EXHIBIT 10.9
LEASE AGREEMENT
BY AND BETWEEN
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
("LANDLORD")
AND
ACCENT COLOR SCIENCES, INC.
("TENANT")
DATED: FEBRUARY 16, 1996
TABLE OF CONTENTS
ARTICLE 1. PREMISES.................................................. 1
ARTICLE 2. TERM AND CONDITION OF LEASED PREMISES..................... 1
ARTICLE 3. USE, NUISANCE, OR HAZARD.................................. 2
ARTICLE 4. RENT...................................................... 2
ARTICLE 5. RENT ADJUSTMENT........................................... 3
ARTICLE 6. SERVICES TO BE PROVIDED BY LANDLORD....................... 5
ARTICLE 7. REPAIRS AND MAINTENANCE BY LANDLORD....................... 6
ARTICLE 8. REPAIRS AND CARE OF BUILDING COMPLEX BY TENANT............ 7
ARTICLE 9. TENANT'S EQUIPMENT AND INSTALLATIONS...................... 7
ARTICLE 10. FORCE MAJEURE............................................ 7
ARTICLE 11. MECHANICS'AND MATERIALMAN'S LIENS........................ 8
ARTICLE 12. ARBITRATION.............................................. 8
ARTICLE 13. INSURANCE................................................ 8
ARTICLE 14. QUIET ENJOYMENT.......................................... 9
ARTICLE 15. ALTERATIONS.............................................. 9
ARTICLE 16. FURNITURE, FIXTURES, AND PERSONAL PROPERTY............... 10
ARTICLE 17. TAXES.................................................... 10
ARTICLE 18. ASSIGNMENT AND SUBLETTING................................ 11
ARTICLE 19. FIRE AND CASUALTY........................................ 12
ARTICLE 20. CONDEMNATION............................................. 13
ARTICLE 21. HOLD HARMLESS............................................ 13
ARTICLE 22. DEFAULT BY TENANT........................................ 13
ARTICLE 23. INTENTIONALLY OMITTED.................................... 17
ARTICLE 24. INTENTIONALLY OMITTED.................................... 17
ARTICLE 25. ATTORNEYS' FEES.......................................... 17
ARTICLE 26. NON-WAIVER............................................... 17
ARTICLE 27. RULES AND REGULATIONS.................................... 17
ARTICLE 28. ASSIGNMENT BY LANDLORD................................... 17
ARTICLE 29. LIABILITY OF LANDLORD.................................... 17
ARTICLE 30. SUBORDINATION AND ATTORNMENT............................. 18
ARTICLE 31. HOLDING OVER............................................. 18
ARTICLE 32. SIGNS.................................................... 18
ARTICLE 33. HAZARDOUS SUBSTANCES..................................... 18
ARTICLE 34. COMPLIANCE WITH LAWS AND OTHER REGULATIONS............... 19
ARTICLE 35. SEVERABILITY............................................. 19
ARTICLE 36. NOTICES.................................................. 19
ARTICLE 37. OBLIGATIONS OF SUCCESSORS, PLURALITY, GENDER............. 20
ARTICLE 38. ENTIRE AGREEMENT......................................... 20
ARTICLE 39. PARAGRAPH CAPTIONS....................................... 20
ARTICLE 40. CHANGES.................................................. 20
ARTICLE 41. AUTHORITY................................................ 21
ARTICLE 42. BROKERAGE................................................ 21
ARTICLE 43. EXHIBITS................................................. 21
ARTICLE 44. APPURTENANCES............................................ 21
ARTICLE 45. PREJUDGMENT REMEDY, REDEMPTION, COUNTERCLAIM, AND JURY... 21
ARTICLE 46. RECORDING................................................ 22
ARTICLE 47. MORTGAGEE PROTECTION..................................... 22
ARTICLE 48. SHORING.................................................. 22
ARTICLE 49. PARKING.................................................. 22
ARTICLE 50. EXPANSION................................................ 22
ARTICLE 51. ZONING................................................... 23
ARTICLE 52. LANDLORD DEFAULT......................................... 24
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the 16/th/
day of February, 1996, by and between XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation ("Landlord") and ACCENT COLOR SCIENCES,
INC., a Connecticut corporation ("Tenant").
WITNESSETH:
ARTICLE 1. PREMISES
Subject to all of the terms and conditions hereinafter set forth, Landlord
hereby leases to Tenant and Tenant Hereby leases from Landlord the premises (the
"Leased Premises"), outlined on Exhibit B to this Lease, containing
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approximately 50,895 rentable square feet of Rentable Area (as hereinafter
defined), consisting of all of a portion of the basement, all of the leasable
space on the first floor and the entire third and fourth floors of the six-story
office building, being 000 Xxxxxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx
(the "Building"). 'Me exact number of square feet of Rentable Area shall be
determined by Landlord's Architect in accordance with Building Owners and
Managers Association International ANSI Z 65.1 standards ("BOMA Standards"), and
once so determined, such number of square feet of Rentable Area shall be used
for determining Base Rent and Tenant's Building Percentage. The land described
in Exhibit A to this Lease and all improvements thereon and appurtenances
thereto, including, but not limited to, the Building, access roadway, and
related areas, and all areas used for parking for the Building, shall be
collectively Hereinafter referred to as the "Building Complex."
ARTICLE 2. TERM AND CONDITION OF LEASED PREMISES
2.1 The term of the Lease "Term") shall commence on June 1, 1996 (the
"Commencement Date") and end on July 31, 2000 (the "Expiration Date") unless
sooner terminated (the "Termination Date") as hereinafter provided. The
Commencement Date of this Lease and the obligation of Tenant to pay rent,
additional rent and all other charges hereunder shall not be delayed or
postponed by reason of any delay by Tenant in performing changes or alterations
in the premises to be performed by Tenant. In the event that Tenant completes
its build-out in any portion of the Leased Premises prior to the Commencement
Date, it shall be permitted to occupy and conduct its business therein. All of
the terms and conditions of this Lease, except for Articles 4 and 5 hereof,
shall apply to such period of early occupancy.
2.2 Landlord will provide Tenant with an allowance, toward the cost of
Tenant's initial buildout of the Leased Premises, in the amount of One Hundred
Twenty-Five Thousand and 00/100 Dollars ($125,000.00) (the "Allowance"). Tenant
shall pay for all necessary permits and fees out of the Allowance. The
Allowance shall be paid to Tenant on a bi-weekly progress payment basis, upon
receipt of the following:
(a) an invoice and certification from Tenant's general contractor as to
the amount billed to date;
(b) a certification from Landlord's architect as to the costs incurred to
date;
(c) partial lien waivers from Landlord's general contractor and all
subcontractors in the full amount being invoiced that month; and
(d) such other documentation as Landlord shall reasonably require in
connection therewith.
Tenant represents that Tenant has inspected the Leased Premises and the
Building and is thoroughly acquainted with their condition and, except for
Landlord's Work (as defined below) takes the premises "as is," and the taking of
possession of the Leased Premises by Tenant shall be conclusive evidence that
the Leased Premises and the Building were in good and satisfactory condition at
the time possession was taken by Tenant. Neither Landlord nor Landlord's agents
have made any representations or promises with respect to the condition of the
Building, the Leased Premises, the land upon which the Building is constructed,
or any other matter or thing affecting or related to the Building or the Leased
Premises, except as herein expressly set forth, and no rights, easement or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in this Lease.
2.3 Landlord shall, within ninety (90) days after the Commencement Date,
perform the work, in the common areas of the Building, that is set forth on
Exhibit C attached hereto ("Landlord's Work").
ARTICLE 3. USE, NUISANCE, OR HAZARD
3.1 The Leased Premises shall be used and occupied by Tenant solely for
general office purposes, including engineering offices, and for no other
purposes without the prior written consent of Landlord, except that the portion
of the Leased Premises that is on the first floor of the building may be used
for light assembly of printing equipment, a shop area and storage purposes.
3.2 Tenant shall not use, occupy, or permit the use or occupancy of the
Leased Premises for any purpose which Landlord, in its reasonable discretion,
deems to be illegal, immoral, or dangerous; permit any public or private
nuisance; do or permit any act or thing which may disturb the quiet enjoyment of
any other tenant of the Building Complex; keep any substance or carry on or
permit any operation which might introduce offensive odors or conditions into
other portions of the Building Complex; use any apparatus which might make undue
noise or set up vibrations in or about the Building Complex; permit anything to
be done which would increase the premiums paid by Landlord for FIRE and extended
coverage insurance on the Building Complex or its contents or cause a
cancellation of any insurance policy covering the Building Complex or any part
thereof or any of its contents; or permit anything to be done which is
prohibited by or which shall in any way conflict with any law, statute,
ordinance, or governmental rule or regulation now or hereinafter in force.
Should Tenant do any of the foregoing without the prior written consent of
Landlord, it shall constitute an Act of Default (as hereinafter defined) and
shall enable Landlord to resort to any of its remedies hereunder.
ARTICLE 4. RENT
4.1 Tenant hereby agrees to pay Landlord a base annual rental (the "Base
Rent") Three Hundred Ninety-Four Thousand Four Hundred Thirty-Six and 25/100
Dollars ($394,436.25) per N-ear (based on $7.75 per rentable square foot),
payable in monthly installments of Tbirty-Two Thousand Eight Hundred Sixty-Nine
and 69/100 Dollars ($32,869.69), for the first two (2) years of the Term (pro
rated for any partial month at the commencement of the Term) and Five Hundred
Ninety-Eight Thousand Sixteen and 25/100 Dollars ($598,016.25) per year (based
on $11.75 per rentable square foot), payable in monthly installments of Forty-
Nine Thousand Eight Hundred Thirty-Four and 68/100 Dollars ($49,834.68), for the
balance of the Term. The Base Rent shall be due and payable in advance in
twelve (12) equal installments (the "Monthly Rent") in check or by money order
on or before the first day of each calendar month. In addition to the Base
Rent, Tenant also agrees to pay the Operating Expenses, Taxes, and any and all
other sums of money as shall become due and payable by Tenant as hereinafter set
forth, all of which shall constitute additional rent under this Lease (the
"Additional Rent"). The Monthly Rent and the Additional Rent are sometimes
hereinafter collectively called "Rent" and shall be paid when due in lawful
money of the United States with demand, deduction, abatement, or offset at such
place as is set forth in Article 36 of this Lease or as Landlord may designate
from time to time. Landlord expressly reserves the right to apply any payment
received to Base Rent or any other items of Rent that are not paid by Tenant.
Notwithstanding the above, no Base Rent shall be due or payable for the first
and second complete calendar months of the Term.
4.2 In the event any Monthly or Additional Rent or other amount payable by
Tenant hereunder is not paid within five (5) business days after its due date,
Tenant shall pay to Landlord a late charge (the "Late Charge"), as Additional
Rent, in an amount of ten percent (10%) of the amount of such late payment.
Failure to pay any Late Charge shall be deemed a Monetary Default (as
hereinafter defined). Provision for the Late Charge shall be in addition to all
other rights and remedies available to Landlord hereunder, at law or in equity,
and shall not be construed as liquidated damages or limiting Landlord's remedies
in any manner. Failure to charge or collect such Late Charge in connection with
any one (1) or more such late payments shall not constitute a waiver of
Landlord's right to charge and collect such Late Charges in connection with any
other or similar of like late payments.
4.3 The amount of Sixty Five Thousand Seven Hundred Thirty Nine and 37/100
Dollars ($65,739.37) shall be due and payable upon the execution of this Lease
by Tenant, which sum shall be the Monthly Rent for the third and fourth complete
calendar months of the Term.
4.4 If the Term commences on a date other than the first day of the
calendar month or expires or terminates on a date other than the last day of a
calendar month, the Rent for any such partial month shall be prorated to the
actual number of days Tenant is in occupancy of the Leased Premises for such
partial month.
4.5 All Rents and any other amount payable by Tenant to Landlord
hereunder, if not paid when due, shall bear interest from the date due until
paid at the rate equal to the prime commercial rate established from time to
time by Fleet Bank, Boston. Massachusetts, plus four percent (4%) per annum.
but not in excess of the maximum legal rate permitted by law. Failure to charge
or collect such interest in connection with any one (1) or more delinquent
payments shall not constitute a waiver of Landlord's right to charge and collect
such interest in connection with any other or similar or like delinquent
payments.
4.6 If Tenant fails to make when due two (2) consecutive payments of
Monthly Rent or makes two (2) consecutive payments of Monthly Rent which are
returned to Landlord by Tenant's financial institution for insufficient funds,
Landlord may require, by giving written notice to Tenant, that
all future payments of Rent shall be made in cashier's check or by money order.
The foregoing is in addition to any other remedy of Landlord hereunder, at law
or in equity.
ARTICLE 5. RENT ADJUSTMENT
5.1 Definitions.
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(a) "Operating Expenses," as said term is used herein, shall mean all
expenses, costs, and disbursements of every kind and nature which Landlord shall
pay or become obligated to pay because of or in connection with the ownership,
operation, or maintenance of the Building Complex. If less than ninety-five
percent (95%) of the Rentable Area of the Building is actually occupied during
any Lease Year (as hereinafter defined), Operating Expenses for such Lease Year
shall be the amount that the Operating Expenses should have been for such Lease
Year had ninety-five percent (95%) of the Rentable Area of the Building been
occupied during all of such Lease Year, as determined by Landlord. Operating
Expenses shall be computed in accordance with generally accepted accounting
principles, consistently applied, and shall include, but not be limited to, the
items as listed below:
(i) Wages, salaries, and any and all taxes, insurance and benefits
of the
Building manager and any clerical, maintenance, or other management employees
directly
associated with the operation of the Building;
(ii) All expenses for the Building management office including rent,
office supplies, and materials therefor,
(iii) All supplies, materials, and tools;
(iv) All costs incurred in connection with the operation,
maintenance, and repair of the Building Complex including, but not limited to,
the following: elevators; heating, ventilating and air conditioning systems;
security; cleaning and janitorial; parking lot and landscape; window washing;
and license, permit, and inspection fees;
(v) Costs of water, pure water, sewer, electric, and any other
utility charges, except that costs of electricity consumed by tenants for
lighting and plugged-in equipment in the leased or leasable areas of the
Building shall be excluded from Operating Expenses;
(vi) Costs of casualty, rental interruption, and liability
insurance, and any deductibles payable thereunder;
(vii) Management fees;
(viii) Any and all Taxes (as hereinafter defined) whether Federal,
State, county, or municipal, and whether by taxing districts or authorities
presently in existence or by other subsequently created (excluding, however,
Federal and State taxes on income, if any) and any costs and expenses of
contesting the validity of same. "Taxes" shall mean all ad valorem taxes,
personal property taxes, and all other taxes, assessments, embellishments, use
and occupancy taxes, transit taxes, water, sewer and pure water charges not
included in Section 5.1 (a)(v) above, excises, levies, license and peat fees or
taxes, and all other similar charges, levies, penalties, or taxes, if any, which
are levied, assessed , or imposed upon or due and payable in connection with, or
a lien upon, the land, the Building, or facilities used in connection therewith,
and rentals or receipts therefrom and all taxes of whatsoever nature that
are imposed in substitution for or in lieu of any of the taxes, assessments, or
other charges including in this definition of Taxes;
(ix) The cost of any capital improvements made to the Building Complex
by Landlord after the date of this Lease which are or may be required, by any
law, ordinance, rule, regulation, or otherwise that was not applicable or in
effect at the time the Building Complex was constructed, including, but not
limited to, the Americans with Disabilities Act, amortized over such period as
Landlord shall reasonably determine, together with interest on the unamortized
balance;
(x) The cost of any labor or energy saving device or other equipment
installed by Landlord which improves the operating efficiency of any system
within the Building Complex and thereby reduces Operating Expenses. Such costs
may be added to Operating Expenses in each Lease Year during the useful life of
such device or equipment an amount equal to the annual amortization allowance of
the cost of such device or equipment as determined in accordance with generally
accepted accounting principles, consistently applied, together with interest on
the unamortized balance thereof, provided, however, that the amount of such
allowance and interest shall not exceed the annual cost or expense reduction
attributed by Landlord to such device or equipment; and
(xi) Legal, accounting, inspection, and consultation fees incurred in
connection with the operation of the Building Complex.
Expressly excluded from Operating Expenses are the following items:
(1) Replacement of capital investment items (except as provided
hereinabove);
(2) Advertising and leasing commissions (other than those set
forth hereinabove);
(3) Repairs and restoration, to the extent paid for by the
proceeds of any insurance policies;
(4) Principal, interest, and other costs directly related to
financing the Building Complex; and
(5) The cost of special services to tenants (including Tenant)
for which a special charge is made.
(b) "Lease Year" shall mean the twelve (12) month period commencing
January 1/st/. and ending December 31st.
(c) "Tenant's Building Percentage" shall mean Tenant's percentage of
the entire Building as determined by dividing the Rentable Area of the Leased
Premises by the total Rentable Area of the Building, which is 95,410 square
feet. For the purposes of this Section, Tenant's Building Percentage is fifty-
three and thirty-three one-hundredths percent (53.33%), subject to recalculation
when
the precise number of square feet of rentable area in the Leased Premises is
determined pursuant to Article I hereof. If there is a change in the total
Building Rentable Area as a result of an addition to the Building, partial
destruction, modification or similar cause, which event causes a reduction or
increase on a permanent basis, Landlord shall cause adjustments in the
computations as shall be necessary to provide for any such changes.
5.2 In the event that the Operating Expenses of Landlord's operation
of the Building Complex during any Lease Year of the Term shall exceed the
actual Operating Expenses for the Building Complex for the 1996 calendar year as
adjusted to ninety-five percent (95%) occupancy for entire twelve (12) months
(the "Base Year"), Tenant shall pay to Landlord, as Additional Rent, "Tenant's
Share" as hereinafter defined) of the difference between the Operating Expenses
for a particular Lease Year and the Base Year. "Tenant's Share" shall be
determined by multiplying any such difference between Operating Expenses for any
Lease Year and the Base Year or pro rata portion thereof, respectively, by
Tenant's Building Percentage. Landlord shall, in advance of each Lease Year,
estimate what Tenant's share will be for such Lease Year based, in part, on
Landlord's operating budget for such Lease Year, and Tenant shall pay Tenant's
share as so estimated each month (the "Monthly Escalation Payments"). The
Monthly Escalation Payments shall be due and payable at the same time and in the
same manner as the Monthly Rent.
5.3 Landlord shall, within one hundred twenty (120) days after
the end of each Lease Year, provide Tenant with a written statement of the
actual Operating Expenses incurred during such Lease Year for the Building
Complex and such statement shall set forth Tenant's share of such Operating
Expenses. Tenant shall pay Landlord, as Additional Rent, the difference between
Tenant's Share of any increases in Operating Expense and the amount of Monthly
Escalation Payments made by Tenant attributable to said Lease Year, such payment
to be made within thirty (30) days; or the date of the statement, similarly,
Tenant shall receive a credit if Tenant's Share is less than the amount of
Monthly Escalation Payments collected by Landlord during said Lease Year, such
credit to be applied to future Monthly Escalation Payments to become due
hereunder. If real estate taxes, utilities, janitorial services or any other
components of Operating Expenses increase during any Lease Year, Landlord may
revise Monthly Escalation Payments due during such Lease Year by giving Tenant
written notice to that effect', and, thereafter, Tenant shall pay, in each of
the remaining months of such Lease Year, a sum equal to the amount of revised
difference in Operating Expenses times Tenant's Building Percentage divided by
the number of months remaining in such Lease Year.
5.4 If, within sixty (60) days following receipt of the Operating
Expense statement, neither party hereto delivers to the other party a notice
referring in reasonable detail to one (1) or more errors in such statement, it
shall be deemed conclusively that the information set forth in such statement is
correct. Tenant shall, however, be entitled to conduct or require an audit to
be conducted, provided that not more than one (1) such audit may be conducted
during any Lease Year of the Term. In no event shall payment of Rent ever be
contingent upon the performance of such audit. For purposes of any Audit,
Tenant or Tenant's duly authorized representative, at Tenant's sole cost and
expense, shall have the right, upon fifteen (15) days' written notice to
Landlord, to inspect Landlord's books and records pertaining to Operating
Expenses at the offices of Landlord during Landlord's ordinary business hours,
provided that such audit must be conducted so as not to interfere with
Landlord's Business Operations and must be reasonable as to scope and time.
Alternatively, at Landlord's sole discretion, Landlord may provide an audit of
such books and records prepared by a independent public accountant of Landlord's
selection. but at Tenant's expense, which shall be deemed to be conclusive for
the purposes of this Lease.
5.5 Tenant's obligation with respect to Additional Rent and the
Payment of Tenant's Share shall survive the Expiration Date or Termination Date
of this Lease and Landlord shall have the right to retain the Security Deposit,
or so much thereof as it deems necessary, to secure payment of Tenant's Share
for the final year of the Lease, or part thereof, during which Tenant was
obligated to pay such expenses. If Tenant occupies the Leased Premises for less
than a full calendar year during the first or last calendar years of the Term,
Tenant's Share for such partial year shall be calculated by proportionately
reducing the Base Year Operating Expenses to reflect the number of months in
such year during which Tenant occupied the Leased Premises (the "Adjusted Base
Operating Expenses"). The Adjusted Base Operating Expenses shall then be
compared with the actual Operating Expenses for said partial ),ear to determine
the amount of any increases or decreases in the actual Operating Expenses for
such partial year over the Adjusted Base Operating Expenses. Tenant shall pay
its Tenant's Share of any such increases within thirty (30) days following the
receipt of a final statement.
ARTICLE 6. SERVICES TO BE PROVIDED BY LANDLORD
6.1 Subject to Articles 5 and 9 herein, Landlord shall pay for and
furnish to Tenant, while occupying the Leased Premises, the following services:
(a) The existing electric service at the Leased Premises, to
furnish sufficient power for lighting in the Leased Premises, typewriters, voice
writers, calculating machines, personal computers, and other machines of similar
low electrical consumption. In the event that Tenant requires any electric
capacity that is in excess of the existing service, Tenant shall have the right
to provide such excess service, at Tenant's cost. Any such work shall be
subject to the provisions of Article 15 hereof Tenant shall pay to Landlord
monthly, as billed, for all costs of the electricity used by Tenant in the
Leased Premises, as aforesaid, as measured by a separate meter or meters
therefor;
(b) Hot, cold, and refrigerated water at those points of supply
provided for general use of all lessees in the Building;
(c) Janitorial service on a five (5) day weed basis at no extra
charge pursuant to Exhibit E, provided that in no event shall Landlord be
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obligated to clean any portions of the Leased Premises that are not used for
normal use. Carpet cleaning, except as provided in normal business services,
shall be performed at Tenant's request and at Tenant's expense;
(d) Air conditioning and heating as reasonably required for
comfortable use and occupancy under ordinary office conditions from 7:00 a.m. to
6:00 p.m., Monday through Friday, and 7:00 a.m. to 12:00 p.m., Saturdays or any
legal holidays and on any holidays observed by a majority of the Building
lessees from time to time. Landlord shall also make available heat, air-
conditioning and ventilation for the Leased Premises on other days and at other
hours provided Tenant notifies Landlord: (a) in the case of hours following the
regular hours of a business day no later than 4:30 p.m. on such day and (b) in
the case of a Saturday, Sunday or legal holiday no later than 4:30 p.m. on the
last business day preceding such Saturday, Sunday or holiday. Tenant shall pay
to Landlord on a monthly basis the additional cost of such utilities and
services as determined by Landlord;
(e) Replacement of all standard fluorescent bulbs in all areas and
all incandescent bulbs in public areas, rest room areas, and stairwells.
Routine maintenance and electric lighting service for all public areas of the
Building Complex in a manner and to the extent deemed by Landlord to be
standard; and
(f) Security for the Building Complex as may be deemed necessary
by Landlord. Landlord shall not be liable to Tenant for losses due to theft,
burglary, or damages done by unauthorized persons on the Building Complex.
6.2 Landlord shall not be liable for any loss or damage arising or
alleged to arise in connection with the failure, stoppage, or interruption of
any such services; nor shall the same be construed as an eviction of Tenant,
work an abatement of Rent, entitle Tenant to any reduction in Rent, or relieve
Tenant from the operation of any covenant or condition herein contained. It
being further agreed that Landlord reserves the right to discontinue temporarily
such services or any of them at such times as may be necessary by reason of
repair or capital improvements perforated within the Building Complex, accident,
unavailability of employees, repairs, alterations, or improvements, or whenever
by reason of strikes, lockouts, riots, acts of God, or any other happening or
occurrence beyond the reasonable control of Landlord. In the event of any such
failure, stoppage, or interruption of services, Landlord shall use reasonable
diligence to have the same restored. Neither diminution nor shutting off of
light or air or both, nor any other effect on the Building Complex by any
structure erected or condition now or hereafter existing on lands adjacent to
the Building Complex, shall affect this Lease, xxxxx Rent, or otherwise impose
any liability on Landlord. Notwithstanding the foregoing, in the event of any
failure of any service or utility that Landlord is obligated to provide to
Tenant under this Lease that materially and adversely affects Tenant's business
in the Leased Premises, and that continues for more than five (5) consecutive
business days, Base Rent shall thereafter equitably xxxxx, in proportion to the
interference with Tenant 's business caused thereby, until the service or
utility is restored.
Landlord shall have the right to reduce heating, cooling, or lighting
within the Leased Premises and in the public area in the Building as required by
any mandatory fuel or energy-saving program.
Unless otherwise provided by Landlord, Tenant shall separately arrange with
the applicable local public authorities or utilities, as the case may be, for
the furnishing of and payment for all telephone and facsimile services as may be
required by Tenant in the use of the Leased Premises. Tenant shall directly pay
for such telephone and facsimile services as may be required by Tenant in the
use of the Leased Premises. Tenant shall directly pay for such telephone and
facsimile services, including the establishment and connection thereof, at the
rates charged for such services by said authority or utility; and the failure of
Tenant to obtain or to continue to receive such services for any reason
whatsoever shall not relieve Tenant of any of its obligations under this Lease.
ARTICLE 7. REPAIRS AND MAINTENANCE BY LANDLORD
7.1 Landlord shall provide for the cleaning and maintenance of the public
portions of the Building Complex in keeping with the ordinary standard for
first-class office buildings in the greater Hartford area as a part of Operating
Expenses. Unless otherwise expressly stipulated herein, Landlord shall not be
required to make any improvements or repairs of any kind or character to the
Leased Premises during the Term, except such repairs as may be required to the
exterior walls, corridors, windows, roof, and other structural elements and
equipment of the Building Complex, and such additional maintenance as may be
necessary because of the damage caused by persons other than Tenant, its agents,
employees licensees, or invitees.
7.2 Landlord or Landlord's officers, agents, and representatives (subject
to any security regulations imposed by any governmental authority) shall have
the right to enter all parts of the Leased Premises at all reasonable hours upon
reasonable advance notice to Tenant except in cases of emergency
when no notice shall be required to inspect, clean, make repairs, alterations,
and additions to the Building Complex or the Leased Premises which it may deem
necessary or desirable, to make repairs to adjoining spaces, to cure any
defaults of Tenant hereunder that Landlord elects to cure, to show the Leased
Premises to prospective tenants or purchasers of the Building, or to provide any
service which it is obligated or elects to furnish to Tenant; and Tenant shall
not be entitled to any abatement or reduction of Rent by reason thereof.
Landlord shall have the right to enter the Leased Premises at any time and by
any means in the case of an emergency.
ARTICLE 8. REPAIRS AND CARE OF BUILDING COMPLEX BY TENANT
If the Building, the Building Complex, or any portion thereof, including,
but not limited to, the elevators, boilers, engines, pipes, and other apparatus,
or members of elements of the Building (or any of them) used for the purpose of
climate control of the Building or operating the elevators, or of the water
pipes, drainage pipes, electric lighting, or other equipment of the Building or
the roof or outside walls of the Building of Landlord and also the Leased
Premises improvements, including, but not limited to, the carpet, wall covering,
doors, and woodwork, become damaged or are destroyed through the negligence,
carelessness, or misuse of Tenant, its servants, agents, employees, or anyone
permitted by Tenant to be in the Building, or through it or them, then the cost
of the necessary repairs, replacements, or alterations shall be done by Tenant
who shall forthwith pay the same on demand to Landlord as Additional Rent.
Landlord shall have the exclusive right, but not the obligation, to make any
repairs necessitated by such damage.
Tenant agrees, at its sole cost and expense, to repair or replace any damage
or injury done to the Building Complex, or any part thereof, caused by Tenant,
Tenant's agents, employees, licenses, or invitees which Landlord elects not to
repair. Tenant shall not injure the Building Complex or the Leased Premises and
shall maintain the Leased Premises in a clean, attractive condition and in good
repair. If Tenant fails to keep the Leased Premises in such good order,
condition, and repair as required hereunder to the satisfaction of Landlord,
Landlord may restore the Leased Premises to such good order and condition and
make such repairs without liability to Tenant for any loss or damage that may
accrue to Tenant's property or business by reason thereof, and upon completion
thereof, Tenant shall pay to Landlord, as Additional Rent, upon demand, the cost
of restoring the Leased Premises to such good order and condition and of the
making of such repairs, plus an additional charge of fifteen percent (15%)
thereof. Tenant shall leave the Leased Premises at the end of each business day
in a reasonably tidy condition for the purpose of allowing the performance of
Landlord's cleaning services. Upon the Expiration Date or the Termination Date,
Tenant shall surrender and deliver up the Leased Premises to Landlord in the
same condition in which they existed at the Commencement Date, excepting only
ordinary wear and tear and damage arising from any cause not required to be
repaired by Tenant. Upon the Expiration Date or the Termination Date, Landlord
shall have the right to re-enter and take possession of the Leased Premises.
Tenant shall not provide any janitorial or cleaning services without
Landlord's written consent, and then only subject to supervision of Landlord, at
Tenant's sole responsibility, and by a janitorial or cleaning contractor or
employees at all times satisfactory to Landlord.
ARTICLE 9. TENANT'S EQUIPMENT AND INSTALLATIONS
If heat-generating machines or equipment, including telephone equipment,
cause the temperature in the Leased Premises, or any part thereof, to exceed the
temperatures the Building's air conditioning system would be able to maintain in
such Leased Premises were it not for such heat generating
equipment, then Landlord reserves the right to install supplementary air
conditioning units in the Leased Premises, and the cost thereof, including the
cost of installation and the cost of operation and maintenance thereof,
including water, shall be paid by Tenant to Landlord upon demand by Landlord.
Except for desk or table-mounted typewriters, adding machines, office
calculators, dictation equipment, personal computers, and other similar office
equipment, and high speed data printers provided that not more than 15,000
square feet of the Leased Premises shall contain high speed data printers.
Tenant shall not install within the Leased Premises any fixtures, equipment,
facilities, or other improvements without the specific written consent of
Landlord. Tenant shall not, without the specific written consent of Landlord,
install or maintain any apparatus or device within the Leased Premises which
shall increase the usage of electrical power or water for the Leased Premises to
an amount greater than would be normally required for general office use for
space or comparable size in the greater Hartford area; and if any such apparatus
or device is so installed, Tenant agrees to furnish Landlord written agreement
to pay for any additional costs of utilities as the result of said installation.
ARTICLE 10. FORCE MAJEURE
It is understood and agreed that with respect to any service to be
furnished or obligations to be performed by Landlord for Tenant that in no event
shall Landlord be liable for failure to furnish or perform the same when
prevented from doing so by strike, lockout, or inability by the exercise of
reasonable diligence to obtain supplies, parts, or employees necessary to
furnish such service or met such obligation; or because of war or other
emergency; or for any cause beyond Landlord's reasonable control; or for any
cause due to any act or omission of Tenant or its agents, employees, licensees,
invitees, or any persons claiming by, through, or under Tenant.
ARTICLE 11. MECHANICS' AND MATERIALMAN'S LIENS
11.1 Tenant shah not suffer or permit any mechanics' or materialman's lien
to be filed against the Leased Premises or any portion of the Building Complex
by reason of work, labor, services, or materials supplied or claimed to have
been supplied to Tenant. Nothing herein contained shall be deemed or construed
in any way as constituting the consent or request of Landlord, expressed or
implied, by inference or otherwise, for any contractor, subcontractor, laborer,
or materialman to perform any labor or to furnish any materials or to make any
specific improvement, alteration, or repair of or to the Leased Premises or any
portion of the Building Complex; nor of giving Tenant any right, power, or
authority to contract for, or pen-nit the rendering of, any services or the
furnishing of any materials that could give rise to the filing of any mechanics'
or materialman's lien against the Leased Premises or any portion of the Building
Complex.
11.2 If any such mechanics' or materialman's lien shall at any time be
filed against the Leased Premises or any portion of the Building Complex as the
result of any act or omission of Tenant, Tenant covenants that it shall, within
twenty (20) days after Tenant has notice of the claim for lien, procure the
discharge thereof by payment or by giving security or in such other manner as is
or may be required or permitted by law or which shall otherwise satisfy
Landlord. If Tenant fails to take such action, Landlord, in addition to any
other right or remedy it may have, may take such action as may be reasonably
necessary to protect its interests. Any amounts paid by Landlord in connection
with such action, all other expenses of Landlord incurred in connection
therewith, including reasonable attorney's fees, court costs, and other
necessary disbursements shall be repaid by Tenant to Landlord on demand.
ARTICLE 12. ARBITRATION
In the event that a dispute arises under Section 5.3 above, or if any
disputes relating to provisions or obligations in this Lease as to which a
specific provision for a reference to arbitration is made herein, the same shall
be submitted to arbitration in accordance with the provisions of applicable
state law, if any, as from time to time amended. Arbitration proceedings,
including the selection of an arbitrator, shall be conducted pursuant to the
rules, regulations, and procedures from time to time in effect as promulgated by
the American Arbitration Association. Prior written notice of application by
either party for arbitration shall be given to the other at least ten (10) days
before submission of the application to the said Association's office in the
city wherein the Building is situated (or the nearest other city having an
Association office). 'Me arbitrator shall hear the parties and their evidence.
The decision of the arbitrator may be entered in the appropriate court of law;
and the parties consent to the jurisdiction of such court and further agree that
any process or notice of motion or other application to the Court or a Judge
thereof may be served outside the State wherein the Building is situated by
registered mail or by personal service, provided a reasonable time for
appearance is allowed. The costs and expenses of each arbitration hereunder and
their apportionment between the parties shall be determined by the arbitrator in
his award or decision. No arbitrable dispute shall be deemed to have arisen
under this Lease prior to (a) the expiration of the period of twenty (20) days
after the date of the giving of written notice by the party asserting the
existence of the dispute, together with a description thereof sufficient for an
understanding thereof, and (b) where a Tenant payment (e.g., Operating Expense
Excess under Article 9 hereof is in issue, the amount billed by Landlord having
been paid by Tenant. The prevailing party in such arbitration shall be
reimbursed for its expenses, including reasonable attorneys' fees.
ARTICLE 13. INSURANCE
13.1 Landlord shall maintain, as a art of Operating Expenses, fire and
extended coverage insurance on the Building Complex. Such insurance shall be
maintained with an insurance company, in amounts desired by Landlord or
Landlord's mortgagee, and payment for losses thereunder shall be made solely to
Landlord subject to the rights of the holder of any mortgage or deed of trust
which may now or hereafter encumber the Building Complex.
13.2 Tenant shall maintain, at its sole cost and expense, comprehensive
general liability insurance (including coverage for bodily injury and death,
property damage, fire, legal liability, and owner's contractors protective
liability with respect to the Leased Premises to the extent that the same is not
covered by Landlord's own insurance) in a form and with an insurance company
acceptable to Landlord in a minimum amount of Two Million and 00/100 Dollars
($2,000,000.00) combined single limit. At all times during the Term, such
insurance shall be maintained, and Tenant shall cause a current and valid
certificate of such policy to be deposited with Landlord. If Tenant fails to
have a current and valid certificate of such policy on deposit with Landlord at
all times during the Term, then Landlord shall have the right, but not the
obligation, to obtain such an insurance policy, and Tenant shall be obligated to
pay Landlord the amount of the premiums applicable to such insurance within ten
(10) days after Tenant's receipt of Landlord's request for payment thereof. Said
policy of insurance shall name Landlord and Tenant as the insureds and shall be
non-cancelable with respect to Landlord except after thirty, (30) days' written
notice from the insurer to Landlord.
13.3 Tenant shall adjust annually the amount of the coverage established
in Section 13.2 hereof to such amount as, in Landlord's reasonable opinion,
adequately protects Landlord's interest.
13.4 Notwithstanding anything herein to the contrary, Landlord and Tenant
each hereby waives any and all rights of recovery, claim, action, or cause of
action against the other, its agents,
employees, licensees, or invitees for any loss or damage to or at the Leased
Premises or the Building Complex or any personal property of such party therein
or thereon by reason of fire, the elements, or any other cause which would be
insured against under the terms of the insurance policies referred to
hereinabove, to the extent of such insurance, regardless of cause or origin,
including omission of the other party hereto, its agents, employees, licensees,
or invitees. Landlord and Tenant covenant that no insurer shall hold any right
of subrogation against either of such parties. This waiver shall be ineffective
against any insurer of Landlord or Tenant to the extent that such waiver is
prohibited by the laws and insurance regulations of the State of Connecticut.
The parties hereto agree that any and all such insurance policies required to be
carried by either shall be endorsed with a subrogation clause, substantially as
follows: "This insurance shall not be invalidated should the insured waive, in
writing prior to a loss, any and all right of recovery against any party for
loss occurring to the property described therein," and shall provide that such
party's insurer waives any right of recovery against the other party in
connection with any such loss or damage.
ARTICLE 14. QUIET ENJOYMENT
Provided Tenant has performed all its obligations under this Lease,
including, but not limited to, the payment of Rent and all other sums due
hereunder, Tenant shall peaceably and quietly hold and enjoy the Leased Premises
for the Term, without hindrance by Landlord, subject to the provisions and
conditions set forth in this Lease.
ARTICLE 15. ALTERATIONS
Tenant agrees that it shall not make or allow to be made any alterations,
physical additions, or improvements in or to the Leased Premises without first
obtaining the written consent of Landlord in each instance, which consent may be
conditioned, given, or withheld in Landlord's sole discretion. At the time of
said request, Tenant shall submit to Landlord plans and specifications of the
proposed alterations, additions, or improvements; and Landlord shall have a
period of not less than sixty (60) days therefrom in which to review and approve
or disapprove said plans. Tenant shall pay to Landlord upon demand the
reasonable cost and expense of Landlord -in (a) reviewing said plans and
specifications, and (b) inspecting the alterations, additions, or improvements
to determine whether the same are being performed in accordance with the
approved plans and specifications and all laws and requirements of public
authorities, including, without limitation, the fees of any architect or
engineer employed by Landlord for such purpose. In any instance where Landlord
grants such consent, and permits Tenant to use its own contractors, laborers,
materialmen, and others furnishing labor or materials for Tenant's construction
(collectively, "Tenant's Contractors"), Landlord's consent shall be deemed
conditioned upon each of Tenant's Contractors (a) working in harmony and not
interfering with any laborer utilized by Landlord, Landlord's contractors,
laborers, or materialmen; (b) furnishing Landlord with evidence of acceptable
liability insurance, worker's compensation coverage and if required by Landlord,
completion bonding, and if at any time such entry by one or more persons
furnishing labor or materials for Tenant's work shall cause such disharmony or
interference, the consent granted by Landlord to Tenant m be withdrawn
immediately upon written notice from Landlord to Tenant. Tenant, at its
expense, shall obtain all necessary governmental permits and certificates for
the commencement and prosecution of alterations, additions, or improvements to
be performed in compliance therewith and with all applicable law and
requirements of public authorities and with all applicable requirements of
insurance bodies. All alterations, additions, or improvements to be performed
in compliance therewith and with all applicable law and requirements of public
authorities and with all applicable requirements of insurance bodies. All
alterations, additions, or improvements shall be diligently performed in a good
and workmanlike manner, using new materials and equipment at least equal in
quality and class to the better of (a) the original
installations of the Building, or (b) the then standards for the Building
established by Landlord. Upon the completion of work and upon request by
Landlord, Tenant shall provide Landlord copies of all waivers or releases of
lien from each of Tenant's contractors. No alterations, modifications, or
additions to the Building Complex or the Leased Premises shall be removed by
Tenant either during the Term or upon the Expiration Date or the Termination
Date without the express written approval of Landlord. Tenant shall not be
entitled to any reimbursement or compensation resulting from its payment of the
cost of constructing all or any portion of said improvements or modifications
thereto unless otherwise expressly agreed by Landlord in writing. Tenant agrees
specifically that no food, soft drink, or other vending machine shall be
installed within the Leased Premises, without the prior written consent of
Landlord.
Landlord's approval of Tenant's plans for work shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, rules, and regulations of
governmental agencies or authorities, including, but not limited to, the
Americans with Disabilities Act. Landlord may, at its option, at Tenant's
expense, require that Landlord's contractors be engaged for any mechanical or
electrical work or other building or leasehold improvement.
At least five (5) days prior to the commencement of any work permitted to
be done by persons requested by Tenant on the Leased Premises, Tenant shall
notify Landlord of the proposed work and the names and addressed of Tenant's
Contractors. During any such work on the Leased Premises, Landlord, or its
representatives, shall have the right to go upon and inspect the Leased Premises
at all reasonable times, and shall have the right to post and keep posted
thereon building permits or to take any further action which Landlord may deem
to be proper for the protection of Landlord's interest in the Leased Premises.
ARTICLE 16. FURNITURE, FIXTURES, AND PERSONAL PROPERTY
16.1 Tenant, at its sole cost and expense, may remove its trade fixtures,
office supplies and moveable office furniture and equipment not attached to the
Building Complex or Leased Premises provided:
(a) such removal is made prior to the Expiration Date or the
Termination Date;
(b) Tenant is not in default of any obligation or covenant under
this Lease at the time of such removal; and
(c) Tenant promptly repairs all damage caused by such removal.
16.2 If Tenant does not remove its trade fixtures, office supplies, and
moveable furniture and equipment is hereinabove provided prior to the Expiration
Date or the Termination Date (unless prior arrangements have been made with
Landlord and Landlord has agreed in writing to permit Tenant to leave such items
in the Leased Premises for an agreed period), then, in addition to its other
remedies, at law or in equity, Landlord shall have the right to have such items
removed and stored at Tenant's sole cost and expense and all damage to the
Building Complex or the Leased Premises resulting from said removal shall be
repaired at the cost of Tenant; Landlord may elect that such items automatically
become the property of Landlord upon the Expiration Date or the Termination
Date, and Tenant shall not have any further rights with respect thereto or
reimbursement therefor. All other property in the Leased Premises, any
alterations, or additions to ' the Leased Premises (including wall-to-wall
carpeting, paneling, wall covering, specially constructed or built-in cabinetry
or bookcases), and any other article
attached or affixed to the floor, wall, or ceiling of the Leased Premises shall
become the property of Landlord and shall remain upon and be surrendered with
the Leased Premises as a part thereof at the Expiration or Termination Date
regardless of who paid therefor; and Tenant hereby waives all rights to any
payment or compensation therefor. If, however, Landlord so requests, in writing,
Tenant shall remove, prior to the Expiration Date or the Termination Date, any
and all alterations, additions, fixtures, equipment, and property placed or
installed in the Leased Premises and shall repair any damage caused by such
removal.
16.3 All the furnishings, fixtures, equipment, effects, and property of
every kind, nature, and description of Tenant and of all persons claiming by,
through, or under Tenant which, during the continuance of this Lease or any
occupancy of the Leased Premises by Tenant or anyone claiming under Tenant, may
be on the Leased Premises or elsewhere in the Building Complex shall be at the
sole risk and hazard of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water, or otherwise, or by the leakage or bursting
of water pipes, steam pipes, or other pipes, by theft, or from any other cause,
no part of said loss or damage is to be charged to or be done by Landlord unless
due to the gross negligence of Landlord.
ARTICLE 17. TAXES
During the Term hereof, Tenant shall pay, prior to delinquency, all
business and other taxes, charges, notes, duties, and assessments levied, and
rates or fees imposed, charged, or assessed against or in respect of Tenant's
occupancy of the Leased Premises or in respect of the personal property, trade
fixtures, furnishings, equipment, and all other personal property of Tenant
contained in the Building Complex, and shall hold Landlord harmless from and
against all payment of such taxes, charges, notes, duties, assessments, rates,
and fees, and against all loss, costs, charges, notes, duties, assessments,
rates, and fees, and any and all such taxes. Tenant shall cause said fixtures,
furnishings, equipment, and other personal property to be assessed and billed
separately from the real and personal property of Landlord. In the event any or
all of Tenant's fixtures, furnishings, equipment, and other personal property
shall be assessed and taxed with Landlord's real property, Tenant shall pay to
Landlord Tenant's share of such taxes within ten (10) days after delivery to
Tenant by Landlord of a statement in writing setting forth the amount of such
taxes applicable to Tenant's property.
ARTICLE 18. ASSIGNMENT AND SUBLETTING
18.1 Neither Tenant nor Tenant's legal representatives nor successors in
interest by operation of law or otherwise shall assign this Lease or sublease
the Leased Premises or any part thereof or mortgage, pledge, or hypothecate its
leasehold interest therein, or permit the use of a desk or other space within
the Leased Premises by any third party and any attempt to do so without the
prior express written consent of Landlord shall be void, of no effect, and
constitute an Act of Default (as hereinafter defined). This prohibition against
assigning or subletting shall be construed to include a prohibition against any
assignment or subletting by operation of law. The voluntary or other surrender
of this Lease by Tenant or a mutual cancellation hereof shall not work a merger
and shall, at the option of Landlord, terminate all or any existing sublease or
may, at the option of Landlord, operate as an assignment to Landlord of Tenant's
interest in any or all such subleases.
18.2 A sale or transfer, by Tenant of all or substantially all of its
assets or all or substantially all of its stock, or if Tenant is a publicly
traded corporation, a merger of Tenant with another corporation
or a sale of ten percent (10%) or more of its stock or a sale of substantially
all its assets; or the sale or transfer, of fifty percent (50%) or more of the
stock of Tenant if Tenant's stock is not publicly traded; or the sale or
transfer, of fifty percent (50%) or more of the beneficial ownership interest in
Tenant if Tenant is a partnership without the prior written consent of Landlord,
shall, in any of the foregoing cases and whether or not accomplished by one or
more related or unrelated transactions, constitute an assignment of this Lease
that is subject to the provisions of Section 18.3 hereof.
18.3 If Tenant should desire to assign this Lease or sublease the Leased
Premises or any portion thereof, Tenant shall give Landlord written notice of
such desire to make such assignment or effect such sublease. At the time of
giving such notice, Tenant shall provide Landlord with a copy of the proposed
assignment or sublease document, and such information as Landlord may reasonably
request concerning the proposed sublessee or assignee to assist Landlord in
making an informed judgment regarding the financial condition, reputation,
operation, and general desirability of the proposed sublessee or assignee.
Landlord shall then have a period of thirty (30) days following receipt of such
notice within which to notify Tenant in writing of Landlord's election to:
(a) terminate this Lease as to the space so affected as of the date
specified by Tenant, in which event Tenant shall be relieved of all further
obligations hereunder as to the Leased Premises or said portion thereof, after
paying all Rent due as of the Termination Date; or
(b) permit Tenant to assign or sublet the Leased Premises or said
portion thereof, or
(c) refuse to consent to Tenant's assignment or subleasing of the
Leased Premises or said portion thereof and to continue this Lease in full force
and effect as to the entire Leased Premises.
Landlord and Tenant agree that, in the event of any approved
assignment or subletting, the rights of any such assignee or sublessee of Tenant
herein shall be subject to all of the terms, conditions and revisions of this
Lease, including, without limitation, restriction on use, assignment, and
subletting and the covenant to pay Rent. Landlord may collect Rent directly
from such assignee or sublessee and apply the amount so collected to the Rent
herein reserved. No such consent to or recognition of any such assignment or
subletting shall constitute a release of Tenant or any guarantor of Tenant's
performance hereunder from further performance by Tenant or such guarantor of
covenants undertaken to be performed by Tenant herein. Tenant and/or such
guarantor shall remain liable and responsible for all Rent and other obligations
herein imposed upon Tenant. Consent by Landlord to a particular assignment,
sublease, or other transaction shall not be deemed a consent to any other or
subsequent transaction. In any case, Landlord consents to any such assignment,
sublease, or other transaction, Tenant shall pay any reasonable attorneys' fees
incurred by Landlord in connection with such transaction. All documents
utilized by Tenant to evidence any subletting or assignment for which Landlord's
consent has been requested, shall be subject to prior approval by Landlord or
its attorney. If any Rent payable to Tenant by any sublessee, assignee,
licensee, or other transferee exceeds the Rent reserved herein, then Tenant
shall be bound and obligated to pay Landlord all such excess Rent within ten
(10) days following receipt thereof by Tenant from such sublessee, assignee,
licensee, or other transferee. as the case might be.
18.4 If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, I I U.S.C. Section 101 et. seq. (the
"Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord,
and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any such monies or other consideration not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and shall be
promptly paid or delivered to Landlord. Any person or entity to whom this Lease
is so assigned shall be deemed, without further act or deed, to have assumed all
of the obligations arising under this Lease as of the date of such assignment.
Any such assignee shall, upon demand therefor, execute and deliver to Landlord
an instrument confirming such assumption. In no event shall Tenant have any
right to sublet or assign if there exists any default under this Lease.
18.5 Notwithstanding the foregoing provisions, any consents required by
Landlord under this Section shall not be unreasonably withheld or untimely
delayed.
ARTICLE 19. FIRE AND CASUALTY
19.1 If the Leased Premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give prompt written notice thereof to Landlord.
If the Building Complex shall be damaged by fire or other casualty and any of
the following applies: (a) substantial alteration or reconstruction of the
Building Complex is, in Landlord's reasonable opinion, required (whether or not
the Leased Premises shall have been damaged by such fire or other casualty), (b)
any mortgagee under a mortgage or deed of trust covering the Building Complex
requires that the insurance proceeds payable as a result of said fire or other
casualty be used to retire the mortgage debt, (c) the Building Complex is
damaged as a result of a risk that is not covered by Landlord's insurance, or
(d) the Leased Premises is materially damaged during the last year of the Term,
then Landlord may, at its option, terminate this Lease by notifying Tenant in
writing of such termination within thirty (30) days after the date of such
damage or casualty, in which event the Rent hereunder shall be abated as of the
date of such notice. In cases of less than such substantial damage and upon
receipt of the insurance proceeds for the damage, Landlord shall restore and
repair the Leased Premises.
19.2 If Landlord elects not to terminate this Lease as herein provided,
then within forty-five (45) days from the date of damage Landlord shall provide
Tenant with an estimate, from Landlord's general contractor, of the time it will
take to substantially restore the damage. If the estimate is that it will take
more than six (6) months, then Tenant shall have the right, by written notice to
Landlord within (7) business days after receiving the estimate, to terminate
this Lease. If Tenant fails to so terminate this Lease, and the damage is not
thereafter substantially restored on or before the day that is the number of
days of the estimate, plus sixty (60) days, after the end of the seven (7)
business day period, (excepting that Landlord shall not be responsible for
delays brought about by force majeure, as described in Article 10 hereof), this
Lease may be immediately terminated by Tenant by serving written notice upon
Landlord.
19.3 To the extent of the insurance proceeds available to Landlord
therefor, Landlord shall repair and restore the Building Complex and/or the
Leased Premises to substantially the same condition in which they were
immediately prior to the fire or other casualty, except that Landlord shall not
be required to rebuild, repair, or replace any part of Tenant's furniture,
fixtures, furnishings, or equipment or any alterations, additions, or
improvements made by Tenant to the Leased Premises pursuant to Article 15 of
this Lease. Landlord's repair or restoration work shall not exceed the scope of
work done in originally constructing the Building Complex and the Leased
Premises. Landlord shall not be liable for any inconvenience, annoyance, or
injury done to the business of Tenant resulting in any way from such damage or
the repair thereof and Tenant's obligations to pay rent shall continue unabated,
except
Landlord shall allow Tenant an equitable reduction of Rent during the time and
to the extent the Leased Premises are unfit for occupancy, save for Tenant's
fault or negligence hereinbelow described.
19.4 If the Leased Premises or the Building Complex shall be totally
or partially damaged by fire or other casualty resulting from the fault or
negligence of Tenant, or its agents, employees, licensees, or invitees, such
damage shall be repaired by and at the expense of Tenant (to the extent that
such destruction or damage is not covered by the fire and extended coverage
insurance carried by Landlord as provided herein), under the direction and
supervision of Landlord, and Rent shall continue without abatement.
ARTICLE 20. CONDEMNATION
If there shall be taken by exercise of the power of eminent domain, or by
conveyance in lieu thereof, during the Term any material part of the Leased
Premises or the Building Complex, Landlord may elect to terminate this Lease
upon written notice to Tenant within thirty (30) days after the date of such
taking or transfer in lieu thereof or to continue the same in effect. All
compensation awarded for any taking or the proceeds or private sale in lieu
thereof) of the Leased Premises, Building or Building Complex shall be the
property of Landlord, and Tenant hereby assigns its interest in any such award
to Landlord, provided, however, Landlord shall have no interest in any award
made to Tenant for the taking of Tenant's fixtures and other personal property
or moving expenses if a separate award for such items is made to Tenant. If
this Lease is terminated as a result of any such exercise of the power of
eminent domain, Rent shall be payable up to the date that possession is taken by
the condemning authority; Landlord shah refund to Tenant any prepaid uncured
Rent, less any sum then owing by Tenant to Landlord; and Tenant shall have no
claim against Landlord for the value of any unexpired portion of the Term. If
such condemnation does not result in the termination of this Lease, the Rent
thereafter to be paid shall be proportionately reduced as to the space affected.
ARTICLE 21. HOLD HARMLESS
21.1 Tenant agrees to defend, with counsel approved by Landlord, all
actions against Landlord, any partner, trustee, stockholder, officer, director,
employee, or beneficiary of Landlord, holders of mortgages secured by the Leased
Premises or the Building Complex and any other party having an interest therein
(the "Landlord's Indemnified Parties") with respect to, and to pay, protect,
indemnify and save harmless, to the extent permitted by law, all Landlord's
Indemnified Parties from and against, any and all liabilities, losses, damages,
costs, expenses (including reasonable attorneys' fees and expenses), causes of
action, suits, claims, demands, or judgments of any nature to which any
Indemnified Party is subject because of its estate or interest in the Leased
Premises or the Building Complex arising from (i) injury to or death of any
person, or damage to or loss of property, on the Leased Premises, the Building
Complex, or, to the extent caused by or attributable to Tenant, on adjoining
sidewalks, streets or ways, or, in any of the foregoing cases, connected with
the use, condition, or occupancy, of the Leased Premises, the Building Complex
sidewalks, streets, or ways unless caused by the negligence of Landlord or its
servants or agents, (ii) violation of this Lease by or attributable to Tenant,
or (iii) any act, fault, omission, or other misconduct of Tenant or its agents,
contractors, licenses, sublessees, or invitees. Tenant agrees to use and occupy
the Leased Premises and other facilities of the Building Complex at its own
risk, and hereby releases the Landlord's Indemnified Parties from any and all
claims for any damage or injury to the fullest extent permitted by law.
21.2 Tenant agrees that Landlord shall not be responsible or liable to
Tenant, its agents, employees, licensees, or invitees for fatal or non-fatal
bodily injury or property damage occasioned by
the acts or omissions of any other tenant, or such other tenant's agents,
employees, licensees, or invitees, of the Building Complex.
21.3 Landlord agrees to defend, with counsel approved by Tenant, all
actions against Tenant, any partner, trustee, stockholder, officer, director,
employee, or beneficiary of Tenant, (the "Tenant's Indemnified Parties") and to
pay, protect, indemnify, and save harmless, to the extent permitted by law, all
Tenant's Indemnified Parties from and against, any and all liabilities, losses,
damages, costs, expenses (including reasonable attorneys' fees and expenses),
causes of action, suits, claims, demands, or judgments of any nature to which
any Tenant's Indemnified Party is subject because of its estate or interest in
the Leased Premises arising from (i) injury to or death of any person, or damage
to or loss of property, in the common areas of the Building Complex, unless
caused by the negligence of Tenant or its servants or agents, (ii) violation of
this Lease by or attributable to Landlord, or (iii) any act, fault, omission, or
other misconduct of Landlord or its agents, contractors, licenses, or invitees.
ARTICLE 22. DEFAULT BY TENANT
22.1 The term "Act of Default" refers to the occurrence of any one (1)
or more or the following:
(a) Failure of Tenant to pay when due any sum required to be paid
hereunder (the "Monetary Default");
(b) Failure of Tenant, after ten (10) days written notice thereof,
to perform any of Tenant's obligations, covenants, or agreements except a
Monetary Default.
(c) If Tenant, or any guarantor of Tenant's obligations under this
Lease (the "Guarantor"), admits in writing that it cannot meet its obligations
as they become due; or is declared insolvent according to any law; or assignment
of Tenant's or Guarantor's property is made for the benefit of creditors; or a
receiver or trustee is appointed for Tenant or Guarantor or its property; or the
interest of Tenant or Guarantor under this Lease is levied on under execution or
other legal process; or any petition is filed by or against Tenant or Guarantor
to declare Tenant bankrupt or to delay, reduce, or modify Tenant's debts or
obligations; or any petition is filed or other action taken to reorganize or
modify, Tenant's or Guarantor's capital structure if Tenant is a corporation or
other entity. Any such levy, execution, legal process, or petition filed
against Tenant or Guarantor shall not constitute a breach of this Lease provided
Tenant or Guarantor shall vigorously contest the same by appropriate proceedings
and shall remove or vacate the same within sixty (60) days from the date of its
creation, service, or filing;
(d) The abandonment of the Leased Premises by Tenant, which shall
mean that Tenant has vacated the Leased Premises for ten (10) consecutive days,
whether or not Tenant is in Monetary Default; or that Tenant, in the judgment of
Landlord, is vacating the Leased Premises by removing a substantial part of its
furniture and fixtures;
(e) The discovery by Landlord that any financial statement given by
Tenant or any of its assignees, subtenants, successors-in-interest, or
Guarantors was materially false; or
(f) If Tenant or any Guarantor shall die, cease to exist as a
corporation or partnership, or be otherwise dissolved or liquidated or become
insolvent, or shall make a transfer in fraud of creditors.
22.2 In the event of any Act of Default by Tenant, Landlord, at its
option, may pursue one or more of the following remedies without notice or
demand in addition to all other rights and remedies provided for in law or in
equity:
(a) Terminate this Lease, in which event Tenant shall immediately
surrender possession of the Leased Premises to Landlord;
(b) Enter upon or take possession of the Leased Premises and its
contents and expel or remove Tenant, any other occupant, and any contents
therefrom using such force as may be reasonably necessary, with or without
having terminated the Lease and without being liable for prosecution of any
claim of damages therefor; and/or
(c) In connection with any action taken by Landlord under Sections
22.2(a) and (b) above, alter locks and other security devices from the Leased
Premises without being liable for prosecution of any claim of damages therefor.
22.3 If Landlord shall exercise any one or more remedies hereunder granted
or otherwise available, it shall not be deemed to be an acceptance or surrender
of the Leased Premises by Tenant whether by agreement or by operation of law; it
is understood that such surrender can be effected only by the written agreement
of Landlord and Tenant. No alteration of security devices and no removal or
other exercise of dominion by Landlord over the property of Tenant or others in
the Leased Premises shall be deemed unauthorized or constitute a conversion,
Tenant hereby consenting to the aforesaid exercise of dominion over Tenant's
property within the Leased Premises after any Act of Default. All claims for
damages by reason of such reentry and/or repossession and/or alteration of locks
or other security devices are hereby waived as are all claims for damages by
reason of any distress warrant, forcible detainer proceedings, sequestration
proceedings, or other legal process. Tenant agrees that any reentry by Landlord
may be pursuant to a judgment obtained in legal proceedings or without the
necessity of legal proceedings as Landlord may elect, and Landlord shall not be
liable in trespass or otherwise.
In the event Landlord may elect to regain possession of the Leased Premises
by a summary proceeding or forcible detainer proceedings, Tenant hereby
specifically waives, to the extent permitted by law, any statutory notice which
may be required prior to such proceeding and agrees that Landlord's execution of
this Lease is in part consideration for this waiver.
22.4 Should Landlord elect to terminate this Lease, Landlord may,
without further notice, repossess the Leased Premises and Tenant shall be liable
as if the expiration of the term fixed in such notice were the end of the Term
herein originally demised. In the event this Lease is terminated pursuant to
the provisions of this subsection, Tenant shall remain liable to Landlord for
damages in an amount equal to (a) the Rent and other sums which would have been
owing by Tenant hereunder for the balance of the Term had this Lease not been
terminated, less the not proceeds, if any, of any reletting of the Leased
Premises by Landlord subsequent to such termination after deduction all of
Landlord's expenses in connection with such reletting, including, but without
limitation, the expenses enumerated in Section 22.5 below, and (b) the
unamortized portion of the cost of Landlord's Work, amortized on a straight-line
basis over the initial term of this Lease. Landlord shall be entitled to
collect such damages from Tenant monthly on the days on which the Rent and other
amounts would have been payable hereunder if this Lease had not been terminated,
and Landlord shall be entitled to receive the same from Tenant on each such day.
22.5 Alternatively, at the option of Landlord, in the event this Lease
is terminated, Landlord shall be entitled to (a) accelerate and collect from
Tenant the Rent due under this Lease from the date on which the Act of Default
occurred through the date which would otherwise have been the Expiration Date of
this Lease if and when the Act of Default is a Monetary Default under Article 4,
a failure to obtain the required insurance coverage under Article 13, or a
violation of Section 3.1 or Article 18; or, at Landlord's election (b) recover
forthwith again Tenant as damages for loss of the bargain and not as a penalty
and Tenant shall be liable for and shall pay to Landlord the sum of all Rent and
other indebtedness accrued to the date of such termination, plus, as damages for
loss of the bargain and not as a penalty, an amount equal to the then-present
value of the Rent and any and all other sums reserved hereunder for the
remaining portion of the Term (had such Term not been terminated by Landlord
prior to the Expiration Date), plus all costs of reletting enumerated in Section
22.6 below, less the present value of the then-fair rental value of the Leased
Premises for such period. The parties hereby stipulate that such fair rental
value shall in no event be deemed to exceed sixty percent (60%) of the then-
present value of the Rent reserved for such period. For computations of present
value, the parties agree to use a six percent (6 %) per annum interest figure.
The foregoing, together with any other damages incurred by Landlord in
connection with the termination of this Lease, shall accrue interest at the
highest applicable non-usurious rate permitted by law.
22.6 Should Landlord elect not to terminate this Lease, Landlord may,
without notice or demand, enter upon the Leased Premises or any part thereof and
take absolute possession of the same, and, at Landlord's option, Landlord may
relet the Leased Premises or any part thereof upon such terms and such rents as
Landlord may reasonably elect (which may include concessions of free rent and
alteration of the Leased Premises). Landlord shall use reasonable efforts but
shall not be obligated to relet the Leased Premises, and nothing herein
contained shall under any circumstances be construed so as to require Landlord
to lease the Leased Premises below the then-current market rental rates being
obtained for similar office buildings in a similar area or to lease the same to
any Tenant not creditworthy or otherwise unacceptable to Landlord and shall in
no way be responsible or liable for any failure to relet the Leased Premises, or
any part thereof, or for any failure to collect any rent due upon such
reletting. In the event Landlord shall elect to so relet, then any rent
received by Landlord from such reletting shall be applied first to the payment
of any indebtedness other than Rent due hereunder from Tenant to Landlord;
second, to payment of any reasonable cost of such reletting, including, without
limitation, all repossession costs, legal expenses, attorneys' fees,
concessions, moving and/or storage costs, alteration, remodeling and repair
costs, leasing commissions, and other expenses of preparation for such
reletting; and third, to the payment of Rent due and unpaid hereunder, and
Tenant shall satisfy and pay any deficiency between the rents so collected from
the Rents reserved herein upon demand therefor from time to time, and the
unamortized portion of the cost of the Tenant Work, amortized on a straight-line
basis over the initial term of this Lease. In no event shall Tenant be entitled
to any excess of any rent obtained by reletting over and above the Rent herein
reserved.
22.7 Tenant further agrees that Landlord may file suit from time to time
to recover any sums due under the terms of this Section and that no recovery of
any portion due Landlord hereunder shall be a defense to any subsequent action
brought for any amount not theretofore reduced to judgment in favor of Landlord.
Reletting the leased Premises shall not be construed as an election on the part
of Landlord to terminate this Lease, and notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach, whereupon the foregoing provisions with respect
to termination shall apply. Nothing herein shall be deemed to require Landlord
to await the date whereon this Lease or the Term hereof would have expired by
limitation had there been no such default by Tenant, or no such termination, as
the case may be. 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, including, but not limited to, suits
for injunctive relief and specific performance. The exercise or beginning of the
exercise by Landlord or 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. All such rights and remedies shall be considered cumulative and non-
exclusive. All costs incurred by Landlord in connection with collecting any Rent
or other amounts and damages owing by Tenant pursuant to the provisions of this
Lease, or to enforce any provision of this Lease, including reasonable
attorneys' fees from the date such matter is turned over to an attorney, whether
or not one or more actions are commenced by Landlord, shall also be recoverable
by Landlord from Tenant.
22.8 If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the Leased Premises for such purpose), and thereupon, Tenant shall be obligated
and hereby agrees to pay Landlord, upon demand, all reasonable costs, expenses,
and disbursements, plus fifteen percent (15%) overhead cost incurred by Landlord
in connection therewith.
22.9 In addition to Landlord's rights set forth above, if Tenant fails to
pay its Rent or any other amounts owing hereunder within the time period set
forth in Section 21(a)(i) above more than two (2) times during any calendar year
during the Term, or any extension thereof, then upon the occurrence of the third
or any subsequent default in the payment of monies during said calendar year,
Landlord, at its sole option, shall have the right to require that Tenant, as a
condition precedent to curing such default, pay to Landlord, in check or money
order, in advance, the Rent and Landlord's estimate or all other amounts which
will become due and owing hereunder by Tenant for a period of two (2) months.
All such amounts shall be paid by Tenant within thirty (30) days after notice
from Landlord demanding the same. All monies so paid shall be retained by
Landlord, without interest, for the balance of the Term and any extension
thereof, and shall be applied by Landlord to the last due amounts owing
hereunder by Tenant. If, however, Landlord's estimate of the Rent and other
amounts for which Tenant is responsible hereunder are inaccurate, when such
error is discovered, Landlord shall pay to Tenant, or Tenant shall pay to
Landlord, within thirty (30) days after written notice thereof, the excess of
deficiency, as the case may be, which is required to reconcile the amount on
deposit with Landlord with the actual amounts for which Tenant is responsible.
22.10 Nothing contained in this Section shall limit or prejudice the right
of Landlord to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization, or dissolution proceeding, an amount
equal to the maximum allowed by any statute or rule of law governing such a
proceeding and in effect at the time when such damages are to be proved, whether
or not such amount be greater, equal, or less than the amounts recoverable,
either as damages or Rent, referred to in any of the preceding provisions of
this Section. Notwithstanding anything contained in this Section to the
contrary, any such proceeding or action involving bankruptcy, insolvency,
reorganization, arrangement assignment for the benefit of creditors, or
appointment of a receiver or trustee, as set forth above, shall be considered to
be an Act of Default only when such proceeding, action, or remedy shall be taken
or brought by or against the then holder of the leasehold estate under this
Lease.
22.11 In the event of any Act of Default or breach by Tenant, or threatened
or anticipatory breach or default, Tenant shall also be liable and shall pay to
Landlord, in addition to any sums provided to be paid above, brokers' fees
incurred by Landlord in connection with reletting the whole or any part of the
Leased Premises; the costs of removing and storing Tenant's or other occupant's
property; the costs of
repairing, altering, remodeling, or otherwise putting the Leased Premises into
condition acceptable to a new tenant or tenants; and all reasonable expenses
incurred by Landlord in enforcing or defending Landlord's rights and/or
remedies, including reasonable attorneys' fees, whether suit was actually file
or not.
22.12 In the event of termination or repossession of the Leased Premises
for an Act of Default, Landlord shall not have any obligation to relet or
attempt to relet the Leased Premises or any portion thereof, or to collect
rental after reletting; and in the event of reletting, Landlord may relet the
whole or any portion of the Leased Premises for any period to any tenant and for
any use or purpose.
22.13 Landlord is entitled to accept, receive, in check or money order, and
deposit any payment made by Tenant for any reason or purpose or in any amount
whatsoever, and apply them at Landlord's option to any obligation of Tenant, and
such amounts shall not constitute payment of any amount owed, except that to
which Landlord has applied them. No endorsement or statement on any check or
letter of Tenant shall be deemed an accord and satisfaction or recognized for
any purpose whatsoever. The acceptance of any such check or payment shall be
without prejudice to Landlord's rights to recover any and all amounts owed b
Tenant hereunder and shall not be deemed to cure any other default nor prejudice
Landlord's rights to pursue any other available remedy.
22.14 In the event of any default by Landlord, Tenant's exclusive remedy
shall be an action for damages, Tenant hereby waiving the benefit of any laws
granting it a lien upon the property of Landlord and/or upon Rent due Landlord.
Prior to any such action for damages, Tenant shall give Landlord written notice
specifying such default with particularity, and Landlord shall thereupon have
thirty (30) days (plus such additional reasonable period as may be required in
the exercise by Landlord of due diligence) in which to cure any such default.
Unless and until Landlord fails to cure any default after such notice, Tenant
shall not have any remedy or cause of action by reasons thereof. All
obligations of Landlord hereunder shall be construed as covenants, not
conditions.
22.15 In addition to and without limiting the foregoing, in the event of
any abandonment of the Leased Premises by Tenant, and Landlord does not elect to
declare this Lease terminated, then Tenant shall remain obligated,
notwithstanding any such discontinuance or cessation of operations, to perform
all covenants and agreements under this Lease, including, without limitation,
payment of all Base Rent, and all Additional Rent and other sums provided for
herein.
ARTICLE 23. INTENTIONALLY OMITTED
ARTICLE 24. INTENTIONALLY OMITTED
ARTICLE 25. ATTORNEYS' FEES
Should it be necessary for Landlord or Tenant, because of a breach of the
other, to place the enforcement of this Lease or any part thereof, or the
collection of any Rent due or to become due hereunder, or recovery of the
possession of the Leased Premises, in the hands of any attorney, or file suit
upon the same, it is agreed that the prevailing party shall recover its
reasonable attorneys' fees from the non-prevailing party.
ARTICLE 26. NON-WAIVER
Neither acceptance of any payment by Landlord from Tenant nor failure by
Landlord to complain of any action, non-action, or default of Tenant shall
constitute a waiver of any of Landlord's rights hereunder. Time is of the
essence with respect to the performance of every obligation of Tenant under this
Lease in which time of performance is a factor. Waiver by Landlord of any right
or arising in connection with any default of Tenant shall not constitute a
waiver of such right or remedy or any other right or remedy arising in
connection with either a subsequent default of the same obligation or any other
default. No right or remedy of Landlord hereunder or covenant, duty, or
obligation of Tenant hereunder shall be deemed waived by Landlord unless such
waiver is in writing, signed by Landlord or Landlord's duly authorized agent.
ARTICLE 27. RULES AND REGULATIONS
Such reasonable rules and regulations applying to all lessees in the
Building Complex as may be hereafter adopted by Landlord for the safety, care,
and cleanliness of the Building Complex and the preservation of good order
thereon are hereby made a part hereof as Exhibit D, and Tenant agrees to comply
---------
with all such rules and regulations. Landlord shall have the right at all times
to change such rules and regulations or to amend them in any reasonable manner
as may be deemed advisable by Landlord, all of which changes and amendments
shall be sent by Landlord to Tenant in writing and shall be thereafter carried
out and observed by Tenant. Landlord shall not have any liability to Tenant for
any failure of any other lessees of the Building Complex to comply with such
Rules and Regulations.
ARTICLE 28. ASSIGNMENT BY LANDLORD
Landlord shall have the right to transfer or assign, in whole or in part,
all its rights and obligations hereunder and in the Leased Premises and the
Building Complex. In such event, no liability or obligation shall accrue or be
charged to Landlord.
ARTICLE 29. LIABILITY OF LANDLORD
It is expressly understood and agreed that the obligations of Landlord
under this Lease shall be binding upon Landlord and its successors and assigns
and any future owner of the Building Complex only with respect to events
occurring during its and their respective ownership of the Building Complex. In
addition, Tenant agrees to look solely to Landlord's interest in the Building
Complex for recovery of any judgment against Landlord arising in connection with
this Lease, it being agreed that neither Landlord nor any successor or assign of
Landlord nor any future owner of the Building Complex, nor any partner,
shareholder, or officer of any of the foregoing shall ever be personally liable
for any such judgment.
ARTICLE 30. SUBORDINATION AND ATTORNMENT
This Lease, at Landlord's option, shall be subordinate to any mortgage (now
or hereafter placed upon the Building), ground lease or declaration of covenants
(hereafter placed upon the Building) regarding maintenance and use of any areas
contained in any portion of the Building, and to any and all advances made under
any mortgage and to all renewals, modifications, consolidations, replacements,
and extensions thereof Tenant agrees, with respect to any of the foregoing
documents, that no documentation other than this Lease shall be required to
evidence such subordination. If any holder of a mortgage shall elect for this
Lease to be superior to the lien of its mortgage and shall give written notice
thereof to
Tenant, then this Lease shall automatically be deemed prior to such mortgage
whether this Lease is dated earlier or later than the date of said mortgage or
the date of recording thereof. Tenant agrees to execute such documents as may be
further required to evidence such subordination or to make this Lease prior to
the lien of any mortgage or deed of trust, as the case may be, and by failing to
do so within five (5) days after written demand, Tenant does hereby make,
constitute, and irrevocably appoint Landlord as Tenant; attorney-in-fact and in
Tenant's name, place, and stead, to do so. This power of attorney is coupled
with an interest. Tenant hereby attorns to all successor owners of the Building,
whether or not such ownership is acquired as a result of a sale through
foreclosure of a deed of trust or mortgage, or otherwise. Notwithstanding the
foregoing, Tenant shall only be obligated to subordinate its leasehold interest
to any mortgage, deed or trust, ground lease, or declaration of covenants now or
hereafter placed upon the Building if the holder of such mortgage or deed or
trust or the landlord under such ground lease or the declarant under such
declaration of covenants will grant to tenant a non-disturbance agreement, using
the form of document then being employed by such holder, landlord, or declarant
for such purposes, which will provide that Tenant, notwithstanding any default
of Landlord hereunder, shall have the right to remain in possession of the
Leased Premises described herein in accordance with the terms and provisions of
this Lease for so long as Tenant shall not be in default under this Lease.
Additionally, Tenant shall, at such time or times as Landlord may request, upon
not less than five (5) days' prior written request by Landlord sign and deliver
to Landlord a certificate stating whether this Lease is in full force and
effect; whether any amendments or modification exist; whether any Monthly Rent
has been prepaid and, if so, how much; whether there are any defaults hereunder;
and such other information and agreements as may be reasonable requested, it
being intended that any such statement delivered pursuant to this Article may be
relied upon by Landlord and by any prospective purchaser of all or any portion
of Landlord's interest herein, or a holder or prospective holder of any mortgage
encumbering the Building. Tenant's failure to deliver such statement within such
time shall constitute an Act of Default (as that term is defined elsewhere in
this Lease) and shall conclusively be deemed to be an admission by Tenant of the
matters set forth in the request for an estoppel certificate.
ARTICLE 31. HOLDING OVER
In the event Tenant, or any party claiming under Tenant, retains possession
of the Leased Premises after the Expiration Date or Termination Date, such
possession shall be that of a Holdover Tenant and an unlawful detainer. No
tenancy or interest shall result from such possession, and such parties shall be
subject to immediate eviction and removal. Tenant or any such party shall pay
Landlord, as Rent for the period of such holdover, an amount equal to double
Rent otherwise provided for herein during the time of holdover. Tenant shall
also be liable for any and all damages sustained by Landlord as a result of such
holdover. Tenant shall vacate the Leased Premises and deliver same to Landlord
immediately upon Tenant's receipt of notice from Landlord to so vacate. 'Me
Rent during such holdover period shall be payable to Landlord on demand. No
holding over by Tenant, whether with or without consent of Landlord, shall
operate to extend this Lease.
ARTICLE 32. SIGNS
No sign, symbol, or identifying marks shall be put upon the Building Complex,
Building, in the halls, elevators, staircases, entrances, parking areas, or upon
the doors or xxxxx, without the prior written approval of Landlord. Should such
approval ever be granted, all signs or lettering shall conform in all respect to
the sign and/or lettering criteria established by Landlord. Landlord, at
Landlord's sole cost and expense, reserves the right to change the door plaques
as Landlord deems reasonably desirable.
ARTICLE 33. HAZARDOUS SUBSTANCES
With respect to Tenant's use of the Building Complex, Tenant shall at all
times, at its own cost and expense, comply with all federal, state, and local
laws, ordinances, regulations, and standards relating to the use, analysis,
production, storage, sale, disposal, or transportation of any hazardous
materials ("Hazardous Substance Laws"), including oil or petroleum products or
their derivatives, solvents, PCB's explosive substances, asbestos, radioactive
materials or waste, and any other toxic, ignitable, reactive, corrosive,
contaminating, or pollution materials ("Hazardous Substances") which are now or
in the future subject to any governmental regulations.
Tenant shall not generate, store, or dispose of any Hazardous Substances in
or on the leased Premises or the Building Complex. Except in emergencies or as
otherwise required by law, Tenant shall not take any remedial action in response
to the presence or release of any Hazardous Substances on or about the Building
Complex without first giving written notice of the same to Landlord. Tenant
shall not enter into any settlement agreement, consent decree, or other
compromise with respect to any claims relating to any Hazardous Substances in
any way connected with the Building Complex without first notifying Landlord of
Tenant's intention to do so and affording Landlord the opportunity to
participate in any such proceedings.
All costs and expenses incurred by Landlord in connection with any
environmental audit shall be paid by Landlord (and may be included in Operating
Expenses), except that if any such environmental audit shows that Tenant has
failed to comply with the provisions of this Article, or that the Building
Complex (including surrounding soil and any underlying or adjacent groundwater)
have become contaminated due to the operations or activities in any way
attributable to Tenant, then all of the costs and expenses of such audit shall
be paid by Tenant.
In the event Tenant's occupancy or conduct of business in or on the Leased
Premises, whether or not Landlord has consented to the same, results in any
increase in premiums for the insurance carried from time to time by Landlord
with respect to the Building, Tenant shall pay any such increase in premiums as
Rent within ten (10) days after bills for such additional premiums shall be
rendered by Landlord. In determining whether increased premiums are a result of
Tenant's use or occupancy of the Leased Premises, a schedule issued by the
organization computing the insurance rate on the Building showing the various
components of such rate, shall be conclusive evidence of the several items and
charges which make up such rate. Tenant shall promptly comply with all
reasonable requirements of the insurance authority or of any insurer now or
hereafter in effect relating to the Leased Premises.
ARTICLE 34. COMPLIANCE WITH LAWS AND OTHER REGULATIONS
Tenant, at its sole cost and expense, shall promptly comply with all laws,
statutes, ordinances, and governmental rules, regulations, or requirements now
in force or which may hereafter become in force, of federal, state, county, and
municipal authorities, including, but not limited to, the Americans with
Disabilities Act, with the requirements of any board of fire underwriters or
other similar body now or hereafter constituted, and with any occupancy
certificate issued pursuant to any law by any public officer or officers, which
impose any duty upon Landlord or Tenant, insofar as any thereof relate to or
affect the condition, use, alteration, or occupancy of the Leased Premises.
Landlord's approval of Tenant's plans for any improvements shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, rules, and regulations of
governmental agencies or authorities, including, but not limited to, the
Americans with Disabilities Act.
ARTICLE 35. SEVERABILITY
This Lease shall be construed in accordance with the laws of the State of
Connecticut. If any clause or provision of this Lease is illegal, invalid, or
unenforceable under present or future laws effective during the Term, then it is
the intention of the parties hereto that the remainder of this Lease shall not
be affected thereby. It is also the intention of both parties that in lieu of
each clause or provision that is illegal, invalid, or unenforceable, there is
added as a part of this Lease a clause or provision as similar in terms to such
illegal, invalid, or unenforceable clause or provision as may be possible and
still be legal, valid, and enforceable.
ARTICLE 36. NOTICES
Whenever in this Lease it shall be required or permitted that notice or
demand be given or served by either party to this Lease to or on the other, such
notice or demand shall be given or served in writing and delivered personally,
set by facsimile or forwarded by certified or registered mail, postage prepaid,
or recognized overnight courier, addressed as follows:
If to Landlord: Xxxx Xxxxxxx Mutual Life Insurance Company
000 Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
with a copy to: Xxxxxx Xxxxxxxx Partners
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to Tenant Accent Color Sciences, Inc.
Prior to the Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx 00 Xxxx Xxxxx Xxxxx
Date: Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000
After the 000 Xxxxxxxxxxx Xxxx.
Xxxxxxxxxxxx Xxxx Xxxxxxxx, XX 00000
Date:
Notice hereunder shall become effective upon (a) delivery in case of
personal delivery, (b) transmission with receipt confirmed in case of facsimile,
and (c) receipt or refusal in case of certified or registered mail.
Prior to the Commencement Date, the address for notices to Tenant shall be
the address set forth below its signature hereto; after the Commencement Date,
the address for notices to Tenant shall be as hereinabove set forth. Such
address may be changed from time to time by either party service notice as
provided above.
ARTICLE 37. OBLIGATIONS OF SUCCESSORS, PLURALITY, GENDER
Landlord and Tenant agree that all the provisions hereof are to be
construed as covenants and agreements as though the words imparting such
covenants were used in each paragraph hereof, and that,
except as restricted by the provisions hereof, shall bind and inure to the
benefit of the parties hereto, their respective heirs, legal representatives,
successors, and assigns. If the rights of Tenant hereunder are owned by two or
more parties, or two or more parties are designated herein as Tenant, then all
such parties shall be jointly and severally liable for the obligations of Tenant
hereunder. Whenever the singular or plural number, masculine or feminine or
neuter gender is used herein, it shall equal include the other.
ARTICLE 38. ENTIRE AGREEMENT
This Lease and any attached addenda or exhibits constitute the entire
agreement between Landlord and Tenant. No prior or contemporaneous written or
oral leases or representations shall be binding. This Lease shall not be
amended, changed, or extended except by written instrument signed by Landlord
and Tenant.
ARTICLE 39. PARAGRAPH CAPTIONS
Paragraph captions are for Landlord's and Tenant's convenience only, and
neither limit nor amplify the provisions of this Lease. Tenant agrees, at
Landlord's request, to execute a recordable Memorandum of this Lease.
ARTICLE 40. CHANGES
Should any mortgagee require a modification of this Lease, which
modification will not bring about any increased cost or expense to Tenant or
will in any other way substantially and adversely change the rights and
obligations of Tenant hereunder, then and in such event Tenant agrees that this
Lease may be so modified.
ARTICLE 41. AUTHORITY
All rights and remedies of Landlord under this Lease, or those which may be
provided by law, may be exercised by Landlord in its own name individually, or
in its name by its agent, and all legal proceedings for the enforcement of any
such rights or remedies, including distress for Rent, unlawful detainer, and any
other legal or equitable proceedings may be commenced and prosecuted to final
judgment and be executed by Landlord in its own name individually or in its name
by its agent. Landlord and Tenant each represent to the other that each has
full power and authority to execute this Lease and to make and perform the
agreements herein contained, and Tenant expressly stipulates that any rights or
remedies available to Landlord, either by the provisions of this lease or
otherwise, may be enforced by Landlord in its own name individually or in its
name by its agent or principal.
ARTICLE 42. BROKERAGE
Tenant represents and warrants to Landlord that it has dealt only with
Xxxxxx Xxxxxxxx Partners (the "Broker") in negotiation of this Lease. Landlord
shall make payment of the brokerage fee due to the Broker pursuant to and in
accordance with a separate agreement with the Broker. Tenant hereby agrees to
indemnify and hold Landlord and/or Landlord's agent harmless of and from any and
all damages, losses, costs, or expenses (including, without limitation, all
attorneys' fees and disbursements) by reason of any claim of or liability to any
other broker or other person claiming through Tenant and arising out of or in
connection with the negotiation, execution, and delivery of this Lease.
Additionally, Tenant acknowledges and agrees that Landlord and/or Landlord's
agent shall have no obligation for payment of
any brokerage fee or similar compensation to any person with whom Tenant has
dealt or may in the future deal with respect to leasing of any additional or
expansion space in the Building or renewals or extensions of this Lease.
ARTICLE 43. EXHIBITS
Exhibits A through E are attached hereto and incorporated herein for all
--------------------
purposes and are hereby acknowledged by both parties to this Lease.
ARTICLE 44. APPURTENANCES
The Leased Premises include the right of ingress and egress thereto and
therefrom; however, Landlord reserves the right to make changes and alterations
to the Building, fixtures and equipment thereof, in the street entrances, doors,
halls, corridors, lobbies, passages, elevators, escalators, stairways, toilets
and other parts thereof which Landlord may deem necessary or desirable. Neither
this Lease nor any use by Tenant of the Building or any passage, door, tunnel,
concourse, plaza or any other area connecting the garages or other buildings
with the Building, shall give Tenant any right or easement of such use and the
use thereof may, without notice to Tenant, be regulated or discontinued at any
time and from time to time by Landlord without liability of any kind to Tenant
and without affecting the obligations of Tenant under this Lease.
ARTICLE 45. PREJUDGMENT REMEDY, REDEMPTION, COUNTERCLAIM, AND JURY
Tenant, for itself and for all persons claiming through or under it, hereby
acknowledges that this Lease constitutes a commercial transaction as such term
is used and defined in Public Act No. 431 of the Connecticut General Statutes,
Revision of 1973, and hereby expressly waives any and all rights which are or
may be conferred upon Tenant by said Act to any notice or hearing prior to a
prejudgment remedy, and by any present or future law to redeem the Leased
Premises, or to any new trial in any action or ejection under any provisions of
law, after reentry thereupon, or upon any part thereof, by Landlord, or after
any warrant to dispossess or judgment in ejection. If Landlord shall acquire
possession of the Leased Premised by summary proceedings, or in any other lawful
manner without judicial proceedings, it shall be deemed a reentry within the
meaning of that word as used in this Lease. In the event that Landlord
commences any summary proceedings or action for nonpayment of rent or other
charges provided for in this Lease, Tenant shall not interpose any counterclaim
of any nature or description in any such proceeding or action. Tenant and
Landlord both waive a trial by jury of any or all issues arising in any action
or proceeding between the parties hereto or their successors, under or connected
with this Lease, or any of its provisions.
ARTICLE 46. RECORDING
Tenant shall not record this Lease but will, at the request of Landlord,
execute a memorandum or notice thereof in recordable form satisfactory to both
Landlord and Tenant specifying the date of commencement and expiration of the
term of this Lease and other information required by statute. Either Landlord
or Tenant may then record said memorandum or notice of lease.
ARTICLE 47. MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagees and/or Trust Deed Holders, by
Registered Mail, a copy of any Notice of Default served upon Landlord, provided
that prior to such notice Tenant has been notified, in writing (by way of Notice
of Assignment of Rents and Leases, or otherwise), of the address of such
Mortgagees and/or Trust Deed Holders. Tenant further agrees that if Landlord
shall have failed to cure such default within the time provided for in this
Lease, then the Mortgagees and/or Trust Deed Holders shall have an additional
thirty (30) days within which to cure such default or if such default cannot be
cured within that time, then such additional time as may be necessary if within
such thirty (30) days, any Mortgagee and/or Trust Deed Holder has commenced and
is diligently pursuing the remedies necessary to cure such default, (including
but not limited to commencement of foreclosure proceedings, if necessary to
effect such cure) in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
ARTICLE 48. SHORING
If any excavation or construction is made adjacent to, upon or within the
Building, or any part thereof, Tenant shall afford to any and all persons
causing or authorized to cause such excavation or construction license to enter
upon the Leased Premises for the purpose of doing such work as such persons
shall deem necessary to preserve the Building or any portion thereof from injury
or damage and to support the same by proper foundations, braces and supports,
without any claim for damages or indemnity or abatement of rent, or of a
constructive or actual eviction of Tenant.
ARTICLE 49. PARKING
49.1 Tenant shall have the following parking rights as long as this Lease
is in full force and effect:
(a) The right to park twenty (20) cars, on a reserved basis, in the
garage that is under the Building (the "Garage"). Landlord shall xxxx twenty
(20) spaces in the garage as being reserved for Tenant, but Landlord shall not
be obligated to police such spaces, and Landlord shall have no liability to
Tenant, nor shall Tenant's obligations under this Lease be affected, in the
event of any unauthorized use of said spaces.
(b) The right to park up to one hundred ten (110) cars, on a non-
reserved basis, in the surface parking area located at the Building (the
"Building Lot").
(c) The right to park up to twenty (20) cars, on a non-reserved
basis, in the surface parking area located at 12 and 00 Xxxxxxx Xxxxxx, Xxxx
Xxxxxxxx, Xxxxxxxxxxx (the "Adjacent Lot"), provided that if the Adjacent Lot is
not available, the number of cars provided for in this Section 49.1 (c) shall be
provided in the Garage and/or the Building Lot, in a proportion determined by
Landlord.
49.2 The parking provided for herein shall be subject to such reasonable
rules and regulations as Landlord shall provide from time to time and access
thereto may be controlled by keycards or other similar devices.
49.3 As long as the spaces are not needed for other tenants in the
building, Tenant may park entirely in the Garage and/or the Building Lot, but
Landlord shall have the right, on thirty (30) days notice to Tenant, to require
Tenant to park in accordance with the breakdowns set forth in this Article 49,
when it needs spaces in the Garage and/or the Building Lot for other tenants.
49.4 If Tenant fails to Lease the Expansion Space pursuant to Article
50 hereof, then as of the first day of the thirteenth (13/th/) full month of the
Term, then Tenant shall only be permitted to park fifteen (15) cars in the
Garage.
ARTICLE 50. EXPANSION
Provided that this Lease is in full force and effect and Tenant is not in
default hereunder, Tenant shall have the right to expand the Leased Premises to
include the entire second (2nd) floor of the Building, which spare (the
"Expansion Space") consists of approximately 15,000 square feet of Rentable Area
(subject to verification by Landlord's architect in accordance with the BOMA
Method) and is shown on Exhibit F attached hereto, as follows:
---------
(a) In order to exercise this option, Tenant must so notify
Landlord, in writing, on or before the last day of the ninth (9th) full month of
the Term, time being of the essence.
(b) Landlord shall deliver vacant possession of the Expansion
Space to Tenant upon receipt of Tenant's exercise notice, and Tenant shall
accept the Expansion Space in a strictly "as is" condition, except that Landlord
shall be responsible for removing or demolishing the built-in equipment (but not
any permanent improvements such as walls, floors and ceilings) that make up the
cafeteria in the Expansion Space.
(c) Tenant shall be responsible for all build-out and/or interior
finish work that it shall require in the Expansion Space, which work (the
"Expansion Work") shall be subject to the provisions of Article 15 hereof.
(d) Landlord shall provide Tenant with an allowance of up to Thirty-
Five Thousand and 00/100 Dollars ($35,000.00) toward the cost of the Expansion
Work, which allowance shall be paid by Landlord to Tenant within thirty (30)
days after the following has occurred:
(i) Tenant has provided Landlord with a certificate of
occupancy for the Expansion Space, and a certificate from Landlord's architect
that the Expansion Work has been substantially completed in accordance with the
plans and specifications that have been approved by Landlord; and
(ii) Tenant has provided Landlord with a detailed invoice of
the costs incurred.
(e) The Expansion Space shall become part of the Leased Premises,
and all of the terms and conditions of this Lease shall apply thereto, as of a
date (the "Expansion Date") that is the earlier of (i) the date Tenant first
commences business operations in the Expansion Space, or (ii) the first day of
the thirteenth (13th) full month of the Term.
(f) As of the Expansion Date:
(i) Base Rent shall be increased by an amount equal to One
Hundred Seventy-Six Thousand Two Hundred Fifty and 00/100 Dollars ($176,250.00)
per year (which is based on $11.75 per Rentable Square Foot and shall be
adjusted if the measurement of the Expansion Space by Landlord's architect
discloses a different number of Rentable Square Feet in the Expansion Space),
payable in
monthly installments of Fourteen Thousand Six Hundred Eighty-Seven and 50/100
Dollars. ($14,687.50), pro-rated for any partial month, provided that if the
Expiration Date is before the first day of the thirteenth (13th) full month of
the Term, then Base Rent for the Expansion Space for the period from the
Expansion Date to the first day of the thirteenth (13th) full month of the term
shall be payable at the rate of One Hundred Sixteen Thousand Two Hundred Fifty
and 00/100 Dollars ($116,250.00) per year (which is based on $7.75 per Rentable
Square Foot and shall be adjusted if the measurement of the Expansion Space by
Landlord's Architect discloses a different number of Rentable Square Feet in the
Expansion Space), payable in monthly installments of Nine Thousand Six Hundred
Eighty-Seven and 50/100 Dollars ($9,687.50), pro-rated for any partial month.
(ii) Tenant's Building Percentage shall be increased to
reflect the number of Rentable Square Feet in the Expansion Space.
(iii) Tenant shall be entitled to park an additional forty (40)
cars in the Building Lot and an additional five (5) cars in the Adjacent Lot.
(g) All of the terms and conditions of this Lease, except for
Articles 4 and 5, shall apply to the period of time commencing on the date
Landlord delivers vacant possession of the Expansion Space to Tenant and ending
on the Expansion Date.
ARTICLE 51. ZONING
Tenant acknowledges that the Building is not presently zoned to permit
light assembly of computer printing equipment. Landlord shall, at its expense,
promptly and diligently attempt to obtain either a variance from the East
Hartford Zoning Board of Appeals, a zone change from the East Hartford Planning
and Zoning Commission, or such other approvals or actions from the Town of East
Hartford as will permit such use (such variance, zone change, or other approval
or action being hereinafter referred to as the "Zoning Approval"). If Landlord
has not obtained the Zoning Approval on or before February 29, 1996, then Tenant
shall have the right, at any time before the Zoning Approval is actually
obtained, to terminate the Lease.
ARTICLE 52. LANDLORD'S DEFAULT
In the event that Landlord fails to comply with any of its obligations
under this Lease, and such failure continues for more than thirty (30) days
after receipt of written notice from Tenant (which thirty (30) day period shall
be extended to the extent that Landlord is diligently attempting to cure the
failure) and materially and adversely affects Tenant's business, then Tenant
shall have the right, after notice to Landlord, to cure the default itself, in
which event Landlord shall reimburse Tenant for all reasonable out-of-pocket
costs incurred by Tenant in connection therewith.
IN WITNESS WHEREOF, Landlord and Tenant, acting herein through duly
authorized individuals, have caused these presents to be executed in multiple
counterparts, each of which shall have the force and effect of an original on
this 16/th/. Day of February, 1996.
TENANT:
ACCENT COLOR SCIENCES, INC.
By: ______________________________
Its Chief Financial Officer
Tax I.D. or Tax Exempt No. 00-0000000
LANDLORD:
XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation
By: XXXXXXX REALTY INVESTORS, INC.
a Massachusetts Corporation
Its Agent
By: ______________________________
Xxxxxx X. Xxx
Its Associate
EXHIBIT A
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LEGAL DESCRIPTION
(Intentionally omitted - to be inserted)
EXHIBIT C
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LANDLORD'S WORK
Landlord will install, at its expense, doors at each vehicle entrance to the
parking garage which will be secured during all non-business hours with
provisions made for Tenants to have access during such hours.
EXHIBIT D
---------
RULES AND REGULATIONS
1. The sidewalks, entries, passages, court, corridor, stairways, and
elevators shall not be obstructed or used for purposes other than ingress or
egress by Tenant, Tenant's employees, agents, or invitees.
2. Tenant shall not place within the Building any objects which exceed
the floor weight specifications of the Building without the express prior
written consent of Landlord. The placement and positioning of all such objects
within the Building shall be reasonably prescribed by Landlord, and such objects
shall, in all cases, be placed upon plates or footings of such size as shall be
reasonably prescribed by Landlord. Any damage done to the Building by taking in
or removing any heavy article from or overloading any floor in any way shall be
paid by Tenant. Defacing or injuring in any way any part of the Building Complex
by Tenant, his agent, or servants shall be paid by Tenant.
3. Initial name and number plates on doors shall be provided by Landlord
and any revisions or changes thereto shall be at the expense of Tenant. A
directory, located in a conspicuous place and listing the names of the tenants
of the Building, shall be provided by Landlord. Initial directory listings shall
be at the cost of Landlord and any revisions or changes thereto shall be at the
expense of Tenant. any necessary revision in such directory shall be made by
Landlord within a reasonable time after written notice from Tenant, but Landlord
shall not be responsible for any inconvenience or damage caused to Tenant as a
result of error in such directory.
4. Tenant shall not xxxx, paint, drill into, cut, string wires within, or
in any way deface any part of the Building with anything except normal picture
hanging apparatus without the express prior written consent of Landlord. Upon
removal of any wall decorations or installations or floor coverings by Tenant,
any damage to the walls or floors shall be repaired by Tenant at Tenant's sole
cost and expense. Without limitation upon any of the provisions of the Lease,
Tenant shall refer all contractors, representatives, installation technicians,
and other mechanics, artisans, and laborers rendering any service in connection
with the repair, or permanent improvements of the Leased Premises to Landlord
for Landlord's approval before performance of any such service. This Paragraph
4 shall apply to all work performed in the Building, including, without
limitation, installation of telephones, telegraph equipment, electrical devices,
and attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment, or any other portion of the
Building. Plans and specifications for such work prepared at Tenant's sole
expense shall be submitted to Landlord and shall be subject to Landlord's
express prior written approval in each instance before the commencement of work.
Subject to the provisions of the Lease, all installations, alterations, and
additions shall be constructed by Tenant in a good and workmanlike manner and
only good grades of material shall be used in connection therewith.
The means by which telephone, telegraph, and similar wires are to be introduced
to the Building Complex and Leased Premises and the location of telephones, call
boxes, and other office equipment affixed to the Building Complex shall be
subject to the express prior written approval of Landlord.
5. Tenant shall not employ any person other than the janitor of Landlord
for the purpose of cleaning the Leased Premises without the written consent of
Landlord. Landlord shall not be responsible to Tenant for loss of property from
the Leased Premises or for any damage done to the furniture by the janitor, any
of his employees, or by any other person. Any person employed by Tenant for the
purposes of cleaning the Leased Premises, with the written consent of Landlord,
must be subject to and under the control and direction of the Building janitor.
6. Landlord shall furnish Tenant two (2) keys for each corridor door
entering the Leased Premises. Additional keys shall be furnished at a charge by
Landlord on an order signed by Tenant or Tenant's authorized representative.
Tenant shall not make duplicate copies of such keys. Tenant shall not install
additional locks or bolts of any kind upon any of the doors or windows of, or
within, the Building, nor shall Tenant make any changes in existing locks or the
mechanisms thereof. Tenant shall, upon the termination of its tenancy, provide
Landlord or its representative with the combinations to all combination locks on
safes, safe cabinets and vaults and deliver to Landlord all keys to the
Building, the Leased Premises and all interior doors, cabinets, and other key-
controlled mechanisms therein, whether or not such keys were furnished to Tenant
by Landlord. Tenant shall pay to Landlord the reasonable cost of replacing the
same or of changing the lock or locks opened by such lost key if Landlord shall
reasonably deem it necessary to make such a change.
7. Tenant shall comply with all requirements necessary for the
security of the Building Complex, including the use of service passes issued by
Landlord for after hours removal of office equipment, packages, and signing in
and/or out in the security register in the Building lobby after hours. Landlord
reserves the right to deny entrance to the Building or remove any person from
the Building Complex in any case where the conduct of such person involves a
hazard or nuisance to any tenant of the Building Complex or to the public or in
the event of fire or other emergency, riot, civil commotion. or similar
disturbance involving risk to the Building Complex, tenants, or the general
public. Landlord also reserves the right to make such rules and regulations as
it may see fit concerning the use of electric current, water, and other supplies
of the Building and to designate such hours as the Building may be closed.
8. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed. Any damage resulting
to them from misuse or the defacing or injury of any part of the Building shall
be paid for by Landlord, excepting only where defacing or injury is done by
Tenant or an agent of Tenant. Tenant shall not waste water by interfering with
the operation of any plumbing fixture.
9. Tenant shall not disturb the occupants of the Building by the use of
any musical or sound producing instruments, making unseemly noises, or by
interference in any way. Tenant shall not bring any dogs or other animals into
the Building.
10. Tenant shall not bring or keep within the Building any bicycle or
motorcycle.
11. All office equipment and any other divider or any electrical or
mechanical nature shall be placed by Tenant in the Leased Premises in settings
reasonably approved by Landlord so as to absorb
or prevent any vibration, noise, or annoyance. Tenant shall not cause improper
noises, vibrations, or odors within the Building.
12. Nothing shall be thrown out of the doors of the Building or down
stairways or other passages by Tenant.
13. All glass, locks, and trimmings in or about the doors and windows, and
all electric globes and shades belonging to the Building Complex shall be kept
whole; and whenever broken by Tenant, shall be immediately replaced or repaired
and put in order by Tenant under the direction and to the satisfaction of
Landlord.
14. Canvassing, soliciting, and peddling in the Building is prohibited,
and Tenant shall cooperate to prevent the same. Tenant shall notify the
Building Manager promptly of any unauthorized person who is soliciting from or
causing annoyance to tenants, their employees, guests, or invitees.
15. Parking in unmarked areas, blocking of walkways, loading areas,
entrances, or alleyways shall not be permitted. Should such a situation exist,
Landlord, at its option, shall have the right to tow such vehicle away at the
owner's expense.
16. Landlord shall not be responsible for, and Tenant hereby indemnifies
and holds Landlord harmless from any liability in connection with the loss,
theft, misappropriation, or other disappearance of furniture, furnishings,
fixtures, machinery, equipment, money, jewelry, or other items of personal
property from the Leased Premises or other parts of the Building regardless of
whether the Leased Premises or Building are locked at the time of such loss,
unless the loss arises from Landlord's willful or negligent acts or omissions.
17. Tenant, its agents, servants, and employees shall, before leaving the
Leased Premises unattended, close and lock all doors and shut off all lights.
Corridor doors, when not in use, shall be kept closed. Subject to applicable
fire or other safety regulations, all doors opening into Common Areas, as
hereinafter defined, and all doors upon the perimeter of the Leased Premises
shall be kept closed and, during non-business hours, locked, except when in use
for ingress or egress. If Tenant uses the Leased Premises after regular
business hours or on non-business days, Tenant shall lock any entrance doors to
the Leased Premises used by Tenant immediately after using such doors.
18. Tenant shall not deposit any trash, refuse, cigarettes, or other
substances of any kind within or out of the Building except in refuse containers
provided therefor. Smoking shall not be permitted in the common areas of the
Building.
19. To ensure orderly operation of the Building Complex, no deliveries of
any kind or nature shall be made to any leased area except by persons appointed
or approved by Landlord in writing. There shall not be used in any space or in
the public halls of the Building, either by Tenant, by jobbers, or others, in
the delivery or receipt of merchandise, any hand trucks, except those equipped
with rubber tires and side guards.
20. Tenant shall be responsible for any damage to carpeting and flooring
as a result of rust or corrosion of the file cabinets, pot holders, roller
chairs, and metal objects.
21. Movement in or out of the Building Complex of furniture or office
equipment, or dispatch or receipt by Tenant of any bulky materials, merchandise,
or materials which requires use of elevators, is restricted to the freight
elevator. Tenant shall use its best efforts to protect common areas and
building elevators during movement in and out of the Building Complex of
furniture or office equipment, or dispatch and receipt by Tenant of any bulky
materials or merchandise. Movement through the building entrances or lobby
shall be restricted to such hours as Landlord shall designate. All such
movement shall be scheduled with the Building Management Office and done in a
manner agreed between Tenant and Landlord by prearrangement before performance.
Such prearrangement initiated by Tenant shall include determination by Landlord,
and subject to its decisions and control as to the time, method, and routing of
movement, and as to limitations for safety or other concerns which may prohibit
any article, equipment, or any other item being brought into the Building.
Tenant shall assume all risk regarding damage to articles moved and injury to
persons or public engaged or not engaged in such movement, including equipment,
property, and personnel of Landlord if damaged or injured as a result of any act
in connection with carrying out this service for Tenant from time of entering
the Building Complex to completion of work; and Landlord shall not be liable for
acts of any person engaged in, or any damage or loss to any of said property or
person resulting from any act in connection with such service performed for
Tenant.
22. Tenant shall not use the Building for lodging, sleeping, or for any
immoral or illegal purposes or for any purpose that will damage the Building, or
the reputation thereof, or for any purposes other than those specified in the
Lease in Landlord's reasonable judgment.
23. Tenant shall not obstruct or interfere with the rights of other
tenants of the Building or of persons having business in the Building or in any
way injure or annoy such tenants or persons.
24. Tenant shall not commit any act or permit anything in or about the
Building which shall or might subject Landlord to any liability or
responsibility for injury to any person or property by reason of any business or
operation being carried on, in or about the Building or for any other reason
subject to the terms of this Lease.
25. Tenant shall not commercially xxxx or prepare food, or place or use
any inflammable, combustible, explosive, or hazardous fluid, chemical, device,
substance, or material in or about the Building without the prior written
consent of Landlord over and above its initial use and leased purpose of the
Leased Premises. Tenant shall comply with the statutes, ordinances, rules,
orders, regulations, and requirements imposed by governmental or quasi-
governmental authorities in connection with fire and public safety and fire
prevention and shall not commit any act or permit any object to be brought or
kept in the Building which shall result in an increase in the cost of any
insurance purchased by Landlord in connection with this Lease.
26. Tenant shall not install or use in the Building any air conditioning
unit, engine, boiler, generator, machinery, heating unit, stove, water cooler,
ventilator, radiator, or any other similar apparatus without the express prior
written consent of Landlord, and then only as Landlord may reasonably direct.
27. Landlord reserves the right to exclude or expel from the Building
Complex any person who, in the reasonable judgment of Landlord, is intoxicated
or under the influence of liquor or drugs or who shall in any manner act in
violation of the rules and regulations of the Building Complex.
28. No signs, awnings, showcases, advertising devices, or other
projections or obstructions shall be attached to the outside walls of the
Building or attached or placed upon any Common Areas without the express prior
written consent of Landlord. No blinds, drapes, or other window coverings shall
be installed in the Building without the express prior written consent of
Landlord. No sign, picture, advertisement, window display, or other public
display or notice shall be inscribed, exhibited, painted, or affixed by Tenant
upon or within any part of the Leased Premises in such a fashion as to be seen
from the outside of the Leased Premises of the Building without the express
prior written consent of Landlord. In the event of the violation of any of the
foregoing by Tenant, Landlord may, within fifteen (15) days of written notice to
Tenant, during which period Tenant may repair same, remove the articles
constituting the violation without any liability unless a loss other than said
removal arises from Landlord's willful or negligent acts or omissions, and
Tenant shall reimburse Landlord for the reasonable expenses incurred in such
removal upon demand and upon submission of applicable bills as Additional Rent
under the Lease.
29. Tenant shall not use the name of the Building or the name of Landlord
in its business name, trademarks, signs, advertisements, descriptive material,
letterhead, insignia, or any other similar item without Landlord's express prior
written consent.
30. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light or air into the Common Areas shall not be covered or obstructed by
Tenant through placement of objects upon window xxxxx or otherwise. Tenant
shall cooperate with Landlord in obtaining maximum effectiveness of the cooling
system of the Building by closing drapes and other window coverings when the
sun's rays fall upon windows of the Leased Premises. Tenant shall not obstruct,
alter, or in any way impair the efficient operation of Landlord's heating,
ventilating, air conditioning, electrical, fire, safety, or lighting system.
31. Employees of Landlord shall not receive or carry messages for or to
Tenant or any other person, nor contract with nor render free or paid services
to Tenant or Tenant's servants, employees, contractors, jobbers, agents,
invitees, licensees, guests, or visitors.
32. Tenant shall not tamper with or attempt to adjust temperature control
thermostats in the Leased Premises or the Building Complex. Landlord shall make
adjustments, if necessary, in Landlord's reasonable discretion, to thermostats
on call from Tenant.
Landlord reserves the right to rescind any of these rules and regulations
and to make such other and further rules and regulations as in its judgment
shall, from time to time, be needed for the safety, protection, care, and
cleanliness of the Building Complex, the operation thereof, the preservation of
good order therein, and the protection of comfort of the tenants and their
agents, employees, and invitees, which rules and regulations, when made and
written notice thereof is given to Tenant, shall be binding upon Tenant in like
manner as if originally herein prescribed.
EXHIBIT E
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JANITORIAL AND CLEANING SERVICES
Landlord shall furnish janitorial and cleaning services adequate to keep
the demised premises clean at all times, subject, however, to the following
minimum requirements:
1. Daily cleaning routine:
. Empty waste baskets and other waste receptacles
. Empty ash trays and wipe clean
. Dust railings, ledges, furniture, phones, and cabinets
. Sweep floors and steps, vacuum carpet traffic areas
. Spot clean doors, walls, and glass
. Remove rubbish
. Toilets and lavatories:
. Clean bowls, basins, seats, urinals, partitions, and wars
. Damp mop floors
. Polish fixtures, dispensers, mirrors, and other polished surfaces
. Replenish all dispensers
2. Other Routines:
Monthly: Scrub and wash resilient floor, outside of business hours
Annually
(at least): Wash windows inside and outside
3. Areas Not Included:
. Kitchen areas will only be swept, mopped and have the trash removed
. An extra charge will be required for any special janitorial needs over
and above "normal" cleaning practices
