EXHIBIT 10.13(a)
AGREEMENT OF LEASE
BETWEEN
SEABOARD STAMFORD INVESTOR ASSOCIATES, LLC
(LANDLORD)
AND
MARINE MANAGEMENT SYSTEMS, INC.
(TENANT)
DATED: OCTOBER 31, 1995
WITH RESPECT TO PREMISES LOCATED
000 XXXX XXXXXX
XXXXXXXX, XXXXXXXXXXX 00000
TABLE OF CONTENTS
1. Definitions. 1
2. Demised Premises, Rent and Term. 2
3. Landlord's Work. 3
4. Force Majeure. 3
5. Use and Occupancy. 3
6. Subordination. 4
7. Alienation. 4
8. Tenant's Certificate. 5
9. Compliance With Laws. 5
10. Floor Loads. 5
11. Property Loss. 5
12. Destruction by Fire or Other Casualty. 6
13. Indemnity, Liability Insurance. 7
14. Eminent Domain. 8
15. Alterations. 8
16. Repairs. 9
17. Operating Expenses. 10
18. Real Estate Taxes. 11
19. Electricity. 13
20. Services Provided by Landlord. 14
21. Signs. 15
22. Exculpation. 15
23. No Representations by Landlord. 15
24. Brokers. 15
25. End of Term. 15
26. Default. 16
27. Effect of Xx-xxxxx. 00
00. Fees and Expenses. 18
29. Bankruptcy and Insolvency. 18
30. Holding Over. 19
31. Waiver of Trial by Jury. 19
32. No Waiver. 19
33. Bills and Notices. 20
34. Access to Demised Premises. 20
35. Captions. 21
36. Restrictions. 21
37. Rules and Regulations. 21
38. Quiet Enjoyment. 21
39. Successors and Assigns. 21
40. Security Deposit. 21
41. Consent. 22
42. Mortgagee. 22
43. Transfer of Landlord's Interest. 23
44. Notices. 23
45. Miscellaneous. 23
46. Acceptance. 25
EXHIBIT 1 Demised Premises
EXHIBIT 2 Landlord's Work
EXHIBIT 3 Cleaning Specifications
EXHIBIT 4 Rules and Regulations
EXHIBIT 5 Anticipated Base Year Operating Expenses
EXHIBIT 6 Extension Options
AGREEMENT OF LEASE, entered into this ____ day of _________, 1995 between
SEABOARD STAMFORD INVESTOR ASSOCIATES, LLC a Connecticut Limited Liability
Company, having an address at Two Stamford Landing, 00 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter the "Landlord"), and MARINE MANAGEMENT
SYSTEMS, INC., an Ohio corporation having an address at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000 (hereinafter the "Tenant").
W I T N E S S E T H:
Landlord and Tenant hereby covenant as follows:
1. Definitions. As used in this Agreement of Lease and all modifications
and agreements supplemental thereto, the following terms shall have the
meanings set forth herein.
Additional Rent: All sums payable by Tenant to Landlord hereunder, other
than Fixed Rent.
Base Year: The calendar year commencing January 1, 1996 and ending
December 31, 1996.
Brokers: GRP Realty Company
Seaboard Property Management
Building: That office building having an address of 000 Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000.
Demised Premises: That area on the 3rd floor of the Building edged in red
on the floor plan attached hereto as Exhibit 1 and made a part hereof.
Extension Period: Any of the extension periods more particularly described
in Exhibit 6 attached hereto and made a part hereof.
Fixed Rent: The fixed rent payable pursuant to the provisions of Section
2(d) below.
Initial Electrical Charge: $1.50 per square foot per year.
Landlord's Work: Renovation work to be performed by Landlord as set forth
in Exhibit 2 attached hereto and made a part hereof.
Lease: This Agreement of Lease, as the same may hereafter be modified or
amended.
Lease Commencement Date: Upon substantial completion of Landlord's work
and delivery of Certificate of Occupancy, but not prior to December 1,
1995 or later than February 28, 1996.
Minimum Required Casualty Insurance Coverage: $1,000,000
Number of Tenant's Parking Spaces: 41
Operating Expenses: Those expenses incurred by Landlord in operating the
Building more particularly described in Section 17(a) below.
Property: All land, common areas, improvements and facilities serving the
Building and made available by easement, license, agreement or otherwise,
except that Landlord reserves the right to sever the ownership or right of
use to any portion of the Property at any time provided such severance
does not materially interfere with Tenant's occupancy of the Demised
Premises, so that such portion so severed shall be excluded from the
Property for purposes of this Lease.
Real Estate Taxes: All those taxes described in Section 18(a) below.
Rent: The Fixed Rent and Additional Rent together.
Rent Commencement: Ninety (90) days after the Lease Commencement Date.
Tenant's Proportionate Share of Landlord's Electrical Expense: 23.82%
Tenant's Proportionate Share of Real Estate Tax Increases: 23.82%
Tenant's Proportionate Share of Operating Expense Increases: 23.82%
Tenant's Rentable Square Footage: 13,355 square feet.
Term: A period of 7 years commencing upon the Lease Commencement Date,
provided that if this Lease is extended pursuant hereto, the word "Term"
as used herein, shall (unless the context requires otherwise) include any
Extension Period.
2. Demised Premises, Rent and Term.
a. Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the
Demised Premises for the duration of the Term, unless sooner terminated in
accordance with the provisions herein con- tained, together with the
nonexclusive right to use, in common with Landlord, those public and common
areas of the Building and the Property as Landlord shall from time to time
designate as available for the common use of tenants within the Building.
Following the expiration of the Term, Tenant shall have the option to extend
this Lease for one or both of the Extension Periods, in accordance with the
provisions of said Exhibit 6. Following the determination of the Lease
Commencement Date, Landlord and Tenant shall, upon re- quest by either of them,
execute and deliver a memorandum of this Lease in accordance with the provisions
of Section 47(e) below.
Together with the Demised Premises, Landlord will make available to Tenant, on a
non-exclusive basis, the number of parking spaces set forth in Section 1 above
(the "Parking Spaces") which Parking Spaces shall be situated within the parking
lot (the "Parking Lot") serving the Building and shall be available for the
parking or cars by Tenant and Tenant's licensees and clients. It is agreed,
stipulated and understood that the Parking Spaces shall not be individually
designated for Tenant's use. Landlord shall regulate the use of the Parking Lot
by others, and in connection therewith, Landlord may adopt rules and regulations
with respect thereto and may employ any measures which Landlord deems
appropriate, including (without limitation) the use of an attendant and by
requiring the use of parking identification stickers for regulating admittance
into the Parking Lot. Tenant shall cooperate with all such rules and regulations
and in particular (without limitation) if requested by Landlord, Tenant shall
notify Landlord of the license plate number, year, make and model of the auto-
mobiles entitled to use the Parking Spaces and if requested by Landlord, all
such automobiles shall be identified by automobile window stickers provided by
Landlord, so that only such designated automobiles shall be permitted to use the
Parking Spaces. It is further agreed, stipulated and understood that the Parking
Spaces are provided solely for the accommodation of Tenant, and that Landlord
assumes no responsibility or liability of any kind whatsoever from any cause
with respect to or arising out of Tenant's use of the Parking Spaces, the
Parking Lot or adjoining streets, sidewalks, driveways, property and passageways
and/or the use thereof by Tenant's agents, licensees or clients. [In any event,
Landlord will be required to maintain the parking lot and snow removal.]
During the Term, Tenant agrees to pay to Landlord at Landlord's above-referenced
address, or at such other address as Landlord may from time to time notify
Tenant, the Fixed Rent described in Section 2(d) below, which Fixed Rent shall
be payable in monthly installments in advance, commencing on the Rent
Commencement Date and on the first day of each month thereafter, in lawful money
of the United States of America, without any prior demand therefor and without
any deduction or offset whatsoever. In the event that substantial completion
shall occur other than upon the first (1st) day of a month, then Tenant shall be
permitted to occupy the Demised Premises following substantial completion and
the Rent shall be pro-rated up to the Rent Commencement Date.
The Annual Fixed Rent payable hereunder in equal monthly installments shall be
as follows:
Yr. 1 $153,582.50 Yr. 5 $180,092.50
Yr. 2 160,260.00 Yr. 6 186,970.00
Yr. 3 166,937.50 Yr. 7 193,647.50
Yr. 4 173,615.00
During any Extension Period, the Fixed Rent shall be determined in accordance
with the provisions of said Exhibit 6.
3. Landlord's Work. Landlord shall, at Landlord's sole cost and expense, and in
a good and workmanlike manner, carry out Landlord's Work as described in Exhibit
2 and Rider to Exhibit 2. In the event that Tenant shall request any other work,
then Tenant shall prepare plans and specifications with respect thereto,
consistent with all applicable building codes, and with the design, structural
capabilities, construction and equipment of the Building for Landlord's review.
If Landlord shall approve the same (which approval should not be unreasonably
withheld) then such work ("Special Work") shall be carried out by Landlord
provided that Landlord shall submit to Tenant an estimate of the cost of the
same and a statement of terms and conditions prior to commencing such Special
Work. The "cost" of Special Work shall mean the actual cost incurred by Landlord
in having such work performed by Landlord's contractor(s) plus the charges of
any engineers whose services may be required, plus ten (10%) percent overhead
and five (5%) percent profit. Notwithstanding any of the foregoing, it is agreed
and understood that all HVAC, electrical, plumbing and structural plans and
specifications forming part of any Special Work, shall be prepared by Landlord's
engineers at Tenant's sole cost and expense.
4. Force Majeure. Except as otherwise set forth herein, this Lease and the
obligation of Tenant to pay rent hereunder and perform all of the other
covenants and agreements hereunder on part of Tenant to be performed shall in no
way be affected, impaired or excused because Landlord is unable to fulfill any
of its obligations under this Lease or to supply or is delayed in supplying any
service expressly or impliedly to be supplied or is unable to make, or is
delayed in making any repair, additions, alterations, or decorations or is
unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing within the time periods
applicable thereto by reason of strike or labor troubles.
5. Use and Occupancy. Tenant shall use and occupy the Demised Premises for
general office purposes only including the sale and repair of computer and
communications equipment, and for no other purpose (the "Represented Use").
Landlord represents that the Represented Use does not, as of the Lease
Commencement Date, violate either the zoning laws covering the use of the
Demised Premises or make void or voidable any insurance of Landlord now in
effect. Tenant shall not at any time use or occupy, or suffer or permit anyone
to use or occupy, the Demised Premises or do or permit anything to be done in
the Demised Premises which: (i) causes or is liable to cause injury to persons,
to the Building or its equipment, facilities or systems; (ii) impairs or tends
to impair the character, reputation or appearance of the Building as a
first-class office building; (iii) impairs or tends to impair the proper and
economic main- tenance, operation and repair of the Building or its equipment,
facilities or systems; or (iv) annoys or inconveniences or tends to annoy or
inconvenience other tenants or occupants of the Building.
6. Subordination. This Lease is subject and subordinate to all mortgages and all
ground or underlying leases and to all leasehold mortgages which may now or
hereafter affect any such leases, covering the Building or the Property, and to
all renewals, modifications, consolidations, replacements and extensions of any
such instruments. This clause shall be self-operative and no further instrument
of subordination shall be required by the holder of any such mortgage or ground
or underlying lease. In con- firmation of such subordination, Tenant shall,
within ten (10) days after notice, execute and deliver a certificate, in such
form, as Landlord may reasonably request. If Tenant fails to execute,
acknowledge or deliver any such certificate within such ten (10) day period,
Tenant hereby irrevocably constitutes and appoints Landlord as Tenant's
attorney-in-fact, coupled with an interest, to execute and deliver the same for
and on behalf of Tenant. Landlord will use best efforts to deliver non
disturbance agreement from current and future mortgagees.
7. Alienation.
7A) Except as expressly set out in Section 7(b) below, Tenant shall not assign,
sublet, mortgage, or otherwise alienate Tenant's interest under this Lease in
any way whatsoever or otherwise suffer or permit the Demised Premises or any
part thereof to be used by any other party. Notwithstanding the foregoing, if
Tenant shall alienate Tenant's interest hereunder in breach of the provisions of
this Section 7(a), then without prejudice as to any other rights and remedies of
Landlord, Landlord may collect rent from any assignee, subtenant, licensee or
other occupant and apply the net amount collected to the Rent, provided that no
such collection of rent by Landlord shall be deemed a waiver of the provisions
of this Section 7(a) or the acceptance by Landlord of any third party as
"Tenant" hereunder, or as a release of Tenant from the further performance of
Tenant's covenants herein contained. It is agreed and understood that for the
purposes of this Lease, an "assignment" prohibited hereunder shall be deemed to
have occurred in the event that Tenant is at any time a partnership, and there
shall be a withdrawal or change (voluntary, involuntary, by operation of law or
otherwise) of any of the partners thereof or a dissolution of the same or, in
the event that Tenant is at any time a corporation, and there shall occur a
dissolution, merger, consolidation or other reorganization of Tenant or any
change in the ownership (voluntary, involuntary, by operation of law, creation
of new stock or otherwise) of fifty (50%) percent or more of Tenant's stock, or
in the event of a sale of fifty (50%) percent or more of the value of Tenant's
assets from time to time. However, it is further agreed and understood that
Tenant shall be permitted to assign Tenant's interests hereunder to any
corporation which is a parent, subsidiary or affiliate of Tenant. For the
purposes of this Section 7(a), a "parent" shall mean a corporation which owns
one hundred (100%) percent of the outstanding stock of Tenant, a "subsidiary"
shall mean any corporation of which Tenant owns one hundred (100%) percent of
all outstanding stock, and an "affiliate" shall mean any corporation with one
hundred (100%) percent of its stock owned by Tenant's parent.
7B) Notwithstanding the provisions of Section 7(a) above, it is agreed and
understood that Tenant may, with the express prior written consent of Landlord,
which shall not be unreasonably withheld, sublet or assign all of Tenant's
interest in this Lease. Any request by Tenant to grant a sublease or assignment
shall contain all of the material terms of the proposed subletting. Following
receipt of Tenant's notice, Landlord shall have a period of ten (10) days to
either consent or refuse consent to the proposed subletting or assignment and if
Landlord shall fail to respond during said ten (10) day period, Landlord shall
be presumed to have accepted the same. In the event that Landlord shall consent
to the subletting, profit shall be split 50/50 between Landlord and Tenant,
including any premium paid by the subtenant and any excess rental payment, but
less any and all transactional costs paid by Tenant. Tenant shall reimburse
Landlord on demand for any and all costs that Landlord may incur in connection
with any proposed subletting or assignment by Tenant, including (without
limitation) the costs of investigating the acceptability of the proposed
subtenant, and all legal costs incurred in connection with the granting any of
requested consent and the preparation of documentation with respect thereto. It
is agreed and understood that any subletting or assignment made with the consent
of Landlord shall not affect the continuing primary liability of Tenant
hereunder (which, following any such subletting, shall be joint and several with
the subtenant) so that Tenant shall not be released from performing any of the
terms, covenants and conditions of this Lease by reason of such subletting.
8. Tenant's Certificate. Tenant shall, without charge at any time and from time
to time, within ten days after request by Landlord, certify by written
instrument duly acknowledged and delivered to any proposed or actual mortgagee
(including, without limitation, Mortgagee, as defined in Section 43 below),
assignee of any mortgage or purchaser, or any other person, firm or corporation
specified by Landlord:
That this Lease is unmodified and in full force and effect, or, if there has
been modification, that the same is in full force and effect as modified and
stating the modifications.
That there are then existing no setoffs, or defenses against the enforcement of
any of the agreements, terms, covenants or conditions hereof upon the part of
Tenant to be performed or complied with and that Landlord is not in default
under any provision of this Lease or any modification, extension or renewal of
this Lease or, if not the case specifying the alleged default.
The dates, if any, to which the Rent has been paid in advance.
9. Compliance With Laws. Tenant, at Tenant's expense, shall duly comply with all
laws and ordinances and the orders, rules, regulations and requirements of
federal, state and municipal governments and departments thereof, now or
hereafter referable to or arising by reason of Tenant's occupancy, use or manner
of use of the Demised Premises or the Parking Lot or any installations made
therein by or on behalf of Tenant. However, Tenant shall not be obligated to
make any structural changes or alterations to comply therewith unless they are
made necessary by reason of the negligence or improper conduct of Tenant, or of
Tenant's employees, agents visitors, contractors, invitees, or by reason of
Tenant's wrongful use of the Demised Premises.
10. Floor Loads. Tenant shall not place a load upon any floor of the Demised
Premises exceeding seventy (70) pounds per square foot. Landlord reserves the
right to prescribe the weight and position of all safes, business machines,
mechanical equipment and other un- usually heavy equipment. Such installments
shall be placed and maintained by Tenant, at Tenant's expense, in settlings
sufficient, in Landlord's judgment, to absorb and prevent vibrations,
unreasonable notice and annoyance.
11. Property Loss. Neither Landlord nor Landlord's agents shall be liable for
any damage to property of Tenant or of others entrusted to employees of the
Building, nor for loss of or damage to any property of Tenant by theft or
otherwise, nor for injury or damage to persons or property resulting from any
cause of whatsoever nature, unless caused by or due to the negligence or willful
acts of Landlord, or of Landlord's agents, servants or employees, invitees, or
by Landlord's failure to perform its covenants under this Lease, nor shall
Landlord or Landlord's agents be liable for any such damage caused by other
Tenant's or persons in, upon or about said Building or caused by operations in
construction of any private, public or quasi-public work. After the Lease
Commencement Date, Tenant shall not move any bulky matter or bulky fixtures into
or out of the Building without Landlord's prior written consent which shall not
be unreasonably withheld or delayed. If such bulky matter or bulky fixtures
require special handling, all work in connection therewith shall comply with all
laws and regulations applicable thereto and shall be done during such hours as
Landlord may reasonably designate. Tenant shall indemnify and save harmless
Landlord against and from all liabilities, obligations, damages, penalties,
claims, costs and expenses for which Landlord shall not be reimbursed by
insurance (including reasonable attorney's fees) which are paid, suffered or
incurred as a result of any breach by Tenant, or by Tenant's agents,
contractors, employees, invitees, or licensees, of any covenant or condition of
this Lease or by the negligent or willful acts of Tenant or of Tenant's agents,
contractors, clients or licensees. Tenant's liability under this Lease extends
to the acts and omissions of any licensee of Tenant and any agent, contractor,
employee, invitee or licensee of any such licensee, but does not extend to the
acts or omissions of Landlord or Landlord's employees, contractors or agents
when they act as contractor or agent for any such licensee. The liability of
Tenant to indemnify and save harmless Landlord, shall not extend to any matter
against which Landlord shall be effectively protected by insurance, provided,
however, that if any such liability shall exceed the amount of the effective and
collectible insurance in question (unless the non-collectibility thereof shall
have resulted from or been caused by the acts of Landlord or Landlord's agents,
servants, employees, guests or invitees) said liability of Tenant shall apply to
such excess, and provided further that said limitation will not constitute a
violation by Landlord of any provision of any applicable insurance policy or an
act which would impair payment of the proceeds under any such policy. Landlord
and Tenant each agree to obtain (if available) mutual "waiver of subrogation
clauses" in their respective liability and casualty insurance policies to the
effect that each party and their respective insurance companies will not seek
recovery from the other party to the extent a casualty loss is covered by their
respective insurance policies.
12. Destruction by Fire or Other Casualty. If the Demised Premises shall be
damaged by fire or other casualty, Tenant shall give immediate notice thereof to
Landlord and this Lease shall continue in full force and effect except as
hereinafter set forth. If the Demised Premises are partially unusable, then at
Landlord's election, either (a) such damage shall be repaired and rebuilt with
reasonable diligence by and at the expense of Landlord to the extent insurance
proceeds are actually paid to Landlord, and the Rent and all Additional Rent,
from the day following the casualty until the date upon which such repair shall
be substantially completed, shall be abated in proportion to the part of the
Demised Premises which are unusable; or (b) this Lease may be terminated upon
Landlord furnishing Tenant with written notice of such termination. If the
Demised Premises are substantially damaged or rendered unusable by fire or other
casualty, then the Rent shall be proportionately paid up to the date of the
casualty and thereafter shall cease until the date when the Demised Premises
shall have been repaired, rebuilt and restored by Landlord to substantially the
same condition as the Demised Premises were as of the Lease Commencement Date,
subject to the Landlord's right to elect not to restore the same and Tenant's
right to terminate this Lease as hereinafter provided. If the Demised Premises
are rendered substantially unusable (whether or not the Demised Premises are
damaged in whole or in part) or if the Building shall be so damaged that
Landlord shall decide to demolish it or not to rebuild or repair the same, or if
Landlord shall decide to rebuild the same, but if Landlord does not
substantially complete the repair or re- building of the Demised Premises within
one hundred twenty (120) days following such casualty (but subject to Force
Majeure as described in Section 4 above), then in any of such events, Landlord
or Tenant may elect to terminate this Lease by written notice to the other given
within one hundred eighty (180) days after the date of such fire or casualty.
Such notice shall specify a date for the expiration of this Lease, and upon the
date specified the Term shall expire by lapse of time as fully and completely as
if such date were the scheduled expiration date of this Lease and Tenant shall
forthwith quit, surrender and vacate the Demised Premises, but without
prejudice, to Landlord's rights and remedies against Tenant arising prior to
such termination, and any Rent owing shall be paid up to the date of such
termination and any payments of Rent made by Tenant which were on account of any
period subsequent to such date shall be returned to Tenant. Unless Landlord
shall serve a termination notice as provided for herein, Landlord shall make
repairs and restorations as herein set forth with all reasonable expedition,
subject to delays caused by Force Majeure. Nothing contained herein shall
relieve Tenant from liability hereunder that may exist as a result of damage
from fire or other casualty. Tenant acknowledges that Landlord will not carry
insurance with respect to Tenant's furniture and/or furnishings or any fixtures
or equipment, improvements, or appurtenances removable by Tenant and agrees that
Landlord will not be obligated to repair any damage thereto or replace the same.
Landlord shall keep the Building, including Landlord's Work, insured against
loss or damage by fire and against loss or damage by other risks now or
hereafter embraced by "Extended Coverage", so-called, and against such other
risks as prudent operators of similar facilities would normally insure in
amounts sufficient to prevent Landlord from becoming a coinsurer under the terms
of the applicable policies, but in any event in an amount not less than eighty
(80%) percent of the then "full replacement cost" ("full replacement cost" being
the cost of re- placing the Building excluding the cost of excavations,
foundations and footings). In the event that Tenant's use of the Demised Premise
shall be violative of the rules and regulations of the Fire Insurance Rating
Organization and, as a result thereof, Tenant cannot continue the Represented
Use without being in default of this Lease, Tenant shall nonetheless remain
liable to Landlord for the faithful observance of all the terms, covenants and
conditions of this Lease.
13. Indemnity, Liability Insurance. Tenant shall indemnify and save Landlord
harmless from and against any and all claims, suits, actions, damages,
liabilities and expenses, including reasonable attorneys' fees and investigation
costs for damages or injuries to goods, wares, merchandise and property and/or
for any personal injury or loss of life in, upon or about the Demised Premises
(except such claims as may be the result of the gross negligence or willful
misconduct of Landlord, Landlord's agents, employees, or contractors) occasioned
in whole or in part by any act or omission by Tenant, Tenant's agents,
employees, invitees or contractors and arising during the Term or (if
applicable) any earlier occupation of the Demised Premises by Tenant. Tenant
shall provide on the earlier of (a) the Lease Commencement Date or (b) Tenant's
possession of the Demised Premises, and shall keep in force during the Term for
the benefit of Landlord and Tenant, a comprehensive policy of general liability
insurance protecting Landlord and Tenant against any liability whatsoever
occasioned by accident on or about the Demised Premises or the appurtenances
thereof. Landlord shall be a "named insured" on such policy. Such policy shall
be written by good and solvent insurance companies approved by Landlord and
licensed to do business in the State of Connecticut, with a combined single
limit of not less than the Minimum Required Casualty Insurance Coverage. Such
insurance policy shall contain appropriate endorsements denying Tenant's
insurers the right of subrogation against Landlord. Prior to the time such
insurance is first required to be carried by Tenant, and thereafter, at least
thirty (30) days prior to the expiration of any such policy, Tenant agrees to
deliver to Landlord either a duplicate original of the same policy or a
certificate evidencing such insurance provided that such certificate contains an
en- dorsement that such insurance may not be cancelled except upon thirty (30)
days notice to Landlord, together with evidence of payment for the policy.
Tenant's failure to provide and keep in force such insurance shall be regarded
as a material default hereunder entitling Landlord to exercise any or all of the
remedies provided for in this Lease following an event of default.
14. Eminent Domain.
If the whole of the Property or the Building is taken by condemnation or in any
other manner for any public or quasi-public purpose, this Lease shall terminate
as of the date of vesting of title in the condemning authority (the "Date of
Taking"), and the Rent shall be prorated to the Date of Taking. If any part of
the Building or Property is so taken, this Lease shall be unaffected by such
taking, except that (i) Landlord, in Landlord's sole dis- cretion, may terminate
this Lease by notice to Tenant within ninety (90) days after the Date of Taking,
and (ii) if 20% or more of the Demised Premises shall be taken and the remaining
area of the Demised Premises, in Tenant's reasonable estimation, shall not be
reasonably sufficient for Tenant to continue operation of Tenant's business,
Tenant may terminate this Lease by notice to Landlord within ninety (90) days
after the Date of Taking. This Lease shall terminate on the thirtieth (30th) day
after any such notice by Landlord or Tenant, by which date Tenant shall vacate
and surrender the Demised Premises to Landlord, and in which case the Rent shall
be prorated to such date as Tenant vacates the Demised Premises by reason of
such taking. If this Lease continues in force upon such partial taking, the Rent
and Tenant's Proportionate Share of Landlord's Electrical Expense, Operating
Expense Increases and Real Estate Tax Increases shall be equitably adjusted
according to the rentable area of the Demised Premises and the Building
remaining after such partial taking.
In the event of any taking as set forth in the immediately preceding subsection,
all of the proceeds of any award, judgment or settlement payable by the
condemning authority shall be and remain the sole and exclusive property of
Landlord, and Tenant hereby assigns all of Tenant's right, title and interest in
and to any such award, judgment or settlement to Landlord. Tenant, however,
shall have the right (to the extent that the same shall not reduce or prejudice
any award, judgment or settlement to Landlord) to claim from the condemning
authority ( but not from Landlord) such compensation as may be recoverable by
Tenant in Tenant's own right for moving expenses and damage to Tenant's
property.
15. Alterations. Tenant shall make no structural or system changes or
modifications in or to the Demised Premises of any nature without Landlord's
prior written consent. Subject to the provisions of this Section 15, Tenant at
Tenant's expense, may make alterations, installations, additions or improvements
after the Lease Commence- ment Date which are nonstructural and which do not
affect utility services including, without limitation, the HVAC system and the
plumbing and electrical lines serving the Demised Premises. Any repairs,
replacements, alterations, installation and/or additions required or permitted
to be performed by Tenant under any provision of this Lease shall not be
commenced until plans and specifications therefor have been submitted to and
approved by Landlord. Such work shall then be performed in accordance with such
approved plans and specifications and shall be performed only by contractors,
subcontractors and mechanics approved by Landlord and in a first-class manner to
Landlord's reasonable satisfaction and shall be done in a manner which will
ensure labor harmony within the Building. If Landlord grants Landlord's consent
to the making of alterations or improvements by Tenant, such consent is solely
for Landlord's benefit, and without any representation or warranty whatsoever to
Tenant with respect to the adequacy or correctness of Tenant's plans and
specifications. If Landlord requires any changes, Tenant shall cause the plans
and specifications to be revised in accordance with Landlord's requirements and
shall resubmit the same to Landlord for Landlord's review. All fixtures and
paneling, partitions, railings and other improvements installed or affixed to
the Demised Premises by or at the request of Tenant, shall become the property
of Landlord and shall remain upon and be surrendered with the Demised Premises
unless Landlord, by notice to Tenant no later than twenty (20) days prior to the
date fixed as the termination of this Lease, elects to have any items (other
than Landlord's Work) removed by Tenant, in which event, the same shall be
removed from the Demised Premises by Tenant forthwith, at Tenant's expense.
Nothing contained in this Section 15 shall be construed to prevent Tenant's
removal of Tenant's own business or trade fixtures, but upon removal of any such
business or trade fixtures from the Demised Premises or upon removal of other
installations as may be required by Landlord, Tenant shall immediately and at
Tenant's expense, repair and restore the Demised Premises to the condition
existing prior to installation, ordinary wear and tear excepted, and repair any
damage to the Demised Premises or the Building due to such removal. All property
permitted or required to be removed by Tenant at the expiration of the Term
remaining in the Demised Premises after Tenant's vacation of the Demised
Premises shall be deemed abandoned and may, at the election of Landlord, either
be retained as Landlord's property or may be removed by Landlord at Tenant's
expense. Tenant shall, before making any alterations, additions, installations
or improvements, at its expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof and shall promptly deliver duplicates of
all such permits, approvals and certificates to Landlord and Tenant agrees to
carry xxxxxxx'x compensation (in full compliance with all applicable law) and
such general liability, personal and property damage insurance as Landlord may
reasonably require. If any mechanic's lien is filed against the Demised Premises
or the Building for work claimed to have been done for (or materials furnished
to) Tenant, then the same shall be discharged by Tenant within ten (10) days
thereafter, at Tenant's expense, by filing the bond required by law, regardless
of whether Tenant disputes any such claim.
16. Repairs. Landlord shall, throughout the Term, maintain and repair the basic
structure and public portions of the Building, both exterior and interior,
including (without limitation), all load bearing walls and the roof and all
plate glass. Landlord shall insure, light, repair, keep and otherwise maintain
all portions of the public lobby and stairways within the Building and the
sidewalks, parking areas, curbs, passageways, and boardwalk areas adjoining or
appurtenant to the Building. Tenant shall, throughout the Term, take good care
of the interior of the Demised Premises and Tenant's fixtures and appurtenances
therein and at Tenant's cost and expense, shall make all non-structural repairs
thereto as and when needed to preserve them in good working order and condition,
reasonable wear and tear, obsolescence and damage from the elements, fire or
other casualty excepted. Notwith- standing the foregoing, all damage or injury
to the Demised Premises or to any other part of the Building, including plate
glass, or to the Building's fixtures, equipment and appurtenances, whether
requiring structural or non-structural repairs, proximately caused by or
resulting from carelessness, omission, neglect or improper conduct of Tenant,
Tenant's invitees, clients or licensees, shall be repaired promptly by Tenant at
Tenant's sole cost and expense, to the satisfaction of Landlord. Tenant shall
also promptly repair all damage to the Building and the Demised Premises
proximately caused by the moving of Tenant's fixtures, furniture or equipment.
All repairs by Tenant shall be of quality or class equal to the original work or
construction. If Tenant fails after ten (10) business days' written notice to
proceed with due diligence to make any repairs required to be made by Tenant
hereunder, the same may be made by Landlord at the expense of Tenant and such
expense shall be collectible as Additional Rent hereunder immediately upon
rendition of a xxxx or statement thereof. Tenant shall deliver to Landlord
prompt notice of any defective condition in any plumbing, HVAC system or
electrical lines located in, servicing or passing through the Demised Premises
and following such notice, Landlord shall remedy the condition with reasonable
diligence but at the expense of Tenant if the repairs are necessitated by damage
or injury attributable to Tenant, or to Tenant's clients, invitees or licensees.
Landlord shall pay for all repairs necessitated or caused by damage or injury
attributable to Landlord, Landlord's servants, agents, employees and
contractors. Landlord shall assign to Tenant all warranties or guaranties
applicable to Landlord's Work which are assignable, to the extent Tenant has any
responsibilities in connection with the warrantied or guaranteed work. There
shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from Landlord making or failing to make any repairs,
alterations, additions or improvements in or to any portion of the Building or
the Demised Premises or in and to the fixtures, appurtenances or equipment
thereof provided that Tenant is not materially inconvenienced thereby for a
period in excess of ten (10) business days.
17. Operating Expenses.
Operating Expenses shall mean and include those charges incurred in respect to
the management, repair, operation and maintenance of the Building and the
Property in any calendar year or portion thereof including any and all of the
following: salaries, wages, hospitalization, medical, surgical and general
employee benefits (including group life insurance) and pension payments of
employees of Landlord engaged in the operation and maintenance of the Building
and Property, payroll taxes, worker's compensation insurance, utility usage
surveys, utility taxes, water (including sewer rental), heating, ventilating and
air conditioning, premiums for insurance of the kind normally carried by owners
of similar properties (including insurance in case of fire or casualty against
loss of up to eighteen (18) monthly installments of fixed rental income from the
Property) or if there be any mortgage of the Building, or the Property, or both,
as may be required by the holder of such mortgage; or also as elsewhere required
herein, repairs and maintenance, building and cleaning supplies, uniforms and
dry cleaning, window cleaning, management fees, landscaping, snow and ice
removal, accounting and other miscellaneous administrative expenses, the cost of
all supplies, tools, materials and equipment, depreciation of hand tools and
other movable equipment used in the repair, operation or maintenance of the
Building, service contracts with independent contractors, telephone charges, and
a pro rata share (reasonably based on use and square footage) of any expenses
incurred in connection with common area charges or costs benefiting the Building
and which may be shared with other facilities, utilities or improvements
relating to the Building and the Property and all other similar and customary
expenses paid in connection with the operation and maintenance of the Building
and the Property. Operating Expenses shall not include: (i) expenses for repairs
or other work occasioned by fire or other insured casualty; (ii) expenses
incurred in leasing or procuring new tenants or refitting existing space for new
tenants; (iii) rental under any ground or underlying leases; (iv) depreciation
or amortization; (v) expenditures for capital im- provements other than as
described below; (vi) wages, salaries, or other compensation paid to any
director, officer or executive employee of Landlord above the grade of Building
superintendent; (vii) principal and interest payments on mortgage financing;
(viii) Landlord's Electrical Expense as defined in Section 19; (ix) amounts
which may be the specific obligation of other tenants within the Building; and
(x) Landlord's income or corporate taxes. Notwithstanding the foregoing, if
during the Term, Landlord shall make a capital expenditure necessary or
desirable, in the opinion of the Landlord, to meet the requirements of
applicable laws.
For each calendar year of the Term (or any fraction thereof) if the projected
Operating Expenses shall exceed the actual Operating Expenses paid by Landlord
during the Base Year (an "Operating Expense Increase") then Tenant shall pay as
Additional Rent a sum equal to Tenant's Proportionate Share of Operating Expense
Increases multiplied by the Operating Expense Increase. At the commencement of
each calendar year during the Term, commencing January 1, 1996 and at all times
based upon an assumed ninety (90%) percent occupancy of the Building (whether or
not such is the case) Landlord shall project the Operating Expenses payable
during such year, and shall deliver Tenant notice thereof, together with
reasonable backup documentation to substantiate the amount of any increase, and
on the first (1st) day of the calendar month in question and on the first (1st)
day of each month thereafter during such year, Tenant shall pay to Landlord
one-twelfth (1/12) of the Additional Rent calculated pursuant to this Section
17(b). Within sixty (60) days of the end of each calendar year, Landlord shall
calculate the actual Operating Expenses paid during the immediately preceding
year, and shall notify Tenant of the same (and shall provide reasonable backup
documentation substantiating Landlord's calculations) and if the actual
Operating Expenses were greater than the projected Operating Expenses, Tenant
shall pay to Landlord the balance within ten (10) days of receiving Landlord's
notice, and in the event that the actual Operating Expenses were less than the
projected Operating Expenses, Landlord shall credit the amount owed to Tenant
against the next installment or installments (as appropriate) of Additional Rent
payable by Tenant pursuant to this Section 17(b).
Every notice given by Landlord pursuant to this Section 17 shall be conclusive
and binding upon Tenant unless within thirty (30) days after the receipt of such
notice Tenant shall notify Landlord that Tenant disputes the correctness of the
notice, specifying the particular respects in which the notice is claimed to be
incorrect, and if such dispute shall not have been settled by agreement within
sixty (60) days, the dispute shall be submitted to arbitration in accordance
with the then existing rules of the American Arbitration Association. Pending
the determination of such dispute by agree-ment or arbitration as aforesaid,
Tenant shall pay Additional Rent in accordance with Landlord's notice, provided
that such payment shall be without prejudice to Tenant's right to dispute the
same.
Exhibit 5, attached hereto and made a part hereof, represents Landlord's
anticipated Base Year Operating Expenses. However, it is hereby agreed,
stipulated and understood between Landlord and Tenant that Landlord has provided
Tenant with such information by way of courtesy only, and that all calculations
to be made pursuant to this Section 17 shall be based upon the actual Operating
Expenses paid by Landlord during the Base Year, and that although the list of
items therein contained represents Landlord's good faith prediction of the
expenses payable with respect to the Property during the Base Year, the same may
not be exhaustive and shall not be construed as limiting those expenses which
fall within the definition of "Operating Expenses" pursuant to the provisions of
Section 17(a) above.
18. Real Estate Taxes.
For the purposes of this Section 18, the expression "Real Estate Taxes" shall
mean the aggregate of all taxes, assessments, charges, transit taxes, excises,
levies, and any other government charges of any kind or nature, special,
ordinary or extraordinary, presently existing or created hereafter, foreseen or
unforeseen, which in any calendar year period may be assessed, levied,
confirmed, im- posed upon or which may become a lien upon the Property, or which
may be assessed against Landlord in lieu of real estate taxes upon the Property,
and which become due and payable, for such calendar year.
If during the calendar year commencing January 1, 1996, and during each calendar
year of the Term thereafter (or any fraction thereof) the Real Estate Taxes paid
by Landlord shall exceed Real Estate Taxes paid during the Base Year, (a "Tax
Increase") Tenant agrees to pay Landlord, as Additional Rent, a sum equal to
Tenant's Proportionate Share of Tax Increases multiplied by the Tax Increase.
Landlord shall furnish to Tenant a copy of the Tax Assessor's report or reports
showing the assessment for the Property and the report or reports showing the
increased assessment therefor and all applicable tax bills, or such other
evidence coming from the Assessor's and/or Tax Collector's office which will
show the Real Estate Taxes involved or some other reasonable documentation of
the matter.
Any amount due to Landlord under the provisions of this Section 18 shall be
payable in equal monthly installments, commencing with the first (1st) day of
the month on which Landlord shall submit to Tenant a xxxx therefor.
Notwithstanding the foregoing, at such time as the Real Estate Taxes shall be
ascertained for the then current calendar year, the installments then becoming
due hereunder shall be increased by an amount sufficient to compensate Landlord
for any previous deficiencies in installments and thereafter the monthly
installments shall be increased pro-rata based with respect to the Real Estate
Taxes for the then current calendar year so that one (1) months prior to the
date that the Real Estate Taxes Fall due, Tenant's Proportionate Share of Tax
Increases shall be paid in full. Notwithstanding the foregoing, if any Real
Estate Taxes are payable in full before the expiration of the calendar year in
question, whether in installments or by a lump sum payment, the monthly payments
by Tenant shall be in such amount as to ensure that Landlord shall have all sums
due from Tenant hereunder with respect to such Real Estate Taxes one (1) month
prior to the date such payment falls due.
Payments required pursuant to this Section 18 with respect to Real Estate Taxes
for a calendar year containing a period of time not included in the Term, shall
be pro-rated by Landlord, and Landlord's calculations shall be conclusively
binding upon Tenant.
Landlord reserves the right, through available legal remedies, to contest the
validity of any Real Estate Taxes or the amount of the assessed valuation of the
Property or any portions thereof for any calendar year. If Landlord shall
receive any tax refund, re- mission, or abatement with respect to Real Estate
Taxes for any calendar year for which Tenant has paid Tenant's Proportionate
Share of Tax Increases, Landlord shall credit Tenant pro- portionately, after
first deducting therefrom the share of Landlord's cost and expense in procuring
such refund, remission or abatement, as proportionately attributed to the
reimbursement due to Tenant. Tenant, at Tenant's sole cost and expense, with the
written consent of other tenants of the Building occupying at least sixty (60%)
percent of the total rentable square footage of the Building (including Demised
Premises), may undertake, by appropriate proceedings, to review any assessments
with respect to Real Estate Taxes for any year occurring after the Lease
Commencement Date. Any documents required to enable Tenant to reasonably
prosecute any such proceeding, shall be executed and delivered by Landlord upon
reasonable demand. If Landlord shall receive any refund for any year as a result
of any proceedings undertaken by Tenant pursuant to this Section 17(e), Landlord
shall reimburse Tenant for any reasonable expenses incurred by Tenant in
obtaining the same (including reasonable attorneys' fees) and a proportion of
the remaining sum (in accordance with Tenant's Proportionate Share of Tax
Increases) shall be paid to Tenant.
It is agreed and understand that nothing herein contained shall require Tenant
to pay municipal, state or federal income taxes assessed against Landlord, or
any municipal, state or federal capital levy, estate, succession, inheritance or
transfer taxes of Landlord, or corporation or franchise taxes imposed upon any
corporate owner of the fee simple title to the Property or any such part thereof
which includes the Demised Premises. Notwithstanding the foregoing, if Tenant
secures tax abatement through the provisions of the Enterprise Zone, or through
any other government tax abatement program such tax abatement will be fully
credited against Tenant's rent.
19. Electricity.
Except as hereinafter provided to the contrary, Landlord shall cause electricity
to be made available to the Demised Premises for the normal use of lighting and
for other items such as (but not limited to) lamps, typewriters and small office
equipment not requiring a separate circuit (small computers included), and not
for any other equipment or installations. As Additional Rent hereunder, Tenant
shall pay monthly, commencing with the Lease Commencement Date, one-twelfth
(1/12) of Tenant's Proportionate Share of Landlord's Electrical Expense (as
defined in Section 1 above) of the total electrical service costs for the
Building and the Property (hereinafter "Landlord's Electrical Expense") as the
same shall be billed by Landlord, following receipt by Landlord of electricity
bills with respect to the Building, provided, that Tenant shall always pay an
amount which is no less than one-twelfth (1/12) of the product of (i) the
Initial Electric Charge set forth in Section 1 above and (ii) Tenant's Rentable
Square Footage, which amount shall be payable from the Lease Commencement Date
unless and until increased pursuant hereto. In the event Landlord permits any
tenant in the Building to separately meter its electricity usage, Tenant's
Proportionate Share of Landlord's Electrical Expense shall be adjusted to
reflect the ratio of (i) Tenant's Rentable Square Footage to (ii) the total
rentable square footage of the Building minus the rentable floor area of any
separately metered tenants. Any payments to Landlord or to the appropriate
utility company by separately metered tenants attributable to electricity
consumption in any part of the Building and/or the Property shall directly
reduce Landlord's Electrical Expense accordingly, on a dollar for dollar basis.
Landlord shall not be liable in any way to Tenant for any failure or defect in
the supply or character of electricity furnished to the Demised Premises by
reason of any requirement, act or omission of the public utility serving the
Property with electricity or for any other reason not within the control of
Landlord. Landlord shall replace all lighting tubes, lamps, bulbs and ballasts
required in the Demised Premises, at Tenant's expense.
All lighting, electrical and kitchen appliances and office equipment to be
initially installed in the Demised Premises shall be subject to Landlord's prior
written consent. Tenant's use of electricity in the Demised Premises shall not,
at any time, exceed the capacity of any of the electrical conductors and
equipment in or serving the Demised Premises. Tenant shall not, without
Landlord's prior consent in each instance, connect any additional or different
fixtures, appliances or equipment (other than lamps, typewriters, word
processors, copier machines, fax and telex machines and equipment not requiring
a separate circuit) to the Building's electricity distribution system or make
any alteration or addition to the electricity distribution system of the Demised
Premises. All additional risers or other equipment required in connection with
any alterations made to such electricity distribution systems on behalf of
Tenant shall be provided by Landlord and the cost thereof shall be paid by
Tenant upon demand by Landlord. If any additional fixtures, appliances or
equipment (other than lamps, typewriters, word processors, copier machines, fax
and telex machines and small office equipment not requiring a separate circuit)
shall be connected to the Building's electricity distribution system or any
alteration or addition to the electricity distribution system of the Demised
Premises shall be made by or on behalf of Tenant and if the Demised Premises are
not separately metered, forthwith upon the occurrence of any such events,
Tenant's Proportionate Share of Landlord's Electrical Expense shall be increased
by an amount which will reflect the additional electricity to be consumed by
Tenant. If Landlord and Tenant cannot agree thereon, the amount of such increase
shall be determined by a reputable, independent licensed electrical engineer, to
be selected by Landlord and reasonably acceptable to Tenant whose fees or
charges shall be included as Operating Expenses for the year in question. When
the amount of such increase is so determined, Tenant shall pay to Landlord, on
demand, the amount thereof retroactive to the date of the occurrence.
If Tenant requires the use of electricity during hours significantly greater
than the normal office hours referred to in Section 20 below, the same shall be
supplied by Landlord at the published rate therefor from time to time in effect.
The xxxx for such extra electricity will be billed by Landlord to Tenant as
Additional Rent hereunder at $25.00 per hour.
If any tax is imposed upon Landlord with respect to electrical energy furnished
to Tenant by any federal, state or municipal authority, Tenant, unless
prohibited by law or by any governmental authority having jurisdiction
thereover, shall pay to Landlord, on demand, Tenant's pro rata share of any and
all such taxes.
It is agreed and understood, that at Landlord's election, or if requested in
writing by tenants leasing more than fifty (50%) percent of the total rentable
square footage of the Building, Landlord shall engage a qualified consultant to
survey electricity usage. Those tenants consuming more than their proportionate
share thereof shall pay an additional monthly charge to cover each such tenant's
excess consumption. Costs of the survey and the con- sultant shall be included
as the Operating Expenses for the year in question.
If Tenant believes that Tenant's electricity consumption is disproportionately
low, as compared to Tenant's Proportionate Share of Landlord's Electrical
Expense, Tenant shall have the right, at Tenant's sole cost and expense, to have
the usage of all tenants in the Building surveyed by an independent licensed
electrical engineer familiar with commercial office buildings in Stamford,
Connecticut, and if said survey shall show the same to be disproportionate by
more than ten (10%) percent, then Tenant's Proportionate Share of Landlord's
Electrical Expense shall be adjusted accordingly. Landlord may at any time
install a demand watt hour check meter to monitor Tenant's lighting and wall
outlet electricity consumption.
20. Services Provided by Landlord. For so long as Tenant is not in default under
any of the covenants of this Lease, Landlord shall provide: (a) full elevator
service; (b) central heating, ventilating and air conditioning ("HVAC") to the
Demised Premises when and as required on business days (holidays excepted) from
7 a.m. to 8 p.m. (weekdays) or 7 a.m. to 2:00 p.m. on Saturdays (and for more
extended hours or on Saturday afternoon, Sundays or holidays at Landlord's
published cost therefor from time to time in effect, which is $25.00 per hour at
the date hereof); (c) water for ordinary lavatory and pantry purposes, but if
Tenant uses or consumes water for any other purpose or otherwise consumes
unusual quantities, Landlord may install a water meter at Tenant's expense
(which Tenant shall thereafter maintain in good working order and repair at
Tenant's expense) to register such water consumption and Tenant shall pay
Landlord for water consumed as shown on said meter as Additional Rent as and
when bills are rendered; (d) cleaning service for the common areas of the
Building and the Demised Premises on business days (holidays excepted) as more
specifically set forth in Exhibit 3 attached hereto and made a part hereof,
provided that Tenant shall pay Landlord the cost of removal of any of Tenant's
refuse and rubbish in excess of normal amounts for the average tenant in the
Building and for special cleaning services or cleaning services in excess of
those set forth in said Exhibit 3; and (e) security systems and personnel for
the Building commensurate with that offered in comparable office buildings in
Stamford, Connecticut. Landlord reserves the right to stop providing heating,
elevators, plumbing, air conditioning, electric power, cleaning or any other
services, when necessary due to accident or for repairs, alterations,
replacements or improvements necessary or desirable in the reasonable judgment
of Landlord, for as long as may be reasonably required by reason thereof or by
reason of strikes, accidents, laws, orders or regulations or any other reason
beyond the control of Landlord, and in any such case, Tenant shall not be
entitled to any abatement of Rent or any other offset whatsoever.
21. Signs. Tenant shall not place any sign upon or adjacent to the Demised
Premises, without the express written consent of Landlord. If Tenant shall cause
or permit any other sign to be attached to any part of the Building not within
the Demised Premises or which is visible from the exterior of the Demised
Premises without Landlord's written permission, Landlord shall have the right,
in addition to any other rights or remedies without notice or liability to
Tenant, to remove and dispose of any such sign or other object and to make any
repairs necessitated by any such removal, all at Tenant's sole cost and expense,
and Landlord's cost and expense in performing such removal and repair shall be
deemed Additional Rent hereunder, payable together with the next installment of
Fixed Rent due hereunder. Tenant, with Landlord's approval, which will not be
unreasonably withheld, may install one sign on the building's exterior.
22. Exculpation. Notwithstanding any other provision herein contained, Tenant
shall look solely to Landlord's interest in the Property for the satisfaction of
Tenant's remedies for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord in the event of any default or breach
by Landlord with respect to any of the terms, covenants and conditions of the
Lease to be observed and/or performed by Landlord, and no other property or
assets of the Landlord shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies with respect to this Lease
or in connection with Tenant's occupancy or use of the Demised Premises.
23. No Representations by Landlord. Neither Landlord nor Landlord's agents have
made any representations or promise with respect to the physical condition of
the Building, the Property or the Demised Premises, except as hereby expressly
set forth and no rights, easements or licenses are acquired by Tenant by
implication or otherwise except as expressly set forth in the provisions of this
Lease. Tenant has inspected the Building and the Demised Premises and is
thoroughly acquainted with their condition, and agrees to take the same "as is"
except as the same may be modified by the completion of Landlord's Work.
24. Brokers. Tenant represents that there was no broker instrumental in
consummating this Lease other than the Brokers set forth in Section 1 above.
Tenant agrees to hold Landlord harmless from and against any and all claims or
demands for brokerage commissions arising out of or in connection with the
execution of this Lease based on conversations or negotiations with Tenant on
the part of any broker other than the Brokers, referred to in Article 1.
Landlord will pay a full commission to GRP Realty and Seaboard Property
Management, Inc. under separate agreement.
25. End of Term. Upon the expiration or other termination of the Term, Tenant
shall quit and surrender to Landlord the Demised Premises, broom clean, in good
order and condition, ordinary wear and tear excepted, and Tenant shall remove
all its property. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of this Lease. If the last day of
the Term or any Extension Period falls on Sunday, this Lease shall expire at
noon on the preceding Saturday unless it is a legal holiday in which case it
shall expire at noon on the preceding business day.
26. Default.
The following shall be events of default under this Lease: (i) if Tenant
defaults in payment of Rent for a period of five (5) business days after any
payment or installment of Rent shall become due and payable; (ii) if Tenant
defaults in the performance of any other term, covenant, condition or obligation
of Tenant under this Lease and fails to cure such default within a period of
twenty (20) days after notice from Landlord specifying such default, or if such
default specified by Landlord is not curable within such twenty (20) days
period, if Tenant fails within three (3) days after such notice from Landlord to
commence to cure such default or thereafter fails diligently to pursue
completion of such cure during and after such twenty (20) day period; (iii) if
Tenant abandons or vacates any portion of the Demised Premises; (iv) if Tenant
makes any transfer, assignment, conveyance, sale, pledge or disposition of all
or a substantial portion of Tenant's property, or removes a substantial portion
of Tenant's Property from the Demised Premises other than by reason of any
assignment permitted under this Lease; (v) if Tenant's interest herein is sold
under execution; (vi) if Tenant shall file a voluntary petition pursuant to the
United States Bankruptcy Code, as amended from time to time (the "Bankruptcy
Code") or any successor thereto, or shall take the benefit of any insolvency act
or law or be dissolved, or if an involuntary petition is filed against Tenant
pursuant to the Bankruptcy Code or any successor thereto and said petition is
not dismissed within thirty (30) days after such filing; (vii) if a receiver
shall be appointed for Tenant's business or assets or any of them and the
appointment of such receiver is not vacated within thirty (30) days after such
appointment; or (viii) if Tenant shall make an assignment for the benefit of
Tenant's creditors.
Upon the occurrence of any such event of default, Landlord may without prejudice
to its other rights hereunder, or at law, do any one or more of the following:
(i) terminate this Lease and re-enter and take possession of the Demised
Premises; (ii) without such re-entry, recover possession of the Demised Premises
in the manner prescribed by any statute relating to summary process, and any
demand for the Rent, re-entry for condition broken, and any and all notices to
quit, or other formalities of any nature, to which Tenant may otherwise be
entitled, are hereby specifically waived; or (iii) declare immediately due and
payable all the remaining installments of the Rent and such amount, less the
fair rental value of the Demised Premises for the remainder of the Term
discounted at the rate of 8% per annum, which shall be construed as liquidated
damages and shall constitute a debt provable in bankruptcy or receivership. Upon
recovery of possession of the Demised Premises, Landlord may relet the Demised
Premises as Landlord may see fit without thereby avoiding or terminating this
Lease, and for the purpose of such reletting, Landlord is authorized to make
such repairs to the Demised Premises as may be necessary in the reasonable
opinion of Landlord, for the purpose of such reletting, and if a sufficient sum
is not realized from such reletting (after payment of all costs and expenses of
such repairs and the expense of such reletting and the collection of rent
accruing therefrom) each month to equal the Rent, then Tenant shall pay such
deficiency each month upon demand therefor.
After default by Tenant, the acceptance of the Rent or failure to re-enter by
Landlord shall not be held to be a waiver of Landlord's right to terminate this
Lease, and Landlord may re-enter and take possession of the Demised Premises as
if no Rent had been accepted after such default. All of the remedies given to
Landlord in this Lease following an event of default by Tenant are in addition
to all other rights or remedies which Landlord may be entitled under the laws of
the State of Connecticut. Any and all remedies given to Landlord hereunder or by
law by reason of Tenant's default hereunder shall be deemed cumulative and the
election of one shall not be deemed a waiver of any other or further rights or
remedies.
Notwithstanding the foregoing, if Tenant shall default (i) in the payment of any
Rent (Fixed or Additional) and any such default shall continue for ten (10) days
and be repeated for a total of three times in any period of twelve (12) months
or (ii) in the performance of any other material covenant of this Lease for ten
(10) days after delivery to Tenant of a written notice of default and such
default shall be repeated more than three (3) times in any period of twelve (12)
months, then, notwithstanding that such defaults shall have been cured after the
notice period, any further similar default shall be deemed to be deliberate and
an immediate event of default and Landlord thereafter may serve a three day
notice of termination without affording Tenant an opportunity to cure such
further similar default and Landlord may, without notice, re-enter the Demised
Premises, by summary proceedings or otherwise, and remove Tenant's effects and
hold the same as if this Lease had not been made. If Tenant shall default
hereunder prior to the commencement of an Extension Period, Landlord may
promptly cancel and terminate Tenant's election to take such Extension Period
upon written notice to Tenant.
27. Effect of Re-entry. Following any such re-entry, expiration and/or
dispossession by summary proceedings or otherwise (a) the Rent shall become due
and be paid up to the time of such re-entry dispossess and/or expiration,
together with such expenses as Landlord may incur for legal expenses, attorneys'
fees, brokerage, and/or putting the Demised Premises in good order, or for
preparing the same for re-rental; (b) Landlord may re-let the Demised Premises
or any part or parts thereof, either in the name of Landlord or otherwise, for a
term or terms which may, at Landlord's option be less than or exceed the period
which would otherwise have constituted the balance of the Term and may grant
concessions or free rent or charge a higher rental than that in this Lease,
and/or (c) Tenant or the legal representatives of Tenant shall also pay to
Landlord, as liquidated damages, for the failure of Tenant to observe and
perform said Tenant's covenants herein contained, any deficiency between the
Fixed Rent and the net amount, if any, of the rents collected on account of any
new lease of leases of the Demised Premises for each month of the period which
would otherwise have constituted the balance of the Term. The failure or
inability of Landlord to re-let the Demised Premises or any xart or parts
thereof shall not release or affect Tenant's liability for damages. In computing
such liquidated damages there shall be added to such deficiency such expenses as
Landlord may incur in connection with re-letting, including legal expenses,
attorneys' fees, brokerage, advertising, and all expenses incurred in keeping
the Demised Premises in good order or preparing the same for reletting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the days
specified in for payment of Rent in this Lease. Landlord, in putting the Demised
Premises in good order or pre- paring the same for re-rental may, at Landlord's
option, make such alterations, repairs, replacements, and/or decorations as
Landlord deems appropriate or necessary but the same shall not operate and be
construed to release Tenant from liability hereunder. Landlord shall in no event
be liable in any way whatsoever for failure to re-let the Demised Premises, so
long as Landlord uses reasonable efforts to do so, or in the event the Demised
Premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the Rent payable hereunder. In the event
of a breach or threatened breach by Tenant of any of the covenants or provisions
hereof, Landlord shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if re-entry, summary proceeding and other
remedies were not herein provided for. Mention in this Lease of any particular
remedy shall not preclude Landlord from any other remedy in law or in equity.
Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Landlord obtaining possession of
the Demised Premises by reason of the violation by Tenant of any of the
covenants and conditions of this Lease.
28. Fees and Expenses.
Regardless of any other right or remedy of Landlord following an event of
default, if Tenant shall fail to perform a non-monetary covenant hereunder,
Landlord may immediately, or at any time thereafter and without notice, perform
the same for the account of Tenant, and if Landlord makes any expenditures or
incurs any obligations for the payment of money, in connection therewith
including (but not limited to) reasonable attorneys' fees in instituting,
prosecuting or defending any action or proceeding such sums paid or obligations
incurred, together with interest and costs shall be deemed to be Additional Rent
hereunder and shall be paid by Tenant to Landlord within five (5) business days
of rendition of any xxxx or statement to Tenant thereof.
If any payment of Rent (Fixed or Additional) is in default, Tenant shall pay to
Landlord, as Additional Rent, an amount equal to five (5%) percent of the amount
in default as compensation for Landlord's extra administrative costs in
investigating and collecting such late Rent payment. Further, if payment of any
Rent is not made within ten (10) days after the same shall become due, Tenant
shall pay as Additional Rent hereunder, interest on the sum from the date it
became due until it is paid, at an annual rate which shall be four (4%) percent
in excess of the then current "Prime Rate", as announced in the Wall Street
Journal, from time to time, provided, however, in no event shall such interest
rate be in excess of the highest rate of interest which from time to time shall
be permitted under the laws of the State of Connecticut to be charged on late
payments of sums of money due pursuant to the terms of a lease. All charges
payable pursuant to this Section 29(b) shall be payable on demand and without
prejudice to any of Landlord's other rights and remedies hereunder. No failure
by Landlord to insist upon the strict performance by Tenant of Tenant's
obligations under this Section 29(b) shall constitute a waiver by Landlord of
Landlord's right to enforce the same in the future and the provisions of this
Section 29(b) shall not be construed as extending any applicable cure period.
29. Bankruptcy and Insolvency. If at any time during the Term there shall be
filed by or against Tenant in any court pursuant to any statute either of the
United States or of any state, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, and within ninety (90) days thereof, Tenant fails
to secure a stay or dismissal thereof, or if Tenant makes an assignment for the
benefit of creditors or petitions for or enters into an arrangement, this Lease,
at the option of Landlord, exercised within a reasonable time after notice of
the happening of any or more of such events, may be cancelled and terminated
upon ten (10) day's advance written notice to the Tenant of such cancellation,
and thereafter, neither Tenant nor any person claiming through or under Tenant
by virtue of any statute or any order of any court, shall be entitled to
possession or to remain in possession of the Demised Premises but shall
forthwith quit and surrender the same, and Landlord, in addition to the other
rights and remedies Landlord may have by virtue of any other provision in this
Lease contained or by virtue of any statute or rule of law, may retain as
liquidated damages, the Security Deposit and any Rent received from Tenant or
from others on behalf of Tenant, to the extent enforceable at law, but not to
the extent that the same is greater than the damages actually suffered by
Landlord. It is stipulated, agreed and understood that in the event of the
termination of this Lease pursuant to this Section 29, Landlord shall forthwith
be entitled to recover from Tenant as liquidated damages an amount equal to the
difference between the Fixed Rent reserved hereunder for the unexpired portion
of the Term and the fair and reasonable rental value of the Demised Premises for
the same period. In the computation of such damages, the difference between any
installment of Fixed Rent becoming due hereunder after the date of termination
and the fair and reasonable rental value of the Demised Premises for the period
for which such installment was payable shall be discounted to the date of
termination at the rate per annum then published in the Wall Street Journal as
the "Prime Rate". If the Demised Premises or any part thereof shall be relet by
the Landlord for the unexpired portion of the Term (or any part thereof) before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such re-letting shall be deemed to be
the fair and reasonable rental value for that part of the Demised Premises so
re-let during the term of re-letting. Nothing herein contained shall limit or
prejudice the right of the Landlord to prove for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when (and governing the
proceedings in which) such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
30. Holding Over.
If Tenant retains possession of the Demised Premises or any part thereof after
the expiration of the Term, Tenant's occupancy of the Demised Premises shall be
as a tenant at will, terminable at any time by Landlord. Tenant shall pay
Landlord for Tenant's use and occupancy of the Demised Premises during such
period a Rent equal to two hundred (200%) percent of the total amount of the
Rent payable hereunder for the month immediately preceding the ex- piration of
the Term, and, in addition thereto, shall pay Landlord for all damages sustained
by reason of Tenant's retention of possession. The provisions of this Section 30
shall not exclude Landlord's rights of re-entry or any other right hereunder or
at law or in equity.
31. Waiver of Trial by Jury. Landlord and Tenant hereby waive trial by jury in
any action proceeding or counterclaim brought by either Landlord or Tenant
against the other (except for personal injury or property damage) with respect
to any matters whatsoever arising out of or in any way connected with this
Lease, including the relationship of Landlord and Tenant, or Tenant's use of or
occupancy of the Demised Premises, or any emergency statutory or any other
statutory remedy.
32. No Waiver. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this Lease or
of any of the Rules or Regulations herein set forth or hereafter adopted, shall
not prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Landlord of any portion of the Rent with knowledge of the breach of any covenant
of this Lease shall not be deemed a waiver of such breach and no provision of
this Lease shall be deemed to have been waived by Landlord unless such waiver be
in writing signed by the Landlord. No payment by Tenant or receipt by Landlord
of a lesser amount than the Rent herein reserved shall be deemed to be other
than a partial payment on account of the same and any endorsement or statement
on any check or any letter accompanying any check for less than the full amount
of the Rent shall not in any event be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of the Rent or pursue any other remedy provided for in
this Lease. No act or thing done by Landlord or Landlord's agents during the
Term shall be deemed an acceptance of a surrender of the Demised Premises and no
agreement to accept such surrender shall be valid unless in writing signed by
Landlord. No employees of Landlord or of Landlord's agent shall have any power
to accept the keys of the Demised Premises prior to the termination of this
Lease and the delivery of keys to any such agent or employee shall not operate
as a termination of this Lease or a surrender of the Demised Premises.
33. Bills and Notices. Unless as otherwise provided in this Lease, a xxxx,
statement, notice or communication which Landlord may desire or be required to
give to Tenant, shall be deemed sufficiently given or rendered if, in writing,
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant at the Demised Premises or at the last known residence address or
business address of Tenant or left at any of said locations addressed to Tenant
and the time of the rendition of such xxxx or statement and of the giving of
such notice or communication shall be deemed to be the time when the same is so
delivered, mailed, or left. Any notice by Tenant to Landlord must be served by
registered or certified mail addressed to Landlord at the address first
hereinabove given or at such other address as Landlord shall designate by
written notice.
34. Access to Demised Premises. Landlord or Landlord's agents shall have the
right (but shall not be obligated, except as otherwise set forth) to enter the
Demised Premises at any time in the case of an emergency, and, at other
reasonable times, to examine the same and to make such repairs, replacements and
improvements to the Demised Premises as Landlord may deem necessary and
reasonably desirable or to any other portion of the Building or as Landlord may
elect to perform following Tenant's failure to make repairs or perform any work
which Tenant is obligated to perform under this Lease, or for the purpose of
complying with laws, regulations and other directions of governmental
authorities. Tenant shall permit Landlord to use and maintain and replace pipes
and conduits in and through the walls and above the ceilings of the Demised
Premises and to erect new pipes and conduits therein. Landlord may, during the
progress of any work in the Demised Premises, take all necessary materials and
equipment into same without such action constituting an eviction nor shall the
Tenant be entitled to any abatement of Fixed Rent while such work is in progress
nor to any damages by reason of loss or interruption of business or otherwise.
Throughout the Term, Landlord shall have the right to enter the Demised Premises
at reasonable hours for the purpose of showing the same to prospective
purchasers or mortgagees of the Building or the Property, and during the last
six months of the Term, for the purpose of showing the same to prospective
purchaser. If Tenant is not present to open and permit an entry into the Demised
Premises in an emergency, Landlord or Landlord's agents may enter by master key
or forcibly and, provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Landlord or its agents liable therefor,
nor in any event shall the obligations of Tenant hereunder be affected, except
for damage or injury to property caused by Landlord's (or Landlord's servants',
agents' and employees') negligent, illegal or wilfully tortuous acts, taking
into account all of the circumstances. If during the last month of the Term,
Tenant shall have removed all or substantially all of Tenant's property there-
from, Landlord may immediately enter the Demised Premises and alter, renovate
and redecorate without limitation or abatement of Fixed Rent, or liability to
Tenant for any compensation and such act shall have no other effect on this
Lease or Tenant's obligations hereunder. Landlord shall have the right at any
time, without the same constituting an eviction and without incurring liability
to Tenant, to change the arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets, or other
public part or parts of the Building and to change the name, number or
designation by which the Building may be known.
35. Captions. The Captions contained in this Lease are inserted only as a matter
of convenience and for reference and in no way define, limit or describe the
scope of this Lease nor the intent of any provisions herein contained.
36. Restrictions. The words "re-enter" and "re-entry" as used in this Lease are
not restricted to their technical meaning. The term "business days" as used in
this Lease shall exclude Saturdays, Sundays and all days observed by the State
or Federal Government as legal holidays and those designated as holidays by the
union or union to which Landlord's employees (from time to time) may belong.
37. Rules and Regulations. Tenant and Tenant's servants, employees, agents,
visitors and licensees shall observe and comply with the Rules and Regulations,
with respect to the Building as the same are attached hereto as Exhibit 4 and
made a part hereof, and such other and further reasonable rules and regulations
as Landlord or Landlord's agents may from time to time adopt and deliver notice
of to Tenant, provided the same do not unreasonably interfere with the
Represented Use or result in a material increase in Operating Expenses. Any
right to dispute the reasonableness of any ad- ditional rule or regulation upon
Tenant's part shall be deemed waived unless the same shall be asserted by
service of a notice, in writing upon Landlord within ten (10) days after
Landlord's notice thereof. Landlord shall not be liable to Tenant for violation
of the Rules and Regulations by any other t or by such tenant's servants,
employees, agents, visitors or licensees.
38. Quiet Enjoyment. Landlord covenants and agrees that upon Tenant promptly
paying the Rent and observing and performing all the terms, covenants and
conditions on Tenant's part to be observed and performed, Tenant may peaceably
and quietly have, hold and enjoy the Demised Premises for the Term, including
appurtenances thereto such as common areas and the Parking Spaces, subject
nevertheless, to the terms, covenants and conditions of this Lease and to any
ground lease, underlying leases and mortgages. Landlord covenants that Landlord
is the owner of the Demised Premises in fee simple absolute and has authority to
lease the Demised Premises to Tenant under the terms of this Lease and that so
long as Tenant shall pay the Rent and shall keep, observe and perform all of the
other covenants of this Lease, Tenant shall and may peaceably and quietly have,
hold and enjoy the Demised Premises during the Term, free of interference from
Landlord or those claiming through or under Landlord, subject nonetheless to the
terms and conditions of this Lease. This covenant shall be construed as running
with the Demised Premises to and against subsequent owners and successors in
interest, and is not, nor shall it operate or be construed as, a personal
covenant of Landlord, except to the extent of Landlord's interest in the Demised
Premises and only so long as such interest shall continue, and thereafter this
covenant shall be binding only upon such subsequent owners and successors in
interest, to the extent of their respective interests, as and when they shall
acquire the same, and only so long as they shall retain such interest.
39. Successors and Assigns. Without prejudice to Tenant's obligations pursuant
to the provisions of Section 7 above, this Lease shall be binding on the
parties, their heirs, administrators, executors, successors and assigns.
40. Security Deposit. Tenant has deposited with Landlord an amount equal to two
months of Fixed Rent as security for the faithful performance and observance by
Tenant of the terms, provisions and conditions of this Lease (the 'Security
Deposit"). It is agreed that in the event Tenant defaults with respect to any of
the terms, provisions and conditions of this Lease, including (but without
limitation) the payment of Rent, Landlord may, if the default is not cured
within a period of thirty (30) days after service of a written notice of default
on Tenant, use, apply or retain the whole or any part of the Security Deposit to
the extent required for the payment of same or any other sum as to which Tenant
is in default or for any sum which Landlord may expend or may be required to
expend by reason of Tenant's default with respect to any of the terms, covenants
and conditions of this Lease, including, but not limited to, any damages or
deficiency in re-letting of the Demised Premises, whether such damages or
deficiency accrued before or after summary proceedings or other reentry by
Landlord. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants, and conditions of this Lease, the Security
Deposit shall be returned to Tenant at the expiration of the Term, following
surrender of possession of the Demised Premises to Landlord. In the event of a
sale of the Property or the Building or the leasing of the Building, Landlord
shall have the right to transfer the Security Deposit to the purchaser or lessee
and Landlord shall thereupon be released by Tenant from all liability for the
return of the Security Deposit and Tenant agrees to look solely to the new
landlord solely for the return of the Security Deposit, and it is agreed that
the provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. Tenant further covenants that Tenant will
not assign or encumber the Security Deposit and that Landlord shall not be bound
by any such assignment or encumbrance.
41. Consent. Wherever in this Lease Landlord's approval or consent is required,
such approval or consent shall not unreasonably be withheld or delayed.
42. Mortgagee.
The effectiveness of this Lease is subject to the written approval of the
current mortgagee of the Property (the "Mortgagee") within fifteen (15) days
from the date hereof. Said approval shall be diligently and promptly applied for
and processed by Landlord. Tenant shall make no contact with Mortgagee for any
reason whatsoever without Landlord's prior written consent or as may be
otherwise specifically provided to the contrary herein. If Landlord notifies
Tenant in writing within twenty (20) days after the date hereof that said
approval has been withheld, then this Lease shall terminate and be of no further
force and effect. Landlord shall have no liability or responsibility to Tenant
whatsoever if this Lease is not approved by Mortgagee, other than to promptly
return all pre-paid Rent and the Security Deposit.
Tenant agrees to deliver by registered mail to Mortgagee or any future
mortgagees and/or trust deed holders, a copy of any notice of default served
upon the Landlord, provided that prior to such notice Tenant has been notified
in writing of Mortgagee's address and the addresses of such future mortgagees
and/or trust deed holders. Tenant further agrees that if Landlord shall have
failed to cure such default within the time provided for in this Lease, then
Mortgagee or such future mortgagees and/or trust deed holders shall have an
additional sixty (60) days within which to cure such default or, if such default
cannot be cured within that time, then such additional time as may be necessary
to cure such default shall be granted if within such sixty (60) days Mortgagee
or such future mortgagee and/or trust deed holder has commenced and is
diligently pursuing the remedies necessary to cure such default (including,
without limitation, commencement of foreclosure proceedings if necessary to
effect such cure) in which event this Lease shall not be terminated while such
remedies are being so diligently pursued. Notice of the termination of this
Lease pursuant to the terms of this Section 43 by Tenant shall not be effective
unless and until said notice is duly delivered and any such interested party
shall fail to cure the default upon which such termination notice is based.
Tenant hereby agrees not to look to any successor in title to the Property (or
mortgagee in possession) for accountability for the Security Deposit, unless the
same has actually been received by such successor in title or mortgagee in
possession.
In the event that Mortgagee or any future mortgagee shall foreclose its
mortgage, or exercise any of the other remedies provided for by law or contained
in such mortgage resulting in the transfer of fee title to the Property (or any
part thereof containing the Demised Premises) then Tenant will, upon request by
any person or entity succeeding to the interest of Mortgagor as a result of such
enforcement, automatically become the tenant of such successor in interest,
without any change in the terms, covenants and conditions of this Lease,
provided, however, that such successor in interest shall not be bound by (i) any
payment of Rent (Fixed or Additional) for more than one (1) month in advance,
other than the Security Deposit if such successor in title shall obtain the
same, or (ii) any amendment or modification of this Lease made without the
consent of Mortgagee or any such successor in interest. Upon request by any such
successor in interest, Tenant shall execute and deliver an instrument or
instruments confirming such attornment, provided that Tenant's failure to do so
shall not affect the provisions of this Section 43(c) and if Tenant shall fail
to execute any such instrument within ten (10) days of request therefor, Tenant
hereby irrevocably constitutes and appoints Landlord and/or any such successor
in interest as attorney-in-fact, coupled with an interest, to execute and
deliver the same for and on behalf of Tenant.
43. Transfer of Landlord's Interest.
The term "Landlord" as used in this Lease, so far as covenants or agreements on
the part of Landlord are concerned, shall be limited to mean and include only
the owner or owners of Landlord's interest in this Lease. Upon any transfer or
transfers of such interest, Landlord herein named (and in case of any subsequent
transfer, the then transferor) shall thereafter be relieved of all liability for
the performance of any covenants or agreements on the part of Landlord contained
in this Lease.
44. Notices. All notices, demands or other communications ("notices") permitted
or required to be given hereunder shall be in writing and, if mailed postage
prepaid by United States certified or registered mail, return receipt requested,
shall be deemed given on the sooner of: (a) three (3) days after the date of
mailing thereof; or (b) the date of actual receipt. All notices not so mailed
shall be deemed given on the date of actual receipt. Notices shall be addressed
as follows: (a) if to Landlord, to: Xxxx XxXxxxx, Seaboard Property Management,
Inc., Xxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000 and (b) if to Tenant, to Xxxxxx
Xxxxx, Marine Management Systems, Inc., 000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000.
Landlord and Tenant may from time to time by notice to the other designate
another place or other places for the receipt of future notices.
45. Miscellaneous.
In any action or proceeding which Landlord or Tenant may be required to
prosecute to enforce its respective rights hereunder, the unsuccessful party in
such action or proceeding agrees to pay all costs incurred by the prevailing
party therein, including reasonable attorneys' fees. If Landlord commences any
summary proceeding or an action for non-payment of the Rent or any portion
thereof, Tenant shall not interpose any non-mandatory counterclaim of any nature
or description in any such proceedings or action.
If any clause or provision of this Lease is or becomes illegal or unenforceable
because of present or future laws or any rule or regulation of any governmental
body or entity, the intention of the parties hereto is that the remaining parts
of this Lease shall not be affected thereby unless such clause or provision is,
in the reasonable determination of Landlord, essential and material to its
rights hereunder, in which event Landlord shall have the right to terminate this
Lease by notice to Tenant.
This Lease shall be deemed to have been made in and shall be construed in
accordance with the laws of the State of Connecticut.
This Lease sets forth all the covenants, promises, agreements, conditions and
understandings between Landlord and Tenant con- cerning the Demised Premises,
the Building and the Property, and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them other than as
are herein set forth. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.
At the request of either party, Landlord and Tenant shall execute, acknowledge
and deliver a memorandum with respect to this Lease sufficient for recording. In
no event shall this Lease be recorded and if Tenant records this Lease in
violation of the terms hereof, in addition to any other remedy available to
Landlord upon Tenant's default, Landlord shall have the option to terminate this
Lease by recording a notice to such effect. If a memorandum of this Lease is
recorded, Tenant shall, on the expiration of the Term, execute, acknowledge and
deliver to Landlord an instrument in recordable form releasing and quitclaiming
to Landlord all right, title and interest of Tenant in and to the Demised
Premises by reason of this Lease or otherwise.
Tenant shall have no claim, and hereby waives the right to any claim, against
Landlord for money damages by reason of any refusal, withholding or delaying by
Landlord of any consent, approval or statement of satisfaction, and in the event
of such refusal, withholding or delay. Tenant's only remedies therefor shall be
an action for specific performance, injunction or declaratory judgment to
enforce any such requirement.
If any provision contained in an exhibit or addendum hereto is inconsistent with
any other provision of this Lease, the provision contained in such exhibit or
addendum shall control, unless otherwise provided herein or in such exhibit or
addendum.
The use of the neuter singular pronoun to refer to either party shall be deemed
a proper reference even though it may be an individual, partnership, corporation
or a group of two or more individuals or corporations. The necessary grammatical
changes required to make the provisions of this Lease apply in the plural number
where there is more than one Landlord or Tenant and to either corporations,
associations, partnerships or individuals, males or females, shall in all
instances be assumed as though in each case fully expressed.
This Lease has been executed in several counterparts, all of which constitute
one and the same instrument.
As used in this Lease, any list of one or more items preceded by the word
"including" shall not be deemed limited to the stated items but shall be deemed
without limitation.
If more than one person or entity executes this Lease as Tenant, each such
person or entity shall be jointly and severally liable for observing and
performing each of the terms, covenants, conditions and provisions hereof to be
observed or performed by Tenant.
Tenant shall assume and pay to Landlord at the time of paying the Rent or any
portion thereof any excise, sales, use, gross receipts or other taxes (other
than a net income or excess profits tax) which may be imposed on or measured by
the Rent or portion thereof or as may be imposed on or on account of the
Landlord and Tenant relationship evidenced and provided for hereby and which
Landlord may be required to pay or collect under any law now in effect or
hereafter enacted.
46. Acceptance. The offer represented in this Lease is not accepted by Landlord
until all counterparts of this Lease have been fully executed and delivered by
both Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease the day and year first above written.
Landlord:
SEABOARD STAMFORD INVESTORS ASSOCIATES, LLC
Seaboard Properties, Incorporated
Managing Member
By: /s/ Xxxx XxXxxxx, Xx.
----------------------------
Its President
Tenant:
MARINE MANAGEMENT SYSTEMS, INC.
By: /s/ Xxxxxx X. Story
----------------------------
Its:President
RIDER TO EXHIBIT 2
EXHIBIT 3
CLEANING SPECIFICATIONS
GENERAL CLEANING NIGHT SERVICES
NIGHTLY
Dust sweep flooring with specially treated cloths to ensure dust-free
floors.
Wash granite flooring in Building entrance foyers.
Carpet sweep carpeted areas and rugs four nights each week and vacuum once
each week, moving light furniture other than desks, file cabinets, etc.
Clean and vacuum elevator cabs nightly.
Sweep private stairways; wash as necessary and/or vacuum private
stairways.
Empty and clean wastepaper baskets, ash trays, receptacles, etc., damp
dust as necessary.
Clean cigarette urns and replace sand or water as necessary.
Remove wastepaper and waste materials to a designated area in the
premises, using special janitor carriages.
Dust and wipe clean furniture, fixtures, desk equipment, telephones and
window xxxxx with specially treated cloths.
Dust baseboards, chair rails, trim, louvers, pictures, charts, doors, etc.
within reach
Wash drinking fountains and coolers; polish as necessary.
OFFICE AREAS - PERIODIC CLEANING
Remove fingermarks from metal partitions and other similar surfaces, as
necessary.
OFFICE AREAS - HIGH DUSTING
Do high dusting every three months which includes the following:
- Dust pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
- Dust exterior of lighting fixtures
- Dust overhead pipes, sprinklers, etc.
- Dust venetian blinds.
- Dust window frames.
- Dust vertical surfaces such as partitions, ventilating louvers,
etc. not reached in nightly cleaning.
LAVATORIES - NIGHTLY
Sweep and wash flooring with approved germicidal detergent solution, using
spray-tank method.
Wash and polish mirrors, powder shelves, bright work, etc., including
flushometers, piping and toilet seat hinges.
Wash both sides of toilet seats, wash basins, bowls and urinals with
approved germicidal detergent solution.
Dust partitions, tile walls, dispensers, doors and receptacles.
Remove wastepaper and refuse to a designated area in the premises, using
special janitor carriages.
Fill toilet tissue, soap and towel dispensers with supplies.
WINDOWS
Interior and exterior windows to be washed annually.
Tenants requiring services in excess of those described above shall request the
same through Landlord, at such tenant's expense.
EXHIBIT 4
RULES AND REGULATIONS
1. The right of all tenants with respect to use of entrances, corridors and
elevators of the Building are limited to ingress to and egress from each
tenant's premises for tenants and their respective employees, licensees
and invitees and for no other purpose. No tenant shall invite to such
tenant's premises or permit the visit of persons in such numbers or under
such conditions as to interfere with the use and enjoyment of any of the
plazas, entrances, corridors, escalators, elevators and other facilities
of the Building by other tenants. Fire exits and stairways are for
emergency use only and they shall not be used for any other purposes by
any tenant, the employees, licensees or invitees. No tenant shall encumber
or obstruct or permit the encumbrance or obstruction of any of the
sidewalks, plazas, entrances, corridors, elevators, fire exits or
stairways of the Building. Landlord reserves the right to control and
operate the public portions of the Building and the public facilities, as
well as facilities furnished for the common use of all tenants, in such
manner as Landlord deems best for the benefit of tenants generally.
2. The cost of repairing any damage to the public portions of the Building or
the public facilities or to any facilities used in common with other
tenants, caused by a tenant or the employees, licensees or invitees of
such tenant, shall be paid by such tenant.
3. Landlord may refuse admission to the Building, outside of ordinary
business hours to any person not known to the watchman in charge or not
having a pass issued by Landlord or not properly identified and may
require all persons admitted to or leaving the Building outside of
ordinary business hours to register. All employees, agents and visitors of
each tenant shall be permitted to enter and leave the Building whenever
appropriate arrangements have been previously made between Landlord and
such tenant ith respect thereto. Each tenant shall be responsible for all
persons for whom he requests such persons. Any person whose presence in
the Building at any time shall, in the judgment of Landlord, be
prejudicial to the safety, character, reputation and interest of the
Building or its tenants may be denied access to the Building or may be
ejected therefrom. In case of invasion riot, public excitement or other
commotion, Landlord may prevent all access to the Building during the
continuance of the same by closing the doors or otherwise, for the safety
of the tenants and protection of property in the Building. Landlord may
require any person leaving the building with any package or other object
to exhibit a pass from the tenant occupying the premises from which the or
object is being removed but the establishment and enforcement of such
requirement shall not impose any responsibility on Landlord for the
protection of any tenant against the removal of property from the premises
of such tenant. Landlord shall, in no way, be liable to any tenant for
damages or loss arising from the admission, exclusion or ejection of any
person to or from such tenant's premises or the Building under the
provisions of this rule.
4. No tenant shall obtain or accept for use in its premises floor polishing,
lighting maintenance, cleaning or other similar services from any persons
not authorized by Landlord, which authorization will not be unreasonably
withheld. Such services shall be furnished only at such hours, in such
places within such tenant's premises and under such regulations as may be
fixed by Landlord.
5. No awnings or other projections over or around the windows shall be
installed by any tenant and only such window blinds as are supplied or
permitted by Landlord shall be used in any tenant's premises.
6. All entrance doors in each tenant's premises shall be left locked when the
tenant's premises are not in use. Entrance doors shall not be left open at
any time. All windows in each tenant's premises shall be kept closed at
all times.
7. No noise, including the playing of any musical instruments, radio or
television which, in the judgment of Landlord, might disturb other tenants
in the Building shall be made or permitted by any tenant except as
expressly approved by Landlord. Nothing shall be done or permitted in any
Tenant's premises and nothing shall be brought into or kept in any
tenant's premises, which would impair or interfere with any of the
Building services or the proper and economic heating, cleaning or other
servicing of the Building or any premises therein, or the use or enjoyment
by any other tenant of any other premises, nor shall there be installed by
any tenant any ventilating, air conditioning, electrical or other
equipment of any kind, which in the sole judgment of Landlord might cause
any such impairment or interference. No dangerous, inflammable,
combustible or explosive object or material shall be brought into the
Building by any tenant or with the permission of any tenant.
8. No acids, vapors or other materials shall be discharged or permitted to be
discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than
the purpose for which they were designed or constructed and no sweeping,
rubbish, rags, acids or other foreign substances shall be deposited
therein. All damage resulting from any misuse of the fixtures shall be
borne by the tenant who, or whose servants, employees, agents, visitors or
licensees, shall have caused the same.
9. No signs, advertisements, notices or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside of
the Building or the premises occupied by such tenant, without the prior
consent of the Landlord. In the event of violation of the foregoing by any
tenant, the Landlord may remove the same without any liability and may
charge the expense incurred by such removal to the tenant or tenants
violating this rule. Interior signs and lettering on doors and elevators
shall be inscribed, painted or affixed for each tenant by Landlord at the
expense of such tenant and shall be of a size, color and style acceptable
to Landlord. Landlord shall have the right to prohibit any advertising by
any tenant which impairs the reputation of the Building or its
desirability as a building for offices and upon written notice from the
Landlord, the tenant in question shall refrain from or discontinue such
advertising.
10. No additional locks or bolts of any kind shall be placed upon any of the
entrance doors or windows in any tenant's premises and no lock on any
entrance door therein shall be changed or altered in any respect. The
foregoing provision shall not apply to locks or bolts on doors to closets,
storage space or cabinets contained in the premises. Duplicate keys for a
tenant's premises and toilet rooms shall be procured only from a tenant's
Landlord, which may make a reasonable charge therefor. Upon the
termination of a tenant's lease, all keys to such tenant's premises and
toilet rooms shall be delivered to the Landlord.
11. No tenant shall xxxx, paint, drill into or in any deface any part of the
Building or the premises leased to such tenant. No boring, cutting or
stringing of wires shall be permitted, except with prior written consent
of Landlord, and as Landlord may direct. No tenant shall install any
resilient tile or similar floor covering in the premises leased to such
tenant except in a manner approved by Landlord.
12. No tenant shall use or occupy or permit any portion of the premises leased
to such tenant to be used or occupied as an office for a public
stenographer or typist or as a xxxxxx or manicure shop or as an employment
bureau. No tenant or occupant shall engage or pay any employees in the
Building, except those actually working for such tenant or occupant in the
Building, nor advertise for laborers giving an address at the Building.
13. Subject to Section 5 of the Lease, no premises shall be used or permitted
to be used at any time, as a store for the sale of goods, wares or
merchandise of any kind or as a restaurant, shop, booth, bootblack or
other stand, or for the conduct of any business or occupation which
predominantly involves direct patronage of the general public in the
premises leased to such tenant or for manufacturing or for other similar
purpose.
14. The requirements of tenants will be attended to only upon application at
the office of the Building. No employee of Landlord shall perform any work
or do anything outside of the regular duties of such employee, unless
under special instructions from the office of Landlord
15. No employees of any tenant shall loiter around the hallways, stairways,
elevators, front, roof or any other part of the Building used in common by
the occupants thereof.
16. If the premises leased to any tenant shall become infested with vermin
because of tenant's use thereof, such tenant, at its expense, shall
promptly cause its premises to be exterminated, to the satisfaction of
Landlord and shall employ such exterminators therefor as shall be approved
by Landlord.
17. Canvassing, soliciting and pedaling are prohibited and no tenant shall
suffer or permit the same on or about any portion of the Building.
18. Landlord will provide one stairwell for ingress and egress at all times.
EXHIBIT 5
ANTICIPATED BASE YEAR OPERATING EXPENSES
The amounts set forth below represent the amounts which Landlord has budgeted
for the 1996 calendar year and are provided for illustrative purposes only.
OPERATING EXPENSES AMOUNT
------------------------------------------------
Insurance $ 10,000
Repairs & Maintenance $ 80,000
Water & Sewer $ 3,000
On Site Superintendent $ 12,500
Security $ 27,000
Management Fees $ 31,800
Other $ 5,000
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TOTAL OPERATING EXPENSES $169,300
REAL ESTATE TAXES $ 80,000
EXHIBIT 6
EXTENSION PERIODS
1. Provided that tenant is not in default under the Lease, Tenant shall have the
option, exercisable by written notice from Tenant to Landlord given not less
than four (4) months prior to the end of the Term (or the then existing
Extension Period, as appropriate), to extend this Lease for one (1) additional
five year period on all of the terms and conditions of this Lease (an "Extension
Period"), except as with respect to Fixed Rent, which shall be determined in
accordance with Paragraph 2 below and that this option shall not apply during
the Extension Period.
2. The Fixed Rent payable during each Extension Period shall be ninety percent
(90%) of the then fair market rental for the Demised Premises, as shall be
agreed between Landlord and Tenant (the "Fair Market Rent"). In the event that
Landlord and Tenant are unable to agree upon the Fair Market Rent within one (1)
month of Tenant's notice to extend this Lease, then within ten (10) days after
the expiration of such period, each party, shall at its own cost and expense,
appoint a real estate appraiser who is a member of the American Institute of
Appraisers with at least five (5) years full time commercial appraisal
experience in the area in which the Premises are located, to appraise and set
the Fair Market Rent. If a party does not appoint an appraiser witin ten (10)
days after the other party has given due notice of the name of its appraiser,
the single appraiser appointed shall be the sole appraiser and shall set the
Fair Market Rent. If both appraisers are duly appointed by Landlord and Tenant
pursuant to the provisions hereof, they shall meet promptly and attempt to set
the Fair Market Rent. If they are unable to agree within thirty (30) days after
the second appraiser has been appointed, they shall jointly attempt to elect a
third appraiser meeting the qualifications hereinabove set out, within ten (10)
days thereafter. If they are unable to agree on a third appraiser, then either
Landlord or Tenant may apply to the presiding judge of the Superior Court,
Judicial County of Fairfield, for the selcetion of a third appraiser who meets
the qualificaitons stated herein. Landlord and Tenant shall each bear on-half of
the cost of appointment of the third appraiser and of paying the third
appraiser's fee. The third appraiser, howsoever selected, shall be a person who
has not previously acted in any capacity for either Landlord or Tenant. Wtihin
thirty (30) days after the selection of the third appraiser, a majority of the
appraisers are unable to set the Fair Market Rent within the stipulated period
of time, then each appraiser shall propose a Fair Market Rent and three proposed
Fair Market Rents shall be added together and their total divided by three (3),
and the resulting quotient shall be the Fair Market Rent. Notwisthstanding the
foreoing, if the low figure and/or the high figure are/is more than ten (10)
percent lower and/or higher than the middle figure, the low figure and/or the
high figure (as appropriate) shall be disregarded. If only one of the proposed
Fair Market Rents is disregarded, the remaining two shall be added together and
the total divided by two (2), with the resulting quotient being the Fair Market
Rent. If both the high and the low are disregarded pursuant hereto, the
remaining proposed Fair Market Rent shall be the Fair Market Rent.
3. Tenant shall have a right of first offer on all space in the building as it
becomes available during the term of its lease.
4. Tenants shall have an option during the first year of the Lease term to lease
an additional 4,000 s.f. under the same terms and conditions of the Lease by
written notice to Landlord.
