Exhibit 10.66
LEASE
Between
20 WESTPORT HOLDINGS L.L.C.
Landlord
And
PANAMSAT CORPORATION
Tenant
Dated________________, 2000
00 Xxxxxxxx Xxxx
Xxxxxx, XX
TABLE OF CONTENTS
Article 1 Rent 1
Article 2 Term and Completion and Occupancy of the Premises 2
Article 3 Adjustment of Rent 4
Article 4 Service and Utilities 9
Article 5 Conference Center 12
Article 6 Cafeteria 12
Article 7 Fitness Center 13
Article 8 Parking 14
Article 9 Quiet Enjoyment 15
Article 10 Subordination 15
Article 11 Use 16
Article 12 Alterations and Installations 17
Article 13 Repairs 20
Article 14 Requirements of Law 20
Article 15 Insurance, Loss, Indemnification, Liability 21
Article 16 Damage by Fire or Other Cause 23
Article 17 Assignment, Mortgaging, Subletting, Etc 24
Article 18 Eminent Domain 27
Article 19 Access to Demised Premises, Changes 28
Article 20 Default 29
Article 21 Re-Entry by Landlord, Injunction 30
Article 22 Damages 31
Article 23 Rights to Perform the Other Parties Obligations 32
Article 24 Definitions 32
Article 25 Invalidity of Any Provision 33
Article 26 Brokerage 33
Article 27 Certificate of Tenant and Landlord 34
Article 28 Legal Proceedings; Waiver of Jury Trial; Prejudgment Remedy 34
Article 29 Surrender of Premises 34
Article 30 Rules and Regulations 35
Article 31 Consents and Approvals 35
Article 32 Notices 35
Article 33 No Waiver 36
Article 34 Captions 36
Article 35 Inability to Perform 36
Article 36 No Representation by Landlord 37
Article 37 Arbitration 37
Article 38 Miscellaneous 37
Article 39 Intentionally Omitted 38
Article 40 Extensions of Term 38
Article 41 New Provider Installation 39
Article 42 Right of First Refusal 41
Article 43 Signage 41
Article 44 Representations 41
Article 45 Satellite Dish Provisions 41
Article 46 Expansion 43
Article 47 Risers and Conduits 44
Article 48 Emergency Generator 44
Schedules
Schedule A-1 Description of Land
Schedule A-2 Plot Plan
Schedule B Floor Plan Showing the Demised Premises
Schedule C Building Plans and Specifications
Schedule C-1 Description of the Core and Shell Work
Schedule D Workletter
Schedule E Commencement Date Agreement
Schedule F Cleaning Specifications
Schedule G Rules and Regulations
i
LEASE
LEASE made on ___________ 2000, between 20 WESTPORT HOLDINGS L.L.C.,
having an office c/o Xxxxx Xxxxxxx Property Group, 00 Xxxxxxxx Xxxx Xxxxxx,
Xxxxxxxx, XX 00000 ("Landlord") and PANAMSAT CORPORATION, having an xxxxxx xx
Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 ("Tenant").
W I T N E S S E T H:
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, trustees, successors and assigns, hereby
covenant as follows:
A. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, those certain premises, as said premises may be adjusted from time to
time (the "Demised Premises") consisting of approximately 75,248 square feet of
Rentable Area on the 3rd floor of the north and south wings of an office
building to be constructed in Wilton, Connecticut, more commonly known as "20
Westport Road" (the "Building"), which Building will be located on a portion of
the land described on Schedule A-1 attached hereto (the "Land"), and being
Parcel 1 as indicated on the plot plan attached hereto as Schedule A-2, together
with the right, in common with others, to use all areas of the Project (as
hereinafter defined) that are made available from time to time for common use by
tenants of the Building. The Building shall consist of two (2) wings connected
by a bridge, shall contain a cafeteria, fitness center and conference center and
is shown in more detail on the plans and specifications that are referred to on
Schedule C attached hereto. The Land, the Building, a parking structure to be
located on the Land (the "Parking Structure"), any surface or below grade
parking areas and all other improvements now or hereafter constructed on the
Land, except improvements which tenants may remove therefrom pursuant to the
terms of their respective leases, and certain easement areas and Complex Common
Areas as set forth in that certain Restated Declaration of Reciprocal Easements,
Covenants and Restrictions dated April 28, 2000 and recorded in Volume 1225 at
Page 283 of the Wilton Land Records, as amended by First Amendment to Restated
Declaration of Easements, Covenants and Restrictions dated August __, 2000 and
recorded in Volume ___, at Page ___ of the Wilton Land Records (the "REA"), are
collectively referred to herein as the "Project." The Land, together with Parcel
2, as shown on Schedule A-2, are together referred to herein as the "Complex".
Parcel 2 shall not be part of the Project. The Demised Premises are depicted on
Schedule B attached hereto. The exact Rentable Area of the Demised Premises
shall be measured in accordance with Article 2 hereof.
B. If the Demised Premises consist of more than one floor of a
Building wing and if the Commencement Date occurs as a result of Tenant's
occupancy of less than the entire Demised Premises, then Tenant shall only be
obligated to pay that portion of the Annual Net Rent and additional rent which
is attributable to the amount of space occupied by Tenant. All of the other
terms of this Lease shall commence, to the fullest extent possible, on the
Commencement Date. Tenant's Annual Net Rent and additional rent obligations
shall appropriately increase as Tenant occupies additional space.
ARTICLE 1
RENT
1.1 Tenant shall pay to Landlord annual net rent (the "Annual Net Rent")
as follows:
(i) [***] multiplied by the total number of square feet of Rentable
Area in the Demised Premises per annum for the period commencing on the Rent
Commencement Date and ending on the last day of the sixtieth (60th) full month
after the Rent Commencement Date; and
(ii) [***] multiplied by the total number of square feet of Rentable
Area in the Demised Premises per annum for the sixty-first (61st) through one
hundred twentieth (120th) full months after the Rent Commencement Date.
Tenant will pay the Annual Net Rent in lawful money of the United States
of America, in equal monthly installments in advance on the first day of each
calendar month during the Term, at the offices of Landlord as set forth in the
beginning of this Lease or such other place in the United States of America as
Landlord designates. If the obligation to pay Annual Net Rent commences on any
day other than on the first day of a calendar month, then the Annual Net Rent
for the period from the date on which the obligation commences to the first day
of the calendar month shall be prorated on a per diem basis.
The first month's installment of Annual Net Rent shall be paid by Tenant
upon the execution of this Lease and shall be credited by Landlord to the
payment of the Annual Net Rent that first becomes payable under this Lease.
1.2 Tenant shall pay the Annual Net Rent and Additional Rent (as defined
in the immediately
1
succeeding sentence), by good and sufficient check (subject to collection) drawn
on a local bank which is a member of the New York Clearing House Association or
of a successor to that Association. All sums of any kind other than Annual Net
Rent that are payable by Tenant under this Lease are "Additional Rent," and
shall be payable within fifteen (15) days following demand by Landlord, unless
other payment dates are provided in this Lease; such sums shall be Additional
Rent solely for the purpose of providing to Landlord the same remedies as are
available to it in the event of default in the payment of Annual Net Rent.
1.3 If Tenant fails to pay when due any installment of Annual Net Rent or
any payment of Additional Rent, then Tenant shall pay interest thereon at the
Interest Rate (as defined in Article 24), from the date on which that
installment or payment becomes due to the date on which it is paid.
1.4 If, due to a Law which (a) limits Landlord's right to collect or
receive all, or any part of, either or both of the Annual Net Rent and the
Additional Rent (together, the "Total Rents") or (b) requires that Landlord
refund any of the Total Rents that Landlord already has received (either of
which is referred to as a "Rent Restriction"), Landlord does not receive or
retain all amounts on account of Total Rents that, but for the Rent Restriction,
Landlord would have received or retained, then Tenant shall enter into such
agreements and take such other steps as Landlord requests to permit Landlord to
collect the maximum amount of the Total Rents that Landlord may be permitted to
collect from time to time during the continuance of the Rent Restriction (but
not in excess of the amounts provided for under this Lease). Upon the
termination of the Rent Restriction, (a) the Total Rents shall be payable in
full, and (b) Tenant shall pay to Landlord, to the maximum extent legally
permissible, an amount that is equal to the excess of (i) the Total Rents which
would have been paid but for the Rent Restriction, over (ii) the Total Rents
that were paid during the period that the Rent Restriction was in effect.
1.5 Annual Net Rent, Additional Rent and all other sums payable hereunder
by Tenant shall be paid without notice or demand, and without setoff,
counterclaim, abatement, suspension, deduction or defense of any kind
whatsoever, except as may otherwise be expressly provided in this Lease. Annual
Net Rent shall be entirely "net" to Landlord, it being intended that Tenant
shall be required to pay, as Additional Rent, all costs and expenses of
operating the Demised Premises. Except as may otherwise be expressly provided in
this Lease, this Lease shall not terminate, nor shall Tenant be entitled to the
abatement or any rent hereunder or any reduction thereof, nor shall, except as
otherwise set forth herein, the obligations of Tenant under this Lease be
otherwise affected for any reason whatever, it being the intention of the
parties hereto that the obligations of Tenant hereunder shall be separate and
independent covenants and agreements, that the rent and all other sums payable
by Tenant hereunder shall continue to be payable in all events, and the
obligations of Tenant hereunder shall continue unaffected, unless the
requirement to pay or perform the same shall have been terminated, abated or
reduced pursuant to an express provision of this Lease.
ARTICLE 2
TERM AND
COMPLETION AND OCCUPANCY OF THE PREMISES
2.1 Landlord agrees, at its cost, to construct the Building, roadways,
Parking Structure and other site amenities and improvements (collectively,
"Landlord's Work") substantially as shown on the plans and specifications
attached hereto as Schedule C (collectively, the "Building Plans and
Specifications"), subject to revisions which arise as a result of field
conditions or legal requirements, or the requirements of Landlord's insurers or
any governmental authority or department affecting construction having
jurisdiction. Landlord shall complete the construction thereof with reasonable
diligence, subject to events and delays beyond the control of Landlord,
including, without limitation, Force Majeure Delays. That portion of Landlord's
Work that is described on Schedule C-1 attached hereto shall be referred to as
the "Core and Shell Work".
2.2 Tenant shall, at Tenant's cost and expense (including application of
the Tenant Improvement Allowance specified in the workletter attached hereto as
Schedule D (the "Workletter")), perform or cause to be performed the Tenant
Improvements (as defined in the Workletter) in order to prepare the Demised
Premises for its initial occupancy.
2.3 The term of this Lease ("Term") shall commence on the date (herein
called the "Commencement Date") that so much of Landlord's Work shall be
substantially completed as is necessary so that Tenant is able to commence the
Tenant Improvements in the Demised Premises in accordance with normal
construction practices applicable to circumstances where Landlord and Tenant are
performing work concurrently (provided that the Commencement Date shall not be
earlier than January 2, 2001 unless Tenant commences the Tenant Improvements
prior thereto), including, without limitation:
(i) the shell of the Building will be constructed and weathertight;
(ii) there will be appropriate access to the Demised Premises; and
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(iii) a hoist or elevator shall be available for Tenant's use in
connection with the Tenant Improvements, and sufficient electric power shall be
available for the performance of the Tenant Improvements.
Landlord shall give Tenant thirty (30) days prior notice of the date it
reasonably believes the Commencement Date will occur. Landlord anticipates that
the Commencement Date will be on or about January 2, 2001. The Term shall end on
the last day (the "Expiration Date") of the month in which occurs the day
preceding the tenth (10th) anniversary of the Rent Commencement Date (as that
term is hereinafter defined), unless sooner terminated or extended pursuant
hereto. Immediately after the Rent Commencement Date, Landlord and Tenant shall
execute and acknowledge an agreement in the form attached hereto as Schedule E
setting forth the Commencement Date and the Rent Commencement Date of this
Lease, provided that any failure of the parties to execute such written
agreement shall not affect the validity of the Commencement Date or the Rent
Commencement Date. If Tenant occupies a portion of the Demised Premises prior to
the Rent Commencement Date, the rights and obligations of the parties hereunder
(including, without limitation, Tenant's obligations to pay rent for such
portion of the Demised Premises) shall be deemed to apply to the occupied
portion of the Demised Premises until the Rent Commencement Date. Upon request
from Tenant within sixty (60) days after the Commencement Date, Landlord will
cause its representative to accompany Tenant on a walk through of the Demised
Premises to compile a list of punch list items in those portions of Landlord's
Work that affect the Demised Premises and that have been completed to date, and
Landlord will complete such punch list items within ninety (90) days thereafter,
to the extent possible.
2.4 Tenant's obligation to pay any Annual Net Rent and Additional Rent
shall commence on the date (herein called the "Rent Commencement Date") which
shall be the earlier to occur of (i) the date on which Tenant first conducts its
business in a material portion of the Demised Premises, or (ii) the later of (x)
six (6) months after the Commencement Date or (y) the date on which the
conditions (a) through (d) below have been satisfied or the date the same would
have been satisfied but for Tenant Delays (as defined in Section 2.6 hereof):
(a) Landlord has completed and installed (i) the main lobby of the
wing of the Building in which the Demised Premises are located and other common
areas in such wing of the Building and Tenant's elevator lobby or lobbies
(collectively, "Lobbies"), (ii) substantially all of the entrances to such wing
of the Building, including service entrances, and (iii) those portions of the
Core and Shell Work (as defined in Schedule C) that involve electricity, heat
and air conditioning, water, plumbing, and the loading dock, to an extent
sufficient to obtain a Certificate of Occupancy that permits occupancy of the
Demised Premises.
(b) Tenant and its visitors have adequate and safe access to the
Lobbies and to the Demised Premises through the Lobbies to the banks of
elevators serving the Demised Premises and enough elevators to provide service
sufficient to obtain a Certificate of Occupancy for the Demised Premises are in
operation and properly service the Demised Premises, and the Building's life
safety system is operating in a normal manner, to the extent such system affects
the Demised Premises or Tenant's ability to occupy the Demised Premises;
(c) Landlord has provided Tenant with the number of parking spaces
required to be provided to Tenant pursuant to Article 8, provided that this
Section 2.4(c) shall be deemed satisfied, even if the Parking Structure is not
completed or operating, as long as Tenant's parking spaces (which shall include
spaces for Tenant's visitors) are provided, temporarily, in the below grade
parking area, or elsewhere on the Land. If any of such spaces are located
temporarily on the Land, Landlord shall use commercially reasonable efforts to
locate such spaces as close as possible to the Building;
(d) Landlord has substantially completed the Core and Shell Work
required to be performed by Landlord for the Demised Premises other than:
(i) Minor details of construction and decoration and minor
mechanical adjustments which do not materially interfere with Tenant's use (the
"Punch List"), and
(ii) Any Core and Shell Work which is not completed due to any
Tenant Delays, and
(iii) All of Landlord's Work in portions of the Project other
than the Demised Premises, except to the extent such portions of Landlord's Work
are required to satisfy the conditions set forth in subsections (a) through (c)
of this Section 2.4, and provided that the completion of such uncompleted
portions of Landlord's Work does not unreasonably interfere with the normal and
customary conduct of Tenant's business in the Demised Premises or the
performance of the Tenant Improvements and provided further that any work
remaining with respect to Landlord's Work or other tenant improvement work on
floors immediately adjacent to the Demised Premises shall either: (i) not
unreasonably interfere with the normal and customary conduct of Tenant's
business or (ii) shall be completed outside of normal business hours so as not
to interfere with the normal and customary conduct of Tenant's business;
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For purposes of this Lease, "Certificate of Occupancy" means a temporary
or final certificate pursuant to which the Town of Wilton authorizes the
occupancy of the Building or the Demised Premises (as the case may be). Landlord
shall complete all Punch List matters, and all incomplete portions of the
Cafeteria and Fitness Center, in a commercially reasonable manner and timeframe.
2.5 The taking of occupancy of the whole or any part of the Demised
Premises for the commencement of the Tenant Improvements by Tenant shall be
conclusive evidence, as against Tenant, that Tenant accepts possession of the
same and that the Demised Premises so occupied were in good and satisfactory
condition (subject to latent defects and to completion of all unfinished work)
at the time such occupancy was so taken and that the Demised Premises or such
portion thereof were substantially as shown on Schedule B. The Commencement Date
shall occur no later than the taking of such occupancy.
2.6 If the Rent Commencement Date is delayed as the result of (i) work to
be done by or on behalf of Tenant which under good construction scheduling
practices should be completed before some portion of Landlord's Work is done,
and such work by or on behalf of Tenant is not completed on schedule and it
actually delays the completion of the Landlord's Work, or (ii) any other act or
omission of Tenant, its agents, employees or contractors that actually delays
the completion of Landlord's Work, then the Rent Commencement Date shall occur
on the date that the Rent Commencement Date would have occurred but for the
acts, omissions or circumstances described in (i) or (ii) above (each such act,
omission or circumstance, a "Tenant Delay"). In determining when the Rent
Commencement Date would have occurred, it shall be assumed that the Rent
Commencement Date is delayed one day for each day of delay in completing
Landlord's Work that is caused by the Tenant Delay. Landlord shall endeavor to
provide Tenant with written notice of any Tenant Delay within a reasonable time
after the Tenant Delay occurs. The above provisions shall be in addition to, and
not in limitation of, any other rights that Landlord may have under this Lease
or at law.
2.7 Delays described in this Article 2 may be cumulative. In the event of
any delay which would not have occurred but for a prior delay, the subsequent
delay shall be added to the prior delay on a day to day basis and the
appropriate consequences as determined in accordance with Section 2.6 shall
apply. If Landlord and Tenant disagree as to the Rent Commencement Date, then
the matter shall be determined by arbitration pursuant to Article 37.
2.8 Landlord shall, promptly upon receiving notice from Tenant as provided
in Article 32 hereof, of any defects (including latent defects) or deficiencies
in the Core and Shell Work with respect to any floor of the Demised Premises on
its part to be completed, repair or correct the same in such manner as shall not
cause unreasonable interference to Tenant in its use of the Demised Premises,
provided that Landlord shall have no obligation to repair or correct any
non-latent defects or deficiencies that Landlord has not received written notice
of within one (1) year after the Rent Commencement Date, or within six (6)
months after discovery for any latent defects, or, in either such case, such
longer period of time to the extent of any recovery by Landlord under any
warranty, or any defects (latent or otherwise) in the Tenant Improvements..
2.9 Tenant agrees that the Rent Commencement Date may occur prior to the
completion of other portions of the Project, including without limitation, the
Parking Structure, and landscaping of any improvements, so long as the
requirements of Section 2.4 have been satisfied.
2.10 Landlord shall have the right to utilize the Land for purposes of
excavation work and shall have the right to authorize the use of, and grant
temporary licenses and easements over, the Land to owners of adjacent property
or governmental authorities for excavation purposes.
2.11 Intentionally Omitted.
2.12 Notwithstanding anything in this Lease to the contrary, if the
Commencement Date has not occurred on or before January 1, 2002, which date
shall be extended for force majeure (as described in Article 35 hereof) delays
in substantially completing the work described in Section 2.3 hereof, then
Tenant, as its sole remedy as a result thereof, shall have the right to
terminate this Lease by written notice to Landlord at any time before the
Commencement Date occurs.
2.13 In the event that the Cafeteria, Conference Center and Fitness Center
are not substantially completed on or before July 1, 2002 (which date shall be
extended for force majeure, as described in Article 35 hereof), then Tenant, as
its sole remedy as a result thereof, shall receive a credit, against Annual Net
Rent that first becomes due under this Lease, in an amount equal to 3% of Annual
Net Rent, pro-rated on a daily basis, for each day thereafter until the
Cafeteria, Conference Center and Fitness Center are substantially complete.
ARTICLE 3
ADJUSTMENT OF RENT
4
3.1 For the purposes of this Article 3, the following definitions shall
apply:
(a) The term "Tenant's Share" shall mean 22.46% (75,248 divided by
335,000), which is the percentage calculated by dividing the total Rentable Area
of the Demised Premises by the total Rentable Area of the Building (both as
determined in accordance with Section 2.11 hereof). Landlord represents that all
other leases for space in the Building that have been signed as of the date
hereof have used 335,000 as the Rentable Area of the Building for purposes of
determining Tenant's Share. .
(b) The term "Taxes" shall mean the amount of (i) all real estate
taxes, assessments, sewer and water rents, governmental levies, municipal taxes,
county taxes and any other governmental charge, general or special, ordinary or
extraordinary, unforeseen as well as foreseen, of any kind or nature whatsoever,
which is or may be assessed, levied or imposed upon all or any part of the
Project and the sidewalks, or streets in front of or adjacent thereto, including
any payment in lieu of taxes or any tax, excise or fee measured by or payable
with respect to any rent, any of which is levied against or payable by Landlord
with respect to the Project or any combination thereof, under the laws of the
United States, the State of Connecticut, or any political subdivision thereof,
and (ii) all expenses incurred by Landlord in contesting any of the foregoing
set forth in clause (i) of this sentence or the assessed valuation of all or any
part of the Project. If, due to a change in the method of taxation or in the
taxing authority, a new or additional real estate tax, or a franchise, income,
transit, profit or other tax or governmental imposition, however designated, is
levied against or payable by Landlord with respect to the Project or any
combination thereof, in addition to, or in substitution in whole or in part for
any tax which would constitute "Taxes," or in lieu of additional Taxes, that tax
or imposition shall be included within the term "Taxes." Taxes shall not include
income, estate, inheritance, successor, death, franchise, partnership, corporate
or capital stock taxes of Landlord.
(c) The term "Tax Year" shall mean (i) each period of twelve months,
commencing on the first day of July of each such period within which occurs any
part of the Term, or (ii) such other period of twelve months which occurs during
the Term as is adopted as the fiscal year for real estate tax purposes of the
Town of Wilton, Connecticut.
(d) The term "Expenses" shall mean the total of all of the costs and
expenses (and taxes thereon, if any) paid or incurred by Landlord with respect
to the operation and maintenance of the Project and the services provided to the
tenants of the Building computed on an accrual basis including the costs and
expenses with respect to the following: electricity, steam, gas and any other
fuel or utilities; water rates and sewer rents; air conditioning, ventilation
and heating; elevators and escalators; lobby, sidewalk, curb, parking area and
other public area maintenance and cleaning; interior and exterior landscaping
and decoration; cleaning and painting of common areas; window cleaning; building
standard cleaning service supplied to tenants by Landlord; the purchase price
and rental, as applicable, of all supplies, tools, materials, machinery and
equipment used in the operation or maintenance of the Project; fire, extended
coverage, boiler and machinery, sprinkler apparatus, public liability and
property damage, loss of rental, fidelity and plate glass insurance or any other
insurance required by the holder of any mortgage or ground lease covering the
Project or customarily carried with respect to buildings and projects similar to
the Building and the Project; wages, salaries, bonuses, disability benefits,
hospitalization, medical, surgical, union and general welfare benefits
(including group life insurance), any pension, retirement or life insurance plan
and other benefits or similar expenses respecting employees of Landlord up to
and including the grade of building manager; uniforms and working clothes for
such employees and cleaning and replacement thereof, expenses imposed on
Landlord pursuant to Law or to any collective bargaining agreement with respect
to such employees; worker's compensation insurance, payroll, social security,
unemployment and other similar taxes with respect to such employees; salaries of
bookkeepers and accountants, automated data processing costs; professional and
consulting fees, including legal and accounting fees; charges for independent
contractors performing work or providing services; association fees or dues;
telephone and stationary, guards, watchmen, and other security personnel,
services, systems and supplies; attendants, clerks, messengers, and other
receiving room personnel, services, systems and supplies; directory; repairs,
replacements and improvements which are necessary or appropriate for the
continued operation of the Building as a first-class office building and Project
(even if the same are classified as capital expenditures under generally
accepted accounting principles) including repairs, replacements and improvements
to the electrical, mechanical, plumbing and HVAC systems; management fees for
the management of the Project, of if no managing agent is employed by Landlord,
a sum in lieu of management fees which is not in excess of the then prevailing
rates for management fees in the lower Fairfield County Area for first-class
office buildings similar to the Building; all Conference Center Construction
Expenses and Conference Center Operating Expenses (both as defined in Article 5
hereof); all Cafeteria Construction Expenses and Cafeteria Operating Expenses
(both as defined in Article 6 hereof); all Fitness Center Construction Expenses
and Fitness Center Operating Expenses (both as defined in Article 7 hereof);
costs and expenses that relate to portions of the Complex other than the Land,
as allocated to the Project in accordance with reasonable formulae established
by Landlord; and any costs and expenses required to be paid by Landlord pursuant
to the terms of the REA.
If Landlord makes any capital improvements or replacements which are
required by any Law enacted after the Rent Commencement Date or under generally
applied real estate practice in the operation of first-class office buildings in
the lower Fairfield County Area (excluding improvements made for tenants within
their leased space) or that Landlord makes which are intended to result in
savings or reductions in expenses or to benefit or increase the safety and
security of Building
5
tenants and invitees, then the costs for those capital improvements shall be
treated as an expense in one year or charged as an expense over several years,
and shall be included in Expenses for the Operating Year (as defined in Section
3.1(e)) in which the costs are incurred and subsequent Operating Years, on a
straight-line basis, to the extent that those capital expenditures are amortized
over their useful life or such other period as Landlord reasonably determines in
compliance with generally accepted accounting principles, with interest on the
unamortized costs at the Interest Rate.
If Landlord leases any item of capital equipment which, if it were
purchased would be amortized and included in Expenses, then the rentals and
other costs paid pursuant to the leasing shall be included in Expenses for the
Operating Years in which they are incurred.
The following costs and expenses shall not be included in Expenses or, in
the case of (iv), shall be deducted from Expenses:
(i) if electricity furnished to the Demised Premises is
measured by meters and paid by Tenant directly to the utility supplier then the
cost of electricity to other leasable portions of the Building shall be excluded
from Expenses;
(ii) leasing commissions;
(iii) salaries for Landlord's executives above the grade of
building manager;
(iv) amounts received by Landlord on account of proceeds of
insurance to the extent the proceeds are reimbursement for expenses which were
previously included in Expenses and amounts received by Landlord as a result of
rebates, discounts or refunds;
(v) the cost of repairs and replacements incurred by reason of
fire or other casualty or condemnation to the extent to which Landlord receives
compensation through proceeds of insurance or a condemnation award;
(vi) payments of principal and interest on any mortgages upon
either or both of the Land and the Building;
(vii) payments of ground rent pursuant to any ground lease
covering either or both of the Land and the Building;
(viii) Taxes;
(ix) costs of performing Building standard work for any
individual tenant or of performing work or furnishing services to or for
individual tenants at such tenant's expense;
(x) advertising and promotional expenditures relating to
leasing and marketing of the Building;
(xi) depreciation of the Building;
(xii) financing or refinancing costs;
(xiii) salaries and other compensation for officers and
executives of Landlord;
(xiv) legal or other fees, leasing commissions, advertising
expenses, promotional expenses and other costs incurred in leasing or attempting
to lease any portion of the Building;
(xv) any insurance premium to the extent that Landlord is
specifically entitled to be reimbursed therefor by Tenant pursuant to this Lease
(other than pursuant to this Section) or by any other tenant or other occupant
of the Building pursuant to its lease (other than pursuant to an operating
expenses escalation clause contained herein);
(xvi) the cost of any items to the extent reimbursed to
Landlord by the insurance Landlord is obligated to maintain;
(xvii) the cost of any alterations, additions, changes,
replacements, improvements and repairs and other items which are made in order
to prepare space for occupancy by a new tenant;
6
(xviii) (A) ground rents and mortgage debt service, (B)
reserves for anticipated future expenses, bad debt loss or rent loss, (C)
interest and penalties incurred as a result of Landlord's delinquent payment of
any obligation of Landlord, (D) costs associated with the operation of the
business of the entity which constitutes Landlord, which costs are not directly
related to the operation, management, maintenance and repair of the Building,
(E) costs of selling, financing, mortgaging or transferring any of Landlord's
interest in the Building, and costs of any disputes between Landlord and its
employees, and (F) costs, fines or penalties imposed as a result of Landlord's
failure to comply with Laws;
(xix) (A) the salary, wages, fringe benefits and expenses
(collectively, "Employment Compensation") of persons engaged in the maintenance
or management of the Building above the grade of project manager or project
director whose principal place of employment is not located at the Building in
excess of $5,000 per operating year, and the portion of the Employment
Compensation of persons engaged in the maintenance or management of the Building
whose principal place of employment is located at the Building but who also
provide services for other properties under common control or management, based
on the portion that the number of hours such persons provide services to all
subject properties, and (B) the excess of the costs of services performed by
Landlord, its subsidiaries and affiliates to the Building over competitive costs
for such services rendered by non-affiliated persons or entities of similar
skill and experience;
(xx) (A) Except for Conference Center Construction Expenses,
Cafeteria Construction Expenses and Fitness Center Construction Expenses, costs
of the original construction (as distinguished from operation and maintenance)
of the Building or any expansion thereof, and (B) costs of correcting defects in
the design or construction of the Building and the costs of repairing damage
caused as a result of such defects, in each case to the extent of Landlord's
recovery under any warranty applicable thereto;
(xxi) (A) costs resulting from the gross negligence of
Landlord, or its agents, contractors, employees or of any tenants of the
Building, (B) costs of services or other benefits supplied to other tenants in
the Building but not provided to Tenant, (C) costs resulting from violations by
Landlord or other tenants of any lease, including this Lease; (D) Landlord's
charitable or political contributions; (E) compensation paid to clerks,
attendants, or other persons in commercial concessions operated by Landlord
other than the Conference Center, Cafeteria and Fitness Center; and (F) costs to
acquire sculptures, paintings and other objects of art located within or outside
the Building that are more expensive than art work customarily found in similar
first class buildings in lower Fairfield County, provided that no costs to
maintain and clean art work shall be excluded; and
(xxii) the cost of any services provided by Landlord or
Landlord's affiliates to the extent that such costs are in excess of what they
would have been if provided by an unrelated third party.
If during all or part of any Operating Year, Landlord does not furnish any
item of work or service (which if it were furnished would be included in
calculating Expenses) to portions of the Project, because construction of the
Building or the Project is not completed, or such portions are not occupied or
leased, or because such item of work or service is not required or desired by
the tenant of such portion, or such tenant is itself obtaining and providing
such item of work or service, or for other reasons, then, for the purpose of
computing Tenants Expense Payment (as defined in Section 3.2) and
notwithstanding that Landlord did not incur the cost, the amount of the cost for
such item for such period which would reasonably have been incurred during such
period by Landlord if it had furnished such item shall be included in Expenses.
(e) The term "Operating Year" shall mean the calendar year in which
the Rent Commencement Date occurs and each subsequent calendar year within which
any portion of the Term falls.
(f) The term "Additional Rent Statement" shall mean a statement
furnished by Landlord to Tenant setting forth the amount payable by Tenant in
respect of Taxes for a specified Tax Year or in respect of Expenses for an
Operating Year (as the case may be) pursuant to this Article 3.
3.2 Tenant shall pay to Landlord on account of each Operating Year an
amount equal to Tenant's Share of the Expenses for such Operating Year
("Tenant's Expense Payment").
3.3 (a) Landlord shall furnish to Tenant for each Operating Year an
Additional Rent Statement (subject to revision as provided in this Section 3.3)
setting forth Landlord's estimate of Tenant's Expense Payment for such Operating
Year (the "Estimated Expense Statement"). Tenant shall pay to Landlord on the
first day of each month during such Operating Year an amount equal to
one-twelfth of Tenant's Expense Payment that, is shown on the Estimated Expense
Statement for such Operating Year. Notwithstanding the foregoing, if the Rent
Commencement Date is other than the first day of an Operating Year and/or the
date of the Expiration or other termination of this Lease for reasons other than
Tenant's default (both, a "Term Completion") is a day other than the last day of
an Operating Year, then Tenant's Expense Payment (as shown on the Estimated
Expense Statement) shall be proportionately pro-rated for such Operating Year(s)
based on the number of days during such Operating Year(s) which fall within the
Term of this Lease. If Landlord furnishes the Estimated Expense
7
Statement for an Operating Year after the commencement of the Operating Year,
then until the first day of the month following the month in which the Estimated
Expense Statement is furnished to Tenant, Tenant shall pay to Landlord on the
first day of each month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section 3.3 for the last month of the preceding Operating
Year.
(b) Landlord may at any time and from time to time (but not more
than three times in any Operating Year) furnish to Tenant an Estimated Expense
Statement setting forth Landlord's revised estimate of Tenant's Expense Payment
for a particular Operating Year. After the end of each Operating Year, Landlord
shall submit to Tenant an annual Additional Rent Statement setting forth the
Expenses in reasonable detail for the preceding Operating Year and the balance
of Tenant's Expense Payment, if any, due to Landlord from Tenant for such
Operating Year. Landlord shall endeavor to provide such Additional Rent
Statements within one hundred twenty (120) days after the end of each Operating
Year. Within 15 days following Tenant's receipt of a revised Estimated Expense
Statement for an Operating Year or of the annual Additional Rent Statement for
the preceding Operating Year, Tenant shall pay to Landlord an amount equal to
the amount of any underpayment of Tenant's Expense Payment with respect to such
Operating Year and, in the event of an overpayment, Landlord shall credit the
amount of Tenant's overpayment against subsequent charges due under this Article
3.
3.4 Tenant shall pay to Landlord on account of any Tax Year all or any
portion which occurs during the Term of this Lease an amount equal to Tenant's
Share of the Taxes for such Tax Year ("Tenant's Tax Payment").
3.5 (a) Landlord shall furnish to Tenant for each Tax Year an Additional
Rent Statement that sets forth the amount of Taxes for that Tax Year. Tenant's
Tax Payment for each Tax Year shall be due and payable in two semi-annual
installments in advance, on the first day of each June and December, in amounts
based upon the Additional Rent Statement furnished with respect to that Tax
Year. If the Additional Rent Statement is furnished to Tenant after the
commencement of the Tax Year in respect of which that Additional Rent Statement
is furnished, Tenant shall, within 15 days after receipt of that Additional Rent
Statement, pay to Landlord an amount that is equal to the amount of Tenant's Tax
Payment with respect to that Tax Year which would have been paid during that Tax
Year before the end of the 15-day period if the Additional Rent Statement for
that Tax Year had been furnished by the Landlord to Tenant before the
commencement of that Tax Year. Landlord, at its option, may require Tenant to
make payments on account of Tenant's Tax Payment on a monthly basis, in which
event the procedures set forth in Section 3.3 hereof shall apply thereto, or on
such quarterly or other basis as Landlord shall require from time to time.
(b) At any time during or after a Tax Year in respect of which
Landlord has furnished an Additional Rent Statement, Landlord may furnish to
Tenant one or more corrected Additional Rent Statements if the Taxes actually
due were incorrectly reflected in the original or any prior Additional Rent
Statement. If Landlord does furnish such a corrected Additional Rent Statement,
then if the amount of the payments that were made by Tenant on account of
Tenant's Tax Payment for that Tax Year is (i) less than the amount of the
payments that the Tenant should have made based upon the corrected Additional
Rent Statement, then within 15 days after receipt by Tenant of the corrected
Additional Rent Statement Tenant will pay to Landlord the amount of the
underpayment; or (ii) more than the amount of payments that Tenant should have
made based upon the corrected Additional Rent Statement, then Landlord shall
credit the overpayment against subsequent charges due under this Article 3.
3.6 (a) The benefit of any discount for early payment or prepayment of
Taxes shall accrue solely to Landlord's benefit and such discount shall not be
subtracted from Taxes.
(b) If the real estate fiscal year of the Town of Wilton is changed
during the Term, then, (i) the term "Tax Year" shall be deemed to mean that real
estate tax year as so changed, and (ii) Tenant's Tax Payments shall be computed
and paid separately in respect of the Tax Year before the change and the Tax
Year after the change on the basis of the number of days in each.
(c) If Landlord receives a refund of Taxes in respect of any Tax
Year, then Landlord shall credit an amount that is equal to Tenant's Share of
the amount of the refund that applies to any portion of the Term, less costs and
expenses incurred by Landlord for the purpose of receiving such refund, against
subsequent charges due under this Article 3.
3.7 On or prior to its due date, Tenant shall directly pay to the
appropriate taxing authorities the amount of all occupancy taxes and rent taxes
now or in the future in effect that are levied on or measured by Annual Net Rent
or Additional Rent. If, in the future, such taxes are included within the term
Taxes, then Tenant shall not be obligated to make payments to the taxing
authorities as described in this Section 3.7.
3.8 If the Rent Commencement Date is other than the first day of a Tax
Year or the Term Completion is a day other than the last day of a Tax Year, then
Taxes shall be proportionately reduced for such Tax Year(s) by multiplying
8
Taxes by (i) a fraction, the numerator of which is the number of days beginning
with the Rent Commencement Date in such Tax Year, and the denominator of which
is 365 and/or (ii) a fraction, the numerator of which is the number of days
prior to and including the date of Term Completion in such Tax Year and the
denominator of which is 365.
3.9 If, prior to the Expiration Date, Landlord is unable to give Tenant
appropriate credits for the entire refund and return of overpayment sums to
which Tenant is entitled pursuant to Section 3.3(b), 3.5(b) and 3.6(c), then
Landlord shall refund the balance to Tenant within thirty days following the
Expiration Date.
3.10 Except as otherwise specifically provided, in no event shall the
Annual Net Rent be reduced by operation of this Article 3. The rights and
obligations of Landlord and Tenant under the provisions of this Article 3 with
respect to any Additional Rent Statement shall survive the Term Completion and
shall apply to any Additional Rent Statement furnished to Tenant after the Term
Completion.
3.11 Landlord's failure to render an Additional Rent Statement with
respect to any Tax Year or Operating Year shall not prejudice Landlord's right
to thereafter render an Additional Rent Statement and receive payments with
respect thereto or with respect to any subsequent Tax Year or Operating Year.
3.12 Each Additional Rent Statement shall be conclusive and binding upon
Tenant unless within 60 days after receipt of that Additional Rent Statement
Tenant notifies Landlord that Tenant disputes the correctness of such Additional
Rent Statement, specifying the particular respects in which the Additional Rent
Statement is claimed to be incorrect. Upon Tenant's giving of such notice to
Landlord, Tenant, at its expense, may examine Landlord's books and records
relating to the operation of the Project to determine the accuracy of the
Additional Rent Statement. If Tenant's auditor determines that Landlord's
Additional Rent Statement has overcharged Tenant for Expenses (and such
determination is not successfully challenged by Landlord) by more than five (5%)
percent, Landlord shall reimburse Tenant for the reasonable out-of-pocket
expenses of such audit. Any dispute relating to any Additional Rent Statement
that is not resolved within 90 days after the rendering of such Additional Rent
Statement may be submitted to arbitration by either party pursuant to Article 37
pending the determination of the dispute, Tenant shall pay Additional Rent when
due in accordance with the Additional Rent Statement that Tenant is disputing,
without prejudice to Tenant's right to recover any portion of the Additional
Rent that is determined to not be due to Landlord.
ARTICLE 4
SERVICE AND UTILITIES
4.1 (a) Risers, feeders and wiring will be installed in the Building by
Landlord to furnish electrical service of 6 xxxxx per usable square foot on a
connected load basis to the Demised Premises (exclusive of electricity required
of the operation of the Building HVAC System) (the "Required Load") as part of
Landlord's Work. If Tenant shall require electric power in excess of the
Required Load, then Landlord agrees to make same available to Tenant (up to an
additional 2 xxxxx per usable square foot), provided, however, if in connection
with providing such additional power Landlord will be required to install
additional feeders, risers or other electrical equipment, then, at Tenant's
expense, Landlord shall provide such additional feeders or risers, in locations
reasonably designated by Landlord, to supply Tenant's additional electrical
requirements, and all other equipment proper and necessary in connection with
such feeders or risers shall be installed by Landlord upon Tenant's request at
the sole cost and expense of Tenant, which costs (which shall be the actual,
reasonable costs incurred by Landlord) shall include a supervisory fee to
Landlord in the amount of ten percent (10%) of the cost of the work.
(b) Landlord shall supply, subject to its ability to obtain the same
from the public utility furnishing electricity to the Building, electrical power
to the Building including the Demised Premises (through equipment and facilities
installed by Tenant as part of the Tenant Improvements) and the common areas.
The obligations of the Landlord hereunder shall be subject to any rules and
regulations of the authority providing electricity to Landlord. Tenant shall, at
Tenant's sole cost and expense, and in accordance with Schedule D hereof,
install as part of the Tenant Improvements, submeters in the Demised Premises to
measure Tenant's electrical consumption for light and power and air conditioning
therein and Landlord shall furnish electricity to the Demised Premises on a
submetered basis. The cost of Tenant's electrical consumption in the Demised
Premises shall be paid by Tenant to Landlord, as Additional Rent hereunder and
shall be charged to Tenant by applying the then current electricity supplier's
rate as charged to Landlord ("Landlord's Rate") to the consumption determined by
the submeter readings and adding thereto an amount equal to two (2%) percent of
the amount which is the result of such application, for Landlord's
administrative costs in supplying electric to the Demised Premises on a
submetered basis. Landlord's Rate shall include no profit to Landlord. Bills for
such amounts shall be rendered to Tenant from time to time and shall be payable
by Tenant within twenty (20) Business Days after the date so rendered. For the
purpose of this Section 4.1(b) the rate to be paid by Tenant shall include any
taxes, energy charges, demand charges, fuel adjustment charges, rate adjustment
charges, or other charges imposed in connection therewith. If any tax shall be
imposed upon Landlord's receipts from the sale or resale of electrical energy to
Tenant by any federal, state, city or local authority, the pro
9
rata share of such tax allocable to the electrical energy service received by
Tenant shall be passed on to, included in the xxxx of and paid by Tenant.
(c) Landlord's reasonable charges to be established by Landlord from
time to time for use of heat during non-Business Hours shall be paid by the
tenant(s) requesting the additional heat in accordance with Section 4.2(b)
below. Tenant shall pay its proportionate share of Landlord's charges as
Additional Rent within fifteen (15) days of receiving Landlord's xxxx.
(d) During the performance of Landlord's Work, Landlord shall pay as
the same become due all charges for the consumption of all electricity used in
connection therewith. Notwithstanding the foregoing, Tenant shall pay directly
to Landlord an amount equal to $0.10 multiplied by the Rentable Area of the
Demised Premises for the consumption of electricity used in the Demised Premises
during the concurrent performance of the Tenant Improvements and Landlord's
Work. In the event that the period of concurrent performance of the Tenant
Improvements and Landlord's Work is longer than six (6) months, then such $0.10
amount shall be proportionately increased to reflect the period of concurrent
performance in excess of six (6) months.
(e) Tenant will not (i) use electrical energy that, in Landlord's
sole judgment, exceeds the capacity of the then existing risers, feeders and
other electrical equipment of the Building, or (ii) make or perform or permit
the making or performing of any alterations to wiring, installations or other
electrical facilities in or serving the Demised Premises without the consent of
the Landlord in each instance. Any additional risers, feeders, or other
equipment proper or necessary to supply Tenant's electrical requirements, upon
written request of Tenant, will be installed by Landlord, at Tenant's cost, if,
in Landlord's sole judgment, those risers, feeders or other equipment are
necessary to supply those requirements and will not cause permanent damage or
injury to the Building or the Demised Premises, or cause or create a dangerous
or hazardous condition or entail excessive or unreasonable alterations, repairs
or expense or interfere with or disturb other tenants or occupants.
(f) Landlord shall not in any way be liable or responsible to Tenant
for any loss or damage or expense which Tenant sustains or incurs if either the
quantity or character of electric service is changed or is no longer available
or suitable for Tenant's requirements.
(g) Landlord reserves the right to discontinue furnishing
electricity to Tenant in the Demised Premises on not less than ninety (90) days'
notice to Tenant. If Landlord exercises such right to discontinue, or is
compelled to discontinue furnishing electricity to Tenant, this Lease shall
continue in full force and effect and shall be unaffected thereby, except only
that from and after the effective date of such discontinuance, Landlord shall
not be obligated to furnish electricity to Tenant. If Landlord so discontinues
furnishing electricity to Tenant, Tenant shall arrange to obtain electricity
directly from the public utility or other company servicing the Building. Such
electricity may be furnished to Tenant by means of the then existing electrical
facilities serving the Demised Premises to the extent that the same are
available, suitable and safe for such purposes. All meters and all additional
panel boards, feeders, risers, wiring and other conductors and equipment which
may be required to obtain electricity, of substantially the same quantity,
quality and character, shall be installed by Landlord, at Tenant's sole cost and
expense, provided that such costs are competitive in the market and provided
further that such costs shall be at Landlord's expense if Landlord voluntarily
discontinues furnishing electricity. Landlord shall not voluntarily discontinue
furnishing electricity to Tenant unless it likewise discontinues furnishing
electricity to all tenants of office space on the same floor of the Building, or
until Tenant is able to receive electricity directly from the public utility or
other company servicing the Building.
4.2 Landlord shall provide to the Demised Premises:
(a) Necessary elevator facilities during Business Hours and at least
one passenger elevator subject to call at all other times, consistent with other
similar first class suburban office buildings in Fairfield County.
(b) Heat and air-conditioning through the Building systems. The HVAC
System shall be designed to maintain (a) 75 (+1(0)) degrees Fahrenheit dry bulb
when outdoor conditions are 91 degrees Fahrenheit dry bulb and 76 degrees
Fahrenheit wet bulb and (b) 70 degrees Fahrenheit dry bulb when outdoor
conditions are 0 degrees Fahrenheit dry bulb. Total air distribution shall be
designed to provide not less than 0.9 CFM per usable square foot and will be
controlled by a Building Management System. Building air conditioning supply air
systems shall be designed with minimum 75% efficiency air filters. Tenant shall
cause all operable windows, if any, in the Demised Premises to be kept closed
(except for cleaning purposes), shall keep entirely unobstructed all heat and
air-conditioning vents, intakes, outlets and grilles at all times and shall
comply with and observe all regulations and requirements prescribed by Landlord
for the proper functioning of the HVAC systems. The HVAC for the Building is
designed based upon (i) electrical heat dissipation load of four (4) xxxxx per
usable square foot, and (ii) occupancy rate of 1 person per 100 usable square
feet and shades fully closed to limit exposure to direct solar radiation. Air
conditioning for the Demised Premises will be provided by separate package units
(4 per floor of the
10
Building). Tenant shall pay Landlord for all costs of air conditioning used in
the Demised Premises, as shown by the meters for each unit, together with 2% of
the amount shown on such meter, as provided in Section 4.1(b) above. To the
extent any portion of the Demised Premises shares a package unit with other
portions of the floor that the Demised Premises are on, then the costs of
operating such package units shall be apportioned on a square foot basis,
between the portion of the Demised Premises that is served by such unit, and any
other leasable space that is served by such unit, except that if the Demised
Premises shares a package unit with other portions of the floor that the Demised
Premises are on and Tenant requires air conditioning during non-Business Hours,
the costs of operating such package unit during non-Business Hours shall be
shared by only those tenants that request the air conditioning for that time
period (i.e., if only Tenant requests it, then Tenant shall pay 100% of the cost
of operating such package unit) even if other tenants actually benefit
therefrom, provided that Landlord agrees that the charge for air conditioning
for the hours of 7:00 a.m. to 8:00 a.m. or for 6:00 p.m. to 8:00 p.m. shall be
1/3 of the normal non-Business Hours rate. Landlord anticipates that the initial
normal charge for operating each air conditioning package unit during
non-Business Hours will be $95.00 per hour per unit. Tenant shall pay Landlord's
reasonable charges for heat during periods other than Business Hours. Landlord
anticipates that the initial charge for heat during periods other than Business
Hours will be $25.00 per hour per wing. In the event that Tenant shall require
air conditioning or heating during periods other than Business Hours, then
Tenant shall give Landlord reasonable advance notice of such requirement.
"Reasonable advance notice" for purposes of this paragraph shall mean
notification before 4:00 p.m. of the Business Day on which the described
services are required and before 4:00 p.m. of the last Business Day preceding
the non-Business Day on which the described services are required. Landlord's
reasonable charges (which shall reflect Landlord's direct costs plus 2% thereof
to compensate Landlord for its administrative costs) to be established by
Landlord from time to time for use of heat during non-Business Hours shall be
paid by Tenant, as Additional Rent, written receipt of a xxxx from Landlord.
(c) Standard cleaning and janitorial services on Business Days in
accordance with the cleaning specifications annexed hereto as Schedule F. If
Tenant requires cleaning and janitorial services in excess of those standard
services, then Tenant shall so notify Landlord. If Landlord elects to provide
those services, then Tenant shall pay Landlord's charges therefor upon receipt
of Landlord's invoice therefor.
(d) Hot and cold water for lavatory, drinking and office cleaning
purposes. If Tenant requires, uses or consumes water in quantities that are in
excess of standard office usage (as reasonably determined by Landlord), then
Landlord may install a meter or meters or other means to measure Tenant's water
consumption, and Tenant will reimburse Landlord for the cost of installation and
maintenance of the meter or meters or the cost of Landlord's other means of
measuring the water consumption by Tenant, in each case upon receipt of
Landlord's invoice therefor. Tenant shall reimburse Landlord for the cost of all
water consumed, as so measured, plus 2% thereof, for Landlord's administrative
costs in connection therewith, together with any taxes, sewer rents or other
charges which are imposed by any Law based on the quantity of water used by
Tenant.
(e) Subject to the provisions of the REA, Landlord may, but shall
not be obligated to, construct as part of Landlord's Work a natural walking
trail (hereinafter called the "Walking Trail") at the Complex for use by Tenant
in common with the other tenants and occupants of the Complex. If constructed,
the Walking Trail may be permitted to thereafter remain in and/or revert to its
natural state. Tenant agrees that use of the Walking Trail shall be at the risk
of the individual making use thereof and Tenant shall indemnify and hold
Landlord harmless from and against claims made by Tenant's employees or invitees
of Tenant in connection with their use of the Walking Trail.
4.3 Landlord may, without any liability whatsoever or abatement of Total
Rents, interrupt, curtail, suspend or stop the heating, air-conditioning,
elevator, plumbing, electric and other systems or the use of any Building
facilities when necessary by reason of accident, strike or emergency or for
repairs, alterations, replacements or improvements, or because of inability to
secure a proper supply of fuel, gas, steam, water, electricity, labor or
supplies, or because of any similar or dissimilar cause beyond the reasonable
control of Landlord. Landlord shall have no liability to Tenant, nor shall
Tenant's obligations under this Lease be in any way reduced, in the event of any
interruption of services or utilities for whatever reason, except that,
notwithstanding anything in this Lease to the contrary, in the event of any
interruption in electricity, HVAC or plumbing that materially interferes with
Tenant's ability to conduct its business for more than five (5) consecutive
business days, then Annual Net Rent shall, as Tenant's sole remedy, thereafter
equitably xxxxx, in proportion to the interference with Tenant's business that
is caused thereby, until the interruption ceases. Landlord shall, at reasonable
times, have free and unrestricted access to any and all mechanical, plumbing and
electrical installations of Landlord in the Demised Premises, and Tenant shall
not erect or place any partition or other obstruction which unreasonably
interfere with Landlord's free access to those installations or with the moving
of Landlord's equipment to and from the enclosures containing those
installations. Tenant, its agents, employees and contractors shall not enter
said enclosures or adjust, touch or in any way tamper with those installations.
4.4 The Building shall have a card access system for entry at the
Building's perimeter at all times during the Term. In addition, Landlord agrees
that if any other security is provided by Landlord in the Building, it will be
provided equally (or with reasonable equivalents) in both wings of the Building
(or, if not provided equally, the north wing shall be
11
provided with better security than the south wing).
4.5 Landlord will not furnish any services, except as provided in this
Lease.
ARTICLE 5
CONFERENCE CENTER
5.1 Landlord shall as part of Landlord's Work and in accordance with the
Building Plans and Specifications, construct a conference center in the Building
(hereinafter called the "Conference Center") and install tables, chairs and
other appropriate equipment therein for use by Tenant and other tenants at the
Building, on a first come, first serve, basis. The charge for use of a
conference room shall initially be ($150.00) per day per room, which charge
shall be subject to reasonable increases form time to time by Landlord. Any such
charges recorded by Landlord shall be referred to as "Usage Fees".
5.2 Tenant's use of the Conference Center shall be subject to all
reasonable rules and regulations as Landlord may from time to time promulgate
upon prior notice to Tenant.
5.3 "Conference Center Construction Expenses" shall mean all expenses
incurred by Landlord in connection with the construction of the Conference
Center, the cost of acquiring and installing furniture, fixtures and equipment
therein, in excess of the cost of the Core and Shell Work with respect thereto,
plus an amount equal to $30.00 multiplied by the number of usable square feet in
the Conference Center, amortized on a straight line basis over ten (10) years
with interest at the Prime Rate. Conference Center Construction Expenses shall
be included in Expenses for the Operating year in which the Conference Center is
substantially completed and subsequent Operating Years. The amount of Conference
Center Construction Expenses that are included in Expenses for any Operating
Year shall also include the amount of lease payments made by Landlord during
that Operating Year for leased furniture, fixtures or equipment used in the
Conference Center. Conference Center Expenses shall be recalculated, from time
to time, when the Conference Center is renovated and/or any of the furniture,
fixtures or equipment therein is replaced, to include the costs of any such
renovation or replacement, amortized over ten (10) years from the date of the
renovation or replacement with interest at the Prime Rate. The costs and
expenses of operating and maintaining the Conference Center, net of any Usage
Fees ("Conference Center Operating Expenses"), shall be included in Expenses for
the Building.
ARTICLE 6
CAFETERIA
6.1 For the purposes of this Article 6, the following definitions shall
apply:
(a) "Break-Even Basis" shall mean the point at which, from time to
time, the Cafeteria Operating Expenses, including, without limitation, the
Cafeteria Caterer's fee, equals all income derived in connection with the
operation and maintenance of the Cafeteria business.
(b) "Cafeteria Caterer" shall mean any independent contractor which
operates the Cafeteria (as hereinafter defined) pursuant to separate contracts
with Landlord or any other person or entity or pursuant to a single contract in
accordance with terms of this Article 6.
(c) "Cafeteria Construction Expenses" shall mean all expenses
actually incurred by Landlord in connection with the construction of the
Cafeteria, including the cost of acquiring and installing furniture, fixtures
and equipment therein, in excess of the cost of the Core and Shell Work with
respect thereto, plus an amount equal to $30.00 multiplied by the number of
usable square feet in the Cafeteria, amortized on a straight line basis over ten
(10) years, with interest at the Prime Rate. Cafeteria Construction Expenses
shall be included in Cafeteria Operating Expenses for the Operating Year in
which the Cafeteria commences to provide food services to the employees of
Tenant and subsequent Operating Years during the Term. The amount of Cafeteria
Construction Expenses that are included in Cafeteria Operating Expenses for any
Operating Year shall also include the amount of any lease payments made by
Landlord during that Operating Year for leased furniture, fixtures or equipment
used in the Cafeteria. Cafeteria Construction Expenses shall be recalculated,
from time to time, when the Cafeteria is renovated and/or any of the furniture,
fixtures or equipment thereon is replaced, to include the costs of any such
renovation or replacement, amortized over ten (10) years from the date of the
renovation or replacement with interest at the Prime Rate.
(d) "Cafeteria Operating Expenses" shall mean all expenses in
connection with the
12
operation, maintenance and repair of the Cafeteria business, including, without
limitation, the cost of all foodstuffs, beverages and other goods to be sold in
the Cafeteria; the Cafeteria Caterer's fee; the salaries, wages, fringe benefits
and all other compensation and other benefits of all Cafeteria employees; the
cost of any dishes, glassware or utensils, amortization of the cost of new
refrigeration and other kitchen equipment and accessories; the cost of
maintaining or repairing all Cafeteria-related equipment; the costs of cleaning
the dining areas and the areas in front of food service counters; heat,
electricity, lighting and other utilities and Cafeteria Construction Expenses.
6.2 Landlord shall provide (or may contract with a Cafeteria Caterer to
provide) food services to the employees of Tenant and other occupants of the
Building in a cafeteria in the Building (the "Cafeteria"), with menu pricing on
not less than a break even basis. Landlord reserves the right, at any time from
time to time in its sole and absolute discretion, to change the Cafeteria
Caterer.
6.3 The maximum hours the Cafeteria will be open for Tenant's use on
Business Days shall be 7:30 A.M. - 2:00 P.M. Food and beverages shall be
available in vending machines in the Cafeteria on a twenty-four (24) hour basis.
The level of goods and services which Landlord or the Cafeteria Caterer shall
provide during any given Business Day will vary. Upon reasonable advance notice,
the Cafeteria Caterer will provide catering services to Tenant within the
Demised Premises. Any profits generated by the Cafeteria Caterer from such
catering activities shall be included in the calculation of the Break-Even
operation of the Cafeteria. The Cafeteria will, as long as it is open, be
operated at a standard that is consistent with cafeterias in similar corporate
office parks in Fairfield County.
6.4 Tenant acknowledges and agrees to and for the benefit of Landlord that
(a) the efficiency and the extent of, and the food selection at, the Cafeteria
are directly related to the number of users and, accordingly, when Tenant and
other tenants or occupants at the Building vacate leased space at the Building,
the nature and the extent of the services provided at the Cafeteria may be
changed by Landlord, including, without limitation, changes to the food menu and
menu pricing; and (b) Landlord shall not be subject to any liability, nor shall
Tenant be entitled to any compensation or diminution or abatement of rent, by
reason of Landlord's exercise of any rights reserved with respect to the
modification of the Cafeteria services provided pursuant hereto or if Landlord
elects to cease operating the Cafeteria pursuant to Section 6.5 below.
6.5 Notwithstanding the foregoing, if the Cafeteria is not operating on a
Break-Even Basis, Landlord may cease operating the Cafeteria upon sixty (60)
days' notice to Tenant unless Tenant shall elect, in its sole discretion, with
or without the cooperation of other tenants in the Building, within said sixty
(60) day period, to subsidize the Cafeteria so that it does operate on a Break
Even Basis. If Landlord shall cease operating the Cafeteria, the unamortized
portion of the Cafeteria Construction Expenses shall continue to be included in
Expenses for the Operating Year in which Landlord ceases to operate the
Cafeteria and subsequent Operating Years.
6.6 Landlord agrees that in no event will the Cafeteria Caterer be
obligated to pay rent for the Cafeteria.
ARTICLE 7
FITNESS CENTER
7.1 Landlord shall as part of Landlord's Work and in accordance with the
Building Plans and Specifications, construct a fitness center of approximately
3,500 to 4,000 square feet in the Building (hereinafter called the "Fitness
Center") and install exercise equipment and machines therein for use by
employees of Tenant employed at the Building and for use by other tenants and
their employees actually employed at the Building. The Fitness Center shall
include men's and women's locker rooms with showers, but Landlord shall not be
required to provide towels or any other supplies in connection therewith, or to
provide any personal or other staff in the Fitness Center. Tenant's employees
shall have the right, together with the employees of other occupants of the
Building, to use the Fitness Center "free of charge", at their own risk, seven
(7) days per week, twenty-four (24) hours per day (except if the Fitness Center
is closed due to repairs or cleaning) and subject to the provision of Section
4.3 hereof.
7.2 Landlord shall not be subject to any liability or responsibility for
injury or damages to persons or property or to any liability for any cause
whatsoever in connection with Tenant's use of the Fitness Center and Tenant
hereby waives any claims against Landlord which Tenant may have in connection
with its use of the Fitness Center unless the same is due to the gross
negligence or willful misconduct of Landlord, its agents or employees. Tenant
hereby agrees to indemnify and hold Landlord harmless from and against any cost,
damage, loss or expense resulting from or arising in connection with the use of
the Fitness Center by its officers, employees or invitees unless the same is due
to the gross negligence or willful misconduct of Landlord, its agents, or
employees. Tenant agrees that Landlord shall have the right to condition use of
the Fitness Center by any individual upon such individual's execution and
delivery to Landlord or a release of liability of Landlord (in form satisfactory
to Landlord) in connection with use of the Fitness Center.
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7.3 Tenant's use of the Fitness Center shall be subject to all reasonable
rules and regulations as Landlord may from time to time promulgate upon prior
notice to Tenant, including without limitation the requirement that individuals
sign and deliver a release of liability as a condition to use of the Fitness
Center.
7.4 "Fitness Center Construction Expenses" shall mean all expenses
incurred by Landlord in connection with the construction of the Fitness Center,
the cost of acquiring and installing exercise and other equipment therein and
the cost of acquiring and installing furniture, fixtures and equipment in the
Fitness Center, in excess of the cost of the Core and Shell Work with respect
thereto, plus an amount equal to $30.00 multiplied by the number of usable
square feet in the Fitness Center, amortized on a straight line basis over ten
(10) years with interest at the Prime Rate. Fitness Center Construction Expenses
shall be included in Expenses for the Operating Year in which the Fitness Center
is substantially completed and subsequent Operating Years. The amount of Fitness
Center Construction Expenses that are included in Expenses for any Operating
Year shall also include the amount of any lease payments made by Landlord during
that Operating Year for leased furniture, fixtures or equipment used in the
Fitness Center. Fitness Center Construction Expenses shall be recalculated, from
time to time, when the Fitness Center is renovated and/or any of the furniture,
fixtures or equipment therein is replaced, to include the costs of any such
renovation or replacement, amortized over ten (10) years form the date of the
renovation or replacement with interest at the Prime Rate. The costs and
expenses of operating and maintaining the Fitness Center ("Fitness Center
Operating Expenses") shall be included in Expenses for the Building.
7.5 In the event the Fitness Center is underutilized by tenants in the
Building, as determined by Landlord in its reasonable discretion, Landlord may,
but shall not be required to, permit the employees of the building on Parcel 2
(as shown on Schedule A-2 attached hereto) to use the Fitness Center at a cost
to be determined by Landlord in its reasonable discretion (the "Paying
Members"). All monies received from the Paying Members by Landlord for use of
the Fitness Center shall be credited against Fitness Center Operating Expenses
for the Operating Year in which such monies are received.
ARTICLE 8
PARKING
8.1 Tenant shall be entitled to use, at no additional cost or charge, up
to three (3) parking spaces, for each one thousand (1,000) rentable square feet
leased by Tenant in the Building ("Tenant's Parking Allocation"). Tenant's
Parking Allocation shall be located in the below grade parking area of the
Building and the Parking Structure, with Tenant's Parking Allocation being
allocated pro-rata between the below grade parking and the Parking Structure.
All of Tenant's parking in the Parking Structure shall be on a non-reserved,
"first come, first serve" basis. Tenant's parking in the below grade parking
area shall be in an area designated by Landlord and reserved for use by Tenant
and its visitors, and, if specified by Landlord, a portion of the parking spaces
in such designated area (as determined by Landlord) shall be marked as being for
Tenant's visitors, provided that Landlord shall have the right to have visitor
parking for all tenants in the Building located in visitor parking areas in the
grade level and/or below grade parking areas, in which event Tenant's pro-rata
share thereof shall satisfy that portion of Tenant's Building Allocation. If
Landlord decides to devote all or a substantial portion of the grade level
parking to visitor parking and if such visitor parking is designated by Landlord
for specific tenants, then Tenant shall be entitled to Tenant's Share of such
designated spaces. Landlord shall not discriminate against Tenant in located
Tenant's reserved parking area (for example, Tenant will receive its
proportionate share of spaces that are closer and farther from the Building).
Tenant may, at its cost, designate up to ten (10) spaces in its reserved area as
being reserved for specific individuals. Landlord shall not be obligated to
police any designated or reserved parking area or spaces, and Landlord shall
have no liability to Tenant, nor shall Tenant's obligation under this Lease be
in any way affected, in the event of any unauthorized use thereof. If Landlord
provides a designated parking area or areas for Tenant, Tenant shall require its
personnel and visitors to park their vehicles only in the spaces designated by
Landlord from time to time as available to Tenant. All vehicles parked by Tenant
and its employees, agents, contractors and visitors shall conform to such
reasonable height, width and other size requirements as shall be established by
Landlord from time to time, and Tenant shall defend, indemnify and hold Landlord
harmless against by damage or liability incurred by Landlord as a result of any
breach of such requirements. Tenant, its personnel and visitors shall not at any
time park any trucks or delivery vehicles in any areas other than the
specifically designated loading, pick-up and standing areas. Access to and
parking in the below grade parking and the Parking Structure shall be on a
24-hour per day, 7 days per week basis, and otherwise subject to any Parking
Rules and Regulations promulgated from time to time by Landlord.
8.2 Landlord shall have no liability on account of any damage or loss to
any vehicle or its contents, regardless of cause, except Landlord's willful
misconduct or gross negligence, and Tenant hereby agrees to indemnify, hold
harmless and defend Landlord from and against any and all causes, claims, suits,
damages, and expenses (including reasonable attorneys' fees) arising from the
use of the below grade parking or the Parking Structure by Tenant or by anyone
claiming by, through or under Tenant's privileges granted hereunder.
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8.3 At any time and from time to time Landlord shall have the following
rights:
(a) to move the location of the parking areas and change the layout
of the parking spaces therein, provided that no change in the layout of parking
spaces shall result in any discrimination against Tenant and no moving of the
location of the parking areas will result in the parking being materially less
convenient to Tenant;
(b) to require Tenant to reserve or otherwise identify Tenant's
parking spaces or to require Tenant's employees to identify their vehicles in a
manner reasonably determined by Landlord or Landlord's parking operator.
Landlord may require that Tenant's employees identify their vehicles with
stickers provided by Landlord;
(c) to tow unidentified or unmarked visitor or employee cars and to
tow marked cars of Tenant's employees and/or visitors in the event that Tenant's
employees or visitors are using more than Tenant's designated number of parking
spaces, provided Landlord shall endeavor to notify Tenant (which notice may be
verbal) before towing any cars.
(d) to license, franchise or otherwise contract with an independent
third party parking garage operator for the operation of the below grade parking
and/or the Parking Structure, in which case the rights, obligations and duties
of Landlord hereunder shall apply to such operator.
8.4 Tenant shall have the following responsibilities and obligations
throughout the Term of this Lease:
(a) to insure that at all times Tenant's employees and visitors do
not use more parking spaces than Tenant's Parking Allocation, so as to avoid use
of parking spaces allocated to other tenants and their visitors at the Project,
and in connection therewith, if Landlord, in its reasonable opinion, determines
that Tenant has not allocated enough of Tenant's Parking Allocation to visitor
parking, then Landlord may require Tenant to reallocate Tenant's Parking between
its employees and its visitors to increase the portion of Tenant's Parking
Allocation that is allocated to visitor parking; and
(b) to comply in all respects with the reasonable rules and
regulations with regard to the parking system established by Landlord or the
Parking operator, as the same may be modified from time to time.
ARTICLE 9
QUIET ENJOYMENT
9.1 If, and so long as, Tenant keeps and performs each and every
obligation to be performed by Tenant under this Lease, then Tenant shall have
the right to peaceably and quietly enjoy the Demised Premises, subject, however,
to the terms and provisions of this Lease, including Article 10.
ARTICLE 10
SUBORDINATION
10.1 Subject to Tenant receiving a Non-Disturbance Agreement (defined
below), this Lease is and shall be subject and subordinate to all ground or
underlying leases which now or hereafter affect either or both of the Land and
the Building, to all mortgages which now or hereafter affect such leases or
either or both of the Land and the Building, and to all renewals, modifications,
replacements and extensions of any thereof. The provisions of this Section 10.1
shall be self-operative and no further instrument of subordination shall be
required. In confirmation of that subordination, Tenant shall promptly execute
and deliver at its own cost and expense any instrument, in recordable form if
required, that Landlord, the lessor of the ground or underlying lease or the
holder of any such mortgage or any of their respective successors in interest
request to evidence the subordination. Landlord shall obtain for Tenant, from
any current or future ground lessor or mortgagee of the Project, an agreement (a
"Non-Disturbance Agreement") that provides, among other things, that if any such
party forecloses, takes title by deed in lieu of foreclosure or otherwise
exercises its rights under a mortgage, or if a ground lessor terminates or
otherwise exercises its rights under such ground lease, as the case may be (or
any party acquires landlord's interest in this Lease), then as long as Tenant is
not in default hereunder beyond any applicable cure period (a) Tenant shall not
be named in any foreclosure action, (b) Tenant's occupancy of the Demised
Premises shall not be disturbed by the termination of any ground lease or the
foreclosure of any mortgage, (c) the foreclosure of a mortgage, the termination
of any ground lease, the institution of any suit, action, summary or other
proceeding against the Landlord, or any successor to the Landlord, or any
foreclosure brought by any mortgagee to recover possession of the Demised
Premises, shall not, by operation of law or otherwise, result in the
cancellation or termination of the Lease and (d) the foreclosing mortgagee or
holder of the ground lease that is terminated shall succeed to the position of
Landlord under this Lease and Tenant shall not be disturbed in its possession
15
of the Demised Premises for any reason other than one which would entitle the
Landlord to terminate this Lease under its terms.
10.2 In the event of a termination of any ground or underlying lease, or
if the interest of Landlord under this Lease is transferred by reason of, or is
assigned in lieu of, foreclosure or other proceedings for enforcement of any
mortgage, or if the holder of any mortgage acquires a lease in substitution for
its mortgage, then Tenant will, if requested in writing by the lessor under such
ground or underlying lease or such mortgagee or purchaser, assignee or lessee,
as the case may be (each of which is referred to as "Purchaser" for purposes of
this Section 10.2) (i) attorn to the Purchaser and will perform for the
Purchaser's benefit all the provisions of this Lease to be performed by Tenant
with the same force and effect as if the Purchaser were the landlord originally
named in this Lease, or (ii) if the Purchaser alternatively requests, enter into
a new lease with the Purchaser as landlord, for the remaining Term on the same
terms and conditions. The foregoing provisions of clause (i) of this Section
10.2 shall enure to the benefit of the Purchaser, shall be self-operative if the
Purchaser elects to make such request, and no further instrument shall be
required to give effect to those provisions. Upon demand of the Purchaser,
Tenant will execute, from time to time, instruments in confirmation of the
foregoing provisions of this Section 10.2, satisfactory to the Purchaser,
acknowledging such attornment and setting forth the terms and conditions of its
tenancy.
10.3 Anything contained in this Article 10 to the contrary
notwithstanding, under no circumstances shall the Purchaser, whether or not it
shall have succeeded to the interests of Landlord under this Lease, be:
(a) liable for any act, omission or default of any prior landlord
except for any defaults continuing after such Purchaser shall become Tenant's
landlord and then only with respect to the portion of such default occurring
after such time; or
(b) subject to any offsets, claims or defenses which Tenant might
have against any prior landlord, except for any abatements expressly provided
for in this Lease and provided that if, at the time that a Purchaser succeeds to
the interests of Landlord under this Lease, Tenant has outstanding claims
relating to the performance of Landlord's Work or the payment of the Tenant
Improvement Allowance of which Tenant provides the Purchaser with written notice
within thirty (30) days after Tenant receives written notice of the fact that
the Purchaser has succeeded to the interests of Landlord under this Lease, and
if the Purchaser does not either satisfy such claims or successfully dispute
such claims, then Tenant shall have the right to terminate this Lease, by
written notice to the Purchaser within thirty (30) days after the later of (i)
the date such claim is presented to the Purchaser and the Purchaser has not
indicated in writing that it will satisfy the claims, or (ii) the date on which
any dispute relating to the claims is resolved in favor of Tenant (unless,
within said thirty (30) day period, the Purchaser notifies Tenant, in writing,
that it will satisfy the claims); or
(c) bound by any rent or additional rent which Tenant might have
paid to any prior landlord for more than one month in advance or for more than
six months in advance where such rent payments are payable at intervals of more
than one month; or
(d) bound by any modification amendment of the Lease which adversely
affects the Purchaser, made without the Purchaser's prior approval, but only if
the Purchaser held its interest in the Building at the time of such modification
or amendment, and Tenant has notice of such Purchaser.
10.4 If, in connection with the financing of the Land and/or the Building,
the holder of any mortgage or any potential mortgagee requests reasonable
modifications be made in this Lease as a condition to making the financing or
approving this Lease, then Tenant shall not unreasonably withhold, delay or
defer making such modifications, if those modifications do not increase the
Annual Net Rent and Additional Rent or otherwise materially increase Tenant's
obligations under this Lease.
ARTICLE 11
USE
11.1 The Demised Premises shall be used as and for the following, but for
no other purposes: general and executive offices.
11.2 Tenant shall not (a) use or permit the use of the Demised Premises or
any part thereof in any way which would violate this Lease or for any unlawful
purposes or in any unlawful manner, or (b) suffer or permit the Demised Premises
or any part thereof to be used in any manner or anything to be done or anything
to be brought into or kept in the Demised Premises which, in the reasonable
judgment of Landlord, impairs or tends to impair or interfere with (i) the
character, reputation or appearance of the Building as a high quality office
building or the Complex as a high quality office park, or (ii) any of the
Building services or the proper and economic heating, cleaning, air-conditioning
or other servicing of the Building or the Demised Premises, or (iii) the use of
any of the other areas of the Building by, or occasion discomfort, inconvenience
or
16
annoyance to, any of the other tenants or occupants of the Building.
11.3 If during the Term any governmental license or permit is required for
the proper and lawful use of the Demised Premises for the conduct of Tenant's
business, and if the failure to secure the license or permit would in any way
affect Landlord, then Tenant, at its expense, shall procure and thereafter
maintain such license or permit and supply a copy thereof to Landlord. Tenant,
at its expense, shall at all times comply with the terms and conditions of each
such license or permit.
11.4 No portion of the Demised Premises shall be used as, or for, the
following: a public stenographer or typist, xxxxxx shop, travel agency for the
provision of services for persons other than Tenant and Tenant's employees,
beauty or manicure shop, telephone or telegraph agency, telephone or secretarial
service, messenger service, employment agency, public finance (personal loan)
business, restaurant or bar, commercial document reproduction or offset printing
service, vending machines, gambling or gaming activities, the possession,
storage, manufacture or sale of alcohol, drugs or narcotics, retail, wholesale
or discount shop for sale of merchandise, retail service shop, school or
classroom, conduct of a public auction, rendition of medical, dental or other
diagnostic or therapeutic services, the offices or business of governmental or
quasi-governmental bureau, department or agency, foreign or domestic, including
an autonomous governmental corporation or trade mission, or for the conduct of
any business or occupation which predominantly involves direct patronage of the
general public. No portion of the Demised Premises shall be used for any purpose
which conflicts with an exclusive use granted by Landlord to another tenant.
except to the extent that such use by Tenant is authorized by Section 5.1.
Nothing herein shall prevent Tenant from possessing and serving alcoholic
beverages at its special functions and parties.
ARTICLE 12
ALTERATIONS AND INSTALLATIONS
12.1 Tenant shall make no alteration, installation, addition or
improvement in or to the Demised Premises (any one or more of which is referred
to as "Alterations"), except upon satisfaction of all of the following
conditions:
(a) Tenant shall submit to Landlord and Landlord shall have approved
(i) comprehensive plans and specifications for the entire Alterations (the
"Alteration Plans"), and (ii) a list of architects, engineers, contractors,
subcontractors and mechanics (any one or more of which is referred to as the
"Contractors") to perform the work in connection with the Alterations (the
"Work"), provided that Tenant shall use architects and engineers designated by
Landlord for any work involving or affecting the structure of the Building or
any Building systems. Landlord shall not unreasonably withhold its consent to
Alteration Plans that do not affect the structure of the Building, the Building
systems or the exterior of the Building and Landlord's consent shall not be
required for purely cosmetic Alterations (such as paint and carpet) that are not
visible from outside of the Building or from any of the common areas of the
Building. If Landlord shall fail to respond with Landlord's approval or
disapproval (with detailed comments thereon explaining the reasons for any
disapproval) to Tenant's written request for approval of any Alteration (an
"Alteration Request") within fifteen (15) business days after receipt of such
Alteration Request (twenty (20) business days if the Alterations would affect
the structure of the Building or the Building systems), then such approval shall
be deemed granted.
(b) Tenant shall pay all costs of and related to the Alterations.
(c) As the work on an Alteration progresses, Tenant shall furnish
Landlord with (i) evidence of payment of the first requisition from its
Contractor, (ii) with respect to each requisition thereafter, with partial
waivers of mechanics' liens from all of the Contractors waiving their respective
rights to file mechanics' liens against the Building and the Land to the extent
of payments received under the immediately preceding requisition (or, if the
foregoing is not permitted by law, evidence of payment through the immediately
preceding requisition), and (iii) all required permits from government bodies.
(d) Tenant shall reimburse Landlord for all reasonable third party
costs and expenses that are incurred by Landlord in connection with Landlord's
review of the Alteration Plans.
(e) Notwithstanding anything to the contrary provided in this
Section 12.1, all Contractors used by Tenant for any Alterations shall be
subject to Landlord's prior written approval, which approval shall not be
unreasonably withheld.
(f) The approval by Landlord of the Alteration Plans or the
Contractors, shall not constitute any consent or agreement by Landlord that (x)
the Alteration Plans and the Alterations will comply with Law or (y) the
Contractors so approved are reputable, competent, or will satisfactorily perform
their obligations to Tenant.
17
(g) All of the Work shall be done in a good and workmanlike manner.
(h) Notwithstanding that Landlord has approved a Contractor, Tenant
shall not employ any Contractor unless the Contractor has agreed in writing that
it will employ only such labor as will not result in jurisdictional disputes or
strikes or result in disharmony with other workers employed in the Building.
(i) Tenant shall pay to each of the Contractors, as the Work
progresses, the entire cost of supplying the materials and performing the work.
(j) All Alterations shall be made in compliance with all Laws and
with the rules, orders, regulations and requirements of the New York Board of
Fire Underwriters and any similar body.
(k) All of the Work shall be done at such times and in such manner
as will not unreasonably interfere with or disturb other tenants or occupants of
the Building.
(l) Landlord and its representatives shall have the right, but shall
have no obligation, to inspect the progress of the Work and the completed
Alterations at all reasonable times, and Tenant shall permit Landlord to make
such inspections; but any such inspection shall not obligate Landlord to notify
Tenant of any failure by Tenant to comply with the requirements of this Lease or
constitute an approval or waiver by Landlord of any condition or of any failure
by Tenant to perform its obligations under this Lease.
(m) Tenant will pay to Landlord (i) an amount that is equal to ten
percent (10%) of the cost of the Alterations costing more than $25,000.00 to
compensate Landlord for Landlord's indirect costs, field supervision and
coordination in connection with the Work, (ii) all reasonable third party costs
incurred by Landlord in connection with Landlord's supervision and coordination
of the Work; and (iii) all direct costs incurred by Landlord related to the Work
including operation of the freight elevator, supplemental cleaning and refuse
removal.
(n) Before commencing the Alterations, Tenant shall furnish to
Landlord certificates evidencing the existence of:
(i) Worker's compensation insurance covering all persons
employed for the Work with statutorily required limits.
(ii) Comprehensive general liability and property damage
insurance (which shall be in addition to insurance required to be provided under
Article 15 of this Lease) naming Landlord, its designees and Tenant as insured,
as their interests may appear, with coverage in such amounts as Landlord may
require (which requirement shall be consistent with business practice in the
real estate business in the lower Fairfield County Area).
(iii) Any other insurance which Landlord reasonably requests.
Before commencing the Alterations, Tenant shall furnish evidence
satisfactory to Landlord that Tenant has notified all Contractors that Landlord
will not be liable for any labor or materials furnished or to be furnished to
Tenant upon credit, and that the Contractor may not impose any mechanic's or
other lien for any labor or materials on any interest or estate of Landlord in
and to the Demised Premises or the Building.
12.2 Within 30 days after any mechanic's lien is filed against the Demised
Premises or the Building for work claimed to have been done or materials claimed
to have been furnished to Tenant, Tenant will discharge such lien, at Tenant's
expense, by payment or filing of a bond required by law or otherwise. Tenant
shall provide satisfactory proof of such discharge to Landlord within that
30-day period; and if Tenant fails to do so then Landlord may, but shall not be
obligated to, discharge the mechanic's lien by bond or payment, or otherwise,
and the cost of the discharge will be paid by Tenant to Landlord upon receipt of
Landlord's invoice therefor.
12.3 If any notice of violation is placed against the Building and that
violation arises out of the Alterations, then the violation shall be cured by
Tenant immediately, and if Tenant fails to do so, then Landlord may, but shall
not be obligated to, cure the violation by whatever action Landlord deems to be
reasonably necessary, including the removal of all or any part of the
Alterations, and the cost of the action taken by Landlord shall be paid by
Tenant to Landlord upon receipt of Landlord's invoice therefor.
12.4 All Alterations made and installed by Landlord at Landlord's expense
shall be Landlord's property and shall remain upon and be surrendered with the
Demised Premises as part thereof at the Expiration Date or upon termination of
this Lease due to Tenant's default (both, a "Termination").
18
12.5 All Alterations made and installed or paid for by Tenant, which are
of a permanent nature and which cannot be removed without damage to the Demised
Premises or the Building, shall become and be the property of Landlord and shall
remain upon and be surrendered with the Demised Premises at the Termination,
except that if Landlord, at the time that it approves any Alterations, notifies
Tenant that it must remove any Alterations at the expiration or earlier
termination of this Lease, then Tenant shall, at Tenant's own expense, remove
the Alterations in accordance with Landlord's request and restore the Demised
Premises to its original condition, ordinary wear and tear and casualty
excepted. Landlord agrees, however, that to the extent that Landlord does not
require Tenant to remove any portion of the Tenant Improvements upon such
expiration or sooner termination, it will not require Tenant to remove
Alterations thereafter made to the extent such later Alterations are not
different in type or scope than that portions of the Tenant Improvements that
Landlord did not require Tenant to remove. In connection therewith, Landlord
agrees that as part of its approval of Tenant's plans for the Tenant
Improvements, it will not require Tenant to remove anything that would be done
as part of a standard office build-out. For purposes hereof, a standard office
build-out shall consist of the following:
(a) Drywall interior partitions
(b) Entrance, exit and interior doors and hardware
(c) Suspension ceiling
(d) Fluorescent light fixtures and exit lights
(e) Carpet and/or vinyl tile
(f) Electrical wiring and equipment for normal office lighting and
receptacles
(g) Building standard fire alarm wiring and equipment and smoke
detectors
(h) Building standard sprinkler piping and heads
(i) Distribution of heat, ventilation and air conditioning
(j) Building standard window treatments.
(k) Standard flooring (i.e. other than specialty floorings such as
raised computer flooring); hardwood flooring shall not be deemed to be specialty
flooring.
12.6 Subject to Landlord's rights, if any, under Article 22 hereof, all
trade fixtures, movable office furniture and equipment and any other movable
property that has been furnished or paid for by Tenant ("Tenant's Personal
Property") shall remain Tenant's property; and Tenant shall remove Tenant's
Personal Property before any Termination.
12.7 If any of the Alterations or Tenant's Personal Property which Tenant
has the right or obligation to remove or which Landlord has requested Tenant to
remove, as provided in Sections 12.5 and 12.6 ("Removable Property") are not
removed within the time periods required by Sections 12.5 and 12.6, then the
Removable Property shall be deemed abandoned. Landlord, at its election, may
either retain some or all of the Removable Property or remove some or all of the
Removable Property and dispose of the Removable Property without accountability
to Tenant and Tenant shall pay to Landlord upon receipt of Landlord's invoice
therefor, all costs incurred by Landlord in good faith in removing, storing or
disposing of the Removable Property and, in the case of Removable Property which
cannot be removed without damage to the Demised Premises or the Building, the
costs of restoring the Demised Premises or the Building. Tenant's obligations
under Sections 12.5 and 12.6 and this Section 12.7 shall survive a Termination.
The foregoing provisions of this Section 12.7 shall be without prejudice to any
election by Landlord that Tenant's failure to remove Removable Property
constitutes a holding over by Tenant pursuant to Section 29.2.
12.8 Tenant shall keep records, including the Alteration Plans, copies of
contracts, invoices, evidences of payment and all other records normally
maintained in the real estate business relating to all Alterations and Work and
of the cost thereof, and shall provide any and all of those records to Landlord
at any time and from time to time at Landlord's request, for any purpose.
12.9 Tenant shall not place a load upon any floor of the Demised Premises
exceeding a live load of 100 pounds per square foot of floor space (80+20).
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12.10 No property of any kind shall be brought upon or kept by Tenant in
the Demised Premises other than as an incident to the reasonable use of the
Demised Premises for the purposes permitted by this Lease. Tenant shall not move
any safe, heavy equipment, freight, bulky matter or bulky fixtures ("Heavy
Objects") into or out of the Building or change the location thereof in the
Demised Premises without Landlord's consent. If the moving of any Heavy Objects
requires special handling with rigging equipment instead of by use of the
freight elevator, Tenant will employ only persons holding a Master Riggers
license to do the moving, and all work in connection therewith shall comply with
applicable Law.
12.11 Tenant will, within twenty-four (24) hours after notice from
Landlord, install proper vibration eliminators on all business machines and
mechanical equipment which Tenant is responsible for maintaining in such manner
as will prevent any perceptible vibration, provided that if any such machines or
equipment is materially interfering with other tenants in the Building, then
Tenant shall turn off such machines or equipment immediately after notice from
Landlord.
12.12 Tenant and Tenant's contractors will abide by Landlord's rules and
regulations governing Alterations to be performed in the Building, which rules
and regulations shall be uniformly applied throughout the Building.
12.13 Upon completion of any Alterations, Tenant shall furnish Landlord,
with three (3) copies each of architectural and mechanical As-Built drawings.
ARTICLE 13
REPAIRS
13.1 (a) Tenant shall take good care of the Demised Premises and the
fixtures, appurtenances and equipment therein (collectively, "Fixtures") and at
its sole cost and expense make all repairs thereto as and when needed to
preserve them in good working order and condition. All damage or injury to the
Demised Premises and to its Fixtures which is caused by or results from (i)
moving Tenant's property in or out of the Building, or (ii) the installation or
removal of Tenant's furniture, Fixtures or other property, or (iii) the
carelessness, omission, neglect, negligence, or improper conduct of Tenant or
its employees, contractors, agents, licensees or invitees, shall be repaired,
restored or replaced promptly by Tenant at its expense to the reasonable
satisfaction of Landlord. Such repair, restoration and replacement shall be in
quality and class equal to the original work or installation. If Tenant fails to
make any such repair, restoration or replacement within ten (10) days after
notice from Landlord (except in an emergency), then the repair, restoration and
replacement may be made by Landlord at the expense of Tenant.
(b) Neither the exterior walls of the Building nor the windows and
the exterior areas created by the Building set backs are part of the Demised
Premises and Landlord reserves all rights to those walls, windows and setbacks,
including the right to enter and store window washing and other supplies and
equipment on the setback areas.
13.2 Landlord, as part of Expenses, will perform all necessary repairs and
maintenance of all structural elements of the Building, all mechanical systems
(including all HVAC and plumbing systems) serving the Demised Premises to the
extent that the same are outside of the Demised Premises, all walls and floors
outside of the Demised Premises, all common areas of the Building and all
parking facilities, necessary to maintain the same in first class condition.
Landlord will commence repairs within a reasonable period of time after it is
notified of the necessity of such repairs and shall diligently prosecute such
repairs to completion. Notwithstanding the above, Landlord shall not be
obligated to pay, as part of Expenses, and Tenant shall pay to Landlord the
entire cost of all maintenance, service and repairs performed by Landlord with
respect to the Building systems that are required to repair damage or injury due
to the carelessness, omission, neglect, negligence or improper conduct of
Tenant, its employees, contractors, agents, licensees or invitees.
13.3 There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of the Landlord by reason of inconvenience,
annoyance, interruption or injury to business arising from the making or failing
to make by Landlord of any repairs, alterations, additions or improvements in or
to any portion of the Building or the Demised Premises or in or to fixtures,
appurtenances or equipment thereof.
ARTICLE 14
REQUIREMENTS OF LAW
14.1 Tenant, at Tenant's expense, shall comply with all Laws which impose
any violations, order or duty upon Landlord or Tenant with respect to the
Demised Premises, or the use or occupation thereof.
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14.2 Notwithstanding the provisions of Section 14.1, Tenant, at its
expense, in its name (and whenever necessary in Landlord's name) may contest, in
any manner permitted by law (including appeals to a Court, or governmental
department or authority having jurisdiction in the matter), the validity or the
enforcement of any Law with which Tenant is required to comply pursuant to the
Lease, and may defer compliance therewith (collectively, the "Contest") if:
(a) The Contest does not subject Landlord to the payment of any fine
or penalty or to criminal prosecution or subject either or both of the Land and
Building to lien or sale;
(b) The Contest does not result in a violation of any mortgage or of
any ground or underlying lease;
(c) Before commencing the Contest, Tenant has delivered to Landlord
a surety bond issued by a surety company of recognized responsibility, or other
security satisfactory to Landlord, indemnifying and protecting Landlord against
any liability, loss or injury by reason of the Contest; and
(d) Tenant shall promptly and diligently prosecute the Contest and
keep Landlord advised at all times as to the status of the Contest.
Landlord, without liability to it and at Tenant's expense (including the payment
of Landlord's attorneys, fees), shall cooperate with Tenant and execute any
documents or pleadings required for the Contest, if Landlord is reasonably
satisfied that the facts set forth in any such documents or pleadings are true
and complete and not misleading.
14.3 Except to the extent of Tenant's obligation to comply with laws under
this Article 14 or in connection with Tenant's Alterations, Landlord shall
comply with all Laws affecting the Land and Building.
ARTICLE 15
INSURANCE, LOSS, INDEMNIFICATION, LIABILITY
15.1 Tenant shall not do or permit to be done any act or thing upon the
Demised Premises which will invalidate Landlord's insurance policies covering
the Building or Fixtures and property therein, or which would increase the rate
of fire insurance applicable to the Building to an amount higher than it
otherwise would be; and Tenant shall neither do nor permit to be done any act or
thing upon the Demised Premises which subjects Landlord to any liability or
responsibility for injury to any person or persons or to property by reason of
any business or operation being carried on within the Demised Premises. Tenant,
at its expense, shall comply with all rules, orders, regulations and
requirements of any regulatory authority, and of the reasonable rules, orders,
regulations and requirements of the engineers of any of the Landlord's insurance
carriers, relating to the Demised Premises.
15.2 If, as a result of any act or omission by Tenant, the rate of fire
insurance applicable to the Building in computing fire insurance premiums is
increased over the rate that otherwise would apply, then in addition to any
other remedies which Landlord has for any such act or omission or violation of
this Lease, Tenant shall reimburse Landlord for all increases in Landlord's fire
insurance premiums that result from the increase in the rate; such reimbursement
to be made within fifteen (15) days after receipt of an invoice from Landlord
together with evidence of payment. In any action or proceeding in which Landlord
and Tenant are parties, a schedule or `makeup' of rates for the Building or
Demised Premises issued by the body making fire insurance rates for the Building
or Demised Premises shall be presumptive evidence of the facts stated in the
schedule or `makeup' and of the several items and charges in the fire insurance
rate then applicable to the Building or Demised Premises. Landlord anticipates
that use of the Demised Premises for general office uses will not increase
Landlord's insurance premiums.
15.3 Neither Landlord nor its agents, employees or invitees shall be
liable for any injury or damage to persons or property resulting from fire,
explosion, falling matter, steam, gas, electricity, water, rain or snow or leaks
from any part of the Building, or from the pipes, appliances or plumbing works
or from the root, street or subsurface or from any other place or from dampness
or by any other cause of whatsoever nature, unless the injury or damage is
proximately caused by or due to the gross negligence of Landlord, its agents,
employees or invitees.
15.4 Neither Landlord nor its agents, employees or invitees shall be
liable for any damages which Tenant sustains, if any window of the Demised
Premises is broken or temporarily (or if a window on a lot line, permanently)
closed, darkened or bricked up for any reason whatsoever, excluding only
Landlord's unreasonable and arbitrary acts; and Tenant shall not be entitled to
any compensation or abatement of Total Rents or to any release' from any of
Tenant's obligations under this Lease, nor shall the same constitute an
eviction.
15.5 Tenant shall indemnify, defend and hold Landlord, its agents,
employees and invitees harmless from
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and against any and all liability, claims, suits, demands, judgments, costs,
damages, fines, interest and expenses (including reasonable attorneys' fees and
disbursements) incurred or suffered by Landlord, its agents, employees or
invitees by reason of any breach, violation or nonperformance by Tenant, or its
agents, employees, licensees, invitees or contractors of any covenant or
provision of this Lease, or by reason of any damage to persons or property
caused by moving property of or for Tenant in or out of the Building, or by the
installation or removal of furniture or other property of or for Tenant or by
reason of or arising out of the acts, omissions, negligence or improper conduct
of Tenant, or its agents, employees, licensees, invitees or contractors in the
preparation, alteration, use or occupancy of the Demised Premises. Subject to
the provisions of Section 14.2, Tenant shall have the right, at Tenant's
expense, to conduct, with Landlord's participation, the defense of any action or
proceeding brought against Landlord, its agents, employees or invitees and in
negotiations for settlement thereof if pursuant to this Section 15.5, Tenant
would be obligated to reimburse Landlord for costs, damages, fines, interest or
expenses incurred or suffered by Landlord, with counsel that is reasonably
acceptable to Landlord, provided that Landlord shall have the right to require
Tenant to accept any reasonable settlement offer in connection with any such
actions or proceeding.
15.6 Landlord shall indemnify, defend and hold Tenant, its agents,
employees and invitees harmless from and against any and all liability, claims,
suits, damages, judgments, costs, damages, fines, interest and expenses
(including reasonable attorneys' fees and disbursements) incurred or suffered by
Tenant, its agents, employees or invitees by reason of any breach, violation or
nonperformance by Landlord, or its agents, employees, licensees, invitees or
contractors of any covenant or provision of this Lease, or by reason of any
damage to persons or property caused by moving property of or for Landlord in or
out of the Building, or by the installation or removal of furniture or other
property of or for Landlord or by reason of or arising out of the acts,
omissions, negligence or improper conduct of Landlord, or its agents, employees,
licensees, invitees or contractors in the alteration or use of the common areas
of the Building. After receipt of written notice from Tenant of such obligation
to indemnify, Landlord shall have the right, at Landlord's expense, to conduct,
with Tenant's participation, the defense of any action or proceeding brought
against Tenant, its agents, employees or invitees and any negotiations for
settlement thereof if pursuant to this Section 15.6, Landlord would be obligated
to reimburse Tenant for reasonable costs, damages, fines, interest or expenses
incurred or suffered by Tenant, with counsel that is reasonably acceptable to
Tenant, provided that Tenant shall have the right to require Landlord to accept
any reasonable settlement offer in connection with any such action or
proceeding.
15.7 Tenant shall notify Landlord of all fires and accidents in the
Demised Premises promptly after Tenant is aware of such fire or accident.
15.8 Tenant will look solely to Landlord's estate and interest in the
Project, or the lease of the Project, and the Demised Premises, for the
satisfaction of any right or remedy of Tenant for the collection of a judgment
(or other judicial process) requiring the payment of money by Landlord, in the
event of any liability by Landlord, and no other property or asset of Landlord
and no property of any owner, partner, shareholder or principal of Landlord
shall be subject to levy, execution, attachment, or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this Lease,
the relationship of Landlord and Tenant hereunder, or Tenant's use and occupancy
of the Demised Premises, or any other liability of Landlord to Tenant.
15.9 (a) If obtainable at any time during the Term, Landlord will include
in its fire insurance policies, clauses pursuant to which the companies that
issue the policies either or both (i) waive all rights of subrogation against
Tenant with respect to losses payable under those policies, and (ii) agree that
those policies shall not be invalidated if the insured party waives in writing
before a loss occurs any and all right of recovery against any party for losses
covered by those policies. If any additional premium is charged for either or
both of the clauses, then Landlord shall notify Tenant of that additional
premium and it, within 10 days after receiving that notice, Tenant does not
agree to pay that additional premium upon receipt of Landlord's invoice
therefor, or if Tenant does so agree, but thereafter fails to pay that
additional premium, then Landlord shall be released from the obligation to
obtain those clauses.
(b) Tenant will obtain and maintain during the entire Term, a fire
insurance policy or policies covering the full replacement value of Tenant's
Personal Property, Tenant's Alterations and of all Fixtures and shall include in
each such policy, if obtainable at any time during the Term, clauses pursuant to
which the company that issues that policy either or both (i) waives all rights
of subrogation against Landlord and any tenants of space in the Building with
respect to losses payable under that policy, and (ii) agrees that the policy
will not be invalidated if the insured waives in writing before a loss occurs
any or all right of recovery against any party for loss covered by that policy.
If any additional premium is charged for either or both of the clauses, then
Tenant shall notify Landlord of that additional premium and, if within 30 days
after receiving that notice, Landlord does not agree to pay that additional
premium upon receipt of Tenant's invoice therefor, or if Landlord does so agree,
but thereafter fails to pay that additional premium, then Tenant shall be
released from the obligation to obtain those clauses.
(c) Unless Landlord's right of full recovery of the coverage under
the policy or policies
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described in Section 15.9(a) is adversely affected or prejudiced thereby,
Landlord waives any and all rights of recovery which it might otherwise have
against Tenant, its servants, agents and employees, in respect of loss or damage
occurring to the Building and the fixtures, appurtenances and equipment therein,
to the extent that the loss or damage is covered by Landlord's insurance,
notwithstanding that the loss or damage results from the negligence or fault of
Tenant, its servants, agents or employees. Unless Tenant's right of full
recovery of the coverage under the policy or policies described in Section
15.9(b) is adversely affected or prejudiced thereby, Tenant waives any and all
rights of recovery which it might otherwise have against Landlord, Landlord's
servants, agents and employees, and against every other tenant in the Building
which has executed a waiver similar in substance to those described in this
Section 15.9 in respect of loss or damage to Tenant's Personal Property,
Tenant's Alterations or to any Fixtures in the Demised Premises, to the extent
that the loss or damage is covered by Tenant's insurance, notwithstanding that
the loss or damage results from the negligence or fault of Landlord, its
servants, agents or employees or of such other tenant and its servants, agents
or employees.
(d) Each of Landlord and Tenant will advise the other promptly (i)
if either or both of the clauses to be included in their respective insurance
policies pursuant to Sections 15.9(a) and 15.9(b) cannot be obtained, (ii) if
any such clause is obtained and thereafter is either canceled or an increased
premium is charged for the clause, (iii) if the terms of any policy which would
affect any such clause are changed, (iv) if any clause that previously was not
obtainable becomes obtainable and/or (v) if any clause that previously was
obtainable at an additional premium becomes obtainable at a lower premium.
15.10 Tenant will provide on or before the Commencement Date and keep in
force during the Term for the benefit of Landlord and Tenant a commercial
general liability insurance policy, written on an occurrence basis, with limits
of not less than Five Million Dollars and 00/100 ($5,000,000.00) combined single
limit coverage, protecting Landlord and Tenant against any liability whatsoever
occasioned by any occurrence on or about the Demised Premises or any
appurtenances thereto, together with worker's compensation insurance to the
extent required by law, and in the event a motor vehicle is to be used by Tenant
in connection with its business operation from the Demised Premises,
Comprehensive Automobile Liability Insurance coverage with limits of not less
than Five Million Dollars ($5,000,000.00) combined single limit coverage against
bodily injury liability and property damage liability arising out of the use by
or on behalf of Tenant, its agents and employees in connection with this Lease,
of any owned, non-owned or hired motor vehicles. Such policies are to be written
by good and solvent insurance companies reasonably satisfactory to Landlord
(rated A or better and Class X or higher by A.M. Best Company, or the equivalent
if Tenant's insurer is not rated by A.M. Best Company) and shall be in such
limits as Landlord may reasonably require. Such policy shall name Landlord,
Landlord's first mortgagee, Landlord's managing agent and such other parties as
Landlord shall require in writing from time to time as additional insureds. As
of the date of this Lease, Landlord reasonably requires limits of liability
thereunder of not less than the amount of Five Million Dollars ($5,000,000) for
bodily injury and property damage, combined single limit. Such insurance may be
carried under a blanket policy covering the Demised Premises and other locations
of Tenant if the required amounts of coverage for the Demised Premises are not
affected as a result of a claim involving another location. Before the date on
which such insurance first is required to be carried by Tenant and thereafter,
at least 15 days before the effective date of renewal of any such policy, Tenant
will deliver to Landlord a certificate evidencing such insurance. The
certificate shall contain an endorsement that such insurance may not be canceled
or materially modified except upon thirty days' notice to Landlord.
15.11 Landlord shall obtain and keep in full force and effect throughout
the Term (a) "all risk" insurance against loss or damage by fire and other
casualty to the Building, including Alterations, in an amount equal to 100% of
the replacement costs thereof, and (b) a policy of commercial general liability
and property damage insurance on an occurrence basis, with a broad form
contractual liability endorsement, with limits of not less than $5,000,000.00
combined single limit.
ARTICLE 16
DAMAGE BY FIRE OR OTHER CAUSE
16.1 If (a) either or both of the Building and the Demised Premises are
partially or totally damaged or destroyed by fire or other cause (a "Casualty"),
whether or not the damage or destruction (either or both, the "Damage") resulted
from the fault or neglect of Tenant, or its employees, agents, invitees or
contractors, and (b) the amount of the proceeds of insurance that is made
available to Landlord for the purpose of repairing the Damage is sufficient to
pay the entire cost of repairing the Damage, then (if this Lease has not been
terminated as is provided in this Article 16) Landlord shall repair the Damage
at Landlord's expense (without limiting Landlord's rights under any other
provision of this Lease), provided that Landlord shall not be required to repair
or replace any of Tenant's Personal Property or Fixtures.
16.2 (a) If either or both of the Building and the Demised Premises are
partially damaged or partially destroyed by a Casualty, then the Total Rents
shall be abated to the extent that the Demised Premises have been rendered and
remain untenantable during the period from the date of the Damage to the date on
which the Damage is repaired.
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(b) If the Demised Premises or a major part thereof are totally
(which shall be deemed to include substantially totally) damaged or destroyed or
rendered completely untenantable on account of a Casualty, then the Total Rents
shall xxxxx for the period commencing on the date of the Damage and shall end on
the date on which Landlord has repaired the Damage, to the original condition as
of the Rent Commencement Date, except for reasonable wear and tear and that
Landlord shall not be obligated to restore or replace Tenant's personal
property, except that if Tenant occupies a portion of the Demised Premises
during that period and before the date on which the Demised Premises are made
completely tenantable, then Total Rents allocable to that portion shall be
payable form the date of that occupancy.
(c) If either or both of the Building and the Demised Premises are
totally damaged or destroyed by a Casualty or if the wing or wings of the
Building in which the Demised Premises are located are so damaged or destroyed
by Casualty (whether or not the Demised Premises are damaged or destroyed) so as
to require a reasonably estimated expenditure for repair or the Damage of more
than 40 percent of the full insurable value of such wing or wings of the
Building immediately prior to the Casualty, then in either such case Landlord
may terminate this Lease by giving notice to Tenant to that effect within 180
days after the date of the Casualty. In such event, this Lease shall terminate
on the tenth day after the giving of the notice and the Total Rents shall be
apportioned as of the effective date of that Termination.
16.3 Landlord shall not be obligated to pay any damages, compensation or
claim for inconvenience, loss of business or annoyance that arises from any
repair or restoration of any portion of the Demised Premises or of the Building
pursuant to this Article 16 or for any delay in completing repairs or
restoration which arises by reason of adjustment of insurance, labor troubles or
other causes beyond Landlord's reasonable control.
16.4 Notwithstanding any of the foregoing provisions of this Article 16,
if Landlord or the lessor of any superior lease or the holder of any superior
mortgage is unable to collect all of the proceeds (including rent insurance
proceeds) under policies of insurance covering Damage by a Casualty because of
an illegal act by Tenant or a violation of insurance policy requirements by
Tenant or by any of its employees, agents or contractors, or by reason of
Tenant's failure fully to cooperate with Landlord, the superior lessor or the
superior mortgagee in applying for the insurance proceeds, then in the case of
that inability to collect and without prejudice to any other remedies which may
be available to Landlord against Tenant, Tenant shall pay to Landlord, upon
receipt of Landlord's invoice therefor, an amount that is equal to the amount of
those uncollected insurance proceeds, and there shall be no abatement of Total
Rents until that amount is fully paid by Tenant.
16.5 (a) If rent on the Demised Premises or any portion thereof is abated
pursuant to Section 16.2 and Tenant does not use the portion of its parking
rights granted hereunder which are allocable to the portion of the Demised
Premises for which rent is abated, the rent for such parking passes shall also
be abated.
(b) If Damage occurs to any, or all, of the Parking Structure,
Landlord shall repair the Damage with reasonable diligence. Neither Tenant nor
Landlord shall have any rights to terminate this Lease because of Damage which
affects the Parking Structure, provided that in the event of any Damage to the
Parking Structure that has a material adverse affect on Tenant's use and
enjoyment of the Demised Premises, then unless reasonable temporary parking is
provided, Total Rents shall equitably xxxxx during the period from the date of
the Damage to the date on which the Damage that materially and adversely affects
Tenant's use and enjoyment of the Parking Structure is repaired, but only to the
extent, if at all, of rental loss insurance proceeds that Landlord receives with
respect thereto.
16.6 If Landlord's architects or engineer estimate, in their reasonable
opinion, that the Demised Premises will be untenantable following the date of a
Casualty for a period of eighteen (18) months (which period shall be reduced to
1/2 of the months remaining in the Term if the casualty is in the last two (2)
years of the Term), then Landlord shall provide a copy of that estimate to
Tenant promptly upon its receipt by Landlord, and Tenant may terminate this
Lease by notice to Landlord within thirty (30) days from the date on which
Tenant receives the copy of the estimate.
ARTICLE 17
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
17.1 (a) Tenant shall not (i) assign or otherwise transfer this Lease or
the term and estate hereby granted (ii) sublet the Demised Premises or any part
thereof or allow the same to be used or occupied by others or in violation of
Article 11, (iii) mortgage, pledge or encumber this Lease or the Demised
Premises or any part thereof in any manner by reason of any act or omission on
the part of Tenant or otherwise (each a "Transfer"); without in each instance
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Landlord's consent shall not be
required with respect to any space sharing (i.e. no separate demising of space)
by any company that owns more than 50% of the ownership interests of Tenant or
that is more than 35% owned by PanAmSat Corporation or its parent
24
corporation.
(b) For purposes of this Article 17, (i) the transfer of a majority
of the issued and outstanding capital stock of any corporate tenant, or of a
corporate subtenant, or the transfer of a majority of the total interest or of
the general partnership interest in any partnership tenant or subtenant, however
accomplished, whether in a single transaction or in a series of related or
unrelated transactions, or the creation of new stock by which an aggregate of
more than fifty (50%) percent of Tenant's stock shall be vested in a party or
parties who are nonstockholders as of the date hereof, shall be deemed a
Transfer except that the sale of the capital stock of any corporate tenant by
the corporate tenant or by any holder of such stock through the
`over-the-counter market' or through any recognized stock exchange, other than
by holders of such stock who are deemed "insiders" within the meaning of the
Securities Exchange Act of 1934, as amended, shall not be deemed to be a
Transfer, (ii) a takeover agreement of a corporate tenant shall be deemed a
Transfer, (iii) any person or legal representative of Tenant, to whom Tenant's
interest under this Lease passes by operation of law, or otherwise, shall be
bound by the provisions of this Article 17, and (iv) a modification, amendment
or extension of a sublease shall be deemed a Transfer. For the purposes of this
Article 17, Tenant acknowledges that it will be liable to pay to Landlord, upon
demand, Landlord's reasonable attorneys' fees and reasonable out-of-pocket
expenses incurred in connection with reviewing Tenant's request for a Transfer.
17.2 The provisions of Section 17.1 hereof shall not apply to transactions
with a corporation that is a wholly owned subsidiary of Tenant or with a
corporation into or with which Tenant is merged or consolidated or with an
entity to which substantially all of Tenant's assets are transferred (provided
such merger or transfer of assets is for a good business purpose and not
principally for the purpose of transferring the leasehold estate created hereby,
and provided further, that such corporation or entity has a net worth at least
equal to the net worth of Tenant immediately prior to such merger or transfer)
or, if Tenant is a partnership with a successor partnership, nor shall the
provisions of clauses (a) and (b) of Section 17.1 apply to transactions with an
entity which controls or is controlled by Tenant or is under common control with
Tenant.
17.3 Any Transfer, whether made with Landlord's consent as required by
Section 17.1 hereof or without Landlord's consent pursuant to Section 17.2
hereof, shall be made only if, and shall not be effective until, the recipient
of a Transfer ("Transferee") executes, acknowledges and delivers to Landlord a
recordable agreement, in form and substance reasonably satisfactory to Landlord,
whereby the Transferee assumes the obligations and performance of this Lease and
agrees to be personally bound by all of the covenants, agreements, terms,
provisions and conditions of this Lease to be performed or observed by Tenant
and whereby the Transferee agrees that the provisions of Section 17.1 shall,
notwithstanding the Transfer, continue to be binding upon it in the future.
Notwithstanding any Transfer, whether or not in violation of the provisions of
this Lease, and notwithstanding the acceptance of Annual Net Rent by Landlord
from a Transferee or any other party, Tenant shall remain fully and primarily
liable for the payment of the Annual Net Rent and Additional Rent due and to
become due under this Lease and for the performance of all of the covenants,
agreements, terms, provisions and conditions of this Lease to be performed or
observed by Tenant.
17.4 The liability of Tenant for the due performance by Tenant of this
Lease, shall not be discharged, released or impaired in any respect by any
agreement or stipulation made by Landlord with any Transferee, extending the
time of or modifying any of the obligations contained in this Lease, or by any
waiver or failure of Landlord to enforce any of the obligations of this Lease,
and Tenant shall continue to be liable under this Lease. If any such agreement
or modification operates to increase Tenant's obligations under this Lease, the
liability under this Section 17.4 of Tenant (unless Tenant shall have expressly
consented in writing to such agreement or modification), shall continue to be no
greater than if such agreement or modification had not been made. To require
Tenant to meet its obligations as described in this Section 17.4, no demand or
notice of any default other than demands and notices required under this Lease
copies of which Landlord will give to Tenant shall be required, Tenant hereby
waives any such demand or notice.
17.5 Tenant shall not, without the consent of Landlord (including approval
of the exact wording of any listing or advertisement), list or advertise or
permit to be listed or advertised, or offered to any broker for listing or
advertisement, all or any part of the Demised Premises. In no event shall
Landlord be required to consent to any advertising of the Demised Premises for a
rent that is less than the rent payable under this Lease and in no event shall
any public advertisement of the Demised Premises mention the rental rate. In
addition, Tenant shall not list or advertise the Demised Premises at any time
when Landlord has Competing Space in the Building that is available for lease or
that Landlord has commenced leasing efforts for. "Competing Space" shall mean
any space which has a square foot size that is equal to or larger than 75% of
the square footage of the portion of the Demised Premises that Tenant is
attempting to sublease.
17.6 If Tenant desires to enter into any Transfer which requires
Landlord's prior consent pursuant to this Article 17, it shall notify Landlord
of such intention before offering the same to any party either directly or
through any broker. In no event may such an offer be made to an occupant of any
part of the Building nor may such an offer be made to any other prospective
Transferee unless, to the best of Tenant's knowledge, the prospective Transferee
has not negotiated with Landlord for space in the Building within the six (6)
month period prior to the time Landlord is first notified of Tenant's intention
to Transfer, provided that such prohibition shall not apply if, at the time
Tenant intends to effect a Transfer, Landlord no longer
25
has space available in the Building that could satisfy such prospective
Transferee's needs. If a Transfer is thereafter arranged with a permitted
Transferee, Tenant shall, at least thirty (30) days before the proposed date of
consummation thereof, notify Landlord thereof and deliver to Landlord:
(i) Reasonably detailed information concerning the nature of
the business and the financial status of the proposed Transferee;
(ii) A copy of the proposed sublease or assignment agreement,
as the case may be, signed by the proposed subtenant or assignee and by Tenant,
which shall contain all the substantive terms of the proposed sublease or
assignment, including, if a sublease is involved, the term, the rent and date of
commencement thereof or, if an assignment is involved, the effective date
thereof and the amount of all consideration and to whom payable; and
(iii) Any other related information reasonably required by
Landlord.
17.7 Within the thirty (30) day period described in Section 17.6 hereof,
Landlord shall have the right, exercisable by sending notice to Tenant, to
exercise any of the following rights:
(a) consent or refuse to consent to the Transfer; provided that if
Landlord does not exercise any of the rights or options set forth in subsections
17.7(b), (c) or (d) below, Landlord agrees not to unreasonably withhold or delay
its consent to any such Transfer;
(b) in the case of a proposed assignment, cancel this Lease as to
the space proposed to be assigned, in which event such cancellation shall become
effective on the date of the proposed assignment or the date specified in
Landlord's notice (but not to exceed 90 days from the date Landlord exercises
its right to cancel), whichever is later. If such cancellation is only for part
of the Demised Premises, then equitable adjustments shall be made to the Annual
Net Rent and Additional Rent;
(c) in the case of a proposed subletting for a term which will
expire before the expiration of this Lease, elect to recapture the portion of
the Demised Premises proposed to be sublet for only the term of the proposed
sublet. In such event Tenant's Annual Net Rent and Additional Rent will be
reduced during such period of recapture by the lesser of (i) the same amount as
Tenant would have received from the proposed subtenant, or (ii) the amount of
Tenant's obligations under this Lease for the portion of the space recaptured.
The recapture of the portion of the Demised Premises shall become effective on
the date specified in Landlord's notice (but not to exceed ninety (90) days from
the date Landlord exercises its right to recapture); and
(d) in the case of a proposed subletting, elect to accept a sublease
as subtenant of Tenant on the terms offered to the proposed subtenant, except
that (i) no provision of such sublease shall be any more restrictive upon the
rights of Landlord as such subtenant than are the provisions of this Lease upon
the rights of Tenant, (ii) there shall be no limitation as to use or prohibition
against a further subletting and (iii) Tenant shall not be required to do any
work for Landlord.
17.8 Intentionally Omitted.
17.9 If Landlord consents to any Transfer, Tenant shall in consideration
therefor pay to Landlord, as Additional Rent:
(i) in the case of an assignment, an amount equal to 50% of
all sums and other consideration paid to Tenant (minus all reasonable tenant
improvement costs, architectural and engineering fees, brokerage fees and legal
fees incurred by Tenant in connection therewith) by or for the account of the
assignee for or by reason of such assignment (including, but not limited to,
sums paid for the sale of Tenant's fixtures, leasehold improvements, equipment,
furniture, furnishings or other personal property, less, in the case of a sale
thereof, the then "book" of fair market value thereof determined on the basis of
reasonable assumptions satisfactory to Landlord); and
(ii) in the case of a sublease, 50% any rents, additional
charges or other consideration payable under the sublease to Tenant (minus all
reasonable tenant improvement costs, architectural and engineering fees,
brokerage fees and legal fees incurred by Tenant in connection therewith) by the
subtenant, the aggregate of which exceeds the Annual Net Rent and Additional
Rent accruing during the term of the sublease in respect of the subleased space
(at the rate payable by Tenant) under this Lease (including sums paid for the
sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of the sale thereof,
then "book" or fair market value thereof, determined on the basis of reasonable
assumptions satisfactory to Landlord).
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The sums payable under this Section 17.9 shall be paid to Landlord as and when
paid by the Transferee to Tenant.
17.10 Landlord's consent to any Transfer shall not be deemed or construed
to modify, amend or affect the terms and provisions of this Lease, or Tenant's
obligations hereunder, which shall continue to apply to all of the occupants of
the Demised Premises (including Tenant and the Transferee) in addition to the
terms of the sublease or assignment and, if and to the extent of a conflict
between this Lease and the sublease or assignment, only as between Landlord, on
the one hand, and Tenant and the Transferee, on the other, this Lease shall be
controlling in the same manner as if the Transfer had not been made.
Notwithstanding any Transfer, Tenant shall remain fully liable for the payment
of Annual Net Rent and Additional Rent and for the performance by Tenant of all
of its other obligations under this Lease. If Tenant defaults in the payment of
any rent, Landlord is authorized to collect any rents due or accruing from any
Transferee or other occupant of the Demised Premises and to apply the net
amounts collected to the Total Rent, and the receipt of any such amounts by
Landlord from a Transferee or other occupant of the Demised Premises, shall not
be deemed or construed as releasing Tenant from Tenant's obligations under this
Lease or the acceptance of that Transferee as a direct tenant.
17.11 In each subletting permitted by this Article 17, and in each further
subletting with the consent of Landlord, Tenant shall include, or cause to be
included, in the sublease a provision prohibiting the assignment of the sublease
or subletting thereunder without the consent of the Landlord (which Landlord may
withhold in its sole but reasonable discretion) in each instance obtained. If
the sublease or any sublease is assigned or further sublet without the consent
of Landlord obtained in each instance, then Tenant shall immediately terminate
such sublease, or arrange for the termination thereof, and proceed expeditiously
to have the occupant thereunder dispossessed.
17.12 In no event shall Tenant allow the Demised Premises to be occupied
by a total of more than four (4) tenants (including Tenant) per wing of the
Building (pro-rated for any partial wing).
17.13 If Tenant requires expansion space at any time during the Term and
Landlord is willing to lease to Tenant the amount of space required by Tenant,
substantially equal in size and configuration and competitive with respect to
rents as other space that maybe available at the Building by sublease or
assignment, then Tenant shall not become the sublessee or assignee of any other
tenant in the Building or an occupant of any of such tenant's space without
Landlord's consent.
ARTICLE 18
EMINENT DOMAIN
18.1 If the whole of the Demised Premises, or such part thereof as will
render the remainder untenantable, shall be acquired or condemned for any public
or quasi-public use or purpose, this Lease shall end as of the date of the
vesting of title in the condemning authority (either through court order or by
voluntary conveyance by Landlord in lieu of condemnation) with the same effect
as if said date were the Expiration Date. If only a part of the Demised Premises
shall be so acquired or condemned, then, except as otherwise provided in this
Article, this Lease and the Term shall continue in force and effect but from and
after the date of the vesting of title, the Annual Rent shall be an amount which
bears the same ratio to the Annual Rent payable immediately prior to such
condemnation pursuant to this Lease as the value of the untaken portion of the
Demised Premises (appraised after the taking and repair of any damage to the
Building pursuant to this Section) bears to the value of the entire Demised
Premises immediately before the taking and any additional rent payable or
credits receivable pursuant to Article 3 shall be adjusted to reflect the
diminution of the Demised Premises. The value of the Demised Premises before and
after the taking shall be determined for the purposes of this Section by an
independent appraiser, said appraiser shall be chosen by arbitration pursuant to
Article 37. If only a part of the Building shall be so acquired or condemned,
then (a) whether or not the Demised Premises shall be affected thereby,
Landlord, at Landlord's sole option, may give to Tenant, within sixty (60) days
next following the date upon which Landlord shall have received notice of
vesting of title, thirty (30) days' notice of termination of this Lease, and (b)
if the part of the Building so acquired or condemned shall contain more than
twenty-five percent (25%) of the total area of the Demised Premises immediately
prior to such acquisition or condemnation, or if, by reason of such acquisition
or condemnation, Tenant no longer has reasonable means of access to the Demised
Premises, Tenant may give to Landlord, within sixty (60) days following the date
upon which Landlord shall have received notice of vesting of title, thirty (30)
days' notice of termination of this Lease. Any dispute concerning the exercise
by Landlord or Tenant of an option to terminate this Lease pursuant to this
Section 18.1 shall be submitted to arbitration pursuant to Article 37 below. In
the event any such thirty (30) days notice of termination is given by Landlord
or Tenant, this Lease shall terminate upon the expiration of said thirty (30)
days with the same effect as if the date were the Expiration Date. If that part
of the Demised Premises shall be so acquired or condemned, and the Lease shall
not be terminated pursuant to the provisions of this Section, Landlord, at
Landlord's expense, shall restore that part of the Demised Premises not so
acquired or condemned to a self-contained rental unit. In the event of any
termination of this Lease pursuant to the provisions of this Section, the Annual
Rent and additional rent shall be apportioned as of the date of such termination
and any prepaid portion of Annual Net Rent and additional rent for any period
after such date shall be refunded by Landlord to Tenant.
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18.2 In the event of any such acquisition or condemnation of all or any
part of the Building, Landlord shall be entitled to receive the entire award for
any such acquisition or condemnation. Tenant shall have no claim against
Landlord or the condemning authority for the value of any unexpired portion of
the Term and Tenant hereby expressly assigns to Landlord all of its right, title
and interest in and to any such award, and also agrees to execute any and all
further documents that may be required in order to facilitate the collection
thereof by Landlord. Nothing contained in this Section shall be deemed to
prevent Tenant from making a separate claim in any condemnation proceedings for
any moving expenses and for the value of any Tenant's Personal Property which
would be removable at the end of the Term pursuant to the provisions of Section
12.6 hereof.
18.3 If the temporary use or occupancy of all or any part of the Demised
Premises shall be condemned or taken for any public or quasi-public use or
purpose during the Term, this Lease shall be and remain unaffected by such
condemnation or taking and Tenant shall continue responsibility for all of its
obligations hereunder and it shall continue to pay the rent in full. In the
event of any such condemnation or taking, Tenant shall be entitled to appear,
claim, prove, and receive the entire award unless the period of temporary use or
occupancy extends beyond the Expiration Date, in which event Landlord shall be
entitled to appear, claim, prove, and receive the entire award as represents the
cost of restoration of the Demised Premises and the balance of any such award
shall be apportioned between Landlord and Tenant as of the Expiration Date. At
the termination of such public or quasi-public occupancy prior to the Expiration
Date, Tenant will, at its own expense, restore the Demised Premises as nearly as
possible to the condition in which they were prior to the condemnation or
taking, provided, however, that Tenant shall have no obligation to expend any
sum in excess of the condemnation proceeds received by Tenant under this Section
18.3 to restore the Demised Premises in accordance with this Section.
Notwithstanding the preceding provisions of this Section, any lump sum award
received by Tenant as compensation for temporary use and occupancy of the
Demised Premises shall be delivered forthwith to Landlord to be held by Landlord
in trust for the making of payments by Tenant as provided in this Lease.
18.4 If the grade of any street upon which the Building is situated or
abuts shall be changed by any competent authority, this Lease shall nevertheless
continue in full force and effect, and Landlord shall be entitled to collect
from such authority the entire award that may be made in such proceedings.
Tenant hereby expressly assigns to Landlord all of its right, title, and
interest in or to every such award and also agrees to execute any and all
further documents that may be required in order to facilitate the collection
thereof by Landlord.
18.5 Landlord will endeavor to give Tenant notice of any condemnation that
would affect the Demised Premises as soon as Landlord becomes aware of the same.
ARTICLE 19
ACCESS TO DEMISED PREMISES, CHANGES
19.1 (a) Tenant shall permit Landlord to erect, use and maintain pipes,
ducts and conduits (collectively referred to as "Conduits"), in addition to
those Conduits that are in place on the Commencement Date, in and through the
Demised Premises if the Conduits are installed adjacent to or concealed behind
walls and ceilings. To the extent reasonably practicable, Landlord shall install
the Conduits by such methods and at such locations as will not materially
interfere with or impair Tenant's layout or use of the Demised Premises.
(b) Landlord and its agents and designees shall have the right to
enter the Demised Premises as follows:
Upon notice (except in emergencies or in circumstances which do not
permit the giving of such notice, in either of which cases no notice shall be
required) to Tenant or to any authorized employee of Tenant at the Demised
Premises, at reasonable times during business hours, for the following purposes:
(1) To make such repairs and Alterations as Landlord deems
necessary or which Landlord is required or has the right to make under this
Lease or under any other lease in the Building. Landlord may take all materials
into and upon the Demised Premises that are required for those repairs,
alterations or the construction work at such time as those materials are
required.
(2) To inspect the Demised Premises.
(3) To exhibit the Demised Premises to prospective purchasers
or lessees of the
28
Building or of any interest in the Building or to prospective mortgagees, or to
the holder of any mortgage on either or both of the Land and the Building.
(4) To comply with all Laws.
(5) To comply with the request to enter the Demised Premises
of any receiver, trustee, assignee for the benefit of creditors, sheriff,
xxxxxxxx or a bearer of a court order, who Landlord reasonably believes is
entitled to enter the Demised Premises (but that compliance shall not be deemed
a recognition by Landlord that the person or official requesting the entry has
any right, interest or authority).
(6) To comply with the demand of any agency, department or
bureau of any government.
Landlord's entry into the Demised Premises pursuant to this Section
19.1 shall be at Landlord's risk to the extent provided in Section 15.9(c)
hereof.
(c) The exercise by Landlord of any right described in this
Section 19.1 shall not constitute a total or partial eviction of Tenant, and
shall not entitle Tenant to xxxxx its Total Rents or to make any claim against
Landlord by reason of that exercise or by reason of interruption of Tenant's
business, or otherwise. In exercising its rights under this Section 19.1,
Landlord will use reasonable diligence in order to minimize disturbance to
Tenant, but Landlord shall not be required to exercise its rights in such manner
as will result in its paying overtime or premium pay to employees.
19.2 Landlord may change the arrangement or location of parking areas,
common areas, sidewalks, public entrances, passageways, doors, doorways,
corridors, elevators, stairways, toilets or other parts of the Building or the
Project, except that the Landlord may not cut off access to the Building and
shall not unreasonably obstruct access to, or unreasonably interfere with
Tenant's use or enjoyment of, the Demised Premises. The exercise by Landlord of
any right described in this Section 19.2 shall not constitute a total or partial
eviction of Tenant, and shall not entitle Tenant to xxxxx its Total Rents or to
make any claim against Landlord.
19.3 Neither this Lease nor any use by Tenant of any public area or
convenience will give Tenant any right or easement for that use, and Landlord
may regulate or discontinue that use without notice to Tenant at any time and
from time to time without liability to Tenant and without affecting Tenant's
obligations under this Lease.
19.4 Twelve months before the expiration of the Term, Landlord, upon prior
oral notice, may exhibit the Demised Premises to prospective tenants during
Business Hours.
19.5 If Tenant or any authorized employee of Tenant is not personally
present to permit entry into the Demised Premises at any time when entry into
the Demised Premises is necessary by reason of emergency, then Landlord and
Landlord's agents may forcibly enter the Demised Premises without rendering
Landlord or its agents liable for such entry (if Landlord and Landlord's agents
accord reasonable care to Tenant's property) and without in any manner affecting
this Lease.
ARTICLE 20
DEFAULT
20.1 This Lease and the term and estate granted by this Lease are subject
to the limitation that if (a) Tenant makes an assignment of Tenant's property
for the benefit of creditors, or (b) Tenant files a voluntary petition under any
bankruptcy or insolvency law (either, a "Creditor's Law"), or (c) an involuntary
petition alleging an act of bankruptcy or insolvency is filed against Tenant
under a Creditor's Law, or (d) a petition is filed by or against Tenant under
the reorganization provisions of any Creditor's Law, or (e) a petition is filed
by Tenant under the arrangement provisions of any Creditor's Law, or (f) a
petition by Tenant under the arrangement provisions of any Creditor's Law, or
(g) a permanent receiver of Tenant or for Tenant's property is appointed, then
in any of those six events Landlord may (i) if the event occurs with the consent
or acquiescence of Tenant, at any time after Landlord becomes aware or receives
notice of the occurrence, or (ii) if the event occurs without Tenant's consent
or acquiescence, at any time after the event continues for 60 days, give to
Tenant a notice of intention to end the Term at the expiration of five business
days from the date of service of Landlord's notice of intention, and at 5:00
P.M. on the last day of the five business day period, this Lease and the Term
and estate granted by this Lease, whether or not the Term has commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 22.
20.2 If any of the following events (each, an "Event of Default") occurs,
then Landlord may give to Tenant a notice of intention to end the Term in which
event, this Lease and the Term and the estate granted by this Lease,
29
whether or not the Term has commenced, will terminate at 5:00 p.m. on the day
specified in Landlord's notice to Tenant, with the same effect as if that time
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 22:
(a) If Tenant defaults in any scheduled payment of any of the Total
Rents for more than five (5) days after the day on which the payment is due
(provided that Landlord shall be required to give to Tenant, not more than two
(2) times in any twelve (12) month period, written notice that any payment was
not made when due, and Tenant shall have five (5) days after receipt thereof to
make such payment, before this Section 20.2(a) shall be deemed violated,
provided that in no event shall Landlord be required to provide any such written
notice in consecutive months), or in the payment of any non-scheduled payment of
Total Rents for more than fifteen (15) days after demand from Landlord.
(b) If Tenant defaults in the performance of any obligation under
Article 11 and if that default is not cured by Tenant within five (5) days after
Landlord has given to Tenant a notice specifying the default, except if the
default under Article 11 is materially interfering with other tenants in the
Building, then the cure period shall be one (1) business day, and if the default
under Article 11 involves a criminal violation, then the cure period shall be
twenty-four (24) hours.
(c) If this Lease or the Term or the estate granted by this Lease
would or does by operation of law or otherwise devolve upon any person or entity
other than Tenant, except in accordance with Article 17.
(d) if Tenant legally abandons the Demised Premises in violation of
any provision of this Lease.
(e) If Tenant does or permits anything (other than as provided in
paragraphs (a) and (b) of this Section 20.2) to be done or to exist, whether by
action or inaction, in violation of any of Tenant's obligations under this
Lease, and Tenant fails to remedy that violation within 15 days after Landlord
has given to Tenant a notice specifying the violation, except that (i) if the
violation cannot be completely remedied within the period of 15 days, and (ii)
the continuation of the violation for the period that Landlord reasonably
estimates is required to completely remedy the violation will not (x) subject
Landlord to the payment of any fine or penalty or to criminal prosecution or
subject either or both of the Land and Building to lien or sale, or (y) result
in a violation of, or the termination of, any mortgage or any ground or
underlying lease, and (iii) within the 15-day period, Tenant notifies Landlord
of Tenant's intention to completely remedy the violation with due diligence, and
(iv) within the 15-day period Tenant commences and thereafter diligently and
continuously takes all steps necessary to completely remedy the violation and
does completely remedy the violation within such time after the date of
Landlord's notice as reasonably is necessary, then Landlord shall not have the
right to give the notice of termination to end the Term as described in this
Section 20.2.
ARTICLE 21
RE-ENTRY BY LANDLORD, INJUNCTION
21.1 If (a)an Event of Default occurs, or (b) this Lease terminates, as is
provided in Article 20, then Landlord and Landlord's agents and employees may at
any time after the end of the five-day period or after the termination, as the
case may be, re-enter all or any part of the Demised Premises, by summary
dispossess proceedings or by any action or proceeding at law (a "Re-entry")
without Landlord's being liable to indictment, prosecution or damages as a
result of the Re-entry, so that upon the Re-entry Landlord will have, hold and
enjoy the Demised Premises free of any rights of Tenant under this Lease. In the
event of any termination of this Lease pursuant to Article 20 or pursuant to any
summary dispossess or other proceedings or action or any provision of law by
reason of Tenant's default (an "Early Termination") or in the event of a
Re-entry, Tenant shall pay to Landlord the Total Rents that are payable by
Tenant to Landlord up to the time of the Early Termination or Re-entry, as the
case may be, and in addition, shall pay to Landlord damages as provided in
Article 22.
21.2 In case of a breach or a threatened breach by Tenant of this Lease,
Landlord shall have the right of injunction. Special remedies to which Landlord
may resort under this Lease are cumulative and are not intended to be exclusive
of any other remedy or means of redress to which Landlord lawfully may be
entitled, and Landlord may invoke any one or more remedies and means of redress
allowed at law or in equity in the same manner and to the same extent as if
specific remedies were not provided for in this Lease.
21.3 If an Early Termination or a Re-entry occurs, then in either of those
events, Landlord may retain all monies that have been paid by Tenant to
Landlord, whether as advance rent, security or otherwise, and Landlord shall
credit those monies against the payment of any amounts of the Total Rents that
are due at the time of the Early Termination or the Reentry, or against the
payment of any damages that are payable by Tenant under Article 22 or pursuant
to Law.
21.4 Tenant, for itself and on behalf of any person claiming through or
under it, including creditors of all
30
kinds, waives any and all rights of redemption granted under any present or
future Laws if Tenant is being evicted or dispossessed for any cause, or if
Landlord obtains possession of the Demised Premises by reason of a violation by
Tenant of this Lease or otherwise.
ARTICLE 22
DAMAGES
22.1 (a) In the event of an Early Termination or a Re-entry, Tenant shall
pay to Landlord as damages, as Landlord elects, either:
(x) An amount which, on the date of Early Termination or
Re-entry, as the case may be (each of which date is referred to as the
"Termination Date"), equals the aggregate of the Total Rents which would have
been payable by Tenant during the period (the "Default Period") commencing on
the Termination Date and ending on the Expiration Date (conclusively presuming
that all items constituting Additional Rent increase during the Default Period
at a rate that is equal to the average of the rate of increase of those items
that occurred during the shorter of the period from the Commencement Date to the
Termination Date or the three years immediately preceding the Termination Date),
discounted to present worth at the rate of 9% per annum, or
(y) sums that are equal to the Total Rents which would have
been payable by Tenant had this Lease not so terminated or had the Re-entry not
occurred, which shall be paid by Tenant upon the due dates specified in this
Lease that occur during the Default Period, except that if Landlord relets all
or any part of the Demised Premises during the Default Period, then Landlord
shall credit Tenant with the net rents (after deduction of the expense of
reletting referred to in Section 22.1(b)) if, as and when those rents are
received by Landlord from the reletting. Any reletting may be for a period
shorter or longer than the remaining Term. Tenant shall not be entitled to
receive any excess of the rents collected under the reletting over the Total
Rents, or to a credit in respect of any rents from a reletting, except to the
extent that those rents actually are received by Landlord. Landlord shall have
no obligation to take any action to collect any rents under the reletting, but
if Landlord does take any such action, then the amount of the credit to be given
by Landlord to Tenant shall be reduced by the costs incurred by Landlord in
taking that action. If all or any part of the Demised Premises are relet in
combination with space that is not included within the Demised Premises, then
the rent received from that reletting and the expenses of the reletting shall be
apportioned to the portion of that space that is within the Demised Premises in
the percentage that the area of the Demised Premises within that space bears to
the total area of that space.
(b) In addition to all damages recoverable under Section 22.1(a),
Tenant shall pay to Landlord as damages an amount that is equal to the expenses
incurred by Landlord in terminating this Lease or in respect of a Re-entry and
in securing possession of the Demised Premises, including attorneys' fees and
disbursements, expenses of reletting including altering and preparing the
Demised Premises for new tenants, brokers' commissions and attorneys' fees and
disbursements, rent concessions and all other expenses properly chargeable in
respect of the Demised Premises and the rental thereof.
(c) If all or any part of the Demised Premises is relet upon an
arm's-length basis for all or any part of the Default Period, then the amount of
rent provided for upon that reletting shall be conclusively presumed to be the
fair and reasonable rental value for the area so let. No such reletting shall
constitute, surrender or an acceptance of a surrender.
22.2 Landlord may xxx for the recovery of damages under this Article 22 or
any installments on account thereof at any time and from time to time at its
election. Landlord shall not be required to postpone suit until the Expiration
Date. Nothing contained in this Article 22 shall be construed (a) to limit or
preclude recovery by Landlord from Tenant of any sums or damages to which, in
addition to the damages described in Section 22.1, Landlord would lawfully be
entitled by reason of Tenant's default, or (b) to limit or prejudice Landlord's
right to prove for and obtain as liquidated damages by reason of the Early
Termination of this Lease or a Re-entry, an amount that is equal to the maximum
allowed by any Law in effect at the time when, and governing the proceedings in
which, those damages are to be proved, whether or not the amount is greater or
less than any of the amounts referred to in Section 22.1.
22.3 If Tenant fails to pay when due any installment of Annual Net Rent or
any payments of Additional Rent, then Tenant shall pay a late charge of $.05 for
each $1.00 of such installment or payment. The late charges imposed hereunder
are intended to compensate Landlord for additional expenses incurred by Landlord
in processing such late payments. Nothing herein contained shall be intended to
violate any applicable law, code or regulation, and all instances all such
changes shall be automatically reduced to any maximum applicable legal rate or
charge. Such charge shall be imposed monthly for each month that a late payment
is not made.
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ARTICLE 23
RIGHTS TO PERFORM THE OTHER PARTIES OBLIGATIONS
23.1 If Tenant defaults in the performance of this Lease, then Landlord
may, but shall not be obligated to, take such action (the "Remedial Action")
which, if it had been taken by Tenant, would remedy that default (a) immediately
and without notice to Tenant in case of emergency, and (b) in any other case if
Tenant has failed to remedy the default with all reasonable dispatch within the
applicable grace period for curing the default. The taking of the Remedial
Action by Landlord shall not constitute a waiver by it of the default. If
Landlord makes any expenditure or incurs any obligation for the payment of money
in connection with taking the Remedial Action or otherwise in connection with
the default, including reasonable attorneys' fees in instituting, prosecuting,
or defending any action or proceeding, then Tenant shall pay the amount thereof
to Landlord, with interest at the Interest Rate from the date of Landlord's
expenditure until the date of Tenant's payment, upon receipt of Landlord's
invoice therefor.
23.2 If Landlord defaults in the payment of any portion of the Tenant
Improvement Allowance (as defined in Section 2.1 of Schedule D attached hereto)
or fails to make any other payment of money due to Tenant under this Lease in
excess of $25,000.00, and if Landlord has failed to remedy the default within
thirty (30) days after written notice of the default, then Tenant shall have the
right to offset the unpaid amount against up to twenty-five (25%) percent of
monthly Annual Net Rent installments next becoming due and owing under this
Lease, until Tenant has been reimbursed in full for such amount, provided,
however, if, within such thirty (30) day period, Landlord disputes Tenant's
right to offset or the amount thereof and if such dispute is not resolved within
such thirty (30) day period, Tenant, instead of setting off rent, shall pay the
amounts which would otherwise be set off into escrow with a mutually acceptable
escrowee, and the dispute shall be resolved through arbitration as provided in
Article 37 hereof. If neither Landlord nor Tenant submits a dispute as to
Tenant's right of offset or the amount thereof to arbitration, pursuant to
Article 37 hereof, within fifteen (15) days after the expiration of said thirty
(30) day period, then Landlord's dispute shall be deemed abandoned.
ARTICLE 24
DEFINITIONS
24.1 The term "Landlord" as used in this Lease means only the owner, or
the mortgagee in possession, for the time being of the Project (or the lessee
under a lease of the Project). Accordingly, if (a) title to the Project or to
the lessee's interest under such a lease is transferred, or (b) a lease of the
Project is entered into by Landlord or any successor to Landlord, then upon
notification to Tenant of the transfer or lease the transferor (whether it is
Landlord or any successor of Landlord) shall be freed and relieved of all
obligations of Landlord under this Lease with respect to any period subsequent
to the transfer. It shall be deemed and construed to be a covenant running with
the land without further agreement between the parties or their successors in
interest, or between the parties and the transferee of title to the Project or
any such lessee's interest in a lease of the Project or the lessee of the
Building or of the Land and Building, that the transferee or the lessee has
assumed and agreed to perform the obligations of Landlord under this Lease with
respect to the period from the effective date of the transfer to the effective
date of any subsequent transfer.
24.2 The term "Business Day" shall mean every day other than Saturdays,
Sundays and all days observed by the Federal or Connecticut State government as
legal holidays.
24.3 The term "Business Hours" shall mean the hours of 8:00 A.M. to 6:00
P.M. on Business Days and 8:00 A.M. to 1:00 P.M. on Saturdays.
24.4 "Interest Rate" shall mean a rate per annum equal to the lesser of
(a) 3% above the Prime Rate, and (b) the maximum applicable legal rate, if any.
24.5 "Laws" shall mean laws, statutes and ordinances (including building
codes and zoning regulations, and ordinances) and the orders, rules, and
regulations, directives and requirements of all federal, state, county, city and
borough departments, bureaus, boards, agencies, offices, commissions and other
subdivisions thereof, or of any official thereof, or of any other governmental
public or quasi-public authority, whether now or hereafter in force, which may
be applicable to the Land or Building or the Demised Premises or any part
thereof, or the sidewalks, curbs or area adjacent thereto and all requirements,
obligations and conditions of all instruments of record on the date of this
Lease.
24.6 "Prime Rate" shall mean a rate per annum equal to the prime rate as
announced from time to time by The Chase Manhattan Bank, New York, New York or
any successor thereto.
24.7 The following rules of construction shall apply to this Lease:
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(a) The words "include" and "including" and similar terms shall be
construed as if followed by the phrase "without being limited to."
(b) All references to numbered Articles or Sections are references
to the Articles and Sections of this Lease unless otherwise expressly designated
in context.
(c) Unless other payment dates are provided in the Lease, all
payments of any kind to be made by Tenant to Landlord under this Lease other
than Annual Net Rent (which shall be payable without notice or invoice),
including reimbursements by Tenant to Landlord of costs incurred by Landlord,
shall be payable by Tenant to Landlord upon receipt by Tenant of Landlord's
invoice therefor.
(d) The term "Person" shall include natural persons, firms,
partnerships, corporations and any other public or private legal entity.
(e) The terms "provisions," "terms," "conditions," "covenants,"
"requirements," "obligations" and other words of similar import shall be deemed
to include all of those terms, where the context so permits.
(f) The term "this Lease" shall be deemed to include all of the
provisions of this Lease.
(g) In any instance in which consent or approval by Landlord is
required under this Lease, it shall be deemed to be preceded by the word
"prior."
(h) The terms "failure," "violation," "default," "breach" and words
of similar import shall be deemed to include all of those terms where the
context so permits.
(i) The terms "costs," "expenses," "obligations," "liabilities" and
words of similar import shall be deemed to include all of those terms where the
context so permits.
(j) The use of the singular or the plural shall be deemed to include
the plural and the singular, as the case may be, where the context so permits.
(k) The use of the conjunctive shall be deemed to include any, both
or all of the terms which are joined, where the context so permits.
24.8 No right or requirement of inspection, consent or approval that is
given to Landlord or is required to be obtained by Tenant under this Lease and
no making of any inspection or granting of any consent or approval by Landlord
shall constitute (a) a release of Tenant from any obligation that it has under
this Lease, or (b) a warranty, guarantee, or assurance by Landlord regarding (i)
the subject of the inspection, consent or approval, or of results thereof, or
(ii) the conformity with law or with this Lease of the subject matter of the
inspection, approval or consent. Tenant shall have no right to rely upon any
such inspection, approval or consent as an assurance of conformity with any
requirement imposed on Tenant in performing its obligations under this Lease.
ARTICLE 25
INVALIDITY OF ANY PROVISION
25.1 If any provision of this Lease or the application thereof to any
circumstance or to any person is invalid or unenforceable to any extent, the
remaining provisions of this Lease or the application thereof to any
circumstance or to any person other than that as to which any provision is held
invalid or unenforceable, shall not be affected thereby and each remaining
provision of this Lease shall be valid and shall be enforceable to the fullest
extent permitted by law.
ARTICLE 26
BROKERAGE
26.1 Landlord and Tenant each represents to the other that it has had no
dealings or communications with any brokers or agents other than Xxxxxxx &
Xxxxxxxxx of Connecticut, Inc. in connection with the consummation of this Lease
and the prior negotiation thereto and Landlord represents that it has no
existing brokerage agreements with any other real estate brokers with respect to
this Lease. Landlord shall pay a commission to Xxxxxxx & Wakefield of
Connecticut, Inc. to the extent earned and payable pursuant to a separate
Commission Agreement. Landlord and Tenant agree to pay, hold harmless and
indemnify the other from and against any and all claims, losses, costs, expenses
(including reasonable attorneys' fees) and
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liability for any compensation, commissions or charges claimed by any broker or
agent, other than the brokers set forth in this Section 26.1 with respect to
this Lease or the negotiation thereof.
ARTICLE 27
CERTIFICATE OF TENANT AND LANDLORD
27.1 Each party will, at any time and from time to time, as requested by
the other party, upon not less than ten days' prior notice, execute and deliver
to the other a statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that this Lease is in
full force and effect as modified and stating the modifications), certifying the
dates to which the Annual Net Rent and the Additional Rent have been paid, and
stating whether, to the best knowledge of the signer, the other party is in
default in performance of any of its obligations under this Lease, and, if so,
specifying each such default, it being intended that any such statement
delivered pursuant hereto may be relied upon by others with whom the party
requesting such certificate may be dealing.
27.2 Except for the first month's rent hereunder, Tenant will pay no rent
under this Lease more than 30 days in advance of its due date, if so restricted
by any existing or future ground or underlying lease or mortgage to which this
Lease is subordinated or by an assignment of this Lease to the ground or
underlying lessor or the holder of such mortgage, and Tenant will not exercise
any right to terminate this Lease or to remedy any default by Landlord and
deduct the cost thereof from the Total Rents until Tenant has given notice of
that default to the ground or underlying lessor and to the holder of any
mortgage on the fee or the ground or underlying lease who has furnished such
lessor's or holder's last address to Tenant, and until a reasonable period for
remedying the default has elapsed following the giving of such notices, during
which time such lessor or holder shall have the right, but shall not be
obligated, to remedy the default, provided that if any such lessor or holder
does not remedy a default within the time periods provided for in this Lease,
then Tenant may exercise any of its rights under this Lease, except that Tenant
shall not exercise any right to terminate this Lease if the holder of any
mortgage or such lessor commences to cure the default within a reasonable time
and diligently prosecutes the cure.
ARTICLE 28
LEGAL PROCEEDINGS; WAIVER OF JURY TRIAL; PREJUDGMENT REMEDY
28.1 Landlord and Tenant each waives trial by jury in any action brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Demised Premises, and any
other claims (except claims for personal injury or property damage), and any
emergency statutory or any other statutory remedy. If Landlord commences any
summary proceeding for nonpayment of rent, then Tenant will not interpose any
counterclaim in any such action. 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 Section 52-278a of
the Connecticut General Statutes, as amended, 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 Demised 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.
ARTICLE 29
SURRENDER OF PREMISES
29.1 Upon the expiration or other termination of the Term, Tenant shall
(a) quit and surrender to Landlord the Demised Premises, broom clean, in good
order and condition, ordinary wear and tear and damage by casualty excepted, (b)
remove all of its property as herein provided, and (c) remove Alterations, to
the extent required under Section 12.5 hereof. Tenant's obligation to observe or
perform this covenant shall survive the Termination.
29.2 If Tenant fails to surrender possession of the Demised Premises upon
Termination, then Landlord may elect, by notice to Tenant, to treat Tenant as a
holdover upon a month to month basis at a rent equal to the greater of (a) the
then current fair market rental value of the Demised Premises, or (b) 150% the
Annual Net Rent and Additional Rent per month which Tenant was required to pay
during (or in the case of Additional Rent, on account of or attributable to) the
calendar month immediately prior to Termination for the first two (2) months of
any such holdover, and 200% of such Annual Net Rent and Additional Rent for any
holdover thereafter. If the Demised Premises are not surrendered upon
Termination, then Tenant shall indemnify and hold harmless Landlord against and
from any loss, costs, liability or expenses (including attorneys'
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fees) resulting from the failure to surrender, including any claims made by any
succeeding lessee founded upon such delay. Nothing contained in this Section
29.2 shall be deemed to give to Tenant any right to fail to surrender possession
or to hold over, and the provisions of this Section 29.2 shall not constitute an
offer to rent on a month-to-month basis or at the rent set forth above.
29.3 If the last day of the Term falls on a Sunday or a legal holiday then
this Lease shall end on the immediately preceding Business Day. If Tenant has
removed all of its personnel and all or substantially all of us property from
the Demised Premises or any full floor constituting a part of the Demised
Premises at any time during the last month of the Term, then upon that removal
Landlord may enter and alter, renovate and redecorate the Demised Premises or
any vacated full floor, without elimination, diminution or abatement of rent, or
incurring any liability to Tenant, and such acts by Landlord shall have no
effect upon this Lease.
ARTICLE 30
RULES AND REGULATIONS
30.1 Tenant and Tenant's servants, employees, agents, visitors and
licensees shall observe faithfully and comply strictly with the Rules and
Regulations set forth in Schedule G attached hereto and made part hereof and
such other and further reasonable Rules and Regulations as Landlord or
Landlord's agents may from time to time adopt (together, the "Rules and
Regulations"). If there is any conflict or inconsistency between the provisions
of this Lease and any of the Rules and Regulations, the provisions of this Lease
shall control. Reasonable written notice of any change in the Rules and
Regulations shall be given to Tenant. Landlord shall not enforce the Rules and
Regulations in a manner discriminatory to Tenant.
Nothing in this Lease shall be construed to impose upon Landlord any duty
or obligation to enforce the Rules and Regulations or the provisions of any
other lease, against any other tenant of the Building, and Landlord shall not be
liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees.
ARTICLE 31
CONSENTS AND APPROVALS
31.1 Wherever in this Lease Landlord's consent or approval is required,
such consent or approval shall only be effective if in writing. If Landlord
delays or refuses to give such consent or approval, then Tenant shall not be
entitled to make any claim for money damages (nor shall Tenant claim any money
damages by way of setoff, counterclaim or defense) based upon any claim or
assertion by Tenant that Landlord unreasonably withheld or unreasonably delayed
its consent or approval. Tenant's sole remedy shall be an action or proceeding
for specific performance, to enforce Landlord's obligation, if any, to give such
consent or approval, or for a declaratory judgment.
ARTICLE 32
NOTICES
32.1 Any notice or demand, consent, request, approval or disapproval, or
statement (any of which is referred to as a "Notice") required to be given under
this Lease, or by any Law shall be in writing. Unless otherwise required by Law,
the Notice shall be deemed to have been served and given when the Notice is hand
delivered or mailed enclosed in a securely sealed postpaid wrapper by registered
or certified mail, or by nationally recognized overnight courier providing
evidence of receipt sent priority overnight to Landlord or Tenant, as the case
may be, at the address of such party set forth on page 1 of this Lease Attn:
General Counsel, with a copy to Xxxx, Xxxxxx & X'Xxxx, LLC, 000 Xxxx Xxxxxx,
Xxxxxxxxx, XX 00000-0000 Attn: Xxxxxx X. Xxxxxxxxx, Esq.. Notices to Landlord
shall be also addressed to the attention of the building manager at the Property
and to Landlord's corporate offices at 00 Xxxxxxxx Xxxx Xxxxxx, Xxxxxxxx, XX
00000, to the attention of President, Real Estate Group, with a copy of all such
notices to Landlord to be sent to Rogin, Nassau, Xxxxxx, Xxxxxxx & Xxxxxx, LLC,
CityPlace 1, 22nd Floor, Hartford, CT 06103 Attn: Xxxxx X. Xxxxxxx, Esq. After
Tenant occupies the Demised Premises, the address of Tenant for Notices shall be
the Building. Either party, by a Notice, may designate a different address or
addresses for Notices.
32.2 Either Landlord or Tenant may, from time to time, request in writing
that the other party serve a copy of any Notice on one person designated in the
request, in addition to Landlord or Tenant, as the case may be, service to be
effected as provided in Section 32.1.
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ARTICLE 33
NO WAIVER
33.1 No agreement to accept the surrender of this Lease shall be valid
unless in writing signed by Landlord. No employee of Landlord or of Landlord's
agents shall have any power to accept the keys to the Demised Premises before
Termination. The delivery of keys to any employee of Landlord or of Landlord's
agents shall not operate as a Termination or a surrender of the Demised
Premises. If Tenant desires to have Landlord sublet all or any portion of the
Demised Premises for Tenant's account, then Landlord or Landlord's agents are
authorized to receive the keys for that portion of the Demised Premises intended
to be sublet without releasing Tenant from any of its obligations under this
Lease, and Tenant releases Landlord from any liability for loss or damage to any
of Tenant's property in connection therewith.
33.2 Landlord's failure to seek redress for violation of, or to insist
upon the strict performance of, this Lease, or any of the Rules and Regulations,
shall not prevent a subsequent act by Tenant, which would originally have
constituted a violation or failure strictly to perform by Tenant, from having
all the force and effect of an original violation. Landlord's failure to enforce
any of the Rules and Regulations against Tenant or any other tenant in the
Building shall not be deemed a waiver of any of the Rules and Regulations. The
receipt by Landlord of any of the Total Rents with knowledge of the breach of
this Lease by Tenant shall not be deemed to be a waiver of that breach. No
provision of this Lease shall be deemed to have been waived by Landlord, unless
such waiver is in writing signed by Landlord.
33.3 No payment by Tenant or receipt by Landlord at any time of any amount
on account of Annual Net Rent or Additional Rent that is less than the amount of
either that is due at that time shall be deemed to be other than on account of
such unpaid amounts of the Total Rents as Landlord may determine in accordance
with Section 38.8. No endorsement by Landlord of a check for or acceptance by
Landlord of any payment on account of the Total Rents shall be deemed to be an
accord and satisfaction, and Landlord may accept any such check or payment in a
lesser amount than is due without prejudice to Landlord's right to recover the
balance of the Total Rents and to pursue any other remedy under this Lease. The
receipt and retention by Landlord of payments on account of the Total Rents from
any person other than Tenant shall not be deemed to be a waiver of any provision
of this Lease to be performed by Tenant or the acceptance of such person as a
lessee or the release of Tenant from its further performance of this Lease.
33.4 This Lease contains the entire agreement between the parties, and any
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of it, in whole or in part, unless such agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
ARTICLE 34
CAPTIONS
34.1 The captions in this Lease are inserted only as a matter of
convenience and for reference, and in no way define, limit or describe the scope
or the intent of any provision of this Lease.
ARTICLE 35
INABILITY TO PERFORM
35.1 If, by reason of (a) strike, (b) labor troubles, (c) governmental
preemption in connection with a national emergency, (d) any rule, order or
regulation of any governmental agency, (e) conditions of supply or demand which
are affected by war or other national, state or municipal emergency, or any
other cause or (f) any cause beyond Landlord's reasonable control, Landlord is
unable to perform or is delayed in performing any of its obligations under this
Lease or is unable to supply or is delayed in supplying any service which
Landlord is obligated to supply, then Landlord shall have no liability in
connection with that inability and this Lease and Tenant's obligation to perform
all of Tenant's obligations under this Lease shall in no way be affected,
impaired or excused. Tenant shall similarly be excused for delay in the
performance of obligations hereunder provided:
(a) nothing contained in this Section 35.1 or elsewhere in this
Lease shall be deemed to excuse or permit any delay in the payment of any sums
of money required hereunder, or any delay in the cure of any default which may
be cured by the payment of money;
(b) no reliance by Tenant upon this Section 35.1 shall limit or
restrict in any way Landlord's right of self-help as provided in this Lease; and
(c) Tenant shall not be entitled to rely upon this Section 35.1
unless it shall advise Landlord in writing, of the existence of any force
majeure preventing the performance of an obligation of Tenant within five (5)
days after the commencement of the force majeure.
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ARTICLE 36
NO REPRESENTATIONS BY LANDLORD
36.1 Landlord and Landlord's agents have made no representations or
promises with respect to the Building or Demised Premises and Tenant
acknowledges that it has not relied on any representations or promises except as
set forth in this Lease.
ARTICLE 37
ARBITRATION
37.1 In any case specified in this Lease in which resort to arbitration is
required, such arbitration shall be held in Connecticut in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and the
provisions of this Lease. The decision and award of the arbitrators shall be in
writing, shall be final and conclusive on the parties, and counterpart copies
thereof shall be delivered to each of the parties. In rendering the decision and
awards, the arbitrators shall not add to, subtract from or otherwise modify the
provisions of this Lease. Judgment may be had on the decision and award of the
arbitrators so rendered in any court of competent jurisdiction. Each party shall
be responsible for paying all of its own costs (including legal fees and
disbursements) relating to the arbitration.
ARTICLE 38
MISCELLANEOUS
38.1 Irrespective of the place of execution or performance, this Lease
shall be governed by and construed in accordance with the laws of the State of
Connecticut.
38.2 This Lease shall be construed without regard to any presumption or
other rule requiring construction against the party causing this Lease to be
drafted.
38.3 Except as otherwise expressly provided in this Lease, each provision
of this Lease to be performed by Tenant shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent on any other
provisions of this Lease.
38.4 All terms and words used in this Lease, regardless of the number or
gender in which they are used, shall be deemed to include any other number and
any other gender as the context may require.
38.5 Time shall be of the essence with respect to the exercise of any
option granted under this Lease.
38.6 Except as otherwise provided in this Lease, whenever payment of
interest is required by the terms hereof, it shall be at the Interest Rate.
38.7 Tenant shall not record this Lease, at any time. Landlord shall
however, upon request, execute a Notice of Lease that complies with Section
47-19 of the Connecticut General Statutes, which Tenant may then execute and
record in the Wilton Land Records. A violation of this provision shall be deemed
a default under this Lease.
38.8 If Tenant is in arrears in payment of any amount of the Total Rents,
Tenant waives Tenant's right, if any, to designate the items against which any
payments made by Tenant are to be credited, and Landlord may apply any payments
made by Tenant to any items it sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items against which any such payments
shall be credited.
38.9 The provisions of this Lease shall be binding upon and inure to the
benefit of Landlord, Tenant and their respective successors and assigns, except
that no assignment or subletting in violation of the provisions of Article 17
shall operate to vest any rights in any successor assignee or subtenant.
38.10 This Lease shall not be binding upon Landlord unless and until it is
signed by both parties hereto and a signed copy thereof is delivered by Landlord
to Tenant.
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ARTICLE 39
INTENTIONALLY OMITTED
ARTICLE 40
EXTENSIONS OF TERM
40.1 (a) Tenant shall have the right to extend the term of this Lease for
two (2) successive five (5) year terms, the first such extension term to
commence on the date immediately succeeding the Expiration Date and to end on
the last day of the month preceding the month in which occurs the fifth (5th)
anniversary of the Expiration Date (the "First Extension Term"), and the second
such extension term to commence on the day following the expiration of the First
Extension Term and to end on the last day of the month in which occurs the tenth
(10th) anniversary of the Expiration Date (the "Second Extension Term") provided
that:
(i) Tenant shall give Landlord notice (hereinafter called
"First Extension Notice" and "Second Extension Notice", respectively, or an
"Extension Notice") of its election to extend the term of this Lease no less
than fifteen (15) months and no more than twenty-one (21) months prior to (A)
the Expiration Date of the initial term of this Lease with respect to the First
Extension Term; and (B) the expiration date of the First Extension Term with
respect to the Second Extension Term;
(ii) No Event of Default shall exist as of the time of the
giving of the Extension Notice and the commencement date of each extension term,
respectively;
(iii) Tenant shall be in actual occupancy of seventy-five
(75%) percent of the rentable area of the Premises as of the time of the giving
of the Extension Notice and on the commencement date of the First Extension Term
or the Second Extension Term, as the case may be; and
(iv) Tenant shall have no right to extend the term of this
Lease for the Second Extension Term if Tenant has not elected to extend the term
of this Lease for the First Extension Term in accordance with the provisions of
this Article 40.
40.2 The Annual Net Rent for the Premises for the First Extension Term and
the Second Extension Term shall be an amount equal to the greater of (a) the
annual fair market rental value of the Premises (the "Fair Market Rent") on the
date that is fifteen (15) months prior to the commencement date of the First
Extension Term or the Second Extension Term, as the case may be, and (b) the
Annual Net Rent payable by Tenant on the Expiration Date or the expiration date
of the First Renewal Term, as the case may be (the greater value of (a) and (b)
being hereinafter referred to as the "Rental Value"). In determining the Fair
Market Rent hereunder, the arbitrators shall consider all then relevant factors.
Landlord shall notify Tenant of its determination of the Fair Market Rent for
the Premises (each, a "Rent Notice") within thirty (30) days after receipt of an
Extension Notice.
40.3 In the event Tenant gives an Extension Notice in accordance with the
provisions of Section 40.1 hereof and Tenant disagrees with the determination of
Fair Market Rent set forth in the Rent Notice, Tenant shall notify Landlord of
such fact in writing within fifteen (15) days after receipt of a Rent Notice,
and Landlord and Tenant will, within thirty (30) days after Lessee's receipt of
such Rent Notice, use reasonable efforts to mutually agree on the Fair Market
Rent for the Premises. If Landlord and Tenant are unable to agree on the Fair
Market Rent within such thirty (30) day period as aforesaid then either Landlord
or Tenant may initiate the arbitration process provided for herein by giving
notice to that effect to the other, and the party so initiating the arbitration
process (such party hereinafter referred to as the "Initiating Party") shall
specify in such notice the name and address of the person designated to act as
an arbitrator on its behalf. Within fifteen (15) Business Days after the
designation of an arbitrator, the other party (hereinafter referred to as the
"Other Party") shall give notice to the Initiating Party specifying the name and
address of the person designated to act as an arbitrator on its behalf. If the
Other Party fails to notify the Initiating Party of the appointment of its
arbitrator within the time above specified, then the determination of the
arbitrator designated by the Initiating Party shall be conclusive and binding.
The two arbitrators so chosen shall meet within ten (10) Business Days after the
second arbitrator is appointed and if, within ten (10) Business Days after the
second arbitrator is appointed, the two arbitrators shall not agree, they shall
together appoint a third arbitrator. In the event of their being unable to agree
upon such appointment within ten (10) Business Days after the appointment of the
second arbitrator, the third arbitrator shall be selected by the parties
themselves if they can agree thereon within a further period of ten (10)
Business Days. If the parties do not so agree, then either party, on behalf of
both and on notice to the other, may request such appointment by the American
Arbitration Association (or organization successor thereto) in accordance with
its rules then
38
prevailing or if the American Arbitration Association (or such successor
organization) shall fail to appoint said third arbitrator within ten (10)
Business Days after such request is made, then either party may apply, on notice
to the other, to the Superior Court for the judicial district of
Stamford-Norwalk, Connecticut (or any other court having jurisdiction and
exercising functions similar to those now exercised by said Court) for the
appointment of such third arbitrator.
(a) Each party shall pay the fees and expenses of the one of the two
original arbitrators appointed by or for such party, and the fees and expenses
of the third arbitrator and all other expenses (not including the reasonable
attorneys' fees, reasonable witness fees and similar expenses of the parties,
which shall be borne separately by each of the parties) of the arbitration shall
be borne by the parties equally.
(b) Except as otherwise expressly set forth, the majority of the
arbitrators shall determine the Fair Market Rent of the Premises and render a
written report of their determination to both Landlord and Tenant within twenty
(20) Business Days of the appointment of the first two arbitrators or thirty
(30) days from the appointment of the third arbitrator if such third arbitrator
is appointed pursuant to this Section 40.3.
(c) Each of the arbitrators selected as herein provided shall have
at least ten (10) years experience in the leasing and renting of office space in
first-class office buildings or parks in Fairfield County, Connecticut.
(d) In the event Landlord or Tenant initiates the arbitration
process pursuant to this Section 40.3 and as of the commencement date of any of
the Extension Terms the amount of the Fair Market Rent has not been determined,
Tenant shall pay the amount that Tenant was required to pay in the month
immediately preceding such commencement date until such determination has been
made and when such determination has been made, it will be retroactive as of the
commencement date of the applicable Extension Term and any deficiency shall be
paid by Tenant to Landlord within thirty (30) days after the date of such
determination with interest thereon at the Prime Rate and any overpayment shall
be credited by Landlord to Tenant against the next installment(s) of Annual Net
Rent and Additional Rent payable hereunder.
(e) If Landlord notifies Tenant that the Rental Value for the First
or the Second Extension Term shall be the amount set forth in clause (b) of
Section 40.2 hereof, then the provisions of Section 40.3 hereof shall be
inapplicable to such Extension Term and shall have no force or effect for such
Extension Term.
40.4 Except as provided in Section 40.2 hereof, Tenant's occupancy of the
Premises during the Extension Terms shall be on the same terms and conditions as
are in effect immediately prior to the expiration of the initial Term or the
First Extension Term, as the case may be; provided, however, that Landlord shall
not be required to renovate the Premises or provide any allowance therefor, and
after the Second Extension Term Lessee shall have no further right to extend the
term of this Lease pursuant to this Article 40.
40.5 If Tenant does not send an Extension Notice pursuant to the
provisions of Section 40.1 hereof, this Article 40 shall have no force and
effect and shall be deemed deleted from this Lease.
40.6 If this Lease is renewed for the First Extension Term or the Second
Extension Term then in each instance Landlord or Tenant can request the other
party hereto to execute an instrument in form for recording setting forth the
exercise of Tenant's right to extend the term of this Lease and the last day of
the First Extension Term or Second Extension Term, as applicable.
40.7 If Tenant exercises its right to extend the terms of this Lease for
the First Extension Term and/or the Second Extension Term pursuant to this
Article 40, the phrases "the term of this Lease" of "the term hereof" as used in
this Lease, shall be construed to include, when practicable, the First Extension
Term and/or the Second Extension Term, as the case may be.
ARTICLE 41
NEW PROVIDER INSTALLATIONS
41.1 In the event the Tenant wishes at any time to utilize the services of
a telephone or telecommunications provider (a "TSP") whose equipment is not then
servicing the Building, no such TSP shall be permitted to install its lines or
other equipment within the Building without first securing the prior written
approval of the Landlord. Landlord's approval shall not be deemed any kind of
warranty or representation by Landlord, including, without limitation, any
warranty or representation as to the suitability, competence, or financial
strength of the TSP. If all of the following conditions are satisfied, Landlord
shall give its approval: (a) Landlord shall incur no expense whatsoever with
respect to any aspect of the TSP's provisions of its services, including without
limitation, the costs of installation, materials and services; (b) prior to
commencement of any work in or about the Building by the TSP, the TSP shall
supply Landlord with such written indemnities,
39
insurance, financial statements, and such other items as Landlord reasonably
determines to be necessary to protect its financial interests and the interests
of the Building relating to the proposed activities of the TSP; (c) the TSP
agrees in writing to abide by such rules and regulations, building and other
codes, job site rules and such other requirements as are reasonably determined
by Landlord to be necessary to protect the interest of the Building, the tenants
in the Building, and Landlord, in the same or similar manner as Landlord has the
right to protect itself and the Building with respect to proposed Alterations as
described in this Lease, provided that any such rules and regulations are no
more restrictive against Tenant than those imposed on other tenants in the
Building; (d) Landlord reasonably determines that there is sufficient space in
the Building for the placement of all of the TSP's equipment and materials; and
(e) all of the foregoing matters are documented in a written agreement between
Landlord and the TSP, the form and content of which is reasonably satisfactory
to Landlord (a "TSP Agreement").
41.2 The following provisions shall apply to any approved TSP's activities
in the Building:
(a) Prior to installation, Landlord shall have the right to approve
the type, size, height and weight of the TSP's equipment (the "Equipment"). The
Equipment shall only be installed in locations approved by Landlord, which
approval Landlord shall not be unreasonably withheld with respect to locations
within the Demised Premises, and only in accordance with plans and
specifications that have been approved by Landlord. Landlord shall not be deemed
to have unreasonably withheld such consent if no adequate location within the
Demised Premises is available.
(b) Tenant or the TSP shall pay all reasonable out of pocket costs
and expenses incurred by Landlord in reviewing, approving, and supervising the
installation of the Equipment including, without limitation, architects',
engineers' and contractors' fees and expenses, and attorneys' fees for
Landlord's review and drafting of the TSP Agreement. Tenant and the TSP shall be
solely responsible for the cost of installation, operation, maintenance and
repair of the Equipment and Tenant or the TSP shall keep the Equipment in good
condition and make all necessary or appropriate repairs and replacements thereto
subject to the appropriate provisions of this Lease. Tenant or the TSP shall be
responsible for obtaining any permits and licenses required to install and
operate the Equipment. Landlord makes no representation or warranty that
applicable Laws permit the installation or operation of the Equipment at the
Building. The rights granted to the TSP shall be utilized by the TSP in a manner
which will not unreasonably disturb the occupancy of the other tenants,
licensees or occupants of the Building or Landlord's or any other tenant's or
occupant's business operations.
(c) Tenant agrees that the Equipment shall be of a type and
frequency which will not cause interference to any other party or any equipment
of any other party including, without limitation, Landlord, other tenants,
licensees and occupants of the Building for communications or any other
purposes; any other tenants, licensees; or occupants of the Building; or any
equipment utilized in the Building. In the event that the Equipment causes or is
believed to cause any such interference, upon receipt of notice from Landlord of
such interference, Tenant or the TSP will take all steps necessary to correct
and eliminate the interference. If the interference is not eliminated within six
(6) hours from receipt of such notice then, upon request from Landlord, Tenant
or the TSP shall immediately cease using the Equipment pending resolution of the
interference.
(d) The Equipment shall only be utilized by Tenant and the TSP and
only to provide services to the Premises in connection with the operation of
Tenant's normal business in the Premises as more particularly described in this
Lease. The Equipment shall not be utilized for any other purpose or to provide
any services to any other tenants of or space in the Building or to any other
locations other than the Building. The TSP may not market or provide services to
other tenants of the Building.
(e) Tenant or the TSP shall, at Tenant's or the TSP's sole cost and
expense and subject to the provisions of Section 4.1 hereof, obtain any
electricity necessary and sufficient to allow the TSP to utilize the Equipment
directly from the utility company furnishing electricity to the Building or, if
electricity to the Demised Premises is separately metered, through Tenant's
meter for the Demised Premises, if feasible. Upon prior notice, Landlord shall
promptly provide Tenant and the TSP access to the Equipment, accompanied by a
representative of Landlord, if Landlord shall so desire, during normal business
hours and during non-business hours if an emergency arises. The TSP shall agree
to hold Landlord, and its officers, directors, employees and agents harmless
from and against any and all damages, liabilities, costs and expenses (including
reasonable attorney's fees) arising directly out of any act or omission at the
Building by the TSP or the TSP's employees or agents. The TSP shall agree, at
its sole costs and expense to carry public liability insurance, naming Landlord
and any mortgagee of the Building as additional insureds. The amount of such
insurance for bodily injury and property damage liability shall not be less than
a combined single limits of five million and 00/100 dollars ($5,000,000.00) for
each occurrence and a ten million and 00/100 ($10,000,000.00) aggregate limit.
The TSP shall agree to deliver to Landlord evidence of such insurance prior to
obtaining access to the Building. Landlord shall be entitled to withhold access
to the Building from the TSP until such evidence is delivered to Landlord.
(f) Tenant's and the TSP's use of the Equipment and the Equipment
Space shall be subject and subordinate to all of the provisions to this Lease
except as expressly modified by the terms and provisions of this Article 41 and
40
the TSP Agreement.
(g) Landlord shall have the right to cause the TSP to relocate the
Equipment from the point of installation to another area on the roof of the
Building, provided that Landlord shall reimburse the TSP for the reasonable
out-of-pocket costs of such relocation within thirty (30) days after billing and
the relocation shall not have a material adverse impact on the use and operation
of, or the service provided by, the Equipment.
(h) In the event that either Tenant or the TSP, with or without the
knowledge of Tenant, shall default under this Article 41 or the TSP Agreement,
Landlord shall have the right to terminate Tenant's rights under this Article 41
and the TSP's rights under the applicable TSP Agreement by serving a three (3)
days' notice of termination upon Tenant, and may require the TSP to immediately
cease use of and remove the Equipment and/or may avail itself of any and all
remedies provided by the TSP Agreement or at law. Upon the termination of a TSP
Agreement or upon the expiration or other termination of this Lease, if
requested by Landlord, Tenant or the TSP shall remove the Equipment from the
Building and repair all damage caused thereby and otherwise restore the Building
to the condition existing prior to such installation in a good and workable
manner at Tenant's or the TSP's sole cost sand expense and Tenant and TSP shall
have no further rights hereunder or under the TSP Agreement. In the event that
Tenant fails to remove such Equipment within fifteen (15) days of Landlord's
request thereof, Landlord shall have the right to remove such Equipment and
Tenant or the TSP shall jointly and severally be responsible to reimburse
Landlord for the cost of such removal, as Additional Rent with respect to
Tenant.
ARTICLE 42
RIGHT OF FIRST REFUSAL
42.1 Provided that this Lease is in full force and effect and Tenant is
not in default hereunder, then Tenant shall have a one-time right of first
refusal with regard to the lease of any space on the third floor of the
Building. In the event that Landlord receives an offer for the lease of any of
such space that Landlord intends to accept, Landlord shall so notify Tenant,
which notice shall set forth all of the material terms and conditions of such
offer. Tenant shall have a period of five (5) days after receipt of Landlord's
notice in which to notify Landlord that it has elected to lease the space in
question. If Tenant so notifies Landlord, then Landlord and Tenant shall
promptly thereafter enter into a lease for such space, which lease shall reflect
the terms and conditions contained in Landlord's notice, and shall otherwise be
consistent with this Lease. If Tenant fails to so notify Landlord within said
five (5) day period, time being of the essence, then Tenant shall have no
further rights, with respect to the space in question, under this Article 42.
ARTICLE 43
SIGNAGE
43.1 Tenant shall be listed on the Building directory in the Building
lobby on a non-discriminatory, pro-rata basis with other tenants of the Building
and shall be listed on directional signage outside of the Building in accordance
with Landlord's signage program. In addition, Tenant shall be listed on all
signage by the elevators in accordance with Landlord's signage program. Landlord
will also provide reasonable directional signage in the north wing of the
Building to direct Tenant's visitors to enter the Demised Premises through the
north wing.
43.2 Landlord agrees that as long as this Lease is in full force and
effect and no Event of Default exists, then Landlord will not name the Building
for any entity other than Xxxxx Xxxxxxx Corporation.
ARTICLE 44
REPRESENTATIONS
44.1 Landlord represents that, to the best of Landlord's knowledge, there
are no hazardous waste conditions involving the Land or Building that violate
any Laws applicable thereto or that require remediation under any Law applicable
thereto.
ARTICLE 45
SATELLITE DISH PROVISIONS
45.1 Satellite Dishes. So long as this Lease remains in effect, Tenant
shall be entitled to install, operate and maintain on the roof of the Building,
at Tenant's cost, up to four (4) satellite or microwave dishes (the "Dishes"),
subject
41
to the terms and conditions of this Article 45. Any Dishes installed by Tenant
on the roof of the Building may only be used by Tenant for the purpose of
communications among Tenant's offices or with Tenant's customers, suppliers and
other parties with whom Tenant conducts business (provided that in no event
shall Tenant utilize the Dishes to provide any services to any other tenants of
the Building, or to any other third parties) and no third party provider may
install any Dishes on the roof of the Building as a result of this Article 45
unless such third party provider and Landlord execute a separate agreement
permitting the same.
45.2 Intentionally Omitted.
45.3 Utility and Other Charges. Tenant shall pay for all utilities
consumed to install, maintain, operate and remove the Dishes and associated
equipment, together with the cost of any engineers or consultants employed by
Landlord to review or monitor same, all as determined by Landlord, to the extent
not separately metered. Tenant shall be responsible for all costs associated
with such metering and electrical consumption of the Dishes and associated
equipment, including, but not limited to the cost of installing, maintaining,
repairing and reading the metering devices and subpanels. Tenant shall pay all
taxes or other charges attributable to the Dishes, including, without
limitation, any increase in the Building's real property tax that are directly
attributable to Tenant's Dishes.
45.4 Installation of the Dishes. Prior to the installation of the Dishes,
Landlord shall have the right to approve the type, size, height, weight and
location of the Dishes and the manner and method of installation and removal of
the Dishes and related equipment, including that any penetration of the roof
membrane of the Building is done in a manner that is acceptable to Landlord and
does not compromise Landlord's roof warranty. If Landlord elects to hire
structural, mechanical, roofing and/or other engineers or consultants to review
such plans and specifications, Tenant shall reimburse Landlord for the
reasonable costs thereof within thirty (30) days after demand from Landlord. All
installations by Tenants under this Article 45 shall be subject to such
reasonable rules, regulations and requirements as Landlord shall implement from
time to time. Landlord hereby approves one (1) Dish of not more than 2.4 meters
in diameter and three (3) Dishes of not more than 1.8 meters in diameter each.
45.5 Governmental Approvals. Prior to the installation of the Dishes and
related equipment, Tenant shall secure and shall at all times thereafter
maintain all required approvals and permits of the Federal Communications
Commission and all other government authorities having jurisdiction over the
Dishes, the Building and/or Tenant's business, including its communications,
operations and facilities. Tenant shall at all times comply with all Laws
relating to the installation, maintenance, height, location, use, operations,
and removal of the Dishes and related equipment and shall fully indemnify
Landlord against any loss, cost, or expense which may be sustained or incurred
by it as a result of the installation, maintenance, operation, or removal of the
Dishes and equipment, except to the extent caused by the gross negligence or
willful misconduct of Landlord's agents, employees or contractors. Landlord
makes no representation that applicable Laws permit the installation or
operation of the Dishes at the Building.
45.6 Access to the Roof and Building. Tenant and Tenant's agents,
employees and contractors shall have the right, to be exercised as herein set
forth, to enter upon the roof of the Building for the sole purpose of gaining
access to the Tenant's installations. In addition, Tenant shall have the right,
to be exercised as herein set forth, to install such equipment conduits, cables
and materials (hereinafter called "the connecting equipment") in shafts, ducts,
conduits, chases, utility closets and other facilities of the Building as
designated by Landlord as is reasonably necessary to connect the Dishes to
Tenant's other machinery and equipment in other parts of the Building, subject
to the requirements of the Laws and subject to the connecting equipment not
over-burdening such shafts, ducts, conduits, chases, utility closets and other
facilities. Tenant shall have the further right of access to the areas where
such connecting equipment is located for the purposes of maintaining, repairing,
testing and replacing the connecting equipment; provided, however, Tenant shall
notify Landlord each time Tenant requires such access, and provided further that
such access and installations do not cause damage to or interfere with the
operation or maintenance of any part of the Building or with any other tenant's
operation.
45.7 Notice. Anything herein to the contrary notwithstanding, Tenant shall
notify Landlord each time
42
Tenant desires to enter upon the roof of the Building or the areas outside the
Demised Premises where Tenant's related equipment is located, and Tenant shall
enter upon the roof only at such times, in such manner and under such
circumstances as shall not cause damage or endangerment of life or limb and only
when accompanied by a representative of Landlord. Tenant shall reimburse
Landlord with 15 days after receipt of Landlord's invoice thereof, along with
bills therefor for the cost or repairs of any damage to the Building directly or
indirectly caused by Tenant's installations or the operations, maintenance or
removal thereof.
45.8 Maintenance of Dishes and Equipment. Tenant, at its expense, shall be
solely responsible for and shall maintain the Dishes and related equipment in a
safe, structurally sound, clean and sightly condition and shall indemnify and
save harmless Landlord against all liens and claims of mechanics and materialmen
furnishing labor and materials in the construction and maintenance of same,
except to the extent caused by Landlord's negligence or willful misconduct.
45.9 Indemnity; Insurance. Tenant agrees to defend, indemnify and save
harmless Landlord and to assume all liability for death or injury to any persons
and all liability for loss, damage or injury to any property incurred or
sustained by Tenant arising from, growing out of or resulting from or in
connection with Tenant's installation of the Dishes or Tenant's use of the roof
of the Building or any other areas in the Building where Tenant's related
equipment is located, including costs, attorney's fees and other expenses
incurred by Landlord in defending any such claim, except to the extent caused by
Landlord's negligence or willful misconduct. All of Tenant's insurance
obligations under Article 15 hereof shall apply to the Dishes and Tenant's use
of the roof and Building under this Article 45.
45.10 Waiver and Release. Tenant hereby waives and releases all claims
against Landlord its officers, directors, agents, employees and servants, and
agrees that they shall not be liable for injury to person or damage to property
sustained by Tenant or by an occupant of the Building or any other person
occurring in or about the Building resulting directly or indirectly from any
existing or future condition, defect, matter or thing in the Building or any
part of it or from equipment or appurtenance becoming out of repair, or from any
occurrence, act, or from the negligence or omission of any tenant or occupant of
the Building or of any other person, except to the extent that the same is
caused by the negligence of Landlord (but subject to Section 15.9(c) hereof).
45.11 Non-Exclusive Rights. The rights of Tenant hereunder shall not be
deemed to give to Tenant the exclusive right to use the roof of the Building and
shall not preclude Landlord from granting the right to use the roof of the
Building to others. The rights of Tenant hereunder shall be exercised without
causing interference with the activities being carried on by others with the
same or similar rights. Tenant shall not change or materially alter the Dishes
or related equipment agreed to herein without the prior written consent of
Landlord. Tenant agrees to use Tenant's Dishes in a manner so as not to
unreasonably interfere with Landlord's existing equipment or any existing
equipment of any existing tenant.
45.12 Relocation of Dishes. Landlord shall have the right to cause Tenant
to relocate the Dishes from the point of installation to another area on the
roof of the Building, provided that Landlord shall reimburse Tenant for the
reasonable out-of-pocket costs of such relocation within thirty (30) days after
billing and the relocation shall not have a material adverse impact on Tenant's
use and operation of the relocated Dishes.
45.13 Removal. Any equipment installed by Tenant pursuant to this Article
45 shall remain Tenant's property at the termination of this Lease, at which
time the Dishes and the related equipment installed under the terms of this
Article 45 shall be removed by Tenant, at Tenant's sole cost and expense, and
Tenant shall restore the roof and the Building to as good condition as existed
immediately prior to installation of the Dishes and related equipment.
ARTICLE 46
EXPANSION
46.1 Provided that this Lease is in full force and effect and Tenant is
not in default hereunder, Tenant shall have the right, by written notice to
Landlord on or before October 20, 2000, time being of the essence, to lease all
or a
43
portion of the third floor of the Building that is not presently covered by this
Lease or leased to Xxxx X. Xxxxx and Company, Inc. (such balance of the third
floor being shown on Schedule B attached hereto as "Expansion Area"), on the
following terms and conditions:
(a) Tenant's exercise notice must specify the portion of the
Expansion Area that Tenant wishes to lease. If Tenant wishes to lease less than
all of the Expansion Area, then the portion thereof that Tenant does not lease
must be at least 10,000 square feet. If Tenant elects to lease less than all of
the Expansion Area, then Landlord shall designate the precise location and
configuration of the portion of the Expansion Area that Tenant will lease, so
that the portion of the Expansion Area that Tenant does not lease will be a
marketable space, taking into consideration, among other things, the size,
configuration and access thereto.
(b) The portion of the Expansion Area that Tenant elects to lease
under this Article 46 shall be hereinafter referred to as the "Expansion Space".
The Expansion Space shall be part of the Demised Premises for all purposes
hereunder as of Tenant's election to lease the same and Landlord's designation
of the location and configuration of the same, and, as of such date, the
Rentable Area of the Demised Premises shall be increased to include the Rentable
Area of the Expansion Space and Landlord and Tenant shall promptly execute an
amendment to this Lease to reflect the inclusion of the Expansion Space into the
Demised Premises.
ARTICLE 47
RISERS AND CONDUITS
47.1 Tenant shall have the right, at its sole cost, to install, during the
performance of the Tenant Improvements, four (4) conduits of four (4) inches
each for data and telecommunications, from the point of entry of such data and
telecommunications lines into the Building to the Demised Premises, and three
(3) conduits for two and one half (2 1/2) inch risers from the Demised Premises
to the roof of the Building. All such conduits and risers shall be in locations
designated by Landlord, and Tenant shall be responsible for all costs of
installing such conduits and risers. No such conduits or risers shall involve
any penetration of the roof membrane of the Building except in a manner
acceptable to Landlord and in a manner that does not compromise Landlord's roof
warranty.
47.2 The conduit and riser space provided under Section 47.1 above shall
constitute all of the conduit and riser space that Tenant shall be entitled to
under this Lease notwithstanding any mention of conduit or riser rights under
other Articles of this Lease, provided that if Tenant requires additional
conduits or risers, Landlord shall permit the same, at Tenant's sole cost, as
long as there is room in the Building for the same, as determined by Landlord in
its good faith discretion, provided that Landlord may require that Tenant remove
any such additional conduits or risers, and restore the affected areas of the
Building, at Tenant's cost at the expiration or sooner termination of this
Lease.
ARTICLE 48
EMERGENCY GENERATOR
48.1 Subject to Tenant complying with Article 12 hereof (including without
limitation, Landlord's right to approve the plans and specifications for
Tenant's generator), Tenant shall have the right, at its cost, to install an
emergency generator at the Building, in a location designated by Landlord.
Tenant shall, at its sole cost, be responsible for maintaining and repairing
such generator and removing such generator and restoring the affected portions
of the Building to their condition prior to installation thereof, at the
expiration or sooner termination of this Lease. The provisions of Section 15.5
of this Lease shall apply to such generator and Tenant's operation and
maintenance thereof. In the event that the generator is located on the roof of
the Building, then Tenant shall be responsible for any damage caused by any
leakage that results from any roof penetrations made by Tenant in connection
with the generator, and shall take such measures as are necessary to prevent any
vibrations or noise from the generator from being perceptible from within the
Building.
44
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
00 XXXXXXXX XXXXXXXX X.X.X., Xxxxxxxx
_________________________ By:________________________________________________
PANAMSAT CORPORATION, Tenant
_________________________
_________________________ By:________________________________________________
Xxxxx X. Xxxxxxxx
Its Executive Vice President and General Counsel
_________________________ By:________________________________________________
Xxxxxxx X. Xxxxxxx
Its Senior Vice President and CFO
Tenant's Federal Tax Identification Number is________________________
STATE OF CONNECTICUT )
) ss:
COUNTY OF )
Personally appeared the said __________________ of said 20 Westport
Holdings L.L.C., signer and sealer of the foregoing instrument, and acknowledged
the same to be his/her free act and deed and the free act and deed of said 20
Westport Holdings L.L.C., before me.
_________________________________
Notary Public
My Commission Expires:
STATE OF CONNECTICUT )
) ss:
COUNTY OF )
Personally appeared the said Xxxxx X. Xxxxxxxx, Executive Vice President
and General Counsel of said PANAMSAT CORPORATION, signer and sealer of the
foregoing instrument, and acknowledged the same to be his/her free act and deed
and the free act and deed of said PANAMSAT CORPORATION, before me.
_________________________________
Notary Public
My Commission Expires:
STATE OF CONNECTICUT )
) ss:
COUNTY OF )
Personally appeared the said Xxxxxxx X. Xxxxxxx, Senior Vice President and
CFO of said PANAMSAT CORPORATION, signer and sealer of the foregoing instrument,
and acknowledged the same to be his/her free act and deed and the free act and
deed of said PANAMSAT CORPORATION, before me.
_________________________________
Notary Public
My Commission Expires:
45
SCHEDULE A-1
Parcel 1 as shown on the map referred to on Schedule A-2.
1
SCHEDULE A-2
Map of Property Prepared for 10 Westport Holdings at Wilton, Connecticut,
Scale 1" = 100' dated July 10, 1991 prepared by Xxxxxx X. Xxxxxxx, Land
Surveyor, Wilton, Conn., certified substantially correct by Xxxxxxx X. Xxxxxxx,
Xxxx. Re. No. 5179, which map is on file in the office of the Clerk of the Town
of Wilton as Map #4719.
1
