LEASE
BETWEEN
XXXXXXX PROFESSIONAL CENTER, LLC
AND
ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION
DATED: November 24, 2004
TABLE OF CONTENTS
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Page
ARTICLE 1 - DEMISED PREMISES...................................................1
ARTICLE 2 - TERM...............................................................1
ARTICLE 3 - CONDUCT OF BUSINESS BY TENANT......................................2
ARTICLE 4 - CONSTRUCTION.......................................................2
ARTICLE 5 - RENT...............................................................4
ARTICLE 6 - PAYMENT OF TAXES, ASSESSMENTS, ETC.................................5
ARTICLE 7 - INSURANCE..........................................................8
ARTICLE 8 - LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS....................10
ARTICLE 9 - REPAIRS AND MAINTENANCE...........................................11
ARTICLE 10 - COMPLIANCE WITH ORDERS, ORDINANCES, ETC..........................11
ARTICLE 11 - CHANGES AND ALTERATIONS BY TENANT/EXPANSION RIGHTS...............12
ARTICLE 12 - MECHANICS' LIENS.................................................13
ARTICLE 13 - WASTE............................................................14
ARTICLE 14 - INSPECTION OF PREMISES BY LANDLORD, ETC..........................15
ARTICLE 15 - ASSIGNMENT, SUBLETTING, MORTGAGING, AND ATTORNMENT...............15
ARTICLE 16 - PUBLIC UTILITY CHARGES AND CONNECTIONS...........................17
ARTICLE 17 - INDEMNIFICATION AND CONDITION OF PREMISES........................18
ARTICLE 18 - REPAIR, RESTORATION AND REBUILDING...............................19
ARTICLE 19 - CONDEMNATION.....................................................21
ARTICLE 20 - DEFAULT AND REMEDIES.............................................23
ARTICLE 21 - EFFECT OF INVALID PROVISION......................................26
ARTICLE 22 - NOTICES, DEMANDS AND REQUESTS....................................26
ARTICLE 23 - PROPER USE OF PREMISES, SURRENDER OF POSSESSION..................27
ARTICLE 24 - ENVIRONMENTAL....................................................27
ARTICLE 25 - QUIET ENJOYMENT..................................................29
ARTICLE 26 - ESTOPPEL CERTIFICATES............................................29
ARTICLE 27 - REMEDIES CUMULATIVE, NO WAIVER...................................30
ARTICLE 28 - SUBORDINATION OF LEASE TO FEE MORTGAGES..........................30
ARTICLE 29 - BROKERAGE COMMISSIONS............................................32
ARTICLE 30 - MISCELLANEOUS....................................................32
ARTICLE 31 - LANDLORD'S TITLE AND ALLOWABLE USE...............................34
ARTICLE 32 - CONDITIONS PRECEDENT.............................................35
SCHEDULE A - DEMISED PREMISES
SCHEDULE B - ENCUMBRANCES OF RECORD
SCHEDULE C - ANNUAL NET RENT
SCHEDULE D - COMMITMENT LETTER
SCHEDULE E - PURCHASE AGREEMENT FOR BANK BUILDING
THIS LEASE (the "Lease") is made as of this 24th day of November, 2004, by
and between XXXXXXX PROFESSIONAL CENTER, LLC, a limited liability company
organized and existing under the laws of the State of Connecticut (hereinafter
referred to as "Landlord",) and ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION, a
banking institution with an office situated in the Town of Enfield, County of
Hartford and State of Connecticut (hereinafter referred to as "Tenant").
W I T N E S S E T H:
ARTICLE 1
DEMISED PREMISES
Section 1.1 In consideration of the rents herein reserved and of the
covenants and agreements herein provided to be performed and observed on the
part of Tenant, Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, upon and subject to all of the conditions hereinafter expressed, those
certain premises located on Enfield Street, Enfield, Connecticut, and more
particularly bounded and described on Schedule A attached hereto and made a part
hereof, together with all of the improvements to be constructed thereon pursuant
to this Lease (said premises together with said improvements are hereinafter
collectively referred to as the "Demised Premises").
Section 1.2 The Demised Premises are leased subject to:
A. Such encumbrances of record existing as of the date of the
execution of this Lease, as of the same are more particularly set forth on
Schedule B attached hereto and made a part hereof.
B. Except as specifically provided in this Lease to the contrary,
the physical condition and state of repair of the Demised Premises and of
all of the improvements situated thereon as of the Commencement Date (as
hereinafter defined) of the term of this Lease.
C. A right of way for vehicular and pedestrian ingress and egress to
and from Enfield Street in favor of the Landlord, its successors and
assigns, and in common with Tenant, over and across the driveways and
other areas of the Demised Premises for the purpose of access to
Landlord's adjoining property; provided, however, that such use of said
right of way shall not unreasonably interfere with the conduct of Tenant's
business.
ARTICLE 2
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TERM
Section 2.1 The term of this Lease shall commence on the Commencement Date
(hereinafter defined) and shall end twenty-five (25) years thereafter, unless
such term shall be sooner terminated, as hereinafter provided. The Commencement
Date shall be determined in accordance with the provisions of Section 5.5 of
this Lease below.
ARTICLE 3
CONDUCT OF BUSINESS BY TENANT
Section 3.1 Tenant shall have the right to use the Demised Premises to
conduct its business as a banking facility (inclusive of all lines of business
that Tenant or its affiliates or subsidiaries now or hereafter offer, including
but not limited to, banking, insurance sales, stock brokerage and investment
management) and all purposes incidental thereto. Tenant shall not use or occupy
the Demised Premises in violation of any law or of the Certificate of Occupancy
issued for the building to be constructed by Landlord (the "Building"), and
shall, upon five (5) days written notice from Landlord, discontinue any use of
the Demised Premises which is declared by any governmental authority having
jurisdiction, to be a violation of any recorded covenants, conditions or
restrictions affecting the Demised Premises or of any law or of the Certificate
of Occupancy for the Building.
ARTICLE 4
CONSTRUCTION
Section 4.1 Landlord agrees, subject to all of the provisions of this
Article 4 below, at its sole cost and expense, to cause the Building to be
constructed on the Demised Premises, per plans and specifications prepared by
Tenant's architect (the "Plans and Specifications") as set forth in a certain
construction contract dated as of October 4, 2004 between Landlord and New
England Design Associates, Inc., Part 1 and Part 2 (the "Construction
Contract"), a copy of which is attached hereto and incorporated herein. All
costs payable to the Landlord's contractor under the Construction Contract are
hereafter called the "Construction Costs".
Section 4.2 The Plans and Specifications shall be prepared in accordance
with all applicable building codes, laws and ordinances and shall not require
the Landlord to obtain a variance or similar action from the applicable
municipal authority.
Section 4.3 Landlord agrees to execute the Construction Contract upon
execution of this Lease by the parties.
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Section 4.4 Promptly following the execution of the Construction Contract,
Landlord shall apply for a building permit to complete the construction of the
Building. Following the issuance of a building permit, Landlord shall cause its
contractor to commence and with due diligence proceed to construct the Building
and all required site work in accordance with the agreed-upon Plans and
Specifications and pursuant to the terms of the Construction Contract.
Section 4.5 All construction shall be performed by Landlord's contractor
in a good and workmanlike manner, in compliance with all applicable laws, orders
and regulations. All building permits, temporary and permanent certificates of
occupancy and the government approvals required to construct and to permit the
occupancy of the Building as an office building shall be obtained by Landlord at
its cost and expense. The foregoing permits to be obtained by Landlord shall not
include any licenses or use permits required from any State or Federal banking
regulatory agency.
Section 4.6 During the course of construction, subject to applicable
building codes and regulations, Tenant may enter the Building for the purpose of
inspecting the work, taking measurements, making plans and constructing its
Tenant improvements; however, Tenant agrees that it shall not unreasonably
interfere with Landlord's construction work and Landlord shall have no liability
to Tenant for damage to any property of Tenant stored on the Demised Premises.
Section 4.7 Changes to the Plans and Specifications may be made by Tenant,
subject to the reasonable approval of Landlord, only after a written change
order, setting forth the specific change requested by Tenant and the cost
thereof, has been executed by Tenant, Landlord and Landlord's contractor. Any
and all additional charges required by the Tenant or any governmental
authorities for the construction of the Building and other improvements at the
Demised Premises which are not included in Contract Sum of $3,182,797.00 set
forth in the Construction Contract shall be paid directly by the Tenant to the
Landlord's contractor. All decisions as to all exterior Building colors and
landscaping plan shall be made by Tenant.
Section 4.8 Any and all work that Tenant shall request Landlord to do with
respect to Tenant finishings and the like shall be done by Landlord or
Landlord's contractor pursuant to a separate written agreement entered into by
and between said parties.
Section 4.9 Landlord shall use all reasonable efforts to ensure that the
construction of the Building and all required site work is completed and a
Certificate of Occupancy for the Building is obtained in accordance with the
terms of the Construction Contract.
ARTICLE 5
RENT
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Section 5.1 During the Term of this Lease, Tenant covenants and agrees to
pay to Landlord an annual net rent as follows:
The parties acknowledge that the annual net rent to be paid by Tenant to
Landlord shall be established in accordance with the chart set forth in Schedule
C attached hereto and made a part hereof, subject to the 5-year adjustments
pursuant to the formula noted thereon. As used herein and in Schedule C hereto,
the term "total project cost" shall mean: (i) the Construction Cost, including
and any "Reimbursable Expenses" described in section 13.2 of the Construction
Contract; (ii) engineering fees; (iii) mortgage financing costs and fees, legal
and accounting fees, construction interest costs, and other so-called "soft
costs"; (iv) the sum of Eight Hundred Thousand Dollars ($800,000.00)
attributable to the fair market value of the land comprising the Demised
Premises.
(a) With respect to the "total project costs" referred to above, the
following limitations to said costs shall apply:
(i) the effective annual interest rate of Landlord's permanent
mortgage financing, including points and brokerage fees amortized
over the term of the loan period, shall not exceed seven and
one-half percent (7-1/2%);
(ii) any and all "soft costs", other than construction
interest costs, including but not limited to engineering fees, legal
and accounting fees, zoning and application fees, costs related to
the Landlord's purchase of the Bank Building as described in Section
32.4 below , mortgage financing costs and fees and any "Reimbursable
Expenses" described in section 13.2 of the Construction Contract
shall not exceed the total sum of two hundred twenty-five thousand
dollars ($225,000.00); and, except for those costs related to the
Landlord's purchase of the Bank Building as described above, shall
be limited to those costs and expenses directly related to the
development of the Demised Premises.
(iii) subject to the provisions of section 4.7 and 5.6 below,
"total project costs" shall not exceed the sum of $4,357,797.00.
(b) In the event that the residential parcel adjoining the Demised
Premises to the east (the "Adjoining Parcel") is acquired by the Landlord
within five (5) years from the date hereof, Landlord shall have the right
to modify the access driveway to the project site from Elm Street and, if
necessary, reconfigure parking spaces and landscaping on the Demised
Premises in connection therewith; provided, however, that Landlord shall
be responsible for repairing any damage to the parking areas and/or
landscaping at the Demised Premises caused by any such modification and/or
reconfiguration. In such event, Tenant shall pay to Landlord an amount
equal to one-half (1/2) of the total cost expended by Landlord in
connection with: (a) the acquisition of the Adjoining Parcel and (b)
modification of the access driveway to the Demised Premises from
Elm Street (collectively, the "Parcel Development Costs"); provided
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however, notwithstanding anything to the contrary herein, in no event
shall the amount payable by Tenant to Landlord hereunder be more than
$125,000.00 as a result of the acquisition and development of the
Adjoining Parcel as described above. Such Parcel Development Costs of
Landlord shall include but not be limited to the purchase price and
closing costs in connection with the acquisition of the Adjoining Parcel
together with all costs associated with the relocation of the access
driveway including engineering and reasonable legal fees, zoning fees and
construction costs.. Tenant shall pay to Landlord its share of the Parcel
Development Costs as described above in cash within thirty (30) days of
its receipt of an invoice from Landlord for same accompanied by an
itemized statement detailing said Parcel Development Costs.
Upon acquisition of the Adjoining Parcel and the construction of a
relocated entrance way into the project site of which the Demised Premises
are a part, Landlord shall perform, at is sole cost and expense, any and
all necessary work on the Demised Premises and the Adjoining Parcel,
including the acquisition of all permits, which may be required in order
to accomplish said access relocation and shall grant Tenant and its
successors and assigns, the right to use, in common with others, the
relocated access way serving the project site for pedestrian and vehicular
ingress and egress for the balance of the remaining term of this Lease
(including any renewal term). Any and all expenses of any nature
attributable to the use, operation and maintenance of the Adjoining Parcel
shall be the sole and exclusive responsibility of the Landlord and shall
not be passed on to the Tenant. The details of the construction and
location of the relocated access driveway and any other construction by
Landlord in connection therewith on the Demised Premises shall be in
accordance with the plans and the approval therefor granted by the Town of
Enfield.
Section 5.2 All of the monthly rental installments referred to in Section
5.1 of this Article above, shall be due and payable on the first business day of
each and every month throughout the Term of this Lease in advance.
Section 5.3 It is the intention and understanding of the parties that the
annual net rent hereunder shall be paid to Landlord absolutely net and without
any deduction, set-off, counterclaim or abatement whatsoever, except as in this
Lease is otherwise specifically provided. Accordingly, if, at any time during
the term of this Lease, under the laws of the State in which the Demised
Premises are located or a political subdivision thereof, a tax or excise solely
on rents or other tax, however described, payable solely with respect to real
property and/or the rents from real property or any part thereof, is levied or
assessed by said State or political subdivision thereof against the Landlord
and/or on the Demised Premises and/or on the rent or any part thereof, in
addition to or as a substitute in whole or in part for taxes presently assessed
or imposed by said State or any of its political subdivisions, on the Demised
Premises or on any part thereof, Tenant covenants and agrees that promptly
following its receipt from Landlord of the statement from such taxing authority,
it shall pay and discharge all such taxes or excises on rents or any other such
taxes or excises on rents (to the extent that such taxes or excises
on rents would be payable if the Landlord had no income other
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than that derived from the Demised Premises) before any fine, penalty, interest
or cost may be added thereto for the non-payment thereof.
Section 5.4 If, during the term of this Lease, Tenant shall fail to pay
any installment of annual net rent to Landlord within ten (10) days following
the date that the same is due and payable, such unpaid installment of annual net
rent shall bear interest at the rate of twelve (12%) percent per annum from the
date that it was due to the date that it is paid to Landlord.
Section 5.5 The Commencement Date of this Lease and the date that Tenant
shall become obligated to pay annual net rent shall be the first day of the
calendar month immediately following the date the Building is suitable for
occupancy by Tenant as a result of the substantial completion by Landlord of all
construction required by the Plans and Specifications. The Commencement Date
shall not be extended as a result of any unfinished work or installations which
are not the Landlord's responsibility hereunder . As soon as practicable
following the parties ascertainment of said date, the parties shall enter into a
lease modification agreement setting forth the Commencement Date and the amounts
of the annual net rent payable throughout the term of this Lease as calculated
in accordance with Schedule C.
Section 5.6 The amount of the Net Rent payable by Tenant to Landlord in
accordance with Schedule C is specifically contingent upon Landlord obtaining
from Tenant construction and permanent mortgage financing in an amount not less
than 90% of the "total project costs" defined in Section 5.1 above at an annual
interest rate of seven percent (7%) fixed for a 25 year term without points, as
described in the commitment letter attached hereto as Schedule D. In the event
that the Tenant, as lender, does not provide such financing, the Net Rent
payable hereunder shall be adjusted in accordance with Schedule C to reflect the
interest rate differential and Tenant shall be responsible to reimburse
Landlord, at the time of Landlord's mortgage closing, for the incremental
additional costs incurred by Landlord attributable to the increased costs of
obtaining alternative financing, provided said additional costs are reasonable
and customary and provided that in the event Landlord obtains alternate
financing at an interest rate above 9% per annum, the adjustment in the Net Rent
payable by Tenant shall be based upon a maximum alternate rate of 9% per annum.
ARTICLE 6
PAYMENT OF TAXES, ASSESSMENTS, ETC.
Section 6.1 Tenant covenants and agrees to pay, before any fine, penalty,
interest or cost may be added thereto for the non-payment thereof, all real
estate taxes, assessments, water rates and sewer rents, and all other
governmental charges, general and special, ordinary and extraordinary,
unforeseen as well as foreseen, of any kind and nature whatsoever, including but
not limited to assessments for public improvements or benefits (all of which
taxes, assessments, water rates and sewer rents and other governmental
charges are hereinafter referred to as "impositions"), that are
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assessed, levied, confirmed, and/or imposed, and/or that become a lien upon or
become payable in respect of the Demised Premises or any part thereof, including
without limitation all lawful charges made by any public or quasi-public
authority by reason of any use by Tenant, or any one occupying any part of the
Demised Premises, or any undertenant, during the term of this Lease. If by law
any such imposition is payable, or may at the option of the taxpayer be paid, in
installments, then Tenant may pay the same in installments as the same
respectively become due and before any fine, penalty, interest or cost may be
added thereto for the non-payment thereof; provided, however, that, if Landlord
so requests, Tenant shall pay to Landlord the full amount of each of such
impositions in twelve (12) equal monthly installments in advance; said payments
to be made, upon direction from Landlord, on the same dates that the annual net
rent reserved hereunder is due and payable and to be predicated upon the last
issued tax xxxx, so that, upon the expiration of each one (1) year period,
Landlord shall have in its possession funds sufficient to pay all such
impositions. Landlord agrees that it shall exercise its right to require Tenant
to pay such impositions in monthly installments only in the event that and for
so long as the first mortgagee of the Demised Premises shall require Landlord to
pay the same to it in monthly installments. Any interest payable thereon by such
first mortgagee shall belong to Tenant.
Section 6.2 Any imposition relating to a fiscal period of the taxing
authority, a part of which period is included within the term of this Lease and
a part of which is included in a period of time prior to the Commencement Date
or after the expiration of this Lease, whether or not such imposition shall be
assessed, levied, confirmed, imposed or become a lien upon the Demised Premises,
or shall become payable during the term of this Lease, shall be adjusted and
prorated as between Landlord and Tenant, so that Landlord shall pay that portion
of such imposition for that part of such fiscal period included in the period of
time prior to the Commencement Date and after the expiration of this Lease and
Tenant shall pay that portion of such imposition for that portion of such fiscal
period included within the term of this Lease. It being understood, however,
that, with respect to any imposition for public improvements or benefits which
by law is payable, or at the option of the taxpayer may be paid, in
installments, Landlord shall pay the installments thereof that become due and
payable prior to the Commencement Date and subsequent to the expiration of this
Lease, and Tenant shall pay those installments that become due and payable
during the term of this Lease, all without any apportionment of such imposition.
Section 6.3 Except as specifically provided in Section 5.3 of Article 5 of
this Lease, nothing in this Lease contained shall require Tenant to pay any
income, franchise, corporation, revenue, excise, gift, rent, estate,
inheritance, succession, capital levy or transfer tax of the Landlord.
Section 6.4 Tenant covenants to furnish to the Landlord original receipts
of the appropriate taxing authority, or photostatic copies or duplicate
originals, or other appropriate written evidence thereof, evidencing payment,
before any fine, penalty, interest, or cost may be added thereto for the
non-payment thereof, of all impositions herein provided to be borne
or paid by Tenant. Tenant agrees to furnish said receipts to
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Landlord within thirty (30) days after the payment of said impositions and also
to furnish copies thereof once each year either to Landlord or to such persons
as Landlord may designate, including, without limitation, any fee mortgagee.
Section 6.5 Tenant may pay any such imposition under protest, and, at its
own cost and expense, may take such action as it may elect to procure a refund
of all or any part of such imposition so paid, and such action may be taken,
filed, instituted and prosecuted in the name of Tenant and/or Landlord, or both,
but at Tenant's own expense and free of all costs and expense to Landlord. In
the event that Tenant, as a result of any such action, shall recover any sums in
the name of Landlord, such sums shall belong to Tenant.
Section 6.6 Tenant shall not be required to pay, discharge or remove any
such imposition or the lien upon the Demised Premises resultant therefrom so
long as it shall proceed to contest the validity or amount thereof by
appropriate legal proceedings, provided that (a) Tenant, before such imposition
shall become delinquent, (i) shall give notice to Landlord of the intention of
Tenant to contest the same, such notice to specify the amount to be contested,
and, (b) such contest and the legal proceedings thereon shall operate to prevent
the happening of all of the following: (i) the collection of the imposition so
contested; (ii) the sale or forfeiture of the Demised Premises or any part
thereof to satisfy the imposition so contested; (iii) the appointment of a
receiver because of the non-payment of the imposition so contested; (iv) any
default for non-payment of such imposition under any mortgage on the Demised
Premises. While such legal proceedings are pending and Tenant is not in default
with respect to any of the deposits provided for in this Section 6, Landlord
shall not have the right to pay, remove or discharge the imposition so
contested. Tenant, in making the deposits in this Section 6 provided for, shall
be entitled to credit for any sums on deposit with the applicable authorities on
account of the imposition so contested, provided that such sums have been
deposited under conditions that will insure that such sums will be applied
toward the payment of such imposition. If the amount at any time on deposit as
above, on account of any imposition so contested, shall be less than 125% of
such unpaid imposition, together with the penalties, interest and other charges
accrued thereon, Tenant, upon demand of Landlord, shall deposit additional cash
in the amount of such deficiency. Tenant shall have the right to cause the funds
so deposited, or any part thereof, to be deposited with or paid to the
applicable authorities on account of any such imposition or to be deposited as
security for any bond required in order to enable Tenant legally to prosecute
such contest. If Tenant, after making such deposit, shall fail to continue to
contest the unpaid portion of such imposition by appropriate legal proceedings
and, as a result of such failure, Tenant thereby makes possible (a) the
collection thereof, or (b) the sale or forfeiture of the Demised Premises, or
any part thereof, to satisfy the same, or (c) the appointment of a receiver
because of the non-payment thereof, or (d) a default, for non-payment of such
imposition, under any mortgage on the Demised Premises, then, in any of such
events, Landlord may cause such deposit to be applied to the payment of such
imposition, together with accrued penalties, interest and other charges, in such
manner and at such time as Landlord shall determine. If the
sums deposited pursuant to this Section 6 shall be insufficient to
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pay the full amount of the imposition, together with penalties, interest and
other charges, Landlord may pay the deficiency, and the amount of such payment,
with interest thereon at the rate of 12% per annum, shall be and constitute
additional rent hereunder due from Tenant to Landlord at the next rental payment
day following such payment. Upon the payment in full of the amount finally
determined to be due and payable, including interest, penalties and other
charges, with respect to any imposition contested as provided in this Section 6,
any balance of the funds deposited under this Section 6 as a condition to the
right to prosecute such contest and not utilized in effecting such payment
(together with accrued interest) shall be paid to Tenant.
Section 6.7 Tenant shall be entitled to any refund of any such imposition
and all penalties, interest and other charges thereon which have been paid by
Tenant or which shall have been paid by Landlord and for which the Landlord has
been fully reimbursed, but no interest, penalty or other charge shall be payable
by Landlord to Tenant for or in respect to any such amount, unless Landlord
shall have received the same from the authority in question.
Section 6.8 A certificate, advice or xxxx of the appropriate official
designated by law to make or issue the same or to receive payment of any such
imposition, reciting the non-payment of any such imposition, shall be prima
facie evidence that such imposition was due and unpaid at the time of the making
or issuance of such certificate, advice or xxxx.
Section 6.9 Tenant may, if it shall so desire, endeavor at any time or
times to obtain a lowering of the assessed valuation on the Demised Premises for
any tax year during the term of this Lease for the purpose of reducing taxes
thereon, and, in such event, Landlord will, at the request of the Tenant and
without expense to the Landlord, cooperate with Tenant in effecting such a
reduction. Tenant shall be authorized to collect any tax refund relating to any
period during the Lease term payable as a result of any proceeding which Tenant
may institute for that purpose and any such tax refund shall be the property of
the Tenant to the extent to which it may be based on a payment made by Tenant,
subject, however, to an apportionment between the Landlord and the Tenant with
respect to taxes paid in the year in which the term of this Lease ends, after
reducing from such refund the cost and expenses, including attorneys' fees,
incurred in connection with obtaining such refund.
ARTICLE 7
INSURANCE
Section 7.1 Tenant shall, at its sole cost and expense, keep the Demised
Premises insured for the benefit of Landlord, Tenant, and any fee mortgagee
thereof, to the full insurable value of all improvements which at any time
comprise a part of the Demised Premises. The policies or certificates of
insurance to be obtained by Tenant shall be (a) fire insurance with full
extended coverage, which policies may, at Tenant's option (i) contain
an 80% or 90% co-insurance clause and (ii) be furnished under a
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blanket policy, and (b) insurance against such other risks of a similar or
dissimilar nature (including, but not limited to, coverage for vandalism and
malicious mischief), as are or shall be customarily covered with respect to
improvements similar in construction and general location and use to the
improvements then comprising a part of the Demised Premises. All such insurance
coverage shall contain a "replacement cost endorsement" satisfactory to
Landlord's first mortgagee.
Section 7.2 Tenant shall also, at its sole cost and expense, but for the
mutual benefit of Landlord, and Tenant, maintain comprehensive general public
liability insurance, under a blanket policy if Tenant so elects, against claims
for personal injury, death and property damage occurring upon, in or about the
Demised Premises (including coverage for elevators, if any, located on the
Demised Premises), all driveways, roads, passageways, streets, sidewalks, curbs
and vaults, if any, appurtenant thereto or constituting a part thereof, to
afford customary protection of not less than $1,000,000 with respect to injury
or death to a single person, of not less than $3,000,000 with respect to injury
or death in any one accident and of not less than $500,000 with respect to
property damage.
Section 7.3 Tenant agrees to deposit with Landlord, prior to the
Commencement Date, originals or duplicate originals of all of the insurance
policies or certificates providing all of the aforesaid insurance coverage.
Replacement policies or certificates shall be deposited as aforesaid prior to
the expiration dates of the policies which they replace and shall provide the
same coverage, except when otherwise directed by Landlord. Each hazard insurance
policy shall include a mortgagee endorsement in favor of and in a form
acceptable to Landlord's first mortgagee, and each liability insurance policy
shall name Landlord's first mortgagee as an additional insured.
Section 7.4 All policies or certificates of insurance referred to in
Section 7.1 of this Article shall provide that the proceeds thereof shall be
payable to Tenant, Landlord, and any mortgagees of the fee or leasehold as their
respective interests may appear and shall further provide that they will not be
canceled for any reason whatsoever without first providing Landlord and any
mortgagees of the fee with at least thirty (30) days written notice of such
intended cancellation. All such policies or certificates of insurance shall, to
the extent obtainable, provide that any loss shall be payable to Landlord, and
all fee mortgagees, notwithstanding any act or negligence of Tenant which might
otherwise result in a forfeiture of said insurance.
Section 7.5 Notwithstanding any other provision of this Article 7, all
policies of insurance shall be satisfactory to all reasonable requirements of
Landlord's mortgagee and shall name the Landlord as a named insured thereon. All
policies or certificates of insurance shall be written with companies rated "A"
or better with a size rating of "V" or larger by A. M. Best Company in its most
recent publication of ratings, and duly authorized to provide such insurance in
the State of Connecticut. Such policies or certificates shall be delivered to
Landlord endorsed "Premium Paid" by the company or agency issuing
the same, or accompanied by other evidence reasonably satisfactory to
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the Landlord that the premiums thereon (a) have been paid or (b) are not then
delinquent, if such premiums are, by agreement with the company or agent issuing
the same, paid retrospectively; all replacement policies or certificates shall
be so delivered not less than fifteen (15) days prior to the cancellation or
termination of any then current policy or certificate.
Section 7.6 It is the intention of the parties that Tenant shall take out,
maintain in force at all times, pay for and deliver to Landlord all of the
policies or certificates of insurance hereinabove referred to at such times and
in such manner so that Landlord shall at all times during the term of this Lease
be in possession of policies or certificates that are in full force and effect.
Section 7.7 Tenant also covenants and agrees to pay and to provide for the
benefit of Landlord and Landlord's mortgagee such other insurance policies or
insurance coverage as the Tenant, in its capacity as Landlord's mortgagee may
require.
ARTICLE 8
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
Section 8.1 Tenant covenants and agrees that, if it shall at any time fail
to pay any tax or excise on rents or other tax as defined and provided for in
this Lease, or fail to pay any imposition pursuant to the provisions of Article
6 above, or fail to take-out, pay for, carry, maintain, or deliver to Landlord
any of the insurance policies or certificates provided for in Article 7 above,
or fail to make any other payment or perform any other act on its part to be
paid or performed as in this Lease is provided, Landlord may, but shall not be
obligated so to do, without waiving or releasing Tenant from any obligation of
Tenant in this Lease contained, pay any such tax or excise on rents or
imposition, effect any such insurance coverage and pay premiums therefor, or
make any other payment or perform any other act on the part of Tenant to be paid
or performed as is in this Lease provided, in such manner and to such extent as
Landlord may deem desirable. Any and all obligations, costs and expenses
incurred by Landlord in making any such payment or performing any such act,
together with interest thereon at the rate of twelve percent (12%) per annum
from the date on which the same were paid, shall be deemed additional rent
hereunder and, except as is otherwise in this Lease expressly provided, shall be
payable to Landlord on demand or, at the option of Landlord, may be added to any
rent then due or thereafter becoming due under this Lease, and Tenant covenants
to pay any such sum or sums with interest as aforesaid and Landlord shall have
(in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of the nonpayment thereof by Tenant as in the case of the
default by Tenant in the payment of annual net rent due hereunder.
Notwithstanding anything contained above, Landlord shall not pay
any such tax or excise on rents or imposition, effect any such insurance
coverage and pay premiums therefor, or make any other payment or
perform any other act on the part of Tenant to be paid or performed
as is in this Lease provided, until such time as Landlord shall have
11
provided Tenant with written notice of Tenant's default and Tenant shall fail to
cure the same within thirty (30) days thereafter, provided that, in the case of
a non-monetary default which cannot with due diligence be cured within a thirty
(30) day period, the time of Tenant within which to cure the same shall be
extended for such period as may be necessary to complete the same with all due
diligence.
ARTICLE 9
REPAIRS AND MAINTENANCE
Section 9.1 Landlord shall assign to Tenant on the Commencement Date each
and every warranty which Landlord has received from any party who was in any way
responsible for the construction of any and all improvements constructed in
accordance with the provisions of this Lease.
Section 9.2 Tenant covenants throughout the entire term of this Lease, and
at its sole cost and expense, to take good care of the Demised Premises, and to
keep the same in good order and condition, except only for reasonable wear and
tear incident to the use of the Demised Premises for the purposes permitted by
this Lease; and Tenant further covenants, subject to said exception, with
reasonable promptness at Tenant's own cost and expense, to make all necessary
repairs, interior and exterior, structural and non-structural, latent or patent,
ordinary as well as extraordinary, foreseen as well as unforeseen, in and to
said Demised Premises. Tenant's obligation to make any such repairs as a result
of a casualty loss at the Demised Premises shall be subject to all of the terms
and provisions set forth in Article 18 hereof. When used in this Article, the
term "repairs" shall include replacements or renewals when necessary, and all
such repairs made by Tenant shall, to the extent reasonably feasible, be equal,
or at Tenant's option, better, in quality and class to the original work. Tenant
shall keep and maintain the building and all portions of the Demised Premises in
a clean and orderly condition, free of accumulated dirt and rubbish, and shall
keep all driveways, , passageways, sidewalks, and curbs, if any, located within
the boundaries of the Demised Premises, free from snow and ice.
Notwithstanding anything set forth in this Article above, in the event
that any structural component of the Building requires replacement at any time
when less than five (5) full years remain on the term of this Lease, as the same
may be extended by agreement of the parties, then in such event, the cost of
such replacement shall be borne by the Tenant; provided, however, that Tenant
shall not be obligated to expend more than Two Hundred Fifty Thousand Dollars
($250,000.00) for the replacement of any such structural components of the
Building, in the aggregate, over said five (5) year period. As used herein, the
term "replacement" shall not mean and include repairs, regardless of the nature
of such repairs but shall be solely limited to a situation where a complete
replacement of such structural component of the Building is required.
ARTICLE 10
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COMPLIANCE WITH ORDERS, ORDINANCES, ETC.
Section 10.1 Tenant covenants, throughout the entire term of this Lease
and at its sole cost and expense, promptly to comply with all present and future
laws and ordinances and the orders, rules, regulations and requirements of all
federal, state and municipal governments or other governmental or
quasi-governmental authorities having or asserting jurisdiction over the Demised
Premises and the appropriate departments, commissions, boards and officers
thereof, foreseen or unforeseen, ordinary as well as extraordinary, and whether
or not the same require structural repairs or alterations, which may be
applicable to the Demised Premises, any part thereof, or the use or manner of
use of the Demised Premises. Tenant will likewise observe and comply with the
requirements of all policies of public liability, fire and all other insurance
which are at any time in force with respect to the Demised Premises.
Section 10.2 It is the understanding and agreement of Landlord and Tenant
that this is an absolutely net lease and that Tenant throughout the term of this
Lease shall have and hereby assumes, except as otherwise expressly provided in
this Lease, all duties and obligations with relation to the Demised Premises and
the use, maintenance and operation thereof, whether such duties and obligations
would otherwise be construed to be those of Landlord or Tenant, so that, no
matter from what source arising, if anything shall be ordered or required to be
done or omitted to be done in, at, upon or about the Demised Premises, during
the term of this Lease, all of the same shall be done and complied with by
Tenant, at the sole cost and expense of Tenant, without any expense, liability
or obligation whatsoever to or upon Landlord. Notwithstanding the foregoing, in
no event shall Tenant be responsible for payment of the legal or accounting fees
of Landlord during the term of this Lease unless otherwise expressly authorized
hereunder.
Section 10.3 Tenant shall have the right to contest, by appropriate legal
proceedings, without cost or expense to Landlord, the validity of any law,
ordinance, order, rule, regulation or requirement of the nature referred to in
this Article 10 and, if compliance with any such law, ordinance, order, rule,
regulation or requirement may legally be held in abeyance without subjecting
Landlord to any liability of whatsoever nature for failure to comply therewith,
which liability is not otherwise assumed by Tenant at no cost or expense to
Landlord, Tenant may postpone compliance therewith until the final determination
of such proceedings, provided that all such proceedings shall be prosecuted with
all due diligence and dispatch. Any such action may be taken, filed, instituted
and prosecuted in the name of Tenant and, if so required, in the name of
Landlord, but at the sole cost and expense of Tenant.
ARTICLE 11
CHANGES AND ALTERATIONS BY TENANT/EXPANSION RIGHTS
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Section 11.1 Subject to the provisions of this Article 11, Tenant shall
have the right at any time and from time to time during the entire term of this
Lease, to make or permit to be made such changes, alterations and additions to
the Demised Premises, as Tenant shall deem necessary or desirable. All such
changes, alterations and additions to the Building, shall in all cases be made
subject to the following conditions, which Tenant covenants to fully perform and
observe:
(1) No change, alteration, addition or new construction shall be
undertaken unless and until: (a) Tenant shall have provided Landlord with
written notice thereof; and (b) Tenant shall have procured and paid for
any and all permits and authorizations of all federal, state, local and
municipal departments or other governmental or quasi-governmental
authorities having jurisdiction, and Landlord agrees to join in the
application for such permits or authorizations whenever such action is
necessary.
(2) No structural change or new construction of any kind shall be
undertaken, nor shall any change or alteration or related group of changes
or alterations involving an estimated cost of more than $25,000 be
undertaken, until suitable plans and specifications have first been
submitted to and approved in writing by Landlord, which approval Landlord
agrees not unreasonably to withhold, delay or defer.
(3) All changes, alterations, additions and new construction, when
completed, shall be of such a character as not to reduce or otherwise
adversely affect the value of the Building, building equipment and other
improvements comprising parts of the Demised Premises immediately prior to
any such work, nor to reduce the cubic content of said Building nor to
diminish the general utility of the Building or the appurtenances thereto,
nor to adversely affect the value of the Demised Premises as a whole.
(4) All work done in connection with any change, alteration,
addition or new construction shall be done promptly and in a good and
workmanlike manner and in compliance with all building and zoning laws and
with all laws, ordinances, orders, rules, regulations and requirements of
all federal, state and municipal governments and the appropriate
departments, commissions, boards and officers thereof. All such work shall
be prosecuted and completed with due diligence and dispatch. It is
understood and agreed that, as used in this Article, the term "changes and
alterations" shall not be construed to mean repairs and upkeep required as
the result of normal wear and tear.
(5) On the termination of this Lease, all improvements and additions
which Tenant may have made to the Building comprising a part of the
Demised Premises as well as any new improvements of any kind and nature
whatsoever which Tenant may hereafter cause to be erected, constructed,
added, or installed in, at, or upon any part of the land portion of the
Demised Premises, shall become the sole and absolute property of Landlord.
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ARTICLE 12
MECHANICS' LIENS
Section 12.1 Tenant shall not suffer or permit any mechanics' liens,
materialman's liens or other liens to be filed against the Demised Premises or
any part thereof by reason of work, labor or services performed or materials
supplied or claimed to have been performed or supplied, whether prior or
subsequent to the date of this Lease, for Tenant or any one holding the Demised
Premises or any part thereof for, through or under Tenant. If any such lien
shall at any time be filed against the Demised Premises, Tenant shall cause the
same to be discharged of record within thirty (30) days after the date of
receipt of notice by Tenant of the filing of the same. Landlord agrees that,
should it receive notice of the aforesaid filing, it will thereupon send a
notice to Tenant, whereupon the aforesaid thirty (30) days period shall begin to
run; provided, however, that, if Tenant shall receive prior actual notice of the
aforesaid filing, whether official or not, then the thirty (30) day period shall
commence to run upon the receipt of such prior actual notice. If Tenant shall
fail to discharge such mechanic's lien or other lien within such period, then,
in addition to any other right or remedy of Landlord, the Landlord may, but
shall not be obligated to, discharge the same by paying the amount claimed to be
due without inquiry into the validity of the same. Any amount paid by Landlord
in procuring the discharge of such lien and all of Landlord's necessary
disbursements, including attorneys' fees, in connection therewith, with interest
thereon at the rate of 12% per annum from the date of payment, shall be repaid
by Tenant to Landlord on demand and, if unpaid, may be treated as additional
rent as provided in Article 8 above.
Section 12.2 Tenant, however, shall have the right to contest any such
lien or liens, provided that, within thirty (30) days after any sending of
notice by Landlord as aforesaid or receipt of actual notice that the lien has
attached to the Demised Premises, whichever shall sooner occur, Tenant shall
give notice to Landlord of its intention to so contest the same, such notice to
specify the amount of the lien or liens to be contested, and provided that, at
the time of the giving of such notice, Tenant shall deposit with Landlord in an
interest bearing account, a sum equal to 125% of the amount of the lien or liens
to be contested, and provided further that Tenant shall proceed to contest the
validity or amount of such lien or liens by appropriate legal proceedings. While
such legal proceedings are pending and Tenant is not in default with respect to
any of the deposits provided for in this Section 12.2, Landlord shall not pay,
remove or discharge any such lien so contested. If Tenant, after making such
deposit, shall fail to contest the validity or amount of any such lien by
appropriate legal proceedings which shall operate effectively to remove such
lien from the Demised Premises, Landlord shall apply such deposit to the payment
of such lien, all accrued interest, and any and all other charges in connection
therewith, in such manner and at such time as Landlord shall determine, and the
balance, (with accrued interest) if any, shall be paid to Tenant. If the sums
deposited with Landlord pursuant to this Section 12.2 shall be insufficient to
pay such lien or liens and accrued interest, with all other charges incurred in
connection therewith or related thereto, Landlord may, but shall not be
obligated to, pay the same. Any
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amount so paid by Landlord with interest thereon at the rate of 12% per annum
from the date of such payment shall be repaid by Tenant to Landlord on demand
and if unpaid may be treated as additional rent as provided in Article 8 above.
ARTICLE 13
WASTE
Section 13.1 Tenant covenants and agrees not to do or suffer any waste,
damage, disfigurement or injury to the Demised Premises or any part thereof or
permit or suffer any overloading of floors.
ARTICLE 14
INSPECTION OF PREMISES BY LANDLORD, ETC.
Section 14.1 Tenant agrees to permit Landlord and the authorized
representatives of Landlord to enter the Demised Premises at all times during
usual business hours for the purpose of inspecting the same. Tenant also agrees
to permit Landlord and the authorized representatives of Landlord to enter the
Demised Premises at all times during usual business hours and at any other time
for the purpose of making any repairs or performing any other work on the
Demised Premises that, pursuant to the terms of this Lease, Tenant is required
but has failed to perform, or that Landlord may deem necessary to prevent waste
or deterioration in connection with the Demised Premises, if Tenant has failed
to make such repairs, perform such work or take such steps deemed necessary to
prevent such waste or deterioration after thirty (30) days advance written
notice thereof by Landlord to Tenant. Nothing in this Section 14.1 shall imply
any duty upon the part of Landlord to do any such work, and the performance
thereof by Landlord shall not constitute a waiver of Tenant's default in failing
to perform the same. Landlord may during the progress of any work being
performed by it in the Demised Premises, keep and store upon the Demised
Premises all necessary materials, tools and equipment. Landlord shall not in any
event be liable for inconvenience, annoyance, disturbance, loss of business or
other damage to Tenant by reason of such inspection, the making of repairs, the
performance of any work in the Demised Premises or on account of the bringing of
materials, supplies and equipment into or through the Demised Premises during
the course thereof, and the obligations of Tenant under this Lease shall not
thereby be affected in any manner whatsoever. Landlord shall, however, in the
performance of any such work, endeavor to create as little inconvenience,
annoyance, disturbance, loss of business, or other damage to Tenant as may
reasonably be possible under the circumstances.
Section 14.2 All of the rights of Landlord set forth in Section 14.1 above
shall be subject to reasonable security rules and banking regulations applicable
to banking institutions.
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Notwithstanding anything contained in this Article above, except for
emergency situations where prior notice is not feasible, Landlord shall provide
Tenant with at least twenty-four (24) hours prior notice of Landlord's intent to
inspect the Demised Premises.
ARTICLE 15
ASSIGNMENT, SUBLETTING, MORTGAGING, AND ATTORNMENT
Section 15.1 Provided no default exists under this Lease, Tenant shall
have the right to sublet all or any part of the Demised Premises with the prior
written permission of Landlord, which permission shall not be unreasonably
withheld, delayed or deferred. Any such subletting, if agreed to by Landlord,
shall not in any way relieve Tenant of its responsibilities hereunder, including
the payment of annual net rent, impositions and additional rent.
Section 15.2 Should Landlord consent to any such sublease, Landlord agrees
that, upon request by Tenant, it will enter into an agreement with any sublessee
of Tenant who has agreed to pay a rent to Tenant which, when coupled with other
rents to be paid by Tenant for space still occupied by it and other rents to be
received by Tenant from its subleesees, will be at least equal to the rent
required to be paid by Tenant to Landlord in accordance with the provisions of
this Lease, which agreement shall provide that Landlord shall give any such
sublessee duplicate notice of default by Tenant under the terms of this Lease
and any such sublessee shall thereafter and within the time prescribed for
curing of defaults by Tenant hereunder, have the same rights as Tenant to cure
any such default.
Section 15.3 Provided no default exists under this Lease, the entire
interest and only the entire interest of Tenant herein (including all options
accorded to Tenant) may at any time be assigned or transferred by Tenant with
the prior written consent of the Landlord, which consent shall not be
unreasonably withheld, delayed or deferred. Any such assignment or transfer, if
agreed to by Landlord, shall not in any way relieve Tenant of its
responsibilities hereunder, including the payment of annual net rent,
impositions and additional rent.
Section 15.4 Provided no default exists under this Lease, the interest of
Tenant herein may at any time be assigned or transferred by Tenant and Tenant
may sublet the whole or any part of the Demised Premises, on one or more
occasions, to "wholly-owned subsidiaries" or "affiliates" of Tenant or to any
"successor entity" of Tenant, without the prior written consent of Landlord. For
purposes of this Section a "wholly-owned subsidiary" of Tenant shall mean any
corporation all of whose outstanding voting stock shall at the time be owned,
directly or indirectly, by Tenant, by one or more of its wholly-owned
subsidiaries or by a majority of Tenant's then shareholders. An "affiliate" of
Tenant shall mean any entity which directly or indirectly controls or is
controlled by or is under common control with Tenant and a "successor entity"
shall mean (i) an entity into which or with which Tenant, its successors or
assigns, is merged or consolidated, in
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accordance with any applicable statutory provisions for the merger or
consolidation of entities, provided that, by operation of law or by effective
provisions contained in the instruments of merger or consolidation, the
liabilities of the entities participating in such merger or consolidation are
assumed by the entity surviving such merger or consolidation or (ii) an entity
acquiring this Lease, the good will and all or substantially all of the other
property and assets of Tenant, its successors or assigns, and assuming all or
substantially all of the liabilities of Tenant, its successors and assigns, or
(iii) any successor to a successor entity becoming such by either of the methods
described in clauses (i) and (ii); provided that, immediately after giving
effect to any such merger or consolidation, or such acquisition and assumption,
as the case may be, the entity surviving such merger or created by such
consolidation or acquiring such assets and assuming such liabilities, as the
case may be, shall have assets, capitalization and a net worth, as determined in
accordance with generally accepted accounting principles, at least equal to the
assets, capitalization and net worth, similarly determined, of Tenant on the
commencement date of this Lease or of Tenant, its successors or assigns,
immediately prior to such merger or consolidation or such acquisition and
assumption, as the case may be, whichever is the greater. The acquisition by
Tenant, its successor or assigns, of all or substantially all of the assets,
together with the assumption of all or substantially all of the obligations and
liabilities, of any entity, shall be deemed to be a merger of such entity into
Tenant for purposes of this Section.
Section 15.5 If the fee estate of the Demised Premises is or shall
hereafter be mortgaged, and if Tenant shall be notified in writing of any such
mortgage and of the name of the mortgagee and an address in the United States to
which notices for such mortgagee may be sent or delivered, then, so long as such
mortgage shall remain unreleased of record, whenever notice of default is
required by this Lease to be given to Landlord, notice of Landlord's default in
the performance of any of the terms of this Lease of the same kind and in the
same manner and for the same length of time as is hereby required to be given to
Landlord shall also be given to such mortgagee; and such mortgagee shall have
the right (without being required so to do and without thereby assuming any of
the terms of this Lease) to cure such default within the same time and in the
same manner and with the same effect as Landlord might cure the same. This Lease
shall not terminate or be terminable by Tenant by reason of the foreclosure of
any mortgage permitted by the terms of this Lease. Tenant agrees, without
further instruments of attornment in each case, to attorn to any mortgagee or
purchaser at a foreclosure sale who comes into possession of the Demised
Premises as the result of the foreclosure of a mortgage permitted under the
terms of this Lease, as the case may be, and to waive the provisions of any
statute or rule of law now or hereafter in effect which may give or purport to
give Tenant any right of election to terminate this Lease or to surrender
possession of the Demised Premises in the event that a mortgage permitted under
the terms of this Lease is foreclosed, and Tenant agrees that, until and unless
such permitted mortgagee, shall elect to terminate this Lease as a result of a
default on the part of Tenant (which, pursuant to the terms of this Lease, would
entitle Landlord to terminate this Lease) this Lease shall not be affected in
any way whatsoever by any such termination or proceeding. The word "mortgagee"
as used in this provision shall include a trustee under a trust deed in the
nature of a mortgage, and the word "mortgage" as used in this provision shall
include a trust deed in the nature of a
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mortgage, but shall only include a first mortgage.
ARTICLE 16
PUBLIC UTILITY CHARGES AND CONNECTIONS
Section 16.1 Tenant shall promptly pay or cause to be paid when due all
charges for gas, electricity, light, heat, power, water, sewerage and/or other
public utility and telephone or other communication service used, rendered or
supplied for, at, upon or in connection with the Demised Premises throughout the
entire term of this Lease and Tenant agrees to indemnify and does hereby
indemnify and save Landlord harmless against any liability or damages on such
account. Tenant shall also, at its sole cost and expense, procure any and all
necessary permits, licenses and other authorizations required for the lawful and
proper installation and maintenance in, on, at, over or across the Demised
Premises of wires, pipes, conduits, tubes and other equipment and appliances for
use in supplying any such service to, for, upon or in connection with the
Demised Premises. If at any time so requested by a duly authorized public
utility, and provided the same does not unreasonably or substantially diminish
or impair the use or value of the Demised Premises nor unreasonably impair its
appearance, Landlord agrees during the term of this Lease to join in the
execution of an easement for the purpose of providing additional utilities for
said Demised Premises.
ARTICLE 17
INDEMNIFICATION AND CONDITION OF PREMISES
Section 17.1 Tenant agrees to indemnify and save harmless and does hereby
indemnify and save harmless the Landlord, and the holder of any fee first
mortgage on the Demised Premises, against and from any and all claims by or on
behalf of any person or persons, firm or firms, corporation or corporations, and
against and from any and all liability, loss and damage, and all reasonable
costs and expenses thereof, arising from any work or other thing what-so-ever
done or occurring in or about the Demised Premises or the buildings thereof, and
Tenant further agrees to indemnify and save harmless, and does hereby indemnify
and save harmless the Landlord against and from any and all claims arising
during the term of this Lease from any condition of any of the buildings, other
structures, sidewalks, streets, driveways or parking areas or facilities
situated on the Demised Premises, or arising from any use of the Demised
Premises, or arising from any breach, violation or default in respect of any of
the provisions of this Lease on the part of Tenant to be performed, or arising
from any violation of any laws or ordinances on the part of Tenant, its agents,
servants and/or employees, or arising from any act or omission of Tenant or of
any of its agents, contractors, servants, employees or licensees, or arising
from any accident, injury or damage of any kind whatsoever, occurring in any
manner whatsoever, in, at, upon,
19
under or about the Demised Premises or any part or aspect thereof or the
sidewalks, streets, driveways or parking areas or facilities situated on the
Demised Premises, and from and against all costs, reasonable counsel fees,
expenses and liabilities incurred in connection with any claim, action or
proceeding brought or predicated thereon; and in case any action or proceeding
be brought against Landlord by reason of any such claim, Tenant covenants to
resist or defend such action or proceeding by counsel reasonably satisfactory to
the Landlord at Tenant's sole cost and expense. Nothing contained herein shall
be so construed as to exculpate Landlord or any other indemnified party from
liability for any gross negligence or willful misconduct committed by Landlord
or its agents, servants, contractors, invitees or employees. Each party hereby
waives any claim against the other for consequential damages, to the extent
permitted by law, and claims covered by applicable insurance.
Section 17.2 Landlord agrees to indemnify and save harmless and does
hereby indemnify and save harmless the Tenant against and from: (a) any and all
claims by or on behalf of any person or persons, firm or firms, corporation or
corporations, and against and from any and all liability, loss and damage, and
all costs and expenses thereof, arising from the breach by Landlord of any
warranty or covenant herein contained or any work or other thing what-so-ever
done or occurring in or about the Demised Premises or the buildings thereof as a
result of the gross negligence or willful misconduct of Landlord or its agents,
servants, contractors, invitees or employees in or about the Demised Premises;
and (b) any claim of damage, injury, or loss arising from any breach, violation
or default in respect of any of the provisions of this Lease on the part of
Landlord to be performed.
ARTICLE 18
REPAIR, RESTORATION AND REBUILDING
Section 18.1 Subject to all of the conditions and provisions hereinafter
set forth, Tenant covenants and agrees that, in the event of damage to or
destruction of the Building during the term of this Lease, by fire or other
casualty, it will promptly, at its sole cost and expense, repair, restore and
rebuild the same as nearly as is practicable and reasonable to the condition it
was in immediately prior to such damage or destruction or with such changes or
alterations as may be made in conformity with this Lease, such repair,
restoration or rebuilding to be completed with reasonable dispatch (subject to
delays occasioned by fire, explosions, strike, lockout, act of God, inability to
obtain labor or materials, governmental restriction or similar cause beyond the
control of Tenant).
Section 18.2 Except as more specifically provided below to the contrary,
in the event the Demised Premises shall be damaged or destroyed by reason of
fire or any other cause, the Tenant will immediately notify the Landlord and
will repair or rebuild the Building. Such reconstruction and repair shall make
the Building at least equal in value to the building existing immediately prior
to the occurrence and as nearly similar to it in character as is practicable and
reasonable. Except as provided in Article 18.4 below,
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Landlord and Tenant will apply and make available the net proceeds of any fire
or other casualty insurance, after deduction of any costs or collection,
including attorneys fees for repairing or rebuilding as the same progresses.
Before beginning repairs or rebuilding or letting any contracts in connection
with repairs or rebuilding, Tenant will submit for Landlord's approval, which
approval Landlord will not unreasonably withhold or delay, complete and detailed
plans and specifications for the repairs or rebuilding of Tenant's work. After
receiving Landlord's approval of those plans and specifications, Tenant will
begin the repairs or rebuilding and will prosecute the repairs or rebuilding to
completion with reasonable diligence, subject, however, to strikes, lockouts,
acts of God, embargoes, governmental restrictions and other causes beyond
Tenant's control. Tenant will obtain and deliver to Landlord a temporary or
final certificate of occupancy before the Demised Premises are reoccupied for
any purpose. The repairs or rebuilding will be completed free and clear of
mechanics' or other liens and in accordance with the building codes and all
applicable laws, ordinances, regulations or orders of the State of Connecticut,
the Town of Enfield or other applicable authority affecting the repairs or
rebuilding and also in accordance with all requirements of the insurance rating
organization, or similar body, and any liability insurance company insuring
Landlord against liability for accidents related to the Demised Premises.
If at any time during the last two (2) years of the term of this Lease,
the Building is so damaged by fire or otherwise that the cost of restoration
exceeds fifty percent (50%) of the replacement value of the Building (exclusive
of foundations) immediately prior to the damage, either Landlord or Tenant may,
within thirty (30) days after such damage, give notice of its election to
terminate this Lease and this Lease will cease on the tenth (10th) day after the
delivery of that notice. Monthly rent will be apportioned and paid to the time
of termination. If this Lease is so terminated, Tenant will have no obligation
to repair or rebuild and the entire insurance proceeds will be paid over to
Landlord. Tenant shall have the right to receive the proceeds of any policy of
insurance which may specifically insure Tenant's property. In the event of such
termination, except for obligations then accrued, Tenant shall be released from
any further liability hereunder.
Section 18.3 All proceeds of insurance recovered on account of such damage
or destruction, except such sums as any fee mortgagee may claim, and the cost,
if any, of such recovery, shall be deposited in an interest bearing account with
said fee mortgagee if required by such fee mortgagee, otherwise with another
depositary satisfactory to all parties having an interest in said insurance
proceeds. All such proceeds shall be applied by such depositary to the extent
necessary for the payment of the cost of repair, restoration or rebuilding
(hereinafter referred to as the "work") and shall be paid out from time to time
to the Tenant as such work progresses upon the written request of the Tenant
which shall be accompanied by proper affidavits and valid waivers of lien and a
certificate of the architect or engineer in charge of the work stating: (a) that
the sum requested is justly due to the contractors, subcontractors, materialmen,
laborers, engineers, architects or other persons, firms or corporations
rendering services or materials for such work, or is justly required to
reimburse the Tenant for expenditures made by the Tenant in connection with such
work, and, when added to all
21
sums previously paid out by such depositary, does not exceed the value of the
work done to the date of such certificate, and (b) that the insurance money
remaining in the hands of such depositary, will be sufficient upon the
completion of such work to pay for the same in full. The Tenant shall also
furnish such depositary at the time of any such payment with evidence reasonably
satisfactory to the Landlord and such depositary that there has not been filed
with respect to the Demised Premises any mechanic's lien or other lien that has
not been discharged of record in respect of any work, labor, services or
materials performed, furnished or supplied or claimed to have been performed,
furnished or supplied in connection with any such work. Such depositary shall
not be required to pay out any insurance money when the Demised Premises shall
be encumbered with, or under the law may be encumbered with, any such lien,
except to the extent said funds are to be utilized to satisfy such lien. If the
insurance money in the hands of such depositary, and such other sum, if any,
deposited with the Landlord pursuant to Article 12 above, shall be insufficient
to pay the entire cost of such work, the Tenant agrees to pay the deficiency.
Upon the completion of the work and payment in full thereof by the Tenant, the
Landlord shall turn over to the Tenant, upon submission of proof satisfactory to
the Landlord that the work has been paid for in full, the balance of any sums
(with accrued interest) deposited with the Landlord by the Tenant pursuant to
Article 12 above and then remaining in the hands of the Landlord. If there shall
be a balance of insurance money after the whole cost of the work shall have been
defrayed therefrom, then in each such case, all remaining insurance money
recovered as a result of such loss shall be delivered to Landlord. If the amount
of said insurance money is not sufficient to pay the whole cost of said work,
then in such case, the entire amount of any such shortfall shall be paid by and
at the sole cost of Tenant. In the event that Tenant shall fail to repair,
restore and rebuild the Building in accordance with this Article 18, within a
reasonable period of time following such damage or destruction, Landlord, in
addition to any other remedy or remedies which it may have, shall have the right
to use all sums then on deposit with the depositary mentioned in this Section
above, as a fund to defray all costs and expenses which may be incurred by
Landlord in fulfilling and performing the obligations of Tenant which are set
forth in this Article 18.
Section 18.4 Landlord shall not be responsible for the collection or
non-collection of any insurance money in any event, but only for such insurance
money as it may receive as Landlord, and Landlord agrees that, in the event that
it shall fail or shall be unable to collect any proceeds of insurance to be held
as herein provided, the Tenant shall be and hereby is subrogated to and shall at
all times, so long as it is not in default under this Lease, have all of the
rights of the Landlord in and to any and all insurance monies, subject to the
rights of any fee mortgagee, for the purpose of repairing, restoring or
rebuilding the Demised Premises or any portion thereof pursuant to the terms of
this Article 18.
Section 18.5 If the Demised Premises shall be destroyed or damaged in
whole or in part by fire or other casualty and any mortgagee(s) shall claim any
portion or all of any insurance proceeds payable as a result of said damage or
destruction, Landlord agrees to turn over to the depositary mentioned in Section
18.2 of this Article an amount equal to the insurance proceeds claimed and paid
over to said mortgagee(s). Such
22
amount(s) shall be payable by Landlord at such time as the payment of said
insurance proceeds is made to said mortgagee(s); provided however, (a) in the
event that such damage or destruction shall occur at a time when a period of
less than five (5) full years remains unexpired on the term of this Lease, and
(b) in the further event that any mortgagee(s), as a result of such damage or
destruction, shall claim from such insurance proceeds, a sum or sums of money
which total in excess of one million ($1,000,000.00) Dollars, the Landlord, at
its option, in lieu of turning over the amount(s) of the insurance proceeds
which was claimed and paid over to said mortgagee(s) to the depositary mentioned
in 18.3 of this Article, within sixty (60) days following the date that said
mortgagee(s) shall make such claim(s) in writing, shall have the right to serve
Tenant with written notice of Landlord's election to terminate this Lease, and
thereupon this Lease shall cease on the tenth (10th) day after delivery of such
notice. Monthly rent will be apportioned and paid by Tenant to the time of such
termination. In the event of such termination, except for obligations accrued as
of the date of such termination, Tenant shall be released from any further
liability hereunder Landlord shall use all commercially-reasonable efforts to
negotiate with its fee mortgagee a clause in the mortgage deed permitting the
use of insurance proceeds to repair and/or reconstruct the Building.
Section 18.6 It is specifically understood and agreed that, subject to the
provisions of Section 18.4 of this Article 18, notwithstanding the provisions of
any applicable statute, Tenant shall not be entitled, unless this Lease is
canceled pursuant to said Section 18.4, to any abatement of rent, or of any
other sum or sums required to be paid to Landlord pursuant to the terms of this
Lease, during the period of time that the Building may remain unfit for
occupancy, either totally or partially, as the result of fire or other casualty.
Section 18.7 Notwithstanding any other provision of this Lease to the
contrary but subject to the provisions of Section 18.5 above, Tenant shall not
be obligated to repair and/or restore the Building as provided hereunder: (a) if
the applicable insurance proceeds are not made available to the Tenant as a
result of any action or inaction on the part of the Landlord or any mortgagee;
or (b) in the event of a casualty caused by the Landlord which results in the
denial of insurance coverage by the insurer of the Building, which denial is
upheld by any legal action brought by Landlord or Tenant challenging such
coverage denial; or (c) in the event the Landlord's mortgagee shall claim all or
any portion of such insurance proceeds and the Landlord shall fail to deposit an
equivalent sum with the depository for the repair of the Building as provided in
Section 18.5 above.
ARTICLE 19
CONDEMNATION
Section 19.1 In the event of either a partial or a total taking of the
Demised Premises during the term of this Lease, Landlord shall provide Tenant
with prompt written notice thereof For the purpose of this Article, the term
"proceedings" shall mean proceedings involving the exercise of the power of
eminent domain; the term "net
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award" shall mean the total monetary award granted in any such proceedings less
any reasonable expenses and attorneys' fees of the Landlord and the Tenant in
collecting the gross award, which fees and expenses shall in each case be
retained by or paid to the Landlord or the Tenant as the case may be.
Section 19.2 Subject to the provisions of this Article 19 hereinafter
contained, in the event of a taking of less than all of the Demised Premises,
this Lease shall continue in full force and effect and Tenant shall apply so
much of the net award as reasonably may be required (the balance, if any, to go
to the Landlord), for the repair, restoration and rebuilding of the Demised
Premises, and, subject to the provisions of Section 19.4 of this Article 19, the
Tenant shall remain liable for the payment of the annual net rent and all other
charges provided for in this Lease. Notwithstanding the foregoing, in the event
of a partial taking of the Demised Premises, during the period of repair,
restoration or rebuilding of the Building by Tenant pursuant to Section 19.3
below, annual net rent payable by Tenant hereunder shall be reduced during the
period of repair, restoration or rebuilding in the same ratio as the portion of
the Building taken bears to the total square footage of the Building.
Section 19.3 Subject to the provisions of Section 19.5 of this Article, if
there shall be a partial taking of the Demised Premises, the net award recovered
(except such sums as any fee mortgagee(s) may claim and less the cost, if any,
of such recovery) shall be deposited in an interest bearing account with said
fee mortgagee if required by such fee mortgagee, otherwise with another
depositary satisfactory to all parties having an interest in such proceeds. All
such proceeds shall be applied by such depositary to the extent necessary to the
payment of the cost of repair, restoration or rebuilding (hereinafter referred
to as the "work") and shall be paid out from time to time to the Tenant as such
work progresses upon the written request of the Tenant, which shall be
accompanied by proper affidavits and valid waivers of lien and a certificate of
the architect or engineer in charge of the work stating (a) that the sum
requested is justly due to the contractors, subcontractors, materialmen,
laborers, engineers, architects or other persons, firms or corporations
rendering services or materials for such work, or is justly required to
reimburse the Tenant for expenditures made by the Tenant in connection with such
work, and, when added to all sums previously paid out by such depositary, does
not exceed the value of the work done to the date of such certificate. The
Tenant shall also furnish such depositary at the time of any such payment with
evidence reasonably satisfactory to the Landlord and such depositary that there
has not been filed with respect to the Demised Premises any mechanic's lien or
other lien that has not been discharged of record in respect of any work, labor,
services or materials performed, furnished or supplied or claimed to have been
performed, furnished or supplied in connection with any such work. Such
depositary shall not be required to pay out any such money when the Demised
Premises shall be encumbered with, or under the law may be encumbered with, any
such lien, except to the extent said funds are to be utilized to satisfy such
lien. Upon the completion of the work and payment in full thereof by the Tenant,
the Landlord shall turn over to the Tenant, upon submission of proof
satisfactory to the Landlord that the work has been paid for in full, the
balance of any sums (with accrued interest) deposited with the Landlord by the
Tenant pursuant to
24
Article 12 above and then remaining in the hands of the Landlord. If there shall
be a balance of condemnation proceeds after the whole cost of the work shall
have been defrayed therefrom, then in each such case, all remaining condemnation
proceeds so recovered for such partial taking shall be retained by or paid to
the Landlord. In the event that Tenant shall fail to repair, restore and rebuild
the Building in accordance with 19.2 of this Article 19, within a reasonable
period of time following such partial taking, Landlord, in addition to any other
remedy or remedies which they may have, shall have the right to use all sums
then on deposit with the depositary mentioned in this Section above, and/or on
deposit with Landlord pursuant to Article 12, as a fund to defray all costs and
expenses which may be incurred by Landlord in fulfilling and performing the
obligations of Tenant which are set forth in Section 19.2 of this Article 19.
Section 19.4 If there shall be a partial taking of the Demised Premises
and any mortgagee(s), shall claim any portion or all of the net award payable as
a result of such taking, Landlord agree to turn over to the depositary mentioned
in Section 19.3 of this Article, an amount equal to the net award so claimed and
paid over to such mortgagee(s). Such amount(s) shall be payable by Landlord at
such time as payment is made to such mortgagee(s); provided however, in the
event that such partial taking shall occur at a time when a period of less than
five (5) full years remains unexpired on the Initial Term of this Lease or
remains unexpired on any renewal term which Tenant may have theretofore
exercised, and in the further event that such mortgagee(s), as a result of such
partial taking, shall claim from such net award, a sum of money which totals in
excess of one million ($1,000,000.00) Dollars, the Landlord, at its option, in
lieu of turning over the amount of the net award which was claimed and paid over
to said mortgagee(s) to the depositary mentioned in Section 19.3 of this
Article, within sixty (60) days following the date that such mortgagee(s) shall
make such claim(s) in writing, shall have the right to serve Tenant with written
notice of Landlord's election to terminate this Lease and thereupon this Lease
will cease on the tenth (10th) day after delivery of such notice. Monthly rent
will be apportioned and paid by Tenant to the time of such termination. In the
event of such termination, except for obligations accrued as of the date of such
termination, Tenant shall be released from any further liability hereunder.
Landlord shall use all commercially-reasonable efforts to negotiate with its fee
mortgagee a clause in the mortgage deed permitting the use of condemnation
proceeds to reconstruct the Building in the event of a partial taking.
Section 19.5 If there shall be a total taking of the Demised Premises, or
if so much of the Demised Premises shall be taken as to render the land which
remains insufficient to restore said Demised Premises substantially to their
condition and utility immediately prior to such taking, then in such event this
Lease shall upon such taking terminate, and the proceeds of such award shall be
paid to Landlord. In the event of such termination, except for obligations then
accrued, Tenant shall be released from any further liability hereunder. In the
event of such termination, all monthly rental payments shall be prorated as of
the date of such termination and Landlord shall refund to Tenant any advance
payments by Tenant for the period subsequent thereto.
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Section 19.6 Notwithstanding anything contained in this Article above,
Tenant shall have the right to pursue any claim against the condemning
authority, such as relocation expenses, etc., which it may have as a result of
such taking.
ARTICLE 20
DEFAULT AND REMEDIES
Section 20.1 If, during the term of this Lease, (a) Tenant shall make an
assignment for the benefit of creditors, or (b) a voluntary petition be filed by
Tenant under any law having for its purpose the adjudication of Tenant as a
bankrupt or the extension of the time of payment, composition, adjustment,
modification, settlement or satisfaction of the liabilities of Tenant, or the
reorganization (other than a reorganization not involving the liabilities of
Tenant) or the liquidation of Tenant, or (c) an involuntary petition be filed
against Tenant under any law having for it purpose the adjudication of Tenant as
a bankrupt or the extension of the time of payment, composition, adjustment,
modification, settlement or satisfaction of the liabilities of Tenant, or the
reorganization (other than a reorganization not involving the liabilities of
Tenant) or liquidation of Tenant and such petition is not dismissed within sixty
(60) days or (d) a permanent receiver be appointed for any of the property of
Tenant by reason of the insolvency of Tenant, or (e) a temporary receiver be
appointed for any of the property of Tenant by reason of the insolvency of
Tenant and such temporary receiver is not discharged or removed within sixty
(60) days, or (f) any governmental authority or any officer thereof, duly
authorized (other than as provided in (d) and (e) above), shall take possession
of the business or property of Tenant by reason of the insolvency of Tenant, or
(g) Tenant is adjudicated a bankrupt, the occurrence of any such contingency
shall be deemed a breach of this Lease and the Landlord, at its option, in
addition to any other rights or remedies it may have, shall have the immediate
right of re-entry and may remove all persons and property from the Demised
Premises and such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant, all without service of
notice or resort to legal process and without Landlord, or its representatives,
being deemed guilty of trespass or becoming liable for any loss or damages which
may be occasioned thereby.
Section 20.2 If, during the term of this Lease, (a) Tenant shall default
in fulfilling any of the covenants of this Lease (other than the covenants for
the payment of the annual net rent, additional rent, impositions and other
charges payable by Tenant hereunder), or (b) the Demised Premises shall be used
for an unlawful business, Landlord may give to Tenant written notice of any such
default or of the happening of any contingency in this Section 20.2 referred to,
and if, at the expiration of thirty (30) days after the service of such notice,
the default or the happening of the contingency upon which said notice was based
shall continue to exist or, in the case of a default or contingency that cannot
with due diligence be cured within a period of thirty (30) days, if Tenant fails
to proceed promptly after the service of such notice and with all due diligence
to cure the same (it being intended that, in connection with a default not
susceptible of being cured with due diligence within thirty (30) days, the time
of Tenant
26
within which to cure the same shall be extended for such period as may be
necessary to complete the same with all due diligence), Landlord, at its option,
in addition to any other rights or remedies it may have, shall have the
immediate right of re-entry and may remove all persons and property from the
Demised Premises and such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant, all without
service of notice or resort to legal process and without Landlord or its
representatives being deemed guilty of trespass, or being liable for any loss or
damage which may be occasioned thereby.
Section 20.3 If Tenant shall default in the payment of the whole or any
part of the annual net rent and/or additional rent, impositions or any other
charges expressly reserved hereunder, or any part of the same, and such default
shall continue for ten (10) days after the date of Tenant's receipt of written
notice of same from Landlord, then Landlord, at its option, in addition to any
other rights or remedies it may have, shall have the immediate right of re-entry
and may remove all persons and property from the Demised Premises and such
property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of, Tenant, all without service of notice or resort
to legal process and without Landlord, or its representatives, being deemed
guilty of trespass, or being liable for any loss or damage which may be
occasioned thereby. Notwithstanding the foregoing, Landlord shall have no
obligation to provide Tenant with written notice of a payment default more than
two (2) times within any twelve (12) month period.
Section 20.4 Should Landlord elect to re-enter, as herein provided, or
should it take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, it may either terminate this Lease or it may from
time to time, without terminating this Lease, make such alterations and repairs
as it may deem necessary in order to relet the Demised Premises, and relet the
same or any part thereof for such term or terms (which may be for a period
extending beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Landlord in its discretion may deem
advisable; upon each such reletting, all rentals received by Landlord from such
reletting shall be applied first, to the payment of any indebtedness other than
annual net rent due hereunder from Tenant to Landlord; second, to the payment of
any reasonable and necessary costs and expenses of such reletting, including
brokerage fees and attorney's fees and of costs of alterations and repairs;
third, to the payment of annual net rent due and unpaid hereunder, and the
balance, if any, shall be held by Landlord and applied in payment of future
annual net rent as the same may become due and payable hereunder. If such
rentals received from such reletting during any month shall be less than that to
be paid during that month by Tenant hereunder, Tenant shall pay any deficiency
to Landlord. Such deficiency shall be calculated and paid monthly. No such
re-entry or taking possession of said Demised Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Tenant or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach. Should Landlord at any time terminate this Lease
for any breach, in
27
addition to any other remedies it may have, it may recover from Tenant all
damages it may incur by reason of such breach, including the cost of recovering
the Demised Premises, reasonable attorney's fees, and including the worth
(discounted to present worth at 7% per annum) at the time of such termination of
the excess, if any, of the amount of annual net rent and additional charges
equivalent to annual net rent reserved in this Lease for the remainder of the
stated term over the then reasonable rental value of the Demised Premises for
the remainder of the stated term, all of which amounts shall be immediately due
and payable from Tenant to Landlord. In the event of any default on the part of
Tenant, Landlord shall use reasonable efforts to mitigate damages.
Section 20.5 Tenant hereby expressly waives the service of notice of
intention to re-enter as may be provided for in any statute and also waives any
and all right of redemption and, notwithstanding the generality of the
foregoing, any right of redemption in case Tenant shall be dispossessed by a
judgment or by warrant of any court or judge. Tenant and Landlord also waive and
will waive any and all right to a trial by a jury in any action, proceeding
and/or summary proceeding under this Lease. The terms "enter", "re-enter",
"entry" or "re-entry", as used in this Lease, are not restricted to their
technical legal meaning. Nothing in this Section 20.5 shall be construed to be
or deemed to be a waiver of the notice required under this Lease to be given by
Landlord to Tenant of any default on the part of Tenant.
Section 20.6 In case either party shall retain an attorney to enforce the
provisions of this Lease, or if suit shall be brought for recovery of possession
of the Demised Premises, for the recovery of rent or any other amount due under
the provisions of this Lease, or because of the breach of any other covenant
herein contained on the part of either party to be kept or performed, the losing
party shall pay to the winning party all expenses incurred therefor, including a
reasonable attorney's fee.
Section 20.7 In the event of any default or failure or alleged failure or
default to perform any of the terms, covenants, conditions and/or provisions of
this Lease by Landlord, on its part to be paid or performed, Tenant covenants
and agrees to give Landlord written notice thereof and a thirty (30) day period
of time to cure the same prior to Tenant's instituting or commencing any action
or proceeding against Landlord to enforce its rights hereunder, and Landlord
shall not be considered to be in breach of this Lease until and unless Landlord
shall fail to cure such default or failure or alleged failure or default within
said thirty (30) day period. In the event that Landlord through no fault or
neglect on its part, shall be unable to cure such default within said thirty
(30) day period, such period shall be extended by such additional period of time
required to cure defect so long as Landlord commences to cure such default
within said thirty (30) day period and shall diligently pursue the same through
completion.
ARTICLE 21
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EFFECT OF INVALID PROVISION
Section 21.1 If any term or provisions of this Lease or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, it being the intention and
understanding of the parties hereto that each term and provision of this Lease
shall be valid and shall be enforced to the fullest extent permitted by law.
ARTICLE 22
NOTICES, DEMANDS AND REQUESTS
Section 22.1 All notices, demands, and requests that may or are required
to be given by either party to the other shall be in writing and deemed
delivered when actually received; provided, however, all notices, demands and
------------------
requests by Landlord to Tenant, shall be sent by United States registered mail,
return receipt requested, postage prepaid, or by a nationally-recognized
overnight courier providing a receipt for delivery, and mailed or delivered to
Tenant before the Commencement Date at 000 Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxxx
00000 and after the Commencement Date at the address of the Demised Premises
"Attention - Xxxxx X'Xxxxxx, President and a duplicate thereof to Xxx
Xxxxxxxxxx, Esq., Xxxxxxxxxx & Xxxxxxxxxx, 0000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 or at such other place(s) as Tenant may from
time to time designate in a written notice to the Landlord. All notices, demands
and requests by Tenant to the Landlord shall be sent by United States registered
mail, return receipt requested, postage prepaid, or by a nationally-recognized
overnight courier providing a receipt for delivery, and mailed or delivered to
Landlord at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx, and a duplicate thereof to
Attorney Xxxx X. Xxxxx, Pullman & Xxxxxx, LLC, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000. Landlord may change their said addresses, or either of them,
for said notices, demands and requests by written notice hereunder to Tenant.
ARTICLE 23
PROPER USE OF PREMISES, SURRENDER OF POSSESSION
Section 23.1 Tenant, in the use and occupation of the Demised Premises,
and in the prosecution or conduct of any business therein, covenants and agrees
to comply with all requirements of all laws, orders, ordinances, rules and
regulations of the federal, state, county and municipal or other governmental or
quasi-governmental authorities having jurisdiction over the Demised Premises and
with any direction or certificate of occupancy issued pursuant to any law or any
public or quasi-public officer or officers.
29
Tenant covenants that it will not use or permit to be used any part of the
Demised Premises for any dangerous, noxious, illegal, immoral or offensive trade
or business, and will not cause or maintain any nuisance in, at or on the
Demised Premises.
Section 23.2 Tenant shall, on the termination of this Lease, surrender to
Landlord the Demised Premises including all the buildings and structures then
situated thereon, together with the fixtures and facilities appurtenant thereto,
and together with all alterations, additions, improvements and replacements
thereof, in good order, condition and repair, except for reasonable wear and
tear and subject to the provisions of Articles 18 and 19 of this Lease; provided
that, within a period of fifteen (15) days following the effective date of the
termination of this Lease.
ARTICLE 24
ENVIRONMENTAL
Section 24.1 Tenant, at Tenant's expense shall comply with all laws,
rules, orders, ordinances, directions, regulations and requirements of Federal,
State and municipal authorities pertaining to Tenant's use of the Demised
Premises, including, without limitation, all applicable Federal, State and local
laws, regulations or ordinances pertaining to air and water quality, toxic
substances or Hazardous Materials (as hereinafter defined), waste disposal, air
emissions and other environmental matters, and with any direction of any public
officer or officers, pursuant to law, which shall impose any duty upon Landlord
or Tenant with respect to the use or occupation of the Demised Premises. Tenant
shall indemnify, defend and hold Landlord harmless from any claims, judgments,
damages, fines, penalties, or liabilities or losses arising during or after the
Lease Term as a result of Tenant's violation of foregoing obligations.
Section 24.2 As used herein, the term "Hazardous Materials" means any
hazardous or toxic substance, material or waste, including, but not limited to,
those substances, materials, and wastes listed in the United States Department
of Transportation Hazardous Materials Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR Part 302) and
amendments thereto, or such substances, materials and wastes that are or become
regulated under any applicable Federal, State or local law.
Section 24.3 Notwithstanding any provision of this Article 24 to the
contrary, Tenant shall have no obligation hereunder with respect to the
remediation or removal of any Hazardous Materials from the Demised Premises
which existed at the Demised Premises prior to the date hereof or which
environmental professionals determine have migrated onto the Demised Premises
from activities occurring on adjoining properties of third parties.
Section 24.4 To the best of Landlord's knowledge, as of the date hereof,
the Demised Premises are not in violation of any local, state or federal law or
regulation
30
relating to the use, storage or disposal of Hazardous Materials at the Demised
Premises or any other applicable environmental law. Landlord shall indemnify,
defend and hold Tenant harmless from any claims, judgments, damages, fines,
penalties, or liabilities or losses arising during or after the Lease Term as a
result of the existence of Hazardous Materials at the Demised Premises or the
violation of any applicable environmental law relating to the Demised Premises
to the extent such Hazardous Materials or violations of law existed prior to the
effective date of this Lease.
ARTICLE 25
QUIET ENJOYMENT
Section 25.1 Landlord covenants and agrees that Tenant, upon paying the
annual net rent, impositions and additional rent, and all other charges herein
provided for, and upon observing and keeping the covenants, agreements and
conditions of this Lease on its part to be kept, shall lawfully and quietly
hold, occupy and enjoy the Demised Premises during the term of this Lease
without hindrance or molestation of Landlord, subject, nevertheless, to the
terms and conditions of this Lease and subject to such restrictions, easements
and other matters as of record may appear and as are set forth in Schedule A
attached hereto. To have and to hold the Demised Premises unto Tenant and
(subject to the limitations on assignability contained herein) Tenant's
successors and assigns, for the term hereof.
ARTICLE 26
ESTOPPEL CERTIFICATES
Section 26.1 Landlord and Tenant each agree at any time and from time to
time, (but not more than ten (10) times in any twelve (12) month period), upon
not less than fifteen (15) days' prior written request by the other party, to
execute, acknowledge and deliver to such other party a statement in writing
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications) and the dates to which the annual net
rent and other charges have been paid. It is intended that any such statement
delivered pursuant to this Article may be relied upon by any prospective
purchaser of the fee, or the holder of any mortgage upon the fee of the Demised
Premises, or any other party or parties dealing with Landlord or Tenant.
ARTICLE 27
REMEDIES CUMULATIVE, NO WAIVER
Section 27.1 The specified remedies to which Landlord may resort under the
terms of this Lease are cumulative and are not intended to be exclusive of any
other
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remedies or means of redress to which Landlord may be lawfully entitled in case
of any breach or threatened breach by Tenant of any provision of this Lease.
Section 27.2 The failure of either party to insist in any one or more
cases upon the strict performance of any of the covenants of this Lease or to
exercise any option herein contained shall not be or construed to be a waiver or
a relinquishment for the future of such covenant or option.
Section 27.3 A receipt by Landlord of rent with knowledge of the breach of
any covenant hereof shall not be deemed a waiver of such breach, and no waiver
by Landlord of any provision of this Lease shall be deemed to have been made
unless expressed in writing and signed by Landlord. In addition to the other
remedies in this Lease provided, Landlord shall be entitled to the restraint by
injunction of the violation, or attempted or threatened violation, of any of the
covenants, conditions, agreements or provisions of this Lease.
ARTICLE 28
SUBORDINATION OF LEASE TO FEE MORTGAGES
Section 28.1 During the entire term of this Lease, Landlord may place upon
the Demised Premises such bona fide mortgage or mortgages as Landlord, in its
discretion, may elect to place against the Demised Premises. Landlord further
covenants and agrees that it will not place or cause to be placed against the
Demised Premises, at any time during the entire term of this Lease, mortgages
having a combined unpaid principal balance in excess of the fair market value of
the Demised Premises at the time of such computation. Landlord also covenants
and agrees that any mortgage which it shall place or cause to be placed against
the Demised Premises, other than a first mortgage, shall contain a provision
which shall permit all of the insurance proceeds which may be recovered as the
result of a fire or other casualty or all of the net award (as defined in
Section 19.1 of Article 19) which may be recovered as the result of a partial
taking in eminent domain proceedings, (which partial taking does not result in a
termination of this Lease) to be used by Tenant to rebuild and restore the
Demised Premises to the condition which existed immediately prior to such fire
or other casualty or immediately prior to such partial taking in eminent domain
proceedings, as the case may be.
Section 28.2 In the event that Landlord shall cause a bona fide mortgage
or mortgages to be placed against the fee simple title interests of the Demised
Premises, Tenant agrees to subordinate its interest in this Lease to the lien of
such mortgage or mortgages and to execute such instrument of subordination as
shall be required or requested by the holder or holders of the same. This
agreement on the part of the Tenant is expressly subject to the following
conditions: Landlord or the applicable mortgagee shall deliver to the Tenant at
or prior to the execution of the subordination agreement required of Tenant, an
instrument, in recordable form, executed by the Landlord and the applicable
mortgagee, which shall include a statement that so long as
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the Tenant continues to pay annual net rent, impositions and additional rent as
under this Lease are reserved, and complies with and performs all of the terms,
covenants, conditions and provisions on Tenant's part to be paid and performed
under this Lease, the right of possession of the Tenant to the Demised Premises
shall not be affected or disturbed by the exercise of any rights by such
mortgagee, including, without limitation, any foreclosure action brought by such
mortgagee or any action upon any bond or note secured by such mortgage. Said
instrument shall also provide a provision that, if said mortgagee or any
successor in interest thereto comes into possession or ownership of the Demised
Premises by foreclosure of the said mortgage, this Lease shall not be terminated
by said foreclosure, but rather that the Tenant shall attorn to the then-owner
of the Demised Premises and the then owner of the Demised Premises may require
the Tenant to attorn to it. Tenant further agrees to execute such instrument of
attornment as shall be reasonably required or requested by Landlord's
mortgagee(s), which includes provisions that said mortgagee(s) shall not be: (a)
liable for any damages incurred by Tenant due to an act or omission of the
Landlord; (b) subject to any offsets or defenses which Tenant may have against
Landlord; (c) bound by any prepayment of rent by Tenant, except as required by
the terms of this Lease; (d) bound by an amendment, modification or waiver of
any material term of this Lease unless made with mortgagee(s)' written consent;
and (e) liable for any obligation of Landlord under this Lease with respect to
any property other than the Demised Premises given as security for the loan from
said mortgagee(s), and Tenant will look solely to Landlord for performance and
observance of any and all such obligations. Said instrument shall further
contain a covenant that Tenant shall not subordinate its rights under this Lease
to any other mortgage, deed of trust or other security instrument without said
mortgagee(s)' written consent and that Tenant shall notify mortgagee(s) if
Landlord is in default under this Lease and provide mortgagee(s) thirty (30)
days after receipt of such notice in which to cure the default, extended by such
additional time as may be reasonable under the circumstances so long as the
mortgagee(s) commences such cure within said thirty (30) day period and
diligently pursues a cure, before Tenant invokes any of its remedies under this
Lease. In the event that the Demised Premises are sold or otherwise disposed of
pursuant to any right or power contained in such mortgage or the bond or
promissory note secured thereby, or as the result of proceedings thereon or
otherwise authorized by law, the purchaser of said Demised Premises at such
sale, or any person acquiring title through or by virtue of such sale, shall
take title subject to the terms and provisions of this Article. Upon delivery of
such non-disturbance instrument to Tenant, this Lease shall be subordinate to
such mortgage, without the necessity of the execution of any further instrument
of subordination, at the option of such mortgagee.
Section 28.3 Landlord covenants and agrees to timely pay all installments
of principal and interest falling due on all mortgages which at any time may
exist against the Demised Premises or any part thereof and to faithfully abide
sby all of the terms and conditions contained within any mortgage deed and note
evidencing such mortgage.
ARTICLE 29
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BROKERAGE COMMISSIONS
Section 29.1 Tenant represents to Landlord that, in making and entering
into this Lease, it dealt with no real estate broker and Tenant agrees to
indemnify and save harmless the Landlord from and against the claims of any
broker or brokers with whom Tenant has dealt in making or entering into this
Lease. Landlord represents to Tenant that, in making and entering into this
Lease, it dealt with no real estate broker and Landlord shall indemnify and save
harmless Tenant from and against the claims of any broker or brokers with whom
Landlord has dealt in making or entering into this Lease.
ARTICLE 30
MISCELLANEOUS
Section 30.1 The covenants and agreements herein contained, subject to the
provisions of Section 30.12 of this Article 30 below, shall bind and inure to
the benefit of Landlord, its successors and assigns, and, subject to the
provisions of Article 15 above, shall bind and inure to the benefit of Tenant,
its successors and assigns.
Section 30.2 Tenant agrees to duly perform all of the covenants and
obligations required to be performed by it as lessor under any subleases made by
it.
Section 30.3 The captions, section numbers, and article numbers contained
in this Lease are inserted only as a matter of convenience and in no way define,
limit, construe, or describe the size or intent of such sections or articles of
this Lease, nor in any way affect this Lease.
Section 30.4 The submission of this Lease for examination does not
constitute a reservation of or an option for the Demised Premises, and this
Lease shall become effective only upon execution and delivery thereof by
Landlord and Tenant. The parties agree that this instrument is a lease and that
it shall not be construed as an agreement to make a lease.
Section 30.5 Tenant shall not record this Lease, but the parties hereto
agree to execute a Notice of Lease, drawn in accordance with the applicable
statutes, if any, of the State in which the Demised Premises are situated, which
Notice of Lease may be recorded by either of the parties hereto.
Section 30.6 This Lease, together with all Schedules attached hereto and
made a part hereof, set forth all of the covenants, promises, agreements,
conditions and understandings between the parties concerning the Demised
Premises, and there are no covenants, promises, agreements, conditions or
understandings, either written or oral, between them other than as are herein
set forth. Except as herein otherwise
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provided, no subsequent alteration, amendment, change or addition in or to this
Lease shall be binding upon Landlord or Tenant unless reduced to writing and
signed by them.
Section 30.7 Any holding over after the expiration of the term hereof,
with the consent of Landlord, shall be construed to be a tenancy from month to
month at the rent herein specified (prorated on a monthly basis), and shall
otherwise be on all of the terms and conditions herein specified, so far as
applicable.
Section 30.8 The use of the neuter singular pronoun to refer to Landlord
or Tenant shall be deemed a proper reference even though Landlord or Tenant may
be an individual, a partnership, a 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 sense when there is more than
one Landlord or Tenant to either corporations, associations, partnerships or
individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
Section 30.9 Landlord agrees to fully cooperate with Tenant in any effort
on the part of Tenant to obtain any approvals, permits, and/or authorizations
from any and all governmental or quasi-governmental agencies having jurisdiction
over the Demised Premises which may be required in order to lawfully permit
Tenant to use the Demised Premises for any purpose which, if such approvals,
permits and/or authorizations were to be obtained, would be permitted by the
terms of this Lease.
Section 30.10 As used throughout this entire Lease, the following phrases,
words and terms shall, unless the context otherwise requires, have the following
meanings:
(a) "Date of execution of this Lease" shall mean the date that this
Lease is executed by both Landlord and Tenant.
(b) "Termination of this Lease" shall mean the expiration or earlier
termination of the term of this Lease or the cancellation of this Lease
pursuant to any of the provisions of this Lease or pursuant to law.
Section 30.11 In the event of any bona fide transfer or transfers by
Landlord of its interest in this Lease, the Landlord (and in the case of any
subsequent transfers, the then assignor) shall be automatically freed and
relieved, from and after the date of such transfer, of and from all liability
for the performance or observance of any covenants or obligations of this Lease
on the part of the Landlord thereafter to be performed or observed; provided,
that, (a) Landlord shall notify Tenant of any such transfer stating the name and
address of the transferee, (b) any amount which may then be due and payable to
the Tenant by Landlord under any provision of this Lease shall be promptly paid
by Landlord to the Tenant, and (c) such transferee, by accepting such transfer,
shall be deemed to have assumed the obligations of the Landlord hereunder from
and after the date of such transfer, it being intended hereby that the covenants
and obligations contained in this Lease on the part of Landlord shall, subject
as aforesaid,
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be binding upon Landlord, its successors and assigns, only in, during and
throughout its period of ownership of this Lease. Notwithstanding anything to
the contrary contained herein, Tenant agrees that it will look solely to
Landlord's estate in the Demised Premises as the sole asset for collection of
any claim, judgment for damages or enforcement of any other judicial process
requiring payment of money. Tenant agrees that no other assets of Landlord shall
be subject to levy, execution or other procedures for the satisfaction of
Tenant's rights or remedies.
Section 30.12 Landlord and Tenant hereby release and relieve the other and
waive their entire claim of recovery for loss or damage to property arising out
of or incident to fire, lightning and other perils included in a standard "all
risk" insurance policy when such property constitutes the Demised Premises or is
in, on or about the Demised Premises, whether or not such loss or damage is due
to the negligence of Landlord or Tenant, or their respective agents, employees,
guests, licensees, invitees or contractors. Tenant and Landlord waive all rights
of subrogation against each other on behalf of, and shall use their best efforts
to obtain a waiver of all subrogation rights from all property and casualty
insurance referenced above.
Section 30.13 Tenant shall have the sole and exclusive right, at its sole
cost and expense and in conformity with applicable laws and ordinances, to erect
and thereafter, to maintain and/or replace, if it shall so elect, signs on the
Demised Premises. All signage on, in or around the Demised Premises must be
approved by Landlord prior to installation, which approval shall not be
unreasonably withheld. Any and all permits, licenses or approvals for permitted
signage shall be obtained by Tenant at Tenant's sole cost and expense.
ARTICLE 31
LANDLORD'S TITLE AND ALLOWABLE USE
Section 31.1 Landlord represents and warrants as a condition of the Lease
that: (i) it possesses good marketable fee title to the Demised Premises,
subject only to matters described in Schedule A; (ii) it is authorized to make
this Lease; (iii) the provisions of this Lease do not or will not conflict with
or violate the provisions of existing or future agreements between Landlord and
third parties.
Section 31.2 Landlord represents and warrants that, as of the date hereof:
(i) there are no pending, or, to the best of its knowledge, threatened, claims,
causes of action, foreclosure proceedings, filing of involuntary or voluntary
bankruptcy or insolvency petitions, appointments of receivers, assignments for
the benefit of creditors, lawsuits or judgments against he Demised Premises or
Landlord if the same may affect title to the Demised Premises, Landlord's
ability to comply with its obligations under this Lease, or Tenant's use of the
Demised Premises as herein provided; and (ii) none of the foregoing affecting
other properties controlled by or under common control with Landlord or any
individual or entity, directly or indirectly through one or more intermediaries,
controlled by Landlord or under common control with Landlord, if the
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same may affect title to the Demised Premises, Landlord's ability to comply with
its obligations under this Lease, or Tenant's use of the Demised Premises as
herein provided. If, after the date hereof, any such actions, petitions,
appointments, assignments or other proceedings are filed or threatened, Landlord
shall notify Tenant within fifteen (15) days of Landlord's knowledge thereof.
Section 31.3 Landlord has delivered to Tenant a copy of Landlord's title
insurance policy for the Demised Premises and represents and warrants that the
policy is a true and complete copy of the original; that there have been no
changes as of the date of this Lease to any matters set forth in such policy.
Section 31.4 Landlord represents and warrants that it has no actual
knowledge and has not received any notices or communications from any
governmental or other agency, that anybody at the Demised Premises (other than
Tenant) has violated any Legal Requirements with respect to the acquisition,
handling, storage, treatment, shipment or disposal of, or any other matters
pertaining to, the aforementioned materials, substances, products, pollutants,
contaminants and wastes. Landlord represents and warrants that neither it nor
the Demised Premises is subject to any decree, order or judgment relating to
environmental laws or regulations.
ARTICLE 32
CONDITIONS PRECEDENT
Section 32.1 The parties acknowledge that prior to obtaining a building
permit for the construction of the Building and all required site work, Landlord
must obtain the permission of one or more governmental authorities having
jurisdiction over the Demised Premises (the "Governmental Approvals"). Landlord
agrees to apply for the Governmental Approvals as soon as practicable following
the execution of this Lease. All costs thereof shall be paid by Landlord and
shall be a part of the total project cost.
Section 32.2 Tenant agrees to cause its architect to furnish to Landlord,
at Tenant's expense, such plans and drawings as Landlord shall reasonably
require in order to obtain all of the Governmental Approvals.
Section 32.3 In the event that Landlord, through no fault or neglect on
its part, is unable to obtain all required Governmental Approvals and all appeal
periods in connection therewith have expired, on or before six (6) months after
the date hereof, either party may terminate and cancel this Lease upon written
notice to the other.
Section 32.4 This Lease is subject to and contingent upon the Tenant's
sale of its present headquarters building located at 000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxx (the "Bank Building") on or before the Commencement Date
for a sum not less than $525,000.00. In the event that, within 120 days after
the date of this Lease, Tenant provides Landlord with written notice of its
request that Landlord purchase the Bank
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Building, Landlord shall execute the Purchase and Sale Agreement attached hereto
as Schedule E, and consummate the purchase on or before the Commencement Date,
in which event this condition shall be deemed fully satisfied and of no further
force or effect. At the time of said closing Tenant shall execute an
environmental indemnification agreement in favor of the Landlord with respect to
the Bank Building in the form used by Tenant for its commercial loan
transactions.
ARTICLE 33
RIGHT OF FIRST OFFER
Section 33.1 Landlord agrees that if at any time during the term of this
Lease, as the same may be extended by agreement of the parties, Landlord shall
desire to sell the Demised Premises, then in such event, before placing the same
for sale on the open market, Landlord shall first offer the Demised Premises to
Tenant by advising Tenant of the purchase price it wants for the Demised
Premises and all other relevant terms of such sale (the "Tenant's Right of First
Offer"). Tenant shall thereafter have a period of thirty (30) days to notify
Landlord of its acceptance or rejection of such offer. Failure to respond within
such thirty (30) day period shall conclusively be presumed to be a rejection of
such offer. If Tenant accepts such offer, the parties shall close the purchase
and sale transaction within sixty (60) days following the expiration of the
above-mentioned thirty (30) day period. If Tenant shall reject such offer,
Landlord shall have the right to place the Demised Premises for sale on the open
market and to sell the same at a price which is at least equal to the price set
forth in Landlord's offer to Tenant and on terms which are no less onerous than
the terms offered to Tenant. In the event that Landlord is unable to consummate
a sale of the Demised Premises at such price and on such terms within six (6)
months following the expiration of said above-mentioned thirty (30) day period,
Tenant's Right of First Offer shall be reinstated on the same terms as set forth
above.
It is specifically conditioned and agreed that in the event of the sale of
the Demised Premises to a third party pursuant to the terms of this Article 33,
the Tenant's Right of First Offer shall lapse and shall not be binding upon such
third party purchaser.
It is also understood and agreed that Tenant's Right of First Offer shall
not be applicable to any transfer of the Demised Premises which Landlord shall
at any time elect to make to issue or other family members of the principals of
the Landlord or to a trust or trusts established for such individuals for estate
planning purposes; provided that, the provisions of Tenant's Right of First
Offer shall be binding upon such a transferee.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of
the day and year first above written.
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WITNESSES: LANDLORD
XXXXXXX PROFESSIONAL CENTER, LLC
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxx, Xx.
-------------------------- -----------------------------------------
Xxxxxxx Xxxxxxx, Xx.
/s/ Xxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------- -----------------------------------------
Xxxxx X. Xxxxxxx
Its Managers
Duly Authorized
TENANT
ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION
/s/ Xxxxx Xxxxx By: /s/ Xxxxx X'Xxxxxx
-------------------------- -----------------------------------------
Its
Duly Authorized CEO
/s/ Xxxx Xxxxxxxx
--------------------------
STATE OF CONNECTICUT :
: ss
COUNTY OF HARTFORD :
On this 24th day of November, 2004, before me the undersigned officer,
personally appeared Xxxxxxx Xxxxxxx, Xx. and Xxxxx X. Xxxxxxx, who acknowledged
themselves to be the Managers of XXXXXXX PROFESSIONAL OFFICE CENTER, LLC, a
limited liability company, and that they, as such Managers, being authorized so
to do, executed the foregoing instrument for the purposes therein contained, by
signing the name of the limited liability company by themselves himself as
Managers.
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IN WITNESS WHEREOF, I hereunto set my hand.
/s/ Xxxxx Xxxxx
---------------------------
Notary Public
STATE OF CONNECTICUT )
) ss:
COUNTY OF )
On this 24th day of November, 2004, before me, the undersigned officer,
personally appeared Xxxxx X'Xxxxxx who acknowledged himself to be the Chief
Executive Officer of ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION, a
Corporation, and that he, as such Chief Executive Officer being authorized so to
do, executed the foregoing instrument for the purposes therein contained, by
signing the name of the Corporation by himself as Chief Executive Officer.
IN WITNESS WHEREOF, I hereunto set my hand.
/s/ Xxxxx Xxxxx
---------------------------
Notary Public
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SCHEDULE A
DEMISED PREMISES
The Demised Premises are described in the attached legal description and shown
on the plan attached hereto.
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SCHEDULE B
ENCUMBRANCES OF RECORD
1. Any and all provisions of any ordinance, municipal or other governmental
regulation or public or private law, including zoning, planning and
inland-wetland regulations of the Town of Enfield.
2. Declarations, restrictions, covenants, and easements of record.
3. Real Estate taxes due the Town of Enfield, on the Grand List of October 1,
2003, not yet due and payable.
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SCHEDULE C
ANNUAL NET RENT
The initial Annual Net Rent shall be determined in accordance with the attached
chart and shall be fixed for Lease years 1 through 5. Annual Net Rent for
subsequent Lease Years shall be established by the computations for each
subsequent 5-year period as set forth in the attached chart.
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