
Lease Year exceed "Base Year Operating Expenses." It is intended that Tenant pay
its Proportionate Share of only the increases above the Base Year Operating
Expenses and not a Proportionate Share of all Operating Expenses. "Operating
Expenses" shall mean such usual and customary, actual and reasonable
out-of-pocket costs or expenses as may reasonably be incurred by Landlord in its
operation and maintenance of the building, including, but not limited to, labor
(not to exceed one building superintendent), water rates, sewer rents,
assessments, reasonable attorneys' fees incurred in connection with reduction of
the foregoing (but only to the extent of said reduction), fuel, gas, light and
power used in the public portions of the building (expressly excluding any fuel,
gas, light or power supplied to the Premises and/or other tenanted (or
tenantable) space in the Building), insurance, window cleaning and janitorial
services (whether or not furnished by contract), reasonable and
market-competitive management fees or expenses (the cost of management services
shall be comparable to a market rate management fee charged by a recognized
skilled manager of commercial office property in the "market" as defined in
Section 2.B above but shall not exceed the percentage paid during the Base Year
Operating Expenses for management fees), ordinary repairs but not replacements
(CAPITAL COSTS SHALL NOT BE INCLUDED IN OPERATING EXPENSES), supplies, uniforms
and sundries. "Operating Expenses" shall not include:
a) the "ERIF";
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b) leasing commissions and legal fees in
connection with the leasing of space in the Building;
c) alaries of executives above the grade of
building manager;
d) ANY EXPENDITURES FOR CAPITAL COSTS;
e) cost of repairs or replacements incurred by reason
of fire or other casualty or by the exercise of the right of eminent
domain, to the extent to which Landlord is compensated therefor through
proceeds of insurance (or would have been compensated had Landlord
maintained the insurance coverage that Landlord is required to maintain
pursuant to this Lease) or a condemnation award;
f) advertising expenditures;
g) legal fees incurred in disputes with tenants and
legal and auditing fees, other than legal and auditing fees reasonably
incurred (a) in connection with the day-to-day maintenance and
operation of the Building, or (b) in connection with the preparation of
statements required pursuant to Additional Rent or lease escalation
provisions;
h) costs incurred in performing work or furnishing
specialized services to or for individual tenants, including Tenant
(other than work or services of a kind and scope which Landlord would
be obligated to furnish Tenant without charge if such work were
required in the Premises), such as any special cleaning or excess
rubbish removal performed for any individual tenant, which shall be
separately billed to such tenant;
i) debt service, fines and penalties on any
superior mortgage or other mortgage encumbering the
Premises, Building or the Property;
j) Rent payable under any ground lease or
superior lease;
k) The cost of initial tenant "fit-up" of space
(including, without limitation, architect's fees or space
planner's fees) in the Building in connection with the
leasing of space to tenants in the Building;
l) the portion of wages (as reasonably allocated
by Landlord) of any employee of Landlord to the extent such
employee does not do work relating to the operation of the
Building;
m) the costs (as reasonably determined by
Landlord) of the operation of the business entity which
constitutes Landlord, which costs are not related to the
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operation of the Building, including accounting and legal matters,
costs of defending any lawsuits with any mortgagee (except to the
extent actions of Tenant may be in issue), costs of selling,
syndicating, financing, mortgaging or hypothecating any of Landlord's
interest in the Building, costs of any disputes between Landlord and
its employees not engaged in the operation of the Building, or fees or
costs paid in connection with disputes with other tenants of the
Building;
n) costs paid by Landlord as the insurance policy
deductible in connection with repairs associated with a
casualty loss;
o) any Operating Expenses or portion thereof for
which Landlord has been reimbursed;
p) any bad debt loss, rent loss or reserves for
bad debts or rent loss; or
q) any casualty damage or loss resulting from
Landlord's failure to maintain the insurance coverage for
which Landlord has covenanted pursuant to Section 11.
If Landlord shall not furnish any particular
item(s) of work or service (which would constitute an Operating Expense
hereunder) to portions of the Building due to the fact that construction of the
Building is not completed or such portions are not occupied or leased, or
because such item(s) of work or service are not required or desired by the
tenant of such portion, or such tenant is itself obtaining and providing such
item(s) of work or service, or for other reasons, then for the purposes of
computing the Additional Rent payable hereunder, the amount of such item(s)
included in Operating Expenses for such period shall be increased by an amount
equal to the additional operating and maintenance expenses which would
reasonably have been incurred during such period by Landlord if Landlord had at
its own expense furnished such item(s) of work or service to such portion of the
Building. If the Building is not at least one hundred (100%) percent occupied
during any Lease Year, the Operating Expenses for such Lease Year, shall be
adjusted by the parties to reasonably reflect one hundred (100%) percent
occupancy of the Building (i.e., as is the Base Year Operating Expenses).
(ii) Taxes for each Lease Year. Tenant covenants
and agrees to pay as Additional Rent an amount equal to Tenant's Proportionate
Share of any increases in Taxes over the Base Tax Year. Tenant shall pay
Tenant's Proportionate Share on the later of (i) ten (10) days after receipt of
a xxxx therefor by Landlord (which xxxx shall be accompanied by the tax
statement provided to Landlord by the municipality) or (ii) ten (10) days before
such Taxes are due (i.e., prior to the date interest and penalties commencing to
accrue) to the applicable taxing authority.
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The term "ad valorem taxes" or "Taxes" for
purposes of this Lease shall mean with respect to the Property, the Building or
the Premises any and all real estate taxes and assessments or other similar
charges, whether general or special, for improvements or other charges assessed,
levied, imposed or becoming a lien upon the Property, the Buildings, the
Premises and appurtenances thereto and any taxes, assessment or governmental
charges of every sort whatsoever (except income taxes of Landlord), including
real estate taxes which are levied or charged against the Property, the Building
and/or the Premises, or rents or the privilege of leasing real property or
collecting rents therefor, imposed by the State of Connecticut, Town of New
Canaan, or any local government or political subdivision thereof, provided, that
any such tax is in substitution of other real property taxes. All such Taxes
shall be computed as if Landlord owned no other property. If Landlord shall
receive a refund or credit for said ad valorem taxes for which Tenant may have
paid its Proportionate Share to Landlord under this provision, then Landlord
shall promptly repay to Tenant Tenant's Proportionate Share of such refund or
credit after deducting therefrom all reasonable costs and expenses of obtaining
such refund or credit, whether or not the Term shall have expired prior to
payment thereof. If this Lease should terminate on a date other than the last
day of a calendar year, the amount of any such increase payable by Tenant during
the calendar year in which this Lease terminates shall be prorated on the basis
which the number of days which have elapsed from the beginning of said calendar
year to and including said date on which this Lease terminates bears to 365. If
the actual Taxes for the year of termination have not been determined at the
time the proration is made hereunder, then such proration shall be made upon the
basis of the most recent assessments and mill levy. If Tenant desires to
initiate and prosecute any proceedings permitted by law for the purpose of
obtaining abatement or reduction of any Taxes assessed against the Premises, the
Building and/or the Property and notifies Landlord in writing of such intent,
then unless Landlord shall notify Tenant in writing within five (5) days
following Tenant's notice to Landlord that Landlord will initiate such a tax
review, Tenant shall have the right to initiate and prosecute such a proceeding,
and Landlord agrees to render to Tenant all assistance reasonably possible in
connection therewith, including the joining in and signing of any protest or
pleading which Tenant may deem it advisable to file. If Landlord elects to
initiate the proceeding, Landlord agrees to use reasonable efforts to obtain a
reduction in real estate taxes, and Landlord shall keep Tenant informed of the
status of its tax review and not terminate or withdraw the same without Tenant's
prior written consent, which consent shall not be unreasonably withheld or
delayed. Landlord shall additionally, in connection with any tax review that
Landlord may conduct, permit Tenant to present to the taxing authority such
information as Tenant may desire to present pertaining to the basis for
establishing the assessed valuation of the Premises. If Tenant initiates such a
proceeding, Tenant agrees to use reasonable
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efforts to obtain a reduction in real estate taxes, to keep Landlord informed of
the status of its tax review, and to not terminate or withdraw the same without
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed. Tenant shall be reimbursed for all of its reasonable costs
and expenses, including but not limited to reasonable legal fees and costs from
any tax refunds or credits achieved in connection with such proceeding; such
amounts shall first accrue to Tenant prior to any savings accruing to Landlord
or any other party.
If Landlord shall not timely pay Taxes as same
shall become due and payable and if as a result thereof a tax lien is filed
against the Property, in addition to all other remedies of Tenant pursuant to
this Lease, upon sixty (60) days prior written notice to Landlord, Tenant may
without obligation commence to pay any or all of such past due Taxes directly to
the applicable taxing authorities, and upon such payment Tenant may deduct from
the Rent next becoming due and payable all such payments made by Tenant plus
interest at the Interest Rate from the date such amounts are paid by Tenant.
C. Estimate of Additional Rent. At least thirty (30) days in
advance of each Lease Year during the Term, Landlord shall furnish Tenant with a
reasonable prospective written estimate ("Estimate") of Operating Expenses and
Tenant's Proportionate Share of any increases thereof above the Base Year
Operating Expenses for calendar year 1996 for the ensuing Lease Year (said
estimate may equal the Operating Expenses actually incurred for the prior Lease
Year). In addition, Landlord may, from time to time after providing to Tenant
each such Estimate, review such Estimate in light of Operating Expenses actually
incurred. In the event that the Operating Expenses actually incurred shall
exceed by more than five percent (5%) those set forth in the Estimate for such
period, Landlord at such time shall revise such Estimate and subsequent monthly
payments of Additional Rent to be made by Tenant pursuant thereto, all in accord
with such expenses actually incurred. Commencing with the first monthly Base
Rent payment due and thereafter during the Term of this Lease, the Tenant shall
pay, together with the Base Rent hereinbefore provided, as Additional Rent,
one-twelfth (1/12th) of Tenant's Proportionate Share of any increases in such
Operating Expenses above the Base Year Operating Expenses for calendar year
1996. In addition to the foregoing Estimates, within ninety (90) days after the
close of each Lease Year commencing with the First Lease Year, Landlord agrees
to furnish to Tenant a statement of actual Operating Expenses during the
preceding Lease Year, including a summary of Tenant's Proportionate Share of the
increases, together with a statement of all payments made by Tenant during such
year. If Tenant has overpaid, then Landlord shall furnish Tenant with a credit
statement to be applied to the next monthly Rent payment due; and if Tenant has
underpaid, Tenant shall pay the full amount of the underpayment as Additional
Rent together with the next monthly
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Rent payment due. Any such adjustment shall survive the expiration or earlier
termination of this Lease. Upon the written request of Tenant, Landlord shall
provide reasonable additional documentation with respect to the determination or
calculation of any such underpayment or overpayment.
D. Audit Rights. Tenant shall have the right within two (2)
years after receipt of Landlord's statement of Operating Expenses and/or Taxes
for any Lease Year, to audit all of the books of account, documents, records and
files of Landlord regarding such amounts for such Lease Year. On written request
of Tenant, Landlord shall make all of such records available for examination by
Tenant or any designated representative of Tenant at the office to which notices
to Landlord are to be addressed not later than thirty (30) days after such
request by Tenant. If Tenant shall have an audit made for any Lease Year and if
Tenant's Proportionate Share of Operating Expenses and/or Taxes shown by
Landlord's statement for such year shall be found to be overstated, Landlord
shall be obligated to repay to Tenant any amount owing as a result of an
overstatement of the amounts owed plus interest at the Interest Rate from the
date of the overpayment. If any amount payable under this Section 3.D is not
paid by Landlord within ten (10) days after invoice therefor and Tenant obtains
a judgment therefor or a determination is made pursuant to Section 36, then
Tenant may offset the amount thereof against the next Rent payments due from
Tenant to Landlord hereunder, together with (i) interest at the Interest Rate
accruing from the first date Tenant made such overpayments, and (ii) all
reasonable attorneys' fees and costs incurred by Tenant in obtaining such
judgment and/or determination and in connection with enforcing this Section.
E. Disputed Amounts. If Tenant should dispute any item or
items included in Operating Expenses and/or Taxes and such dispute is not
resolved by the parties within one hundred eighty (180) days after the date
Tenant notifies Landlord of such dispute, then either party may request that
such dispute be submitted to arbitration, in which case the provisions of
Section 36 shall apply. Pending resolution of the dispute as set forth in this
Section 3.E, failure to pay any such disputed amounts, whether or not the one
hundred eighty (180) days have expired, shall not be deemed an event of default
by Tenant or give rise to any Late Charge (as hereinafter defined) or penalty.
The party who loses the arbitration shall pay to the prevailing party the amount
owed within fifteen (15) days after receipt of the arbitrator's decision,
together with interest at the Interest Rate (as hereinafter defined) from the
date such payment was due and payable.
F. Late Charges. Subject to Section 3.E above, if Rent or
other payments due the Landlord hereunder are paid later than the tenth (10th)
day of the month when due or if any payment due to Landlord hereunder on demand
is not paid promptly upon demand, a late fee of five percent (5%) of the amount
due shall
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be due and payable by the Tenant as Additional Rent ("Late Charge"). The parties
agree that calculation of the exact costs which the Landlord will incur if the
Tenant makes late payments would be difficult to determine but would include,
without limitation, processing and accounting charges and Late Charges which may
be imposed upon the Landlord by the terms of any mortgage constituting a lien
upon the Building. The parties agree that the Late Charge provided herein is a
fair and reasonable estimate of the costs the Landlord will incur. This
provision, or payment by Tenant hereunder, or action taken by Landlord hereunder
shall not diminish or abrogate Tenant's duty to pay Rent when due, or Landlord's
rights to declare default for late payment as provided elsewhere in this Lease.
G. Covenant to Pay Rent/Operating Expenses/Real Estate Taxes.
(i) All Rent payments provided for herein shall
be due at the time stipulated and shall be due and payable in full without
off-set, recoupment or deduction of any kind, except as may be otherwise
provided herein. Tenant's covenant to pay Rent shall at all times exist as an
independent covenant.
(ii) Landlord shall timely pay all Taxes,
Operating Expenses and utility costs and, upon request by Tenant, shall deliver
to Tenant evidence of payment thereof.
4. IMPROVEMENTS AND SERVICES
A. Improvements. Landlord shall, at its sole cost and expense,
perform the work and install the material in accordance with EXHIBIT 4.A-1
attached hereto ("Landlord's Work"). All Landlord's Work shall be completed with
first quality materials and in an expeditious manner. Subject to the "punch
list" as described below, Landlord's Work shall be substantially completed no
later than June 1, 1997. Upon substantial completion of Landlord's Work, the
parties shall agree upon a mutually agreeable punch list as to items not
substantially completed by such time. The punch list work is to be completed no
later than July 1, 1997. If Landlord's Work shall not be proceeding with due
diligence or if same shall not be substantially completed on or before June 1,
1997 or if such punch list work is not completed by July 1, 1997, then Tenant
shall upon not less than five (5) days prior written notice have the right to
complete such work at a reasonable cost for the account of Landlord, for which
sum Landlord shall reimburse Tenant upon Tenant rendering a xxxx therefor. If
the aggregate of all such costs incurred by Tenant shall exceed Ten Thousand and
00/100 ($10,000.00) Dollars, Tenant shall have the right to offset any amounts
incurred by Tenant (including the first Ten Thousand and 00/100 ($10,000.00)
Dollars) against any Rent becoming due and payable under this Lease. If the
aggregate of all such costs incurred by Tenant shall be less than Ten Thousand
and 00/100 ($10,000.00) Dollars, Tenant shall not have the right
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to offset against Rent unless Tenant first obtains a judgment or a determination
pursuant to Section 36, whereupon Tenant shall have the right to offset against
Rent (i) the amount of such judgment or determination plus interest at the
Interest Rate from the date Tenant paid such costs, plus (ii) reasonable
attorneys' fees and costs incurred by Tenant in connection with collecting such
amounts and in connection with enforcing this Section and such judgment or
determination. Any disputes regarding the adequacy of Landlord's completion of
Landlord's Work shall be resolved by method of arbitration pursuant to Section
36. The taking of occupancy by Tenant shall not waive Tenant's right to raise
issues regarding the conformance of Landlord's Work to the agreed upon plans.
All of Landlord's Work shall be completed lien free and in a manner so as to
minimize interference with Tenant's business operations.
Tenant shall have the right, without the consent of Landlord,
to make any and all non-structural and/or decorative improvements, alterations,
replacements and/or additions (herein the "Minor Work"). Tenant covenants and
agrees that Tenant shall not make or erect any structural improvements,
alterations, replacements, additions or accessions without the prior written
consent of the Landlord, which consent shall not be unreasonably withheld or
delayed. For the purposes of this Lease, "Tenant Improvements" shall include and
be defined to mean all work required to be done in preparing the Premises so
that it may be operated for business (other than Landlord's Work), as well as
all alterations, interior design work, installations, additions or improvements
to the Premises occurring thereafter, including Minor Work. Tenant covenants and
agrees that all Tenant Improvements shall be done at Tenant's full cost and
expense, shall comply with all applicable governmental regulations, shall be
done only by contractors, subcontractors and mechanics with respect to whom
Landlord has consented, such consent not to be unreasonably withheld or delayed
(other than in connection with Minor Work where consent shall not be required),
shall be done in a manner which will assure labor harmony at the site and shall
be done in a manner which will not unreasonably interfere with Landlord's Work,
any other work to be performed by Landlord on or about the Building, or any
other tenant of Landlord's Building. Except in the case of Minor Work (in which
event none of the following shall be required), Tenant agrees to provide
Landlord copies of all plans and specifications for such Tenant Improvements,
the name of the general contractor and, if known, names of any material
subcontractors and mechanics who are to perform such work, at least fifteen (15)
days in advance of the commencement of any such work. Landlord shall, within
five (5) Business Days (as hereinafter defined) of receipt of such copies from
Tenant, notify Tenant as to whether Landlord consents to such plans,
specifications, contractors, subcontractors, which consent shall not be
unreasonably withheld or delayed, or if consent is to be withheld, Landlord
shall specifically detail the reasons for such rejection and the alternatives
which would be acceptable to Landlord. Landlord's failure to notify Tenant
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within such five (5) days time period shall be deemed approval by Landlord.
Except in connection with Minor Work where consent shall not be required, all
electrical and/or mechanical contractors must be specifically approved by
Landlord, which approval shall not be unreasonably withheld or delayed. Any
electrical and/or mechanical contractors approved by Landlord shall be
professional, reputable, and licensed in the State of Connecticut.
Notwithstanding the aforesaid, Landlord's consent to Tenant's plans,
specifications, contractors, subcontractors, etc. shall not be construed as
Landlord's consent to Tenant causing work to be done in the Premises in a manner
or under conditions which entitle the person doing the work or furnishing the
materials to a mechanic's or materialmen's lien. Tenant agrees to complete all
Tenant Improvements in a lien free manner. Following completion of any project,
Tenant agrees to obtain and deliver to Landlord written and unconditional
waivers of mechanic's liens upon the real property in which the Premises are
located, for all work, labor and services to be performed and materials to be
furnished in connection with such work, signed by all contractors,
subcontractors, material men and laborers who contract for or intend to perform
such work. Notwithstanding the foregoing, if any mechanic's lien or other lien
is filed against the Premises or the Landlord's Building for work claimed to
have been done for, or materials claimed to have been furnished to Tenant, it
shall be discharged by Tenant within thirty (30) days of notice thereof, at
Tenant's expense, by filing the bond required by law, or by payment or
otherwise. If any such mechanics' or other liens be filed against the Property,
the Building, or the Premises and Tenant fails to discharge same within thirty
(30) days after such filing, then in addition to any other right or remedy of
the Landlord, the Landlord may, but without obligation to do so, discharge the
same by bonding or by paying the amount claimed to be due. Any amount paid by
the Landlord for the satisfaction of any such lien and all reasonable legal and
other costs incurred by Landlord in procuring such discharge shall be payable by
the Tenant to Landlord as Additional Rent promptly on demand. Tenant covenants
and agrees to indemnify Landlord and hold Landlord harmless of and from any and
all final and unappealable judgment or settled claims, costs, suits, damages and
liability whatsoever arising out of or as a result of any Tenant Improvements
done by Tenant or Tenant's contractors, subcontractors, agents or employees,
including reasonable attorney's fees for the defense thereof. Tenant shall have
the right to participate in such defense at its expense. Landlord agrees to
cooperate with Tenant in such defense and each party agrees to coordinate their
respective efforts. In the event Tenant shall not promptly correct same,
Landlord may make such correction and charge Tenant for the reasonable cost
thereof. Such sum due Landlord shall be deemed Additional Rent and shall be paid
by Tenant promptly upon being billed therefor.
Prior to commencing any work, except in connection with Minor
Work, in which case the following deliveries shall not be required, Tenant shall
additionally furnish to Landlord at
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Landlord's request: (i) copies of all governmental permits and authorizations
which may be required in connection with such work; (ii) a certificate
evidencing that Tenant (or Tenant's agents or contractors) has procured workers'
compensation insurance covering all persons employed in connection with the work
who might assert claims for death or bodily injury against Landlord, Tenant or
the Building; (iii) such additional personal injury and property damage
insurance as Landlord may reasonably require because of the nature of the work
to be done by Tenant; and (iv) the estimate of cost for said Tenant
Improvements. At its option, Landlord shall have the opportunity to perform said
Tenant Improvements (other than Minor Work) at a cost equal to the cost estimate
obtained from a third party. If Landlord agrees to perform said work at the
third party cost and in accordance with the same terms and conditions as said
third party (said third party shall be a reputable and licensed contractor),
then Tenant shall permit Landlord to build out Tenant Improvements. In order for
Landlord to exercise this right, Tenant shall provide Landlord with notice of
its cost estimate for such Tenant Improvements as well as other material terms
and conditions upon which said third party contractor shall offer to complete
such Tenant Improvements. Landlord shall have a period of five (5) Business Days
to accept in writing such Tenant's notice. If Landlord shall not accept Tenant's
notice in writing (without qualification and within said five (5) days),
Landlord shall be deemed to have waived its right to perform the Tenant
Improvements. If Landlord shall agree to perform such Tenant Improvements,
Landlord shall be irrevocably bound to complete such Tenant Improvements in
accordance with the terms and conditions of Tenant's notice.
All Tenant Improvements upon the Premises and any replacements
therefor, including all paneling, interior design, partitions, railings affixed
to the Premises, except furniture or movable trade fixtures (e.g., bull pen
office dividers, generators, etc.) installed at the expense of Tenant, shall
become the property of the Landlord and shall remain upon, and be surrendered
with, the Premises as a part thereof at the termination of this Lease, without
compensation to Tenant. Tenant shall have no obligation to restore the Premises
to the condition that it was in prior to the Commencement Date of either this
Lease or any prior lease between the parties or to the condition it was in prior
to any Tenant Improvements or Alterations made during the Term.
Notwithstanding anything to the contrary stated in this
Section 4.A or elsewhere in this Lease, with respect to the Initial Term and
with respect to any Extension Period as and when applicable, in addition to the
Minor Work, Tenant shall further have the right, subject to the Landlord's
approval, such approval not to be unreasonably withheld or delayed, to install,
at Tenant's expense, (i) a 10,000-watt diesel or propane powered generator as a
back-up to the electrical power being provided to the Premises, with a diesel or
propane fuel tank, in an area in
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the northeast corner of the upper parking area or other mutually agreed location
on the Property; (ii) a fence around the any such generator and fuel tank; and
(iii) a number (reasonably agreed to by the parties) of satellite dishes on the
roof of the Building in locations reasonably designated by Tenant. Tenant shall
obtain all approvals and permits regarding any of the foregoing, and Tenant
shall be responsible for removing same at the end of the Term and for restoring
any damage caused by such removal. If as a condition of Landlord's reasonable
approval Landlord shall require that Tenant use Landlord's
contractors/installers, then Landlord agrees that any such
contractors/installers shall be professional, reputable contractors/installers
licensed in the State of Connecticut.
B. Customary Services. Landlord shall provide the services
described on EXHIBIT 4.B in a prompt and workmanlike manner, all of which,
subject to Section 3.B, shall be included among Operating Expenses. In addition
to the provisions of Section 9.A(i) below, Landlord will clean the Common Areas,
maintain and landscape the Property and remove snow and ice from the parking
area and sidewalks, all of which shall be considered Operating Expenses, all of
which, subject to Section 3.B, shall be completed in a manner consistent with a
first class office building in New Canaan, Connecticut.
Provided that Landlord is given at least twenty-four (24)
hours prior notice, Landlord shall provide heating, ventilation and air
conditioning services for hours additional to the normal hours of operation as
defined herein; such services will be provided at the actual cost to Landlord
therefor, without markup, profit or surcharge.
Landlord represents, warrants and agrees that, subject to
Section 31.R, any person or entity employed by it to perform services in or to
the Building and/or the Premises shall be obligated to observe and be in strict
compliance with all Applicable Laws ("Applicable Laws" shall mean any federal,
state or local law, rule, regulation or ordinance relating to or affecting the
Property, the Building or the Premises), and Landlord further agrees to
indemnify and hold and save harmless Tenant from any liability, costs or
expenses that Tenant may otherwise incur if such representation, warranty and
agreement is violated.
C. Additional Services. Should Tenant require any additional
work or service, including, but not limited to, service of the nature described
above, including service furnished outside the normal operating hours, as
defined herein, Landlord may on terms to be agreed, upon reasonable advance
notice by Tenant, furnish such service at charges as may be agreed on, but in no
event at a charge less than Landlord's actual cost plus reasonable and customary
(in the "market") overhead for the additional services provided. It is
understood that Landlord does not warrant that any of the services referred
-18-
to above, or any other services which Landlord may supply, will be free from
interruption. Tenant acknowledges that any one or more such services may be
suspended by reason of accident or of repairs, alterations or improvements
necessary to be made (in which event Landlord will, however, use all reasonable
efforts to cure or correct any deficiency in same), or by strikes or lockouts or
by reason of operation of law, or causes beyond the reasonable control of
Landlord. Any such interruption or discontinuance of service shall never be
deemed an eviction or disturbance of Tenant's use and possession of the
Premises, or any part thereof, or render Landlord liable to Tenant for damages,
unless due to Landlord's negligence or willful conduct, or relieve Tenant from
performance of Tenant's obligations under this Lease; however, if such
interruption or discontinuance (unless and to the extent caused by Tenant's
negligence or willful conduct) shall continue for three (3) consecutive Business
Days (as defined below) or for more than eight (8) Business Days in any Lease
Year, and if the Premises shall be rendered untenantable in whole or in part,
all Rent shall xxxxx to the extent the Premises is untenantable during the
pendency of such discontinuance or interruption. If Landlord shall in good faith
dispute Tenant's right to xxxxx Rent, Landlord may commence an arbitration
proceeding pursuant to Section 36 to settle the dispute. Pending the
determination of the arbitrators (provided that Landlord is actively and
diligently prosecuting same to completion), the Rent shall not be abated. Upon
such determination, if Tenant is found to have had the right to abatement, then
Tenant shall have the right to offset against Rent (i) the amount of any such
abatement plus interest at the Interest Rate from the date of the interruption
or discontinuance of service, plus (ii) all reasonable attorneys' fees and costs
incurred by Tenant in connection with such arbitration and in connection with
enforcing this Section and in obtaining and enforcing any determination and/or
judgment.
5. QUIET ENJOYMENT. So long as the Tenant shall observe and perform the
covenants and agreements binding on it hereunder, the Tenant shall at all times
during the Term herein granted, peacefully and quietly have and enjoy possession
of the Premises without any encumbrance or hindrance by, from or through
Landlord or any other party claiming through Landlord.
6. LEASE SUBJECT TO SUPERIOR RIGHTS
A. Subject to Superior Rights. Subject to Section 6.B below,
this Lease, including the covenant of quiet enjoyment, is subject and
subordinate to all present mortgages affecting the Property or the Building, to
all renewals, modifications, consolidations, replacements and extensions
thereof, and to any mortgage which may hereafter be executed affecting the
Property or the Building. Tenant hereby agrees to execute, if the same is
required or requested, in a form agreed to by Tenant, any and all instruments in
writing to subordinate Tenant's rights acquired by this Lease to the Lien of any
such mortgage. Tenant agrees that
-19-
foreclosure of any mortgage encumbering the Property or the Building shall not,
except at the option of the foreclosing party, be a constructive eviction of
Tenant and Tenant shall not have the right to appear in any such foreclosure
action unless named therein as a defendant. Subject to Section 6.B below,
notwithstanding the foregoing, Tenant agrees to attorn to any purchaser at
foreclosure sale, to any transferee of the Property who obtains title through a
judgment of strict foreclosure, to any grantee or transferee designated in any
deed given in lieu of foreclosure, or any mortgagee in possession, and this
Lease shall thereafter continue in full force and effect, or at the request of
such purchaser, grantee or transferee or mortgagee in possession shall enter
into a new lease on the same terms and conditions as this Lease.
B. Non-Disturbance Agreement. As a condition to Tenant's
covenants in this Section 6, Tenant shall be provided with a non-disturbance
agreement in a form reasonably approved by Tenant from each current mortgagee
prior to the Commencement Date and prior to the date any individual or entity
becomes a mortgagee of the Premises during the term of this Lease. Attornment
and subordination to all future mortgagees shall be conditioned upon delivery of
non-disturbance agreements reasonably satisfactory to Tenant. Any such
non-disturbance agreement shall expressly permit Tenant to exercise any offsets
permitted by this Lease and shall require any successor to complete Landlord's
Work and otherwise assume all obligations and duties of Landlord under this
Lease.
7. ESTOPPEL CERTIFICATE BY TENANT. Landlord and Tenant shall at any
time and from time to time, upon not less than fourteen (14) days after receipt
by the other, execute, acknowledge, and deliver to the other a statement in
writing as prepared and/or provided by Landlord or Tenant, as the case may be,
in a form reasonably acceptable to the parties certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is in full
force and effect) and the dates to which the rental, the security deposit, if
any, and other charges are paid in advance, if any, and acknowledging that, to
the best of such parties' knowledge, there are no offsets, defenses or
counterclaims with respect to the payment of Rent and that there are no uncured
defaults hereunder or specifying such defaults, events, or conditions if any are
claimed. It is expressly understood and agreed that any such statement may be
relied upon by Landlord or Tenant, as the case may be, or any prospective
purchaser or encumbrancer of all or any portion of the Building or the Property
or the Lease.
8. RIGHTS RESERVED TO LANDLORD AND TENANT
A. Landlord. In addition to any other rights of Landlord under
this Lease and/or at law or in equity, Landlord reserves the following rights:
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(i) To install and maintain a sign or signs on
the exterior or interior of the Building subject to Landlord not interfering
with Tenant's signage as provided in Section 8.B hereof in Tenant's reasonable
judgment.
(ii) To designate all sources furnishing sign
painting and lettering.
(iii) Constantly to have pass keys to the
Premises. Said keys shall only be for use in the event of emergency or for
cleaning and maintenance; provided, however, Landlord shall upon at least
twenty-four (24) hours prior notice to Tenant and during Tenant's regular
Business Hours (as hereinafter defined), be entitled to inspect the Premises
during the Term of this Lease, provided that Landlord complies with Tenant's
reasonable requirements regarding confidentiality.
(iv) On at least twenty-four (24) hours prior
notice to Tenant, to exhibit the Premises during Tenant's regular Business Hours
to prospective tenants during the last twelve (12) months of the Initial Term,
and during the last six (6) months of any Extension Periods, and to exhibit the
Premises during the Term, upon at least twenty-four (24) hours prior notice and
during Tenant's regular Business Hours, to any prospective purchaser, mortgagee,
or assignee of any mortgage on the Property and to others having a legitimate
interest, provided that Landlord complies with Tenant's reasonable requirements
regarding confidentiality.
(v) At any time, upon at least twenty-four (24)
hours prior notice (or such other notice as may be practicable in event of
emergency), during Tenant's regular Business Hours, and in a manner which does
not unreasonably or materially interfere with Tenant's business, to enter the
Premises to examine and inspect the same or make such repairs, additions or
alterations as Landlord may deem reasonably necessary or proper for the safety,
improvement or preservation thereof. Landlord shall be reasonably diligent with
respect to said work and shall perform such work, except in case of emergency,
at all times reasonably convenient to Tenant and otherwise in such a manner and
to the extent practical so as not to unreasonably interfere with Tenant's use
and occupancy of the Premises. Landlord shall at all times have the right at its
reasonable election to make such alterations or changes in other portions of the
Building as it may from time to time deem necessary or desirable, provided that
the same shall not materially adversely affect Tenant's use of the Premises as
contemplated herein. Landlord shall not be liable to Tenant for any damage or
inconvenience thereby suffered by Tenant, unless due to Landlord's negligence.
(vi) To install in the lower level of the
building vending machines of all kinds, and to provide mobile vending service
therefor, and to receive all of the revenue derived therefrom.
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(vii) To install, maintain, use, repair and
replace all pipes, ducts, wires, motors, utility lines and other equipment which
now or hereafter may be required to serve the Landlord or any other tenant in
the Building and which may be contained within or run through the Premises,
provided the same does not unreasonably interfere with Tenant's use of the
Premises or unreasonably and detrimentally affect the aesthetic appearance of
the Premises.
B. To Tenant. Subject to the provisions of Section 9.B(vi)
below, Tenant shall have the right to have signage installed and maintained at
Landlord's expense at all building standard locations and directories in a style
and to the extent as requested by Tenant subject to Landlord's approval, such
approval not to be unreasonably withheld or delayed. Landlord hereby
acknowledges and agrees that it has approved all of Tenant's signage as it
exists on the Commencement Date of this Lease. At all times that Tenant is
occupying at least 50% of the building, Tenant may install exterior signage at
its expense subject to Landlord's approval, such approval not to be unreasonably
withheld or delayed. Landlord agrees that any signage installed on its behalf
shall not interfere with Tenant's signage. Tenant's determination of whether
such interference exists shall be in Tenant's reasonable judgment; Tenant shall
not unreasonably capricious in its review. Landlord also agrees that no tenant
who occupies less than 50% of the building may install any signage without
Tenant's prior written approval. In no event shall Landlord make any use of
Tenant's name or any of Tenant's trade names, service names or service marks or
logos in any signage or promotional material without Tenant's prior approval. It
is understood and agreed that Tenant is the major tenant of the Building and as
such shall have reasonable approval rights over any changes to the exterior and
interior appearance of the Building and Property (not including tenanted space),
including without limitation grade and quality of Common Area improvements,
signage, landscaping and all matters visible to the public.
9. TENANT'S AND LANDLORD'S ADDITIONAL COVENANTS
A. Landlord Covenants. (i) In amplification of the
provisions of EXHIBIT 4.B and in addition to the services being provided with
respect to the Premises, Landlord, with regard to the Property, the Building and
the Common Areas, covenants that at all times during the Term and any Extension
Periods, Landlord shall maintain same in a manner consistent with first class
office buildings in New Canaan, Connecticut, and shall provide daily trash and
refuse disposal and Landlord shall clean and maintain the Property, the Building
and the Premises and maintain same in good working order and, subject to Section
31.R, in compliance with all Applicable Laws, expressly including without
limitation all Common Areas and the bathrooms, and shall keep all drains, pipes,
utility wires inside or affecting the Premises in good working order. Landlord
shall supply toilet paper, toweling and soap in all bathrooms. In addition to
such daily cleaning
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and maintenance work, the Landlord will periodically wash and wax all floors
and/or clean carpeted areas in the Premises and in the Common Areas, as
applicable, in accordance with EXHIBIT 4.B hereto so that they are maintained in
a first class condition at all times.
(ii) Landlord covenants that it shall observe
faithfully and completely and it shall be in strict compliance with all laws,
rules and regulations as may be applicable to it as a landlord with respect to
the terms, conditions and provisions of this Lease, including without limitation
maintaining the Building, the Property and Common Areas in compliance with all
Applicable Laws.
B. Tenant Covenants. The Tenant covenants at all
times during the Term and any Extension Periods:
(i) To perform promptly all of the obligations of
the Tenant set forth in this Lease and to pay when due items of Rent and all
charges, rates and other sums which by the terms of this Lease are to be paid by
the Tenant.
(ii) To conduct its business at all times in a
high grade and reputable manner so as to help establish and maintain a high
reputation for the Building.
(iii) To comply with all reasonable "Building
Rules and Regulations" ("Rules"), if any. All current Building Rules and
Regulations are attached as EXHIBIT 9.B(iii) hereto. Landlord may from time to
time hereafter make reasonable Rules or reasonable modifications to the Rules
and establish reasonable additional written Rules for the safety, comfort and
welfare of the occupants of the Building, only with Tenant's prior written
approval, which approval shall not be unreasonably withheld or delayed. Such
Rules, modifications or additions shall be binding upon Tenant when a copy is
delivered to Tenant or Tenant's authorized representative in accordance with the
notice provisions herein. Except as may be otherwise set forth herein, Landlord
hereby covenants and agrees to enforce any Rules in a non-discriminatory manner.
(iv) To keep and maintain receiving doors and
platforms used by the Tenant free and clear of Tenant's refuse.
(v) Subject to Section 31.C, (i) to make all
repairs, alterations, additions or replacements to the Premises required by any
law or ordinance or any order or regulation of any public authority because of a
change in Tenant's use of the Premises from that specified in Section 2.C which
repairs, alterations, additions or replacements are mandated under the
Applicable Laws as the obligation of a tenant; (ii) to keep the Premises
equipped with all safety appliances so required because of such changed use; to
procure any licenses and permits required for any such changed use other than a
certificate of occupancy,
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which is Landlord's responsibility; and (iii) to comply with the orders and
regulations of all governmental authorities, except that the Tenant may defer
compliance so long as the validity of any such law, ordinance, order or
regulation shall be contested by the Tenant in good faith and by appropriate
legal proceedings, if the Tenant first gives the Landlord reasonably appropriate
assurance against any loss, cost or expense on account thereof and if such
deferral shall not adversely affect the operation of any other areas within the
Building.
(vi) Subject to Section 8.B hereof, to not place
signs of any nature or kind whatsoever in or upon the windows of the Premises.
Subject to Section 8.B, Tenant signage will be provided by means of a Building
Standard nameplate located at the main reception area in the Premises. Subject
to Section 8.B, a Building Standard sign acceptable to Tenant will be provided
at Tenant's expense. As provided in EXHIBIT 4.A-1, Landlord shall install new
directories in the main, first and second floor lobbies in the building at
Landlord's expense, which directories shall be subject to Tenant's approval,
such approval not to be unreasonably withheld or delayed. Tenant shall be
allowed pre-approved identification strips in the new directory of the Building
at Tenant's expense. Tenant shall not use any pictures or drawing of the
Building in any advertisement or promotional material without Landlord's prior
written consent. Tenant agrees that it will place no signs, decoration(s),
lettering or advertising of any nature on any window within the Premises which
would be visible outside of the Premises. All window coverings inclusive of
drapes, blinds or shades shall be furnished and installed by Tenant, at Tenant's
sole cost and expense.
(vii) To not make any use of the Premises other
than the permitted use set forth in Section 2.C.
(viii) To not injure, overload (Landlord has
noted to Tenant that although Tenant is not in violation thereof, Tenant has
certain identified areas of the Premises where Tenant is using heavy floor
loads; Tenant shall endeavor to coordinate with Landlord to not overload the
floors of the Premises; however, in no event shall Tenant have any liability
whatsoever for any damage to the Building by reason of Tenant's past, present or
future use of the Premises, provided that such use is consistent with the
current use of the Premises), deface or otherwise harm the Premises; nor commit
any nuisance; nor permit the emission of any objectionable noise or odor; nor
burn any trash or refuse within the Building; nor subject to Section 31.C make
any use of the Premises which is improper, offensive or contrary to any law or
ordinance; nor use any advertising medium that may constitute a nuisance, such
as loudspeakers, sound amplifiers, phonographs or radio or television broadcasts
in a manner to be heard outside the Premises; nor do any act tending to injure
the reputation of the Building; nor park trucks or delivery vehicles outside the
Premises so as to interfere
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unreasonably with the use of any driveways, walks or parking areas.
(ix) Subject to those matters stated below, not
permit or suffer to be done any act, matter, thing or failure to act in respect
of the Premises or use or occupy the Premises or conduct or operate Tenant's
business in any manner objectionable to any insurance company or companies
whereby the fire insurance or any other insurance then in effect in respect of
the Premises or the Building or any part thereof shall become void or suspended
or whereby any premiums in respect of insurance maintained by Landlord shall be
higher than those which would normally have been in effect for the occupancy
contemplated within the Building. Notwithstanding the foregoing, Landlord hereby
represents and warrants that Tenant's use of the Premises as contemplated herein
shall not constitute a breach of the preceding sentence. In case of a breach of
this covenant, in addition to all other rights and remedies of Landlord
hereunder, Tenant shall (a) indemnify Landlord and the Lessor(s) of any ground
or underlying lease(s) and hold Landlord and the Lessor(s) of any ground or
underlying lease(s) harmless from and against any actual (as opposed to
consequential or punitive) loss which would have been covered by insurance which
shall have become void or suspended because of such breach by Tenant, and (b)
pay to Landlord, as Additional Rent, any and all increases or premiums on any
insurance, including, without limitation, fire insurance and rent insurance,
resulting from any such breach.
10. WAIVER OF PROPERTY AND LIABILITY CLAIMS
A. Damage from Other Causes. Tenant waives all claims it may
have against Landlord and against Landlord's agents and employees for injury or
damage to property sustained by Tenant or by any occupant of the Premises or by
any invitee of Tenant resulting from any accident in or about the Building to
the extent same is directly or indirectly attributable to any negligent act or
omission of Tenant or occupant of the Premises, except and to the extent such
claim for injury or damage is attributable directly or indirectly to the
negligent act or omission or intentional misconduct of Landlord or its agents,
servants or employees. If any damage results from any negligent act or omission
of Tenant, Landlord may, at Landlord's option, repair such damage and Tenant
shall thereupon pay to Landlord promptly upon demand the total reasonable cost
of such repair. All personal property belonging to Tenant or any occupant of the
Premises that is in or on any part of the Building shall be there at the risk of
Tenant or of such other person only, and Landlord, its agents and employees
shall not be liable for any damage thereto or for the theft or misappropriation
thereof unless such damage, theft, or misappropriation is a result of the
negligent act or omission or intentional misconduct of Landlord or Landlord's
agents or employees.
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B. Loss of Business, Etc.. Landlord shall not in any event be
liable for loss of business of Tenant nor salaries paid to Tenant's employees,
agents, or contractors, nor for any latent defect in the Premises or the
Building. Tenant shall give prompt written notice to Landlord in case of theft,
fire, or accidents in the Premises or in the Building or of defects therein or
in the fixtures or equipment.
C. Indemnification. Except for Landlord's negligent act or
omission or intentional misconduct or those of Landlord's agents, contractors
and employees, Tenant covenants and agrees that Tenant will have sole liability
for any claims, demands, penalties, or liabilities to the extent that same may
arise out of or be connected with Tenant's occupation, use or enjoyment of the
Premises or the Building and, unless Tenant's insurers require otherwise except
as set forth below, Tenant will release, discharge, indemnify and hold Landlord
harmless, from and against all finally adjudicated or settled claims, demands,
penalties and liabilities for any damage or injury to persons, firms,
corporations or property suffered, sustained or incurred as a result of or in
connection with or arising out of and to the extent of any negligent act or
omission of Tenant or its agents, employees, contractors, licensees and business
invitees, in connection with the occupation, use, or enjoyment of the Premises
or the Building by the Tenant, including the reasonable cost of defending
against such claims or demands. Tenant shall indemnify and save harmless
Landlord from and against any and all liability and damages, and from and
against any and all suits, claims, and demands of every kind and nature,
including reasonable counsel fees, by or on behalf of any person, firm,
association or corporation arising out of or based upon any accident, injury or
damage to the extent same is caused by the negligent or willful act or omission
of Tenant, however occurring, which shall or may happen during the Term hereof,
on or about the Premises, and from and against any matter or thing growing out
of the condition, maintenance, repair, alteration, use, occupation or operation
of the Premises by Tenant; the foregoing indemnity shall not include punitive or
consequential damages. Notwithstanding anything contained herein to the
contrary, Tenant does not agree to indemnify or hold harmless Landlord from, and
Landlord hereby agrees to indemnify and hold harmless Tenant from, claims,
demands, penalties or liabilities to the extent they are the result of acts or
omissions of Landlord, its agents, servants, contractors or employees, other
tenants or occupants of the Building which constitute negligence or willful
misconduct, or which constitute a breach of Landlord's obligations hereunder. In
case of any action or proceeding on any such claim or demand being brought
against Landlord or Tenant, as the case may be, Landlord or Tenant, as the case
may be, upon notice from the other, covenants to resist and defend such action
or proceeding (except and to the extent that such is the result of the negligent
act, omission or intentional conduct of the other party or that such is the
result of a breach by the other of its obligations hereunder). Either party may
also resist and defend
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such action in the event the other party fails or refuses to do so, and in such
event, the failing or refusing party shall reimburse the other party promptly on
demand for all reasonable costs which the other party may incur in so doing.
11. INSURANCE
A. By Tenant. During the Term of this Lease, Tenant,
at its sole cost and expense, shall carry and maintain the
following types of insurance, in insurance companies which are
authorized to do business in the State of Connecticut and which
are reasonably satisfactory to Landlord.
(i) Property Insurance. Property insurance
covering Tenant's personal property kept on the Premises and on all improvements
which may have been made by Tenant to the Premises and owned by Tenant.
(ii) Liability Insurance. Comprehensive general
liability insurance and personal injury liability insurance, insuring Tenant and
Landlord, as an additional insured, against liability for injury to persons
(including death) or damage to property occurring in or about the Premises or
arising out of the ownership, maintenance, use, or occupancy thereof. Said
Policy shall insure against any claim up to $1,000,000.00, in the case of death
or bodily injury to one person and up to $2,000,000.00 in the case of any one
accident involving death or bodily injury to more than one person, and shall
insure against any claim for property damage up to $1,000,000.00 with a
contractual obligation endorsement.
(iii) Worker's Compensation. Workers
compensation insurance insuring Tenant from all claims for personal injury,
disease, and/or death under the worker's compensation law of the State of
Connecticut, as required by law.
(iv) Tenant To Furnish Certificates. Tenant
shall furnish Landlord certificates evidencing said insurance policies within
ten (10) days after the execution of this Lease and thereafter upon Landlord's
request. Such policies shall provide that coverage may not be canceled or
reduced without at least thirty (30) days' written notice first given to
Landlord. Tenant shall have the privilege of procuring and obtaining all such
insurance through its own sources; provided, however, that Tenant's failure to
produce and maintain said insurance may be declared a default hereunder.
(v) Waiver of Subrogation. Landlord and Tenant
hereby mutually waive their respective rights of recovery against each other for
any loss insured or required to be insured against pursuant to this Lease, but
only to the extent that this provision does not invalidate or make it impossible
to secure insurance coverage. Each party shall obtain any special endorsements,
if required by its insurer, to evidence compliance
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with this waiver. Each party shall use its best efforts to cause each insurance
policy it obtains to provide that the insurer thereunder waives all right of
recovery by way of subrogation as required herein in connection with any injury
or damage covered by the policy. If such waiver of subrogation is only available
at additional cost, and the party for whose benefit the Waiver is obtained does
not pay such additional cost, then such party shall waive the benefit of this
waiver of subrogation. In any event of loss wherein there exists a duplication
in the insurance coverage of Landlord and Tenant, Tenant agrees that its
coverage shall first be applied to such losses. In the further event that such
losses are covered by more than one of Tenant's insurance policies, no dispute
or claim of subrogation between or among any such carriers shall cause or allow
Tenant to unreasonably defer or delay any payment hereunder to be made by
Tenant.
B. By Landlord. Landlord shall maintain during the term of
this Lease a policy of "all risk" extended coverage, fire and property damage
insurance covering loss or damage to the Building of which the Premises is a
part in the amount of 100% of the full replacement value thereof, including
rental interruption insurance for a period of at least twelve (12) months.
Landlord shall provide to Tenant reasonably satisfactory certificates evidencing
such insurance prior to commencement of this Lease and thereafter upon request
of Tenant. All such insurance shall name Tenant as an additional insured and
shall provide that such insurance shall not be terminated without at least
thirty (30) days prior written notice to Tenant.
C. Additional Insurance Provisions. All insurance provided for
in this Section 11 shall be effected under standard form policies issued by
insurers of recognized responsibility, licensed and authorized to do business in
the state in which the Premises are located, and having a Best's Financial
rating of A-VII or better or an equivalent rating from a recognized insurance
rating service. Notwithstanding anything to the contrary hereinabove contained,
Landlord or Tenant may, at its option, include any of the insurance coverage
hereinabove set forth in general or blanket policies of insurance provided that
the coverage afforded will not be reduced or diminished by reason of the use of
such general or blanket policies and may be effected by any combination of
basic, excess or umbrella coverage.
12. ASSIGNMENT AND SUBLETTING
A. Consent. Tenant may sublet the Premises or any part
thereof or transfer possession or occupancy thereof to any person, firm or
corporation, or transfer or assign this Lease, pursuant to the provisions of
this Section 12, during the term hereof including any Extension Periods,
subject to Landlord's prior approval, which shall not be unreasonably withheld
or delayed. Landlord must notify Tenant in writing within (i) fourteen (14) days
after Tenant's notification to Landlord of its
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intent to sublet the Premises, and (ii) thirty (30) days after Tenant's
notification to Landlord of its intent to assign the Lease whether Landlord is
withholding its consent and the reasons for same. If Landlord's consent to any
proposed assignment or subletting is required and is not given or withheld
within fourteen (14) days or thirty (30) days, as the case may be, following
Tenant's request therefor, such consent shall be deemed given.
No assignment, subletting, occupancy or other transfer,
whether or not permitted hereunder with or without the Landlord's express
written consent shall relieve Century Communications Corp. (herein the "Original
Tenant") of any of its liabilities and obligations pursuant to this Lease;
however, in the event of an assignment of this Lease to any person or entity,
which at the time of the assignment, has a net worth in accordance with
generally accepted principles of accounting equal to or greater than the
consolidated net worth of the Original Tenant (such comparison shall take into
account and include as part of the assignee's net worth, the net worth of any
affiliate of the assignee who executes a guaranty of the tenant's obligations
under this Lease) on the date hereof, then subject to the terms and conditions
of this Section 12 from and after the date of such assignment, Tenant named
herein shall be relieved of all obligations of Tenant under this Lease other
than those accruing prior to the date of such assignment. If Tenant desires to
assign the Lease in accordance with this Section 12, Tenant shall give written
notice to Landlord at least sixty (60) days prior to the proposed commencement
date of the assignment. The notice shall set forth the following: (i) the name
of the proposed assignee, (ii) the current balance sheet and profit and loss
statements for the proposed transferee or any other person or entity to be
liable for Tenant's obligations under this Lease covering the prior three years
(or for such shorter period as the proposed transferee or other person may have
been in existence), all certified as true and correct by the proposed
transferee, other person or an authorized officer thereof, (iii) audited
statements of net worth prepared by a nationally recognized certified public
accountant for both the Original Tenant (such statement shall show the Original
Tenant's net worth as of the date hereof) and the proposed assignee prepared in
accordance with generally accepted accounting principles, (iv) a full
description of the terms and conditions of the proposed assignment, including
copies of any and all documents and instruments, any purchase and sale
agreements, assignment agreements and all other writings concerning the proposed
transfer, and (v) a description of the proposed use of the Demised Premises by
the proposed transferee, including any required or desired Tenant Improvements
that may be undertaken by such transferee in order to facilitate its proposed
use. Landlord shall within thirty (30) days after receipt of all of the above
either grant its approval or disapproval of said assignment, any disagreements
shall be submitted to arbitration in accordance with Section 36. If Landlord
shall approve such
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assignment, as a precondition to such assignment, the proposed assignee shall
assume, pursuant to an assignment form reasonably approved by Landlord, all
liability and obligations of whatsoever nature pursuant to the Lease.
Notwithstanding the foregoing, the deliveries provided for in clauses (i)
through (v) above shall not be required if the Original Tenant shall not seek a
release of liability in connection with said assignment.
B. Excess Rent. In the event Landlord has granted its written
consent to Tenant to sublet the Premises or assign this Lease, Tenant may sublet
all or a portion of the Premises or assign this Lease.
From and after the effective date of the subletting, Tenant
shall pay to Landlord as Additional Rent monthly, fifty percent (50%) of that
portion of any Rent accruing to Tenant, if any, as the result of such sublease
to the extent that such amount is in excess of the Proportionate Share of Rent
then being paid by Tenant for the portion of the Premises being sublet after
deduction of the reasonable costs of doing same. Reasonable costs shall include
the costs customarily incurred in subletting in the commercial office rental
"market" as defined in Section 2.B hereof, including without limitation
advertising, legal fees, brokerage, Rent abatement, work letter obligations, and
other matters. Upon assignment of this Lease, Tenant shall pay to Landlord as
Additional Rent an amount equal to fifty (50%) percent of all sums paid to and
received by Tenant from an assignee for such assignment less any and all Rent
payable hereunder (to the extent that any sums paid to Tenant include any Rent
payable by Tenant to Landlord) and the reasonable costs and expenses incurred by
Tenant in connection with such assignment. Reasonable costs shall include the
costs customarily incurred in connection with an assignment in the commercial
office rental "market" as defined in Section 2.B hereof, including without
limitation advertising, legal fees, brokerage, Rent abatement, work letter
obligations, and other matters.
All sums payable hereunder by Tenant shall be paid to Landlord
as Additional Rent immediately upon receipt thereof by Tenant or by any
subtenant or other person claiming through or under Tenant.
C. Tenant Not Released. Subject to those matters set forth in
Section 12.A above, in the event of any subletting of all or any portion of the
Premises, Tenant shall remain jointly and severally liable to Landlord for
payment of all Rent stipulated herein and/or payment and performance of all
other covenants and conditions contained herein. Rent due from Tenant shall not
be diminished or abated during any remodeling or redecoration period. Landlord
may collect Rent from any sublessee and apply the net amounts collected to the
Base Rent and Additional Rent, but no such collection shall be deemed to be a
waiver of the provisions of this Section. Subject to those matters set forth in
Section 12.A above, in the event of
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assignment of this Lease, Tenant will not be relieved of any further obligations
and liability hereunder unless (i) the proposed assignee (and any proposed
guarantors of this Lease) has an equal or greater net worth to that of Tenant on
the date hereof, and (ii) the proposed assignee assumes all of Tenant's
liability and obligations hereunder.
D. Assignment or Sublet to Affiliate. Notwithstanding anything
to the contrary in this Section 12, Tenant may, without Landlord's prior written
consent and without any participation by Landlord in assignment and subletting
proceeds (or Excess Rents), sublet the Premises or assign this Lease to: (i) a
subsidiary, affiliate, division or corporation controlled or under common
control with Tenant; or (ii) a successor corporation related to Tenant by merger
or consolidation. For the purpose of this Lease, sale of Tenant's capital stock
through any public exchange shall not be deemed an assignment, subletting, or
any other transfer of this Lease or the Premises.
13. CONDITION OF PREMISES. At the termination of this Lease, Tenant
shall return the Premises with all Tenant's personal property removed therefrom,
broom clean and in as good condition as of the Commencement Date (as modified by
any Tenant Improvements), ordinary wear and tear, casualty and condemnation
excepted, failing which Landlord may restore the Premises to such condition and
Tenant shall pay the reasonable cost thereof promptly on demand, provided,
however, that Tenant shall have no obligation to restore the Premises to the
physical condition that existed prior to the commencement of either this Lease
or any prior lease between the parties.
14. OBLIGATION TO REPAIR
A. Tenant's Obligation. Tenant agrees and covenants to keep the
Premises in as good order, condition, and repair as when the same were entered
upon, ordinary wear and tear, casualty and condemnation excepted. Tenant
shall have no obligation whatsoever to make any repairs which are other than
ordinary and non-capital, except that all damage or injury to the Building or to
the Premises, fixtures, appurtenances and/or equipment to the extent caused by
Tenant's negligence and/or willful misuse shall be repaired, restored, or
replaced promptly by Tenant at its sole cost and expense. Tenant shall be
granted access to all parts of the Building and the Property for said purpose.
All repairs, restorations, and replacements shall be in quality and class equal
to the original work or installations and shall be done to Landlord's reasonable
satisfaction. If Tenant fails to keep the Premises in such good order,
condition, and repair as required hereunder after notice by Landlord, latent
defects excepted, Landlord may restore the Premises to such good order and
condition and make such repairs.
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B. Landlord's Obligation. Landlord shall, except as expressly
provided for in Section 14.A above, be responsible to repair and maintain the
Building, the Property and the Common Areas and to maintain same in a manner
consistent with first class office buildings in New Canaan, Connecticut. Such
obligation shall include ordinary and extraordinary expenses as well as capital
repairs and replacements, expressly including without limitation the structural
portions of the Building, the basic plumbing, air conditioning, heating, and
electrical systems, unless and to the extent that the condition requiring such
maintenance is caused in part or in whole by the act, neglect, fault or omission
of any duty by Tenant, its agents, servants, employees or invitees, in which
case Tenant shall pay Landlord the reasonable cost of such maintenance or
repairs arising through Tenant's fault. There shall be no abatement of Rent and
no liability of Landlord by reason of any injury or interference with Tenant's
business arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Premises or in or to fixtures,
appurtenances and equipment therein. However, if such interruption or
discontinuance (unless and to the extent caused by Tenant's negligence or
willful conduct) shall continue for three (3) consecutive Business Days (as
defined below) or for more than eight (8) Business Days in any Lease Year, and
if the Premises shall be rendered untenantable in whole or in part, all Rent
shall xxxxx to the extent the Premises is untenantable during the pendency of
such discontinuance or interruption. Except as may otherwise be provided
hereunder, Tenant waives the right to make repairs at Landlord's expense under
any law, statute or ordinance now or hereafter in effect. If Landlord shall in
good faith dispute Tenant's right to xxxxx Rent, Landlord may commence an
arbitration proceeding pursuant to Section 36 to settle the dispute. Pending the
determination of the arbitrators (provided that Landlord is actively and
diligently prosecuting same to completion), the Rent shall not be abated. Upon
such determination, if Tenant is found to have had the right to abatement, then
Tenant shall have the right to offset against Rent (i) the amount of any such
abatement plus interest at the Interest Rate from the date of the interruption
or discontinuance of service, plus (ii) all reasonable attorneys' fees and costs
incurred by Tenant in connection with such arbitration and in connection with
enforcing this Section and in obtaining and enforcing any determination and/or
judgment.
15. LIABILITY. Landlord assumes no liability or responsibility whatever
with respect to the conduct and operation of the business to be conducted in the
Premises by Tenant nor for any loss or damage, of whatsoever kind or by
whomsoever caused, to personal property, documents, records, monies, or goods of
Tenant or to anyone in or about the Building unless said loss or damage is
caused by Landlord's negligent act, omission or intentional conduct.
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16. DAMAGE TO LEASED PREMISES
A. Casualty Damage. If the Premises or any part thereof shall
be damaged by fire or other casualty, Tenant shall give immediate notice thereof
to Landlord; however, this Lease shall continue in full force and effect except
as hereinafter set forth. If the Premises are partially unusable, the damage
thereto shall be repaired by Landlord with reasonable dispatch after Landlord is
provided with a reasonable opportunity to collect the insurance proceeds
attributable to such damage, but in no event longer than two hundred ten (210)
days from the date upon which such damage occurred, subject to delays due to
causes beyond Landlord's control; and Rent, until such repairs shall be
substantially completed, shall be apportioned from the date of the casualty
according to the part of the Premises which is unusable. Landlord, however,
shall have no obligation to repair any damage to Tenant's Property or any other
property or effects of Tenant. If the Premises are totally damaged or rendered
wholly unusable by fire or other casualty, then the Rent shall be
proportionately paid up to the time of the casualty and thenceforth shall cease
until the date when the Premises shall have been repaired and restored by
Landlord, subject to Landlord's right to elect not to restore the same as
hereinafter provided.
B. Damage Termination. If the Premises are rendered wholly
unusable (whether or not the Premises are damaged in whole or in part) or if the
Building shall be so damaged that Landlord shall decide to demolish it or not to
rebuild it, then in either of such events, Landlord may elect to terminate this
Lease by written notice to Tenant given within sixty (60) days after such fire
or casualty. Such notice shall specify a date for the expiration of this Lease,
and upon the date specified the Term shall expire as fully and completely as if
such date were the date set forth above for the termination of this Lease, and
Tenant shall forthwith quit, surrender and vacate the Premises without
prejudice, however, to Landlord's rights and remedies against Tenant under the
Lease provisions in effect prior to such termination. Any Rent owing shall be
paid up to the date of the casualty, and any payments of Rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Landlord shall serve a termination notice as provided for herein,
Landlord shall make repairs and restoration as herein set forth with reasonable
dispatch after a reasonable period of time has been allowed to provide for
collection of the insurance proceeds awarded to Landlord as provided in Section
11, but in no event longer than two hundred ten (210) days from the date upon
which such damage occurred. If restoration is not completed within said two
hundred ten (210) days, Tenant may terminate this Lease within ten (10) Business
Days after such expiration, on written notice to Landlord.
C. Landlord Will Not Insure. Tenant acknowledges that,
Landlord will not carry insurance on Tenant's Property or
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on Tenant's business records or other property of Tenant or Tenant's agents, and
Tenant agrees that Landlord will not be obligated to repair any damage thereto
or to replace the same, except as specifically provided in Section 16 hereof.
17. CONDEMNATION
A. Entire Award. In the event that the Property, Building,
or any part thereof, or the Premises or any part thereof, shall be taken in
condemnation proceedings or by the exercise of any right of eminent domain or
by agreement between the Landlord on the one hand and any governmental authority
authorized to exercise such right on the other hand, the Landlord shall be
entitled to collect from any condemnor the entire award or awards that may be
made in any such proceeding.
B. More Than 25% Taking. At any time during the Term, if title
to a portion greater than twenty-five (25%) percent of the Property, Building
and/or Premises shall be taken in condemnation proceedings or by the exercise of
any right of eminent domain or by agreement between Landlord on the one hand and
any governmental authority authorized to exercise such right on the other hand,
this Lease shall terminate and expire on the date of such taking, and the Rent
provided to be paid by Tenant shall be apportioned and paid to the date of such
taking.
C. Less than 25% Taking. However, if less than twenty-five
percent (25%) of the Property, Building and/or the Premises shall be so taken,
this Lease nevertheless shall continue in full force and effect, except that
Tenant may elect to terminate this Lease if (i) that portion of the Premises
then occupied by Tenant shall be reduced by five percent (5%) or more, (ii) five
(5%) percent or more of the Premises shall become untenantable, or (iii)
tenant's parking rights shall be reduced by five (5%) percent or more, by notice
of such election to the Landlord not later than thirty (30) days after (x)
notice of such taking is given by the condemning authority, or (y) the date of
such taking, whichever occurs later. Upon the giving of such notice this Lease
shall terminate on the date of service of such notice and the Rent due and to
become due shall be prorated and adjusted as of the date of the taking. If a
condemnation or taking shall not give rise to a termination right of Tenant
pursuant to this Section 17 or should Tenant fail to give such notice upon such
partial taking and this Lease continues in force as to any part of the Premises
not taken, the Rent apportioned to the part taken shall be prorated and adjusted
as of the date of taking. From such date, the Rent shall be reduced to the
amount apportioned to the remainder of the Premises, and the Tenant's
Proportionate Share shall be recomputed to reflect the number of square feet
remaining in the Premises in relation to the number of square feet of Building
remaining in the Building. Tenant shall receive a reasonable abatement of Rent
to account for any lost parking or Common Area usage.
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D. Rights to Condemnation Award. Tenant shall not be entitled
to any portion of any condemnation award or private purchase price. Tenant
hereby expressly assigns to Landlord all of its rights in and to every such
award and agrees to execute any and all documents required to facilitate
collection thereof by Landlord. Notwithstanding the foregoing provisions of this
Section, Tenant shall be entitled to appear, claim, prove and receive in the
proceedings relating to any taking mentioned in the preceding Sections of this
Section such portion of each award made therein as represents (a) Tenant's
moving expenses, (b) the then value of Tenant's personal property, and (c) the
unamortized value over the Term of the Tenant Improvements to the Premises,
depreciated from the date of installation thereof to the date of taking,
provided the same shall have been installed by or at the Tenant's expense but
regardless of whether the Tenant Improvements might be considered a part of the
Premises or shall be or become the property of the Landlord under the terms of
this Lease.
E. Landlord to Repair. In the event of any taking of less than
the whole of the Building which does not result in a termination of this Lease,
or in the event of a taking of any part of the Premises which does not result in
a termination of this Lease, Landlord at its expense shall proceed with due
diligence to repair, alter and restore the remaining part of the Building and
the Premises to substantially the same condition as it was in immediately prior
to such taking to the extent that the same may be feasible so as to constitute a
tenantable Building and Premises, provided that Landlord's liability under this
Section shall be limited to the amount received by Landlord as an award arising
out of such taking. If such award is less than adequate (and Landlord does not
supplement the award) to repair and restore to the foregoing standard, Tenant
may upon ninety (90) days notice to the Landlord cancel and terminate this Lease
unless within such period repair and restoration to such standard has been
accomplished.
18. NOTICES. All notices which may be or are required to be given by
either party to the other shall be in writing and mailed, postage prepaid, by
United States Postal Service, certified or registered mail, or sent prepaid by
private, reputable overnight delivery service such as Federal Express, and shall
be deemed effective three (3) days after deposit with the United States Postal
Service or one (1) day after deposit with an overnight delivery service to the
following addresses or such other addresses as the parties shall designate in
writing:
If to Landlord:
Xxxxxxx Xxxxxx Xx.
00 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
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with a copy to:
Xxxxxx X. Xxxxxx, Esq.
X.X. Xxx 0000
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to Tenant:
Xxxxx X. Xxxxxxxxx
Senior Vice President and Treasurer
Century Communications Corp.
00 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
with a copy to:
Legal Department
Century Communications Corp.
00 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
19. DEFAULT AND REMEDIES
A. Default. The occurrence of any one or more of the
following events shall constitute a default and breach of this Lease by Tenant:
(i) The failure by Tenant to make any payment of
Rent or other monetary payment required to be made by Tenant hereunder, as and
when due, where such failure shall continue for a period of ten (10) days after
written notice from Landlord.
(ii) The failure by Tenant to observe or perform
any of the covenants, conditions, or provisions of this Lease to be observed or
performed by Tenant, or other than to make payments as required by this Lease,
where such failure shall continue for a period of thirty (30) days after written
notice thereof by Landlord to Tenant; provided, however, that if the nature of
Tenant's failure is such that more than thirty (30) days are reasonably required
for its cure, then Tenant shall not be in default if Tenant commences such cure
within said thirty (30) day period and thereafter diligently prosecutes such
cure to completion.
(iii) The making by Tenant of any general
assignment or general arrangement for the benefit of creditors; or the filing by
or against Tenant of a petition to have Tenant declared bankrupt, or a petition
of reorganization or arrangement under any law relating to bankruptcy unless, in
the case of a petition filed against Tenant, the same is dismissed within thirty
(30) days; or the appointment of a trustee or a receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease
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where possession is not restored to Tenant within thirty (30) days; or the
attachment, execution, or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where such seizure is not discharged within thirty (30) days after the levy
thereof.
B. Remedies. In the event of any material default or
material breach by Tenant beyond applicable notice and grace provisions,
Landlord may at any time thereafter, after notice and demand but without
limiting Landlord in the exercise of any right which Landlord may have pursuant
to the terms and conditions of this Lease by reason of such default or breach,
terminate this Lease pursuant to this express stipulation, in which event this
Lease shall expire and terminate and Landlord shall be entitled to recover
possession of the Premises in the manner prescribed by the statute relating to
summary process; and Landlord shall have the right to proceed as follows:
(i) Re-enter and take possession of the Premises
or any part thereof and repossess the same as of Landlord's former estate and
expel Tenant and those claiming through or under Tenant, and remove the effects
of both or either without being deemed guilty in trespass or of a forcible entry
or detainer and without prejudice to any remedies for arrears of Rent or
preceding breach or covenants. In such event, Landlord shall be entitled to
recover from Tenant all actual damages (as opposed to consequential or punitive)
incurred by Landlord by reason of Tenant's default, including, but not limited
to, the reasonable cost of recovering possession of the Premises, expenses of
reletting, including reasonably necessary renovation and alteration of the
Premises, reasonable attorneys' fees and any real estate commission actually
paid. Such damages shall bear interest from the date due at the Interest Rate.
(ii) Tenant, until the end of the Term or what
would have been such Term in the absence of any such event (expressly excluding
any unexercised Extension Periods), shall be liable to Landlord as damages for
Tenant's default, the equivalent of the amount of the Base Rent and the
Additional Rent and charges which would be payable under this Lease by Tenant if
this Lease were still in effect, less the net proceeds of any reletting after
deducting all Landlord's reasonable expenses in connection with such reletting,
including, without limitation, all reasonable repossession costs, brokerage and
management commissions, legal expenses, reasonable attorney's fees, reasonable
and customary alteration costs, the cost of which shall be amortized, and only
that portion attributable to the remainder of this Lease Term shall be included
in this calculation, and reasonable expenses of preparation for such reletting.
Tenant shall pay such current damages (herein called "deficiency") to Landlord
monthly on the days on which the Rent would have been payable under this Lease
if this Lease were still in effect, and Landlord shall be entitled to recover
from Tenant each monthly deficiency as the same shall arise. Landlord shall
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use reasonable efforts in order to relet the Premises. Landlord
shall use reasonable efforts in order to relet the Premises.
(iii) In the event of termination of the Term by
the happening of any such event, Landlord shall forthwith, upon such
termination, any other provisions of this Lease to the contrary notwithstanding,
become entitled to recover as and for liquidated damages caused by such breach
of the provisions of this Lease an amount equal to the difference between (a)
the then present cash value of the future Rent reserved hereunder for the
unexpired portion of the Term, and (b) the then present cash rental value of the
Premises for the balance of the Term, unless the statute which governs shall
limit the amount of such claim capable of being so proved, in which case
Landlord shall be entitled to prove as and for liquidated damages an amount
equal to that allowed by or under such statute. All present value calculations
shall assume a discount rate equal to twelve (12%) percent per annum. Upon
collection of such liquidated damages, Landlord shall not have the right to
collect any other sums. Further, it is not the intention of the parties that
Landlord shall collect any sums that shall be duplicative of any other damages
collected in accordance with this Lease.
Except as may be provided in section (iii) above, the
foregoing remedies may be pursued severally or jointly. However, unless a remedy
is expressly reserved to Landlord pursuant to this Section 19 or otherwise
provided for in this Lease such remedy shall not be available to Landlord. The
remedies provided in this Section 19 and in this Lease shall be the sole and
exclusive remedies of Landlord. Subject to the terms and conditions of this
Section 19, no exercise by Landlord of the foregoing remedies, and no expiration
or termination of this Lease, or summary proceedings, abandonment or vacancy
effected pursuant to this Section 19, shall relieve Tenant of its liability and
obligation under this Lease, whether or not the Premises shall be relet. In any
such event Tenant shall pay Landlord the Base Rent, Additional Rent, and other
charges required to be paid by Tenant up to the time of such event.
C. Specific Performance. In the event of any breach
or threatened breach by Tenant of any of the agreements, terms,
covenants or conditions contained in this Lease, Landlord shall
be entitled to enjoin such breach or threatened breach.
20. BANKRUPTCY. If at any time during the Term of this Lease, a
petition shall be filed, either by or against Tenant, in any court or pursuant
to any federal, state or municipal statute, whether in bankruptcy, insolvency,
for the appointment of a receiver, involving Tenant's business or property or
because of any general assignment made by Tenant of Tenant's property for the
benefit of Tenant's creditors, then immediately upon the happening of any such
event, in addition to any other remedy available to Landlord hereunder and
without any entry or other act by Landlord, this Lease, at Landlord's option,
shall cease
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and come to an end with the same force and effect as if the date of the
happening of any such event were the date herein fixed for the expiration of the
Term. Nonetheless, in the event of an involuntary bankruptcy petition against
Tenant, Tenant shall have sixty (60) days in which to obtain a final dismissal
of said petition.
21. LANDLORD AND TENANT DEFINED
A. Definition. The term "Landlord" as used in this Lease
insofar as covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the entity signing below as such or any
owner or owners at the time in question of the fee of the Premises who have
derived title through or under the undersigned. In the event of any transfer of
title to such fee, Landlord herein named (and in the case of any subsequent
transfers or conveyances, the then grantor) shall automatically be freed and
relieved from and after the date of such transfer or conveyance of all liability
as respects the performance of any covenants or obligations on the part of
Landlord contained in this Lease thereafter to be performed, provided that the
transferee shall assume in writing the obligations and liability of the Landlord
as hereunder provided and further provided that any funds in the hands of such
Landlord, or the then grantor, at the time of such transfer in which Tenant has
an interest, shall be turned over to the grantee, and any amount then due and
payable to Tenant by Landlord, or the then grantor under any provisions of this
Lease, shall be paid to Tenant.
The term "Tenant" shall mean the Tenant named herein or any
assignee or sublessee described in Section 12 hereof.
B. Limitations of Assets Liable for Collection of Judgment: No
Personal Liability. Tenant shall look solely to the estate and property of such
Landlord in the Building of which the Premises are a part for the satisfaction
of Tenant's remedies for the collection of a judgment (or other judicial
process) requiring the payment of money by Landlord in the event of any default
or breach by Landlord with respect to any of the terms covenants, and conditions
of this Lease to be observed and/or performed by Landlord, and no other property
or assets of such Landlord, or of any shareholder, officer, director or partner
of Landlord, shall be subject to levy, execution, or other enforcement procedure
for the satisfaction of Tenant's remedies. Notwithstanding the above, Landlord
covenants that it shall maintain sufficient insurance to provide coverage of the
scope of its duties relative to this Lease, and the limitations stated in this
provision should not extend to such insurance. Failure of Landlord to maintain
insurance upon the Building shall void this provision.
22. RECORDING LEASE PROHIBITED. Tenant shall not record
this Lease but may record a statutory short form memorandum
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hereof in form reasonably acceptable to Landlord. All recording costs for the
memorandum shall be paid by Tenant. Landlord shall promptly execute any such
memorandum of lease in recordable form and shall fully cooperate with Tenant in
order to assure that such memorandum shall be recorded of record.
23. PREVAILING PARTY IN LEGAL PROCEEDINGS. In the event any action is
commenced for any breach of any covenant, condition, or agreement herein
contained, the prevailing party in such action shall be entitled to receive from
the non-prevailing party all reasonable costs incurred in such action,
including, without limitation, all reasonable attorneys' fees.
24. SEVERABILITY. If any clause or provision of this Lease is or
becomes illegal, invalid, or unenforceable, the intention of the parties hereto
is that the remaining parts of this Lease shall not be affected thereby, and a
suitable and equitable provision shall be substituted for the illegal, invalid
or unenforceable provision in order to carry out, as far as may be legal, valid
and enforceable, the intent and purpose of such illegal, invalid or
unenforceable provision.
25. HOLDING OVER. If after the expiration of this Lease, Tenant shall
remain in possession of the Premises and continue to pay Rent, without any
written agreement as to such holding, then such holding shall be deemed and
taken to be a holding upon a tenancy from month to month, subject to all the
terms and conditions hereof on the part of Tenant to be observed and performed
and at a monthly rental equivalent to one hundred fifty (150%) percent of the
monthly installments of Base Rent hereinabove provided for during the year
immediately preceding together with the Additional Rent, all of which shall be
payable in advance on the first day of each calendar month.
26. RE-ENTRY BY LANDLORD. Tenant waives any and all right of
redemption, re-entry or repossession in case Tenant shall be dispossessed by
judgment or by warrant of any court or judge or in case of re-entry or
repossession by Landlord or in case of any expiration or termination of this
Lease. The terms "enter", "re-enter," "entry" and "re-entry" as used in this
Lease are not restricted to their technical legal meanings.
27. NO WAIVER. No failure by either party to insist upon the strict
performance of any agreement, term, covenant or condition hereof or to exercise
any right or remedy consequent upon a breach thereof, and no acceptance of full
or partial Rent during the continuance of any such breach, shall constitute a
waiver of any such breach or of such agreement, term, covenant or condition. No
agreement, term, covenant or condition hereof to be performed or complied with
by either party, and no breach thereof, shall be waived, altered or modified
except by a written instrument executed by the other party. No waiver of any
breach shall affect or alter this Lease, but each and every agreement, term,
covenant and condition hereof shall continue in force and
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effect with respect to any other then existing or subsequent breach thereof. In
the event of any breach or threatened breach by Tenant of any of the agreements,
terms, covenants or conditions contained in this Lease, the other party shall be
entitled to enjoin such breach or threatened breach and shall have the right to
invoke any right and remedy allowed at law or in equity or by statute or
otherwise as though re-entry, summary proceedings, and other remedies were not
provided for in this Lease.
28. OTHER REMEDIES
A. No Obligation to Cure. Landlord or Tenant, as the case may
be, may, but shall not be obligated to, cure, at any time upon ten (10) days'
notice or without notice in case of emergencies, any default(s) by Tenant or
Landlord, as the case may be, under this Lease, and Tenant or Landlord, as the
case may be, shall pay to Landlord or Tenant, as the case may be, promptly on
demand, all reasonable costs and expenses incurred by Landlord or Tenant, as the
case may be, in curing such default(s), including, without limitation, court
costs and reasonable attorneys fees and disbursements in connection therewith,
together with interest on the amount of costs and expenses so incurred from the
date of demand at the rate (herein the "Interest Rate") of the lesser of (i)
twelve percent (12%) per annum or (ii) the maximum rate then permissible under
Connecticut law, until paid.
B. Judgment Offset. Landlord acknowledges that if Tenant
obtains a judgment (or a determination by the arbitrators pursuant to Section
36) against Landlord for an amount due the Tenant by Landlord, Tenant may offset
the amount thereof against the next Rent payments due from Tenant to Landlord
hereunder, together with (i) interest at the Interest Rate accruing from the
first date such payments were due and payable to Tenant by Landlord pursuant to
this Section 28 or otherwise pursuant to this Lease, and (ii) all reasonable
attorneys' fees and costs incurred in obtaining such judgment and/or
determination and in connection with enforcing this Section and enforcing any
determination and/or judgment.
Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise (except that Landlord's remedies shall be limited as provided for in
Section 19 of this Lease), and except as otherwise provided for in this Lease
the exercise by Landlord or Tenant of any one or more of the rights or remedies
provided for in this Lease or now or hereafter existing at law or in equity or
by statute or otherwise shall not preclude the simultaneous or later exercise by
the party in question of any or all other rights or remedies provided for in
this Lease or now or hereafter existing at law or in equity or by statute or
otherwise.
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29. NOTICE OF MORTGAGEES. Tenant agrees that in the event Tenant shall
claim any event of default or non-performance hereunder on the part of Landlord
or shall claim that there exist any circumstances whatsoever which give rise (or
with the passage of time would give rise) to a right of termination on the part
of Tenant hereunder, Tenant shall give immediate written notice of such event or
such circumstances to all mortgagees of Landlord of record who have made written
request to Tenant to be provided such notice, in addition to and separate from
any notice required to be given to Landlord hereunder. Provided that such
mortgagee shall indemnify and hold Tenant harmless from any loss, cost or
expense (including without limitation reasonable legal fees and expenses) by
reason of such delay. Notwithstanding anything to the contrary contained
elsewhere herein, any such mortgagee shall be given a period of fifteen (15)
days after receipt of such notice in which to cure any such event or
circumstances, the doing of which by any such mortgagee shall be deemed to
constitute a cure of such event or circumstances under this Lease,
notwithstanding that such cure shall not have been performed by Landlord
hereunder.
30. ENVIRONMENTAL LAWS
A. Compliance. Landlord represents and warrants to Tenant that as
of the date hereof to the best of Landlord's knowledge, the Building and
Property are in full compliance with Environmental Laws (as defined below).
Subject to the foregoing representation, Landlord and Tenant each covenant on
behalf of themselves, their agents, employees and assigns at all times during
the Term and any Extension Periods, to comply with all federal, state and local
environmental laws, rules and regulations with respect to the Premises, the
Building and the Property, including without limitation the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sec. 6901 et. seq., as amended
("RCRA"), or any similar federal, state or local laws or regulations, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Sec. 9601, et. seq., as amended ("CERCLA") or the Toxic Substances
Control Act, 15 U.S.C. Sec. 2601 et. seq., as amended ("TSCA"), or any similar
federal, state or local laws and regulations, the Federal Water Pollution
Control Act, 33 U.S.C. Sec. 1251 et. seq., as amended ("FWPCA"), or the Clean
Air Act, 42 U.S.C. Sec. 7401, et. seq., as amended ("CAA"), respectively, or any
similar federal, state or local laws or regulations, Sections 22a-448 through
22a-457 of the Connecticut General Statutes, as amended, and as the same may
be further amended from time to time (the "Superlien Statute"), or any similar
applicable federal or state laws, regulations or ordinances (collectively, the
"Environmental Laws"). The parties further represents and warrants (i) that
neither shall undertake any activity at the Premises which would render the
Premises a hazardous waste treatment, storage or disposal facility, and (ii)
that neither will cause any discharge, spill, uncontrolled loss, seepage,
filtration of oil or petroleum or chemical liquids or solid, liquid or gaseous
products or hazardous waste (a "Spill"),
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as those terms are used in Sections 22a-448 through 22a-457 of the Connecticut
General Statutes, as amended, and as the same may be further amended from time
to time (the "Superlien Statute"). Without limiting the generality of any other
provision hereof and notwithstanding anything to the contrary, Landlord and
Tenant each covenant and agree to comply strictly and in all respects with the
requirements of the Environmental Laws, and to notify each other promptly upon
learning of any violation thereof upon the Premises or the Property, and to
forward to each other promptly copies of all notices, orders, reports, permits,
applications and other communications received or issued by Landlord or Tenant
in connection with any matters relating to the Environmental Laws as they may
affect the Premises or the Property.
In the event Landlord or Tenant, their agents, employees or
assigns fail to comply with the requirements of the Environmental Laws, the
noncomplying party shall undertake an environmental site assessment and cause
any remedial work to be performed at the Premises or on the Building or
Property, or take any and all other actions as required by law, as shall cure
said failure of compliance, and any amounts paid as a result thereof.
B. Indemnity. Notwithstanding and in addition to all other
remedies of Landlord or Tenant contained in this Lease, Landlord and Tenant each
further covenant and agree to indemnify the other and hold the other harmless
from and against all loss, liability, damage and expense, including reasonable
attorneys' fees, suffered or incurred by the other, arising out of or resulting
from a breach by the other, its agents, employees or assigns of Section 30.A
hereof, including the assertion of any lien thereunder arising because of any
violation of the Environmental Laws on or after the date hereof or any loss of
value of the Premises as a result of such spill (but excluding consequential and
punitive damages). It is expressly agreed that this indemnification provided for
herein shall survive the Term of this Lease, if necessary, as a consequence of
any violation of the Environmental Laws by Landlord or Tenant or either of their
agents, employees or assigns.
31. MISCELLANEOUS
A. Taxes. Tenant, at all times, shall be responsible
for and shall pay, before delinquency, all municipal, county, state, or federal
taxes which may be levied, imposed or assessed against Tenant's personal
property, its leasehold interest, its right to occupy the Premises, or the Rent,
except to the extent any such tax constitutes an income tax assessed against
Landlord or are typically taxes paid by landlords.
B. Accord and Satisfaction. No payment by Tenant or
receipt by Landlord of any lesser amount than the amount stipulated to be paid
hereunder shall be deemed other than on account of the earliest stipulated Rent;
nor shall any
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endorsement or statement on any check or letter be deemed an accord and
satisfaction, and Landlord may accept any check or payment without prejudice to
Landlord's right to recover the balance due or to pursue any other remedy
available to Landlord.
C. Representations by Landlord
(i) Landlord represents to Tenant that as of the
date hereof and throughout the Term of the Lease:
(a) to the best of Landlord's knowledge
after due inquiry, the Property, the Building and the
Premises are in compliance of all applicable laws and there
is a valid certificate of occupancy for the Premises,
(b) to the best of Landlord's knowledge
after due inquiry, the uses permitted to Tenant in this
Lease are permitted by all applicable laws,
(c) to the best of Landlord's knowledge
after due inquiry, the Premises, Building and the Property
are in good working order and free of latent defects,
(d) any consents and approvals required in
connection with the Landlord's execution of this Lease have
been obtained,
(e) Landlord and each person executing this
Lease on behalf of Landlord (or in any representative capacity) have
full right and lawful authority to execute this Lease.
(ii) Neither Landlord nor any agent or employee
of Landlord has made any warranties, representations or promises with respect to
the Building or the Premises except as herein expressly set forth.
D. Intentionally Omitted.
E. Waiver of Jury Trial and Right to Counterclaim/ Prejudgment
Remedy Waiver. Landlord and Tenant shall and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises, and any emergency or other statutory remedy.
F. Intentionally Omitted.
G. Unavoidable Delays. Except for Tenant's obligations to pay
Rent, the time of Landlord or Tenant, as the case may be, to perform any of
their respective obligations hereunder shall be extended if and to the extent
that the
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performance thereof shall be prevented due to any strikes, lockouts, civil
commotions, warlike operations, invasions, rebellions, hostilities, military or
usurped power, governmental regulations or controls, inability to obtain labor
or materials despite due diligence, acts of God, or other causes beyond the
control of the party whose performance is required. Notwithstanding the
foregoing, any offset or abatement rights of Tenant provided for in this Lease
shall not be limited by the foregoing.
H. Brokerage
(i) Tenant represents that it has dealt with
Xxxxxx X. Xxxxxxxx, Inc. in connection with this Lease and covenants to pay all
compensation, commissions and charges in connection therewith. Tenant shall hold
harmless and indemnify Landlord from and against any and all costs, expenses and
liabilities, including reasonable attorneys' fees for any judicially proven
compensation, commissions and charges claimed by any broker or agent in respect
of this Lease or the negotiation hereof with whom Tenant is claimed to have had
dealings. The Tenant further represents that there is no other broker it has
dealt with and who is entitled to any fees or commissions in connection with
this transaction.
(ii) Landlord represents that it has not entered
into any listing agreement covering the Premises or this Lease and that it has
not dealt with any broker other than Tenant's broker, Xxxxxx X. Xxxxxxxx, Inc.
in connection with this Lease. Subject to Section H(i) above, Landlord further
represents that there is no other broker it has dealt with and who is entitled
to any fees or commissions in connection with this transaction. Landlord
covenants to save and hold harmless and indemnify Tenant from and against any
and all costs, expenses and liabilities, including reasonable attorneys' fees
for any compensation, commissions and charges claimed by any other broker or
agent in respect of this Lease or the negotiation hereof with whom Landlord is
claimed to have had dealings or an agreement. This provision shall survive the
termination of this Lease.
I. Successors and Assigns. The provisions of this Lease,
except as herein otherwise specifically provided shall extend to, bind and inure
to the benefit of the parties hereto and their respective personal
representatives, heirs, successors and permitted assigns, including without
limitation subsequent purchasers of the Property, the Building or any portion
thereof.
J. Consents and Approvals. Unless another time period is
provided, all such consents or approvals shall be given or withheld within ten
(10) days. Unless otherwise expressly provided herein, Landlord shall not
have the right to unreasonably withhold or delay any requested consent.
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K. Interpretation. Irrespective of the place of execution or
performance, this Lease shall be governed by and construed in accordance with
the law of the State of Connecticut. The table of contents, captions, headings
and titles in this Lease are solely for convenience of reference and shall not
affect its interpretation. If any words or phrases in this Lease shall have been
stricken out or otherwise eliminated, whether or not any other words or phrases
have been added, this Lease shall be construed as if the words or phrases so
stricken out or otherwise eliminated, were never included in this Lease and no
implication or inference shall be drawn from the fact that said words or phrases
were so stricken out or otherwise eliminated. Each covenant, agreement,
obligation or other provision of this Lease shall be deemed and construed as a
separate and independent covenant of the party bound by undertaking or making
same, not dependent on any other provision of this Lease unless otherwise
expressly provided. All terms and words used in this Lease, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require.
L. Complete Agreement. There are no representations,
agreements, arrangements or understandings, oral or written,
between the parties relating to the subject matter of this Lease
which are not fully expressed in this Lease. This Lease shall
not be modified or terminated orally or in any manner other than
by a written agreement executed by both parties.
M. Time of Essence. Whenever this Lease provides for
payments to be made, notices to be given or actions to be taken
within a specified time period, the parties agree that time is of
the essence with respect to all of such matters.
N. Authority. The person executing this Lease on behalf of
Tenant warrants to Landlord that Tenant is a corporation validly existing under
the laws of the State of Texas and duly authorized and qualified to conduct
business in the State of Connecticut, that Tenant has the full right and
authority to enter into this Lease, and that the person signing on behalf of
Tenant is authorized to do so. Landlord hereby represents and warrants that
Landlord owns the Property, the Building and the Premises in fee and has full
right, power and authority to execute this Lease.
O. Attorney's Fee. In the event either party fails
to observe any provision of this Lease, and the other party
elects to enforce this Lease by way of collection of Rent or any
other proceeding or by court action, then the party against whom
this Lease is enforced shall be obligated to pay to the other
reasonable attorney's fees and costs incurred in connection with
the enforcement of this Lease.
P. Building Hours of Operation. Tenant shall have
twenty-four (24) hour access to the Premises. "Business Days"
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shall mean any day which is not a Saturday or Sunday or a State of Connecticut
or federal legal holiday. The official hours (the "Business Hours") of operation
are as follows:
Monday-Friday 8:00 a.m. - 6:00 p.m.
Q. HVAC. Landlord shall provide heating, ventilation
and air conditioning services after the official hours of operation as set
forth in Section 31.P above, the same to be provided at the expense of Tenant
but in an amount equal to the Landlord's actual cost for same, based on actual
use.
R. Compliance with Applicable Laws. As to each
reference regarding a party's compliance with Applicable Laws,
said party shall be deemed to be in compliance notwithstanding
the fact that a condition or violation exists if same has become
legally non-conforming.
32. ADDITIONAL SPACE. During the original Term of this Lease, and
provided that (i) Tenant is not in default beyond applicable notice and grace
provisions provided herein, and (ii) the Term of this Lease shall have
thirty-six (36) or more months remaining (if this Lease shall have a shorter
period of time to run on the Term (but Tenant has unexecuted extension options
pursuant to Section 2.B), Landlord shall give to Tenant not less than fifteen
(15) days prior written notice of Landlord's intention to offer additional space
and shall provide to Tenant the right to execute Tenant's option to extend in
order to benefit from this Section 32), Landlord agrees to give Tenant the Right
of First Option for additional space in the Building as it becomes available.
The Tenant shall be given prior written notice of the availability of the
additional space which shall be upon the same terms, conditions, covenants and
provisions as are contained in this Lease, except for Rent which shall be at the
then fair market lease value for additional space in the "market" as defined
herein. The Tenant shall have an exclusive thirty (30) day period after receipt
of said notice (said thirty (30) day period shall include the aforesaid fifteen
(15) days if Landlord has notified Tenant that Tenant must exercise its
extension right in order to benefit from this Section 32) to notify Landlord, in
writing, of its intention to lease said space. If Tenant accepts said space, but
the parties are unable to agree on the fair market Rent for the additional space
within thirty (30) days after Tenant's notice to Landlord of its intent to lease
said space, then the issue shall be submitted for determination in accordance
with the procedure and provisions set forth in Section 2.B and Section 36
hereof. The decision made in accordance with Section 36 shall be final and
binding on Landlord and Tenant. The proposed term for the lease of such
additional space shall be co-terminous with the balance of the term remaining
under this Lease. In the event Tenant leases such additional space as provided
in this Section, all other terms of this Lease shall remain in effect, including
Tenant's options to
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extend the term and obligation to pay Additional Rent based on
the additional space leased.
If Tenant declines said space or fails to notify Landlord of its
intention to lease said additional space within the aforementioned thirty (30)
day period, then subject to Tenant's "Second Bite" option as herein provided,
Landlord may lease said additional space to a third party, but on terms no more
favorable (considering all rental payments) than those offered to Tenant. If
Landlord desires to lease the additional space to a third party on terms more
favorable than those offered to Tenant, then Tenant shall have the right (Tenant
shall not have this right if Tenant shall not either (i) have at least
thirty-six (36) months remaining on the Term, or (ii) have exercised a renewal
option in order to achieve said thirty-six (36) month condition, as provided
hereinabove) to accept the terms being offered to such third party and otherwise
acceptable to such third party (except, that the term shall be co-terminous with
this Lease); and Tenant may exercise such right by providing notice of such
exercise to Landlord within fifteen (15) days after Tenant's receipt of written
notice of (i) such third party offer, and (ii) documentation of the third
party's willingness to accept such terms. The rights provided in this Section 33
shall be applicable to any space in the Building at any time same becomes
vacant.
33. STATUS OF LEASE. Upon the full execution of this Lease the same
will supersede any prior Lease heretofore entered into between the parties, the
Landlord and Tenant acknowledging that there is no money due or obligation owed
by either party to the other under the superseded Lease other than as identified
on Exhibit 33.
34. SECURITY SYSTEM. Landlord agrees at its expense to install a
"card security" system for the Building as identified on Exhibit 4.A-1.
Landlord covenants that such system will be operational no later than
June 1, 1997.
35. SECURITY DEPOSIT. Notwithstanding anything to the contrary herein,
the parties acknowledge that no cash security has been deposited or will be
required to be deposited under this Lease or any extension or renewal of same.
36. ARBITRATION
A. Disputed Defaults. The parties hereby agree to arbitrate
disputes only as to the specific matters provided for in Section 2.B, Section
3.E, Xxxxxxx 0.X, Xxxxxxx 0.X, Section 14.B, and Section 32 of this Lease. No
other matter shall be arbitrable without the express authorization and consent
of Landlord and Tenant.
B. Disputed Amount. Subject to Section 36.A above, in the event
Landlord or Tenant disputes any payment,
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reimbursement, refund or abatement, either party may serve a notice on the other
that such party is submitting the matter to binding arbitration, as set forth
below.
C. Arbitrators; Award. Any disagreement or controversy
described in Section 36.A and Section 36.B or elsewhere as expressly provided
for in this Lease where dispute resolution by arbitration is expressly provided
or reference is made to this Section 36 shall be settled by binding arbitration
to be held, and the award made, in the county where the Premises are located,
pursuant to the then-applicable rules of the American Arbitration Association.
In any such arbitration, the arbitrator shall be: (a) any person selected by the
parties to the dispute if they are able to so agree within ten (10) days after
any party requests the other to so agree, or (b) if the parties are unable to so
agree, the arbitrator shall be a three-member arbitration panel which shall act
by majority vote and which shall consist of one member selected by each party to
the dispute and one member selected by the two members so selected, who shall
act as chairmen of the arbitration panel. If the first two arbitrators are
unable to agree on the selection of the third arbitrator within twenty (20) days
after their appointment, the third arbitrator shall be selected by the American
Arbitration Association. If one party requests the other to agree on a single
arbitrator and the parties have failed to agree on such a single arbitrator, and
one of the parties thereafter shall fail or refuse to appoint a person to the
arbitration panel under clause (b) above within twenty (20) days after the
original request for agreement on a single arbitrator was made, the arbitration
panel shall consist solely of the single arbitrator selected by the other party.
The arbitrator(s) shall apply the substantive law of the state in which the
Premises are located. Any award of the arbitrator(s) shall state the reasoning
on which the award is based. Each arbitrator appointed pursuant to this Section
shall be a member of the American Institute of Real Estate Appraisers or any
successor organization or shall have at least ten (10) years' experience in the
"market" in real property management, brokerage or appraising.
D. Failure to Appear. If one of the parties shall fail or
refuse to appear or to present evidence at the arbitration hearing, the
arbitrator(s) shall be authorized to accept the evidence presented by the party
in attendance at the hearing and to enter an award based on the evidence
presented. Any costs of arbitration shall be borne by the party against whom the
award is made, including but not limited to the fees of the arbitrators.
E. Reimbursement. If any amount awarded Tenant in the
arbitration is not paid by Landlord within fifteen (15) days from the date of
award, Tenant shall be entitled to offset any such amounts against the next
succeeding Base Rent and other charges, together with interest at the Interest
Rate from the date of the award (however as provided for in this Lease, the
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award may include interest from an earlier date if the award is based upon an
overpayment, reimbursement, abatement or other matter) plus attorneys' fees and
costs incurred by Tenant in obtaining such award and in enforcing this Section
and in obtaining and enforcing any judgment in connection therewith. If any
amount awarded Landlord in the arbitration is not paid by Tenant within fifteen
(15) days after the date of the award, with interest at the Interest Rate,
Landlord may resort to the remedies set forth in this Lease without further
notice, as if no grace period ever existed.
[INTENTIONALLY LEFT BLANK TO END OF PAGE]
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EXECUTED this _________ day of February, 1997.
LANDLORD:
LOCUST AVENUE ASSOCIATES
By_______________________
Xxxxxxx Xxxxxx Xx.
A Partner, duly authorized
TENANT:
CENTURY COMMUNICATIONS CORP.
By_______________________
Xxxxxx X. Xxxxxx
Its duly authorized
Vice President and Controller
EXHIBIT 1.A(i)-1 - Floor Plan
EXHIBIT 1.A(i)-2 - Property Legal Description
EXHIBIT 1.A(iii) - Xxx Xxxxxxx Space/Xxxx Space
EXHIBIT 1.B - Parking Area
EXHIBIT 4.A-1 - Landlord's Work
EXHIBIT 4.B - Customary Services
EXHIBIT 9.B(iii) - Building Rules and Regulations
EXHIBIT 33 - Status of Lease
STATE OF CONNECTICUT)
) ss.
COUNTY OF FAIRFIELD )
Personally appeared Xxxxxxx Xxxxxx Xx., General Partner of Locust
Avenue Associates, who acknowledged the same to be his free act and deed and the
free act and deed of Locust Avenue Associates.
------------------------
STATE OF CONNECTICUT)
) ss.
COUNTY OF FAIRFIELD )
Personally appeared Xxxxxx X. Xxxxxx, Vice President and Controller of
Century Communications Corp., who acknowledged the same to be his free act and
deed and the free act and deed of Century Communications Corp.
------------------------
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