EXHIBIT 10.26
LEASE
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LEASE dated the 31/st/ day of May, 2001, by and between CROWN MILFORD LLC,
a Delaware limited liability company having an address at c/o Crown Properties,
Inc., 000 Xxxxxx Xxxx Xxxxx, Xxxxxx Xxxx, XX 00000 ("Landlord") and MATRIX ONE
CORPORATION, a Delaware corporation having an xxxxxx xx Xxx Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000 ("Tenant").
1. DEFINITIONS. For the purposes of this Lease, the following terms
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shall be defined and have the meaning herein below set forth:
(a) Demised Premises: The "Demised Premises" are defined in Article
2 below.
(b) Building: The "Building" located at 000 Xxxxxxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxx known as Building C, Corporate Campus 1.
(c) Term: Seven (7) years.
(d) Base Rent: The "Base Rent" is defined in Article 5 below.
(d) Additional Rent: Tenant's proportionate share of increases in
Operating Expenses, as provided in Article 7, below, and Real
Estate Taxes, as provided in Article 8 below.
(e) Security Deposit: The "Security Deposit" is defined in Article
37.
2. DEMISED PREMISES. Landlord hereby leases to Tenant, upon the terms
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and conditions hereinafter specified, the following premises: the third (3rd)
floor containing approximately 28,000 rentable square feet (the "Demised
Premises") located in Building C (hereinafter the "Building") at Corporate
Campus 1, 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx (the "Property"), as
shown on the Floor Plan attached hereto as Exhibit "A". The Building, and the
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parcel of land on which it is located, as shown on the Site Plan attached hereto
as Exhibit "B", are collectively called the "Property". The Demised Premises
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does not include any space located outside of the Demised Premises and Tenant
shall not use the exterior of the Building or the roof for any purpose without
Landlord's express written consent which may be withheld in Landlord's sole
discretion.
3. TERM. TO HAVE AND TO HOLD the Demised Premises for a term (the
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"Term"), commencing on the date of substantial completion of Tenant's
Alterations in the Demised Premises (as hereinafter defined) (the "Commencement
Date"), and ending on the date that is seven (7) years following the last day of
the month in which the day next preceding the Commencement Date occurs (the
"Expiration Date") except that if the Commencement Date is other than the first
day of a month, then the Expiration Date shall be the date that is seven (7)
years from the last day of the month in which the Commencement Date occurs,
unless the Term shall sooner terminate pursuant to the terms hereof.
Notwithstanding the foregoing, Tenant shall, at no cost to Tenant, be permitted
access to the Demised Premises two (2) weeks prior to the Commencement Date for
the sole purpose of installing its equipment and furnishings.
4. USE OF PREMISES.
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(a) Tenant shall use the Demised Premises only for general office
purposes and other related uses only. No signs of any kind shall be installed or
maintained in the Demised Premises, which shall be visible from outside the
Demised Premises.
(b) Tenant, at its expense, shall comply with all laws, orders and
regulations of Federal, State and municipal authorities and with any direction
of any public officer which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the use of the Demised Premises to the extent
that any such law, order, regulation or direction is enacted, or first becomes
effective, after the Commencement Date. Tenant shall have the right to contest
any such law, order, regulation or direction, in good faith, provided that no
such contest exposes Landlord to any liability, fine, penalty or expense as a
result thereof and Tenant shall defend, indemnify and hold Landlord harmless
from and against any such liability, fine, penalty or expense including
reasonable attorneys fees. Landlord shall, at its cost, comply with all laws,
orders, regulations or directions with respect to the Demised Premises except
those relating to Tenant's use of the Demises Premises. Tenant shall not do or
permit to be done any act or thing upon the Demised Premises, which will
invalidate or be in conflict with fire, public liability or other insurance
policies covering the Demised Premises.
(c) Tenant, at its expense, shall comply with all rules, orders,
regulations and requirements of the Board of Fire Underwriters or other similar
body or authority having jurisdiction and shall not do or permit anything to be
done in or upon the Demised Premises, or bring or keep anything therein, which
is prohibited by the applicable fire department, fire marshal or any such Board
of Fire Underwriters or other body or authority, or which would increase the
rate of fire insurance applicable to the Demised Premises over that in effect on
the Commencement Date.
5. RENT.
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(a) Tenant shall pay to Landlord the Base Rent without demand and
without setoff or deductions of any kind, except as expressly set forth in this
Lease, in equal monthly installments, in advance, on the first day of each
calendar month of the Term at the address of Landlord stated below or such other
place as Landlord may designate in writing from time to time, with payment in
advance of appropriate fractions of a monthly payment for any portion of a month
at the commencement and termination of the Term. The first monthly installment
of Base Rent shall, however, be payable on the execution hereof. All payments
shall be made initially at Landlord's office c/o Crown Properties, Inc., 000
Xxxxxx Xxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000. Every amount payable by Tenant
hereunder in addition to Base Rent shall be deemed Additional Rent, which shall
be paid without setoff or deductions of any kind within 15 days after demand.
Base Rent and Additional Rent are herein collectively called "Rent". Any Rent
not paid by Tenant within ten (10) days after its due date shall thereafter be
payable with a late charge equal to 5% of the unpaid rent installment, as
Additional Rent. The Base Rent shall be payable as follows:
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Year Annual Base Rent Monthly Base Rent
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1 $574,000.00 $47,833.33
2 $602,000.00 $50,166.67
3 $630,000.00 $52,500.00
4 $658,000.00 $54,833.33
5 $686,000.00 $57,166.67
6 $714,000.00 $59,500.00
7 $742,000.00 $61,833.33
(b) Tenant's obligation to pay Base Rent under this Lease shall
commence on the Commencement Date of this Lease (the "Rent Commencement Date").
(c) The obligation of Tenant to pay all sums of Additional Rent and
the Electrical Inclusion Amount (as hereinafter defined) shall commence on the
Commencement Date of the Lease and there shall be no abatement whatsoever of the
obligation of Tenant to pay such sums during any period or part of any lease
year during the term of the Lease.
(d) Notwithstanding the foregoing, Tenant's obligation to pay Base
Rent under this Lease shall be abated as follows: (i) during lease months 1
through 9, Base Rent shall be calculated on the basis of 20,000 rentable square
feet; (ii) during lease months 10 through 18, Base Rent will be calculated on
the basis of 24,000 rentable square feet; and (iii) from lease month 19 through
the Expiration Date, the Base Rent will be calculated on the basis of 28,000
rentable square feet. Accordingly, during lease months 1 though 9, monthly Base
Rent shall be $34,166.67, during lease months 10 through 12, monthly Base Rent
shall be $41,000.00, and during lease months 13 through 18, monthly Base Rent
shall be $43,000.00.
6. CONDITION OF DEMISED PREMISES. Landlord shall deliver the Demised
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Premises to Tenant in the condition which the Demised Premises exist as of the
date hereof and Tenant shall accept the Demised Premises in a strictly "as is"
condition, except as to latent defects. Tenant acknowledges that Tenant has
inspected, or been given the opportunity to inspect the Demised Premises prior
to entering into this Lease and Tenant acknowledges that Landlord has made
absolutely no warranties or representations concerning the Demised Premises, or
their condition. Landlord represents and warrants that, to the best of its
knowledge, the Building is in compliance with all applicable laws, codes and
statutes as of the date hereof.
7. INCREASE IN OPERATING EXPENSES.
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(a) The base year (the "Base Year") for purposes of this Lease shall
be calendar 2001. "Operating Expenses" shall mean the expenses incurred by
Landlord in the operation, administration and maintenance of the Demised
Premises and of the "Common Areas" of Corporate Campus 1, other than the Demised
Premises and all other demised premises in Corporate Campus 1 designated for
occupancy by tenants, in a first class manner and in accordance with sound and
reasonable practices for facilities of a like kind and character in accordance
with (and subject to) Exhibit "C" hereto. Operating Expenses for the Common
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Areas shall include, without limitation, all expenses incurred by Landlord in
connection with the
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Xxxxxx Xxxx and sewage pump station and related equipment serving Corporate
Campus I which, in accordance with generally accepted accounting principles
consistently applied, as applied to the operation and maintenance of first-class
office parks, are properly chargeable to the operation and maintenance of
Corporate Campus 1. Tenant's proportionate share of Operating Expenses for
Corporate Campus I is (6.58%) percent ("Tenant's Proportionate Share Park");
Tenant's proportionate Share of Operating Expenses of the Building is (31.50 %)
("Tenant's Proportionate Share Building"). ("Tenant's Proportionate Share Park"
and "Tenant's Proportionate Share Building" are hereinafter referred to,
collectively, as "Tenant's Proportionate Shares"). Tenant's Proportionate Shares
shall also apply to Increases in Real Estate Taxes as provided in Article 8
hereof. Tenant's Proportionate Shares shall be adjusted, as necessary, to
reflect increases or decreases in the total rentable square feet contained in
Corporate Campus 1, resulting from construction or demolition of space therein,
or any other cause, other than temporary vacancy in Corporate Campus I for which
Landlord is willing to accept tenancies.
(b) After the expiration of the Base Year and of each Operational
Year (as hereinafter defined), Landlord shall furnish Tenant a written statement
prepared by Landlord of the Operating Expenses incurred for such year
("Landlord's Statement"). Tenants Proportionate Shares of any increase of
Operating Expenses during any Operational Year over the Operating Expenses in
the Base Year shall be referred to herein as the "Cost Increases". Landlord
shall retain and make available for inspection by Tenant all the records
reflected in Landlord's statement as to each Operational Year for a period of
180 days after rendering a statement to Tenant (the "Inspection Period"), and
Tenant shall be entitled, on reasonable notice, to inspect same at any time
during the Inspection Period, at Landlord's main office where such records are
maintained which is, as of the date hereof, at c/o Crown Properties, Inc., 000
Xxxxxx Xxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 provided that Landlord shall have
the right to change such address on notice to Tenant. In the event Tenant shall
dispute Landlord's Statement, Tenant shall, within the Inspection Period,
deliver to Landlord a statement ("Tenant's Statement") specifying the
inaccuracies in Landlord's Statement, with reasonable detail. If Landlord and
Tenant cannot, within thirty (30) days of Landlord's receipt of Tenant's
Statement, resolve their differences, Landlord and Tenant shall, within fifteen
(15) days thereafter, agree on a national certified public accounting firm to
undertake a review thereof and to fix, in writing, the Operating Expenses and
the Cost Increases in accordance with the terms of this Lease (the "Review")
which shall be final and binding on Landlord and Tenant. The certified public
accounting firm shall be charged with completion of the Review within a thirty
(30) day period. Where Landlord and Tenant cannot timely agree on a national
certified public accounting firm for the foregoing, Landlord and Tenant shall
each select a member of a national certified public accounting firm who shall be
directed to select a national certified public accounting firm to undertake the
Review. Where the result of the Review discloses a variation in Operating
Expenses from that asserted by Landlord of more than seven and one-half percent
(7.5%), the charges of the national certified public accounting firm shall be
paid by Landlord; where the variation is more than five (5%) percent but not in
excess of seven and one-half (7.5%) percent, same shall be shared equally by
Landlord and Tenant, and where five (5%) percent or less, by Tenant. Tenant
shall pay to Landlord any amounts in dispute pending resolution in accordance
with the above procedure.
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In the event Tenant shall not deliver to Landlord Tenant's Statement
as to any Operational Year prior to expiration of the applicable Inspection
Period, Landlord's Statement for such Operational Year shall be deemed accurate
in all regards.
(c) Each calendar year after the Base Year shall be referred to
herein as an "Operational Year". Commencing with the first Operational Year,
Tenant shall pay to Landlord, as Additional Rent, Tenant's Projected Shares.
Such "Projected Shares" shall be equal to Landlord's written estimate of
Tenant's Proportionate Shares of the Cost Increases for the Operational Year. On
the first day of each month of each Operational Year during the Term, and within
thirty (30) days after Tenants receipt of Landlord's written estimate, Tenant
shall pay to Landlord one-twelfth (1/12) of its Projected Shares of the
estimated Cost Increases for such Operational Year. If Landlord's statement
after the end of an Operational Year shall indicate that Tenant's Projected
Shares exceed Tenant's Proportionate Shares of Cost Increases, Landlord shall
forthwith credit the amount of such excess against the subsequent payments of
Additional Rent due hereunder. If Landlord's statement shall indicate that
Tenant's Proportionate Shares of Cost Increases exceeded Tenant's Projected
Shares for the completed Operational Year, Tenant shall forthwith pay the amount
of such excess to Landlord.
(d) Landlord's failure to render Landlord's Statement with respect to
any Operational Year or Tax Year (as defined in Article 8 below), or Landlord's
delay in rendering said statement shall not prejudice Landlord's right to render
a Landlord's Statement with respect to that or any subsequent Operational Year
or Tax Year. The obligations of Landlord and Tenant under this Article 7 with
respect to any Additional Rent, which obligations have accrued prior to the
termination of the Term, shall survive the termination of the Term.
8. INCREASE IN REAL ESTATE TAXES. If Real Estate Taxes (as hereinafter
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defined) with respect to the Common Areas or the Demised Premises are increased,
at any time or from time to time during the Term hereof over Real Estate Taxes
paid by Landlord during the "Tax Base Year" as defined hereinbelow, then Tenant
shall pay to Landlord, as Additional Rent, an amount equal to Tenant's
Proportionate Shares of such increase (the "Tax Increases"). The Tax Base Year
shall be from July 1, 2001 through June 30, 2002. Payment of such increases
shall be made in the installments provided by the taxing authority, within
fifteen (15) days after Tenant receives from Landlord notice of such tax
increase and a xxxx for Tenant's Proportionate Shares thereof. Notwithstanding
the foregoing, at Landlord's option, Tenant shall pay to Landlord, commencing
with the first Tax Year after the Base Tax Year, as Additional Rent, Tenant's
Projected Tax Shares. Such Projected Tax Shares shall be equal to Landlord's
written estimate of Tenant's Proportionate Shares of the Tax Increase for each
Operational Year. On the first day of each month of each Operational Year during
the Term, and within thirty (30) days after Tenant's receipt of Landlord's
written estimate, Tenant shall pay to Landlord one-twelfth (1/12) of its
Projected Shares of the estimated Tax Increases for such Operational Year. If
Landlord's statement after the end of an Operational Year shall indicate that
Tenant's projected Shares exceeded Tenant's Proportionate Shares of the Tax
Increases, Landlord shall forthwith credit the amount of such excess against the
subsequent payments of Additional Rent due hereunder. If Landlord's statement
shall indicate that Tenant's Proportionate Shares of the Tax Increases exceeded
Tenant's Projected Tax Shares for the completed Operational Year, Tenant shall
forthwith pay the amount of such excess to Landlord. "Real Estate Taxes" shall
mean all
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taxes or assessments and governmental charges, whether Federal, State
or municipal, which are levied or charged against real estate, personal property
or rents, or on the right or privilege of leasing real estate or collecting
rents thereon and any other taxes and assessments attributable to Corporate
Campus 1, the Building or the Demised Premises or their operation, excluding,
however, Federal, State or other general income taxes not limited to real
property. Real Estate Taxes allocable to the Common Areas shall consist of (a)
100% of the Real Estate Taxes on Corporate Campus I excluding Real Estate Taxes
on any portion of the Building designated for occupancy by tenants; and (b) 100%
of the taxes on the xxxx xxxx (Xxxxxx Xxxx) and the sewage treatment plant
servicing the Park. "Tax Year" shall mean each calendar year following the Tax
Base Year.
9. ALTERATIONS, IMPROVEMENTS, ETC.
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(a) All alterations, improvements or additions made by Landlord or
Tenant upon the Demised Premises, except furniture, light fixtures, office
equipment, or movable partitions or trade fixtures installed at the expense of
Tenant, shall be the property of Landlord and shall remain and be surrendered
with the Demised Premises as a part thereof at the termination of this Lease,
without compensation to Tenant, unless Landlord, at the time that it consents to
Tenant's changes or alterations, elects to have them removed by Tenant, in which
event the same shall be removed from the Demised Premises by Tenant at Lease
expiration, at Tenant's expense, provided, however, Landlord shall not require
such items to be removed unless the items involve material alterations to the
structure of the Demised Premises or to the Demised Premises systems.
(b) Tenant shall not make any alterations, installations,
improvements, additions or other physical changes in or about the Demised
Premises ("Alterations") without Landlord's prior consent. Landlord's consent
shall not be required with regard to any nonstructural Alteration that costs
less than $25,000.00 (provided that Tenant shall notify Landlord of the same and
otherwise comply with the provisions of this Article 9 with respect thereto),
and Landlord shall not unreasonably withhold its consent to any other proposed
nonstructural Alteration. Landlord shall not be responsible for any effect on
the Demised Premises systems caused by any such alterations for which Tenant
does not obtain Landlord's consent. An Alteration shall be deemed nonstructural
if the Alteration (i) is not visible from the outside of the Demised Premises,
(ii) does not adversely affect any service required to be furnished by Landlord
to Tenant, (iii) does not adversely affect the proper functioning of any Demised
Premises system, (iv) does not adversely reduce the value or utility of the
Demised Premises, (v) does not affect the certificate of occupancy for the
Demised Premises, and (vi) does not affect any ceiling slab, floor slab, load-
bearing column, load-bearing wall, exterior wall or exterior window, of the
Demised Premises.
(c) Prior to making any Alterations, Tenant shall: (i) submit to
Landlord detailed plans and specifications (including layout, architectural,
mechanical and structural drawings) for each proposed Alteration, and shall not
commence any such Alteration without first obtaining Landlord's approval of such
plans and specifications, which, in the case of nonstructural Alterations, shall
not be unreasonably withheld; (ii) at Tenant's expense, obtain all permits,
approvals and certificates required by any governmental authorities; and (iii)
furnish to
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Landlord certificates evidencing worker's compensation policies (covering all
persons to be employed by Tenant, and by Tenant's contractors and
subcontractors, in connection with such Alteration) and comprehensive
commercial) public liability (including property damage coverage) insurance in
such form, with such companies, for such periods and in such amounts as Landlord
may reasonably approve, naming Landlord and its agents, any ground lessor and
any mortgagee, as additional insureds. Upon completion of all Alteration,
Tenant, at Tenant's expense, shall obtain certificates of final approval of such
Alteration required by any governmental authority and shall furnish Landlord
copies thereof, together with the "as-built" plans and specifications ("as-built
drawings") for such Alteration, it being agreed that all filings with
governmental authorities to obtain such permits, approvals and certificates
shall be made at Tenants' expense. Provided that such drawings shall be
certified as correct by Tenant's architect and satisfy the requirement of any
governmental authorities to which Landlord or Tenant shall be required to submit
as-built drawings, Tenant's obligation to furnish as-built drawings to Landlord
may be satisfied by the furnishing of appropriate marked "MEP" drawings,
architectural drawings and/or Tenant's contractors "shop" drawings. All
Alterations shall be made and performed substantially in accordance with the
plans and specifications therefor as approved by Landlord, all applicable laws
and any construction rules and regulations promulgated by Landlord from time to
time. All materials and equipment to be incorporated in the Demised Premises as
a result of any Alterations or a part thereof shall be of a quality at least
equal to the quality of the Demised Premises, and no such materials or equipment
shall be subject to any lien, encumbrance, chattel mortgage or title retention
or security agreement.
(d) If Landlord shall fail to respond to a request by Tenant to
approve Tenant's plans and specifications for any nonstructural Alteration
within seven (7) business days, or within five (5) business days with respect to
any resubmission of previously disapproved plans, after Landlord's receipt
thereof (provided in each instance the same shall be of a scope and scale
reasonably susceptible of review in such periods), Landlord shall be deemed to
have approved such plans and specifications. Any disapproval given by Landlord
shall be accompanied by a statement of the reasons for such disapproval.
Landlord reserves the right to disapprove any plans and specifications in part,
to reserve approval of items shown thereon (the "Pending Items") pending
Landlord's review and approval of other plans and specifications for other items
which may impact the Pending Items, and to condition Landlord's approval upon
Tenant making revisions to the plans and specifications or supplying additional
information. In order for Landlord to be deemed to have given approval to any
plans and specifications submitted (or resubmitted) by Tenant, the same must be
accompanied by a notice which identifies the architect or engineer who prepared
said plans and specifications, and which bears the following legend typed in
bold, capital letters at the top: "IF LANDLORD SHALL FAIL TO APPROVE OR
DISAPPROVE THE ENCLOSED PLANS AND SPECIFICATIONS WITHIN THE TIME PERIODS
SPECIFIED IN ARTICLE 9(d) OF THE LEASE, LANDLORD SHALL BE DEEMED TO HAVE
APPROVED SUCH PLANS AND SPECIFICATIONS." Any review or approval by Landlord of
any plans and/or specifications or any preparation or design of any plans by
Landlord's architect or engineer (or any architect or engineer designated by
Landlord) with respect to any Alteration shall be solely for Landlord's benefit,
and without any representation or warranty whatsoever to Tenant or any other
person with respect to the compliance thereof with any laws or to the adequacy,
correctness or efficiency thereof or otherwise.
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(e) All Alterations shall be performed at Tenant's own cost and
expense, by Tenant's contractors, subcontractors or mechanics approved by
Landlord with such approval not to be unreasonably withheld or delayed. At
Tenant's request, Landlord shall furnish Tenant with a list of at least three
(3) contractors who may perform Alterations to the Premises on behalf of Tenant.
If Tenant engages any contractor set forth on the list, Tenant shall not be
required to obtain Landlord's consent for such contractor unless, prior to
entering into a contract with such contractor, such contractor has been removed
from the list, provided, however, said list shall at all times contain the names
of at least three (3) contractors.
(f) With respect to any Alteration affecting, any Demised Premises
system, the Alteration shall, at Tenant's cost and expense, be designed by
Tenant's engineer for the relevant Demised Premises system, subject to review
and approval at Tenant's cost and expense, by Landlord's engineer. Within thirty
(30) days after being billed therefor, Tenant shall reimburse Landlord, as
additional rent, for the reasonable and actual expenses incurred by Landlord in
connection therewith (the "Engineering Fee").
(g) Any mechanic's lien filed against the Building or the Demised
Premises for work claimed to have been done for, or materials claimed to have
been furnished to, Tenant, shall be discharged by Tenant, at Tenant's expense,
within thirty (30) days after Tenant shall have received notice thereof, by
payment or filing the bond required by law. Tenant shall not, at any time prior
to or during the Term, directly or indirectly employ, or permit the employment
of, any contractor, mechanic or laborer at the Premises, whether in connection
with any Alteration or otherwise, if such employment would interfere or cause
any conflict with other contractors, mechanics or laborers engaged in the
maintenance or operation of the Building by Landlord, Tenant or others, or of
any adjacent property owned by Landlord. In the event of any such interference
or conflict, Tenant, upon demand of Landlord, shall cause all contractors,
mechanics or laborers causing such interference or conflict to leave the Demised
Premises immediately.
(h) In addition to the Engineering Fee, Tenant shall pay to Landlord
or to Landlord's agent from time to time during the performance of any
Alterations, within thirty (30) days after demand therefor and as additional
rent, an amount equal to the reasonable out-of-pocket costs incurred by Landlord
in connection with each such Alteration (the "Alteration Fee").
(i) Landlord shall provide Tenant with an allowance of $336,000.00
(the "Alterations Allowance") for Alterations to be performed in the Demised
Premises by Tenant. The Alterations Allowance shall be used only for interior
improvements, computer lab construction, air conditioning system, space design
and cabling. The Alterations Allowance shall be paid by Landlord to Tenant upon
receipt of invoices from Tenant along with a waiver of lien for the funds to be
disbursed under each respective invoice from each contractor participating in
the Alterations. In the event the Alterations Allowance is not fully utilized
by Tenant, Landlord shall be required to reimburse Tenant such balance in the
form of a credit against Base Rent.
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10. REPAIRS.
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(a) The Building and the Property and the chillers and related
equipment that are part of the Common HVAC System (as defined in Exhibit "D"
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attached hereto), which are located within the Building, and all other parts of
the Building systems which are not within the Demised Premises, shall be
maintained in good order and condition and repaired by Landlord at its expense,
except to the extent resulting from the negligence or wrongful act of Tenant,
its employees, agents or invitees, in which event Landlord shall maintain and
repair same at Tenant's expense and Tenant shall reimburse Landlord for the cost
of same upon demand.
(b) Tenant, at its expense, shall maintain in good order and
condition and repair the interior of the Demised Premises, including without
limitation, all Demised Premises systems within the Demised Premises, except as
set forth in Article 10(a) above, provided that any repairs to, or replacements
of the Building systems within the Demised Premises shall be performed by
Landlord, at Tenant's expense. Tenant shall keep the interior of the Demised
Premises clean and orderly in accordance with Landlord's standards for the
Demised Premises and the Park.
(c) As used in this Article 10 the term "repair" shall include
replacement when required in Landlord's reasonable opinion.
11. PARKING. Parking for the Demised Premises is provided by way of a
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surface parking area and a parking deck, which provide parking for the Demised
Premises and the Building. Tenant and its agents, employees and invitees shall
have the right to use said surface parking area and parking deck, on a non-
reserved basis, in common with tenants of the Building and their agents,
employees, and invitees. At all times during the term of this Lease, there shall
be at least four (4) parking spaces for every 1,000 rentable square feet of
space in the Building in said surface parking area and parking deck, of which
two (2) spaces shall be reserved for Tenant's exclusive use.
12. UTILITIES AND SERVICES.
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(a) Mondays through Fridays from 8:00 A.M. to 6:00 P.M. and
Saturdays from 8:00 A.M. to 1:00 P.M. (except the days observed by the Federal
or State governments as legal holidays), Landlord shall furnish and distribute
to the Demised Premises air conditioning and heat with a system designed in
accordance with Exhibit "D" hereto. If Tenant shall require air conditioning or
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heat at any other time ("after-hours"), Landlord shall furnish after-hours air
conditioning and heat upon reasonable advance notice from Tenant, and Tenant
shall pay Landlord's costs (direct and related) therefor on Landlord's demand.
Tenant shall notify Landlord no later than 2:00 P.M. on the day it requires
after-hours air conditioning or heat, however, if Tenant requires after-hours
air conditioning or heat on a Monday, Tenant shall notify Landlord of same by
2:00 P.M. on the preceding Friday. The current charges for after hours heat is
$70.00 per hour and for after hours air conditioning is $110.00 per hour, which
charges are subject to periodic review and adjustment by Landlord.
(b) Landlord shall supply reasonably adequate quantities of water to
the Demised Premises for ordinary lavatory and drinking purposes.
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(c) Landlord shall cause the Demised Premises to be cleaned in
accordance with Exhibit "E" hereto; provided that to the extent any area is used
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for the preparation, dispensing or consumption of food or for a computer room,
data processing or similar equipment and requires additional cleaning, Tenant
shall pay to Landlord the premium charged for same by Landlord's cleaning
contractor. Landlord shall also cause the Building and Property to be cleaned,
as well as cause snow and ice to be removed from the parking lots and sidewalks
located thereon.
(d) In no event shall Landlord be required to provide any security
services to the Demised Premises. Tenant shall supply such security services to
the Demised Premises as Tenant requires, subject to Landlord's prior approval of
plans, provided that Landlord's consent shall not be required to the extent the
work is nonstructural, as defined in Article 9(b) hereof. Notwithstanding the
foregoing, in the event Tenant elects to utilize the security system currently
located in the Demised Premises, Tenant shall be required to maintain and repair
said system at its sole cost and expense. Landlord shall supply security cards
in connection with the existing security system to Tenant for Tenant's
employees. In the event the security cards are lost during the term of this
Lease or not returned to Landlord upon the expiration of the term of this Lease,
the cost of replacing the security cards shall be borne exclusively by Tenant.
(e) Landlord does not warrant that any of the services referred to
above, or any other services which Landlord may supply, will be free from
interruption, Tenant acknowledging that any or more such services may be
suspended by reason of accident or of repairs, alterations or improvements
necessary to be made, or by strikes or lockouts, or by operation of law, or
causes beyond the reasonable control of Landlord. Any such interruption or
discontinuance of service shall not be deemed an eviction or disturbance of
Tenants use and possession of the Premises, or any part thereof, or render
Landlord liable to Tenant for damages by abatement of Rent or otherwise, or
relieve Tenant from performance of Tenant's obligations under this Lease.
(f) Notwithstanding the foregoing, if any essential service to be
provided under the terms of this Article and this Lease that is within
Landlord's reasonable control is interrupted or curtailed for a period in excess
of three (3) full business days after notice of same is given to Landlord, and
as a result thereof Tenant is unable to continue operating its business in the
Demised Premises as a result of same, Tenant shall receive an abatement of the
Base Rent for the pro rata portion of the Demised Premises that is unusable for
the period of time that such essential service has been interrupted or curtailed
and as a result therefor Tenant was unable to continue operating its business in
the Demised Premises during such period.
13. LIABILITY INSURANCE.
--------------------
(a) Tenant shall obtain and keep in full force and effect (i) an "all
risk" insurance policy for all improvements made by Tenant to the Demised
Premises (including, without limitation, Tenant's Alterations), to the extent
that such improvements are above "Demised Premises standard" (examples of which
are set forth in Article 9(a) hereof) and Tenant's property at the Demised
Premises, and (ii) a policy of commercial general liability and property damage
insurance on an occurrence basis, with a broad form contractual liability
10
endorsement. Such policies shall provide that Tenant is named as the insured.
Landlord, Landlord's managing agent, and any ground lessors and any mortgagees
(whose names shall have been furnished to Tenant) shall be named as additional
insured, as their respective interests may appear with respect to the insurance
required to be carried pursuant to clause (i) above, and to the extent of the
named insured's negligence with respect to the insurance required to be carried
pursuant to clause (ii) above. Such policy with respect to clause (ii) above
shall include a provision under which the insurer agrees to indemnify and hold
Landlord, Landlord's managing agent, Landlord's agent and such lessors and
mortgagees harmless from and against, subject to the limits of liability set
forth in this Article 13(a), all cost, expense and liability arising out of or
based upon, any and all claims, accidents, injuries and damages mentioned in
Article 27(c) hereof. In addition, the policy required to be carried pursuant to
clause (ii) above shall contain a provision that Landlord shall receive at least
thirty (30) days' written notice of any cancellation thereof. In addition, upon
receipt by Tenant of any notice of cancellation or any other notice from the
insurance carrier which may adversely affect the coverage of the aforesaid
additional insureds under such policy above shall be a combined single limit
with respect to each occurrence in an amount of $2,000,000 for injury (or death)
to personal and damage to property. All insurance required to be carried by
Tenant pursuant to the terms of this Lease shall be effected under valid and
enforceable policies issued by reputable and independent insurers licensed to do
business in the State of Connecticut, and rated in Best's Insurance Guide, or
any successor thereto (or if there be none, an organization having a national
reputation) as having a general policy holder rating of "A" and a financial
rating of at least "XIII". No failure on Tenant's part to maintain any of the
insurance required pursuant to this Article 13 shall vitiate Tenant's liability
to indemnify Landlord and all other parties named herein as additional insureds
from and against all claims, damages, loss, liability and expense which would
otherwise have been covered by such insurance coverage.
(b) On or prior to the Commencement Date, Tenant shall deliver to
Landlord the appropriate certificates or insurance, (including evidence of
waiver of subrogation required pursuant to Article 13(d) hereof required to be
carried by Tenant pursuant to this Article 13. Evidence of each renewal or
replacement of a policy shall be delivered by Tenant at least twenty (20) days
prior to the expiration of such policy.
(c) Tenant agrees that Landlord shall not be obligated to carry
insurance on, and shall not be responsible for damage to any improvements made
to the Premises (including without limitation, Alterations or Tenant's personnel
property at the Premises), and that Landlord shall not carry insurance against,
or be responsible for any loss suffered by Tenant due to, interruption of
Tenant's business.
(d) The parties hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the Demised
Premises and personal property, fixtures and equipment located thereon or
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery and having obtained such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, and each party on behalf of itself and all persons claiming under or
through such party by subrogation or otherwise hereby releases the other party
and agrees that it will not make any claim against or seek to recover from the
other for any loss or damage to its property or the
11
property of others resulting from fire or other hazards covered by such fire and
extended coverage insurance, provided, however, that the release, discharge,
exoneration and covenant not to xxx herein contained shall be limited by and be
coextensive with the terms and provisions of the waiver of subrogation clause or
endorsements or clauses or endorsements consenting to a waiver of right of
recovery. If the payment of an additional premium is required for the inclusion
of such waiver of subrogation provision, each party shall advise the other of
the amount of any such additional premiums and the other party at its own
election may, but shall not be obligated to, pay the same. If such other party
shall not elect to pay such additional premium, the first party shall not be
required to obtain such waiver of subrogation provision. If either party shall
be unable to obtain the inclusion of such clause even with the payment of an
additional premium, then such party shall attempt to name the other party as an
additional insured (but not a loss payee) under the policy.
(e) Landlord hereby represents and warrants that it has obtained and
currently maintains comprehensive liability and property insurance for the
Building of which the Demised Premises forms a part, which has been accepted by
the current mortgagee. Landlord further represents and warrants that the
foregoing insurance will be maintained during the Term of this Lease.
14. SUBORDINATION.
--------------
(a) This Lease is and shall be subject and subordinate to (i) any and
all mortgages now or hereafter affecting the fee title of the Property, and to
any and all present and future extensions, modifications, renewals, replacements
and amendments thereof; and (ii) any and all ground or underlying leases now or
hereafter affecting the Property or any part thereof and to any and all
extensions, modifications, renewals, replacements and amendments thereof. Such
subordination shall be automatic provided that Tenant shall execute and deliver
to any present or future mortgagee such documentation as shall be required by
such mortgagee to confirm such subordination. Landlord shall request and use its
reasonable good faith efforts to obtain for Tenant a non-disturbance agreement
from any present or future or ground lessor provided that Landlord shall have no
liability to Tenant in the event Landlord is unable to obtain such agreement.
Tenant will execute and deliver promptly to Landlord any certificate or
instrument which Landlord, from time to time, may request for confirmation of
the provisions of this Article 14.
(b) If at any time prior to the expiration of the Term, any superior
lease shall terminate or be terminated for any reason or any mortgagee comes
into possession of the Property or the estate created by any superior lease by
receiver or otherwise, Tenant agrees, at the election and upon demand of any
owner of the Property, or of the lessor, or of any mortgaged in possession of
the Property, to attorn, from time to time, to any such owner, lessor or
mortgagee or any person acquiring the interest of Landlord as a result of any
such termination, or as a result of a foreclosure of the mortgage or the
granting of a deed in lieu of foreclosure, upon the then executory terms and
conditions of this Lease, subject to the provisions of Article 14(a) hereof, and
this Article 14(b) for the remainder of the Term, provided that such owner,
lessor or mortgagee, or receiver caused to be appointed by any of the foregoing,
as the case may be, shall then be entitled to possession of the Premises and
provided further that such owner, lessor or
12
mortgagee, as the case may be, or anyone claiming by, through or under such
owner, lessor or mortgagee, as the case may be, including a purchaser at a
foreclosure sale, shall not be:
(i) liable for any act or omission of any prior landlord
(including, without limitation, the then defaulting
landlord), or
(ii) subject to any defense or offsets which Tenant may have
against any prior landlord (including, without limitation,
the then defaulting landlord), or
(iii) bound by any payment of Rent which Tenant may have made
to any prior landlord (including, without limitation, the
then defaulting landlord) more than one (l) month in
advance of the date upon which such payment was due, or
(iv) bound by any amendment or modification of this Lease made
after the date when such mortgagee acquired its interest as
mortgagee and Tenant received notice of such mortgage, or
such lessor acquired its interest as lessor, as the case
may be, without its consent.
15. CASUALTY.
---------
(a) If the Demised Premises shall be partially damaged by fire or
other casualty so that the damage can reasonably be repaired by Landlord within
180 days from the date of the damage (90 days for any casualty during the last
year of the Term), then the damage shall be diligently repaired by and at the
expense of Landlord, and the Rent until such repairs shall be made shall be
apportioned according to the part of the Demised Premises which is tenantable.
(b) If the Demised Premises is rendered wholly untenantable by fire
or other casualty or is partially damaged so that the damage cannot reasonably
be repaired by Landlord within 180 days of the date of the damage (as determined
by an independent architect or contractor selected by Landlord), then in any of
such events Landlord or Tenant may, within 30 days after such casualty (or in
Tenant's case not sooner than 15 days after receipt of the estimated restoration
time from Landlord), give the other party a notice in writing of intention to
terminate this Lease, and thereupon the Term shall expire, effective the date of
the casualty, and Tenant shall vacate the Premises and surrender the same to
Landlord within 30 days after the date of the termination notice, provided that
for any casualty during the last year of the Term, the restoration period shall
be 90 days, rather than 180 days. If neither party elects to terminate this
Lease, the provisions of Article 15(a) shall govern.
(c) Landlord shall not be liable for any damage to, or be required
(under any provision of this Lease or otherwise) to repair, restore or replace,
any property in the Premises, nor be liable to Tenant for damage arising from
rain or snow or from the bursting, overflowing or leakage of water, steam or gas
pipes or defect in the plumbing, HVAC, mechanical or electrical
13
systems of the Demised Premises unless resulting from the gross negligence of
Landlord, Tenant not being contributorily negligent.
16. EMINENT DOMAIN.
---------------
(a) If the whole of the Demised Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, or if
any substantial part thereof is so acquired or condemned as to render the
Demised Premises untenantable, or so that Landlord elects not to restore the
Demised Premises then and in that event, the Term shall cease and terminate from
the date of taking, Tenant shall have no claim against Landlord or the
condemning authority for the value of the unexpired Term, nor a claim to any
part of an award in such proceeding, and rent shall be adjusted and paid to the
date of such termination. Tenant shall, however, have the right to claim
compensation for Tenant's moving expenses and damage to Tenant's property in the
Demised Premises provided that such claim does not reduce Landlord's award.
(b) In the event of any other condemnation of a part of the Demised
Premises or the Premises, this Lease shall remain in effect, but the Rent shall
be prorated based on that portion of the Demised Premises which remains
tenantable; provided however, that if 10% or more of the Demised Premises, shall
be taken and, in the reasonable opinion of Tenant, the remainder of the Demised
Premises cannot be used for the operation of Tenant's business in ordinary
course, then Tenant may terminate this Lease by notice to Landlord within 30
days after, notice of the taking by Landlord to Tenant, under the conditions
described in Article 16(a) above.
17. ASSIGNMENT AND SUBLETTING.
--------------------------
(a) Tenant and its subtenants shall not assign, mortgage or encumber
this Lease, nor sublease all or any part of the Premises or suffer or permit the
Premises or any part thereof to be used by others, without the prior written
consent of Landlord in each instance, which consent shall not unreasonably be
withheld or delayed. If this Lease be assigned, or if the Premises or any part
thereof be sublet to or occupied by anybody other than Tenant, Landlord may, at
Landlord's option, collect rent from the assignee, subtenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver of this
covenant, or the acceptance of the assignee, subtenant or occupants, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. The consent by Landlord to an assignment or
subletting shall not be construed to relieve Tenant from obtaining the express
consent in writing of Landlord to any further assignment or subletting.
(b) Anything in Article 17(a) to the contrary notwithstanding, the
prior written consent of Landlord shall not be required with respect to an
assignment of this Lease or a sublease of part or all of the Premises to an
entity controlled by, controlling or under common control with Tenant, or to any
entity which succeeds Tenant by merger or consolidation or by acquisition of all
or substantially all of Tenant's stock or assets, provided that the successor
entity has a net worth, computed in accordance with GAAP, that is not less than
the net worth of
14
Tenant prior to such transaction. For this purpose "control" shall mean the
possession of the power to direct or cause the direction of the management and
policies of such entity, whether through the ownership of a sufficient
percentage of voting securities, by contract or otherwise. In connection with
any such assignment or sublease, Tenant shall give notice to Landlord at least
ten (10) days prior to the transaction and shall deliver a copy of the
documentation to Landlord within ten days after the execution of the assignment
or sublease.
(c) Tenant shall pay to Landlord as Additional Rent, within ten days
after receipt of payments from a subtenant or assignee, 50% of any "profit" on a
subletting or assignment, i.e., the excess of consideration of any type received
by Tenant from the subtenant or assignee (less the reasonable advertising,
legal, brokerage and fit-up expenses incurred by Tenant in connection with such
assignment or subletting), over a pro rata portion of the Rent payable by Tenant
hereunder.
(d) Landlord shall be obligated to consent to any proposed
assignment or sublease only if:
(i) the proposed assignee or subtenant, in Landlord's
reasonable judgment has a business reputation and credit
record and is engaged in a business as are comparable to or
compatible with the standards of the existing tenants the
Park;
(ii) the proposed use of the affected portion of the Demised
Premises is permitted under the terms of this lease;
(iii) the proposed subletting will not result in more than two
unaffiliated occupants (not including Tenant) of any floor
of the Demised Premises.
(e) In no event shall Landlord be obligated to consent to any
proposed assignment or sublease to any of the following entities or to an entity
that intends to occupy the Premises (or portion thereof) for any of the
following purposes (as applicable):
(i) the operation of a bank, trust company, safe deposit
business, savings and loan association or loan company;
(ii) employment or recruitment agency;
(iii) school, college, university or educational institution,
whether or not non-profit;
(iv) a government, governmental or quasi-governmental
organization, or any agency or subdivision thereof; or
(v) a tenant or subtenant of a tenant of Landlord or an
occupant of the or any other Demised Premises in the Park,
unless Landlord cannot
15
accommodate the tenant, subtenant or occupant with
comparable office space in the Park, or any party or entity
with whom Landlord or its agents or representatives has
engaged in active negotiations for a lease in the Park
during the 90-day period immediately preceding the date of
Tenant's request for consent.
(f) Tenant shall reimburse Landlord on demand for any out of pocket
costs that Landlord may incur in connection with a proposed assignment or
sublease by Tenant, its assignees or subtenants, including the reasonable costs
of investigating the acceptability of the proposed assignee or subtenant,
charges paid to any mortgagee or ground lessor and reasonable legal costs
incurred in connection with the granting of any requested consent.
(g) No assignment or subletting shall affect the continuing primary
liability of Tenant (which, following assignment, shall be joint and several
with the assignee), and Tenant shall not be released from performing any of the
terms, covenants and conditions of this lease. Every assignee, including one
described in paragraph (b) above, shall in the assignment instrument, assume all
of the obligations of Tenant hereunder from and after the effective date of the
assignment.
18. RIGHT OF CURE.
--------------
(a) If Tenant shall default in the observance or performance of any
term or covenant of this Lease, Landlord may, after ten business days' written
notice to Tenant to cure the default and failure of Tenant to cure the same
within such period, or at any time thereafter without notice in event of
emergency, perform the same for the account of Tenant. If Landlord makes any
expenditures or incurs any obligations in connection with a default by Tenant,
including, but not limited to, reasonable attorneys' fees in instituting,
prosecuting or defending any action or proceeding against Tenant, such sums paid
or obligations incurred, with interest (as provided below) and costs, shall be
paid by Tenant to Landlord as Additional Rent hereunder.
(b) Any Rent not paid by Tenant within 5 days after the due date
thereof, shall thereafter be payable with interest at the rate of 3% per annum
in excess of the prime or base rate of Fleet Bank, N.A. (or its successor) in
effect as of the due date, from the due date to the date of payment.
(c) Cure by Landlord pursuant to this Article 18 shall not vitiate or
constitute waiver by Landlord of the Tenant's default.
19. QUIET ENJOYMENT AND HOLDOVER.
-----------------------------
(a) Upon Tenant paying the Rent and observing and performing all the
terms, covenants and conditions on Tenant's part to be observed and performed
hereunder, Tenant may peaceably and quietly enjoy the Premises, free from any
interference, molestation or acts of Landlord or of anyone claiming by, through
or under Landlord, subject, nevertheless, to the terms and conditions of this
Lease and to any ground lease, underlying leases and mortgages as hereinbefore
provided.
16
(b) If Tenant retains possession of the Premises or any part thereof
after the Expiration Date or earlier termination date without the written
consent of Landlord, Tenant's occupancy (the "Holdover Occupancy") shall be
under all of the terms and conditions of this Lease, except that (i) the tenancy
shall be at will; (ii) the Base Rent for the Holdover Occupancy shall be 150% of
that specified herein for the month preceding the termination; and (iii) Tenant
shall indemnify and hold Landlord harmless for all damages sustained and
liabilities incurred by Landlord, including consequential damages, as a result
of Tenant's continued occupancy beyond sixty (60) days after Landlord's notice
to Tenant under this Article 19(b) it being understood that the foregoing shall
not be deemed license or permission by Landlord for Tenant to holdover.
20. DEFAULT.
--------
(a) If (i) Tenant defaults in the payment when due of any installment
of Rent for more than ten (10) days after written notice that the same is due;
(ii) the Demised Premises become abandoned, provided that failure to occupy, if
Tenant initially occupied the Demised Premises, and is thereafter performing all
of its other obligations under this Lease, shall not be a default under this
Lease; or (iii) Tenant defaults in fulfilling any other covenant of this Lease
and Tenant fails to remedy such default within 30 days after written notice by
Landlord to Tenant specifying the nature of such default (or if the said default
cannot be completely cured or remedied within said 30-day period and Tenant
shall not have diligently commenced curing such default within such 30-day
period and shall not thereafter in good faith diligently proceed to remedy or
cure such default), then Landlord may, by notice to Tenant, cancel this Lease,
and this Lease and the Term hereunder shall end and expire as fully and
completely as if the date of cancellation were the day herein definitely fixed
for the end and expiration of this Lease and the Term hereof. Tenant shall then
quit and surrender the Demised Premises to Landlord, but Tenant shall remain
liable as hereinafter provided.
(b) If (i) the notice provided for in paragraph (a) above shall have
been given and the Term shall expire as aforesaid, or (ii) any execution shall
be issued against Tenant or any of Tenant's property, whereupon the Demised
Premises shall be taken or occupied or attempted to be taken or occupied by
someone other than Tenant, then and in any of such events; Landlord may, without
notice, re-enter the Demised Premises, and dispossess Tenant and the legal
representative of Tenant or other occupant of the Demised Premises, by summary
proceedings or otherwise, and remove their effects and hold the Demised Premises
as if this Lease had not been made. Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end, but
Tenant shall remain liable as hereinafter provided.
21. REMEDIES OF LANDLORD. In case of any such default, re-entry,
---------------------
expiration and/or dispossession by summary proceedings or otherwise, (a) the
Rent shall become due thereupon and be paid up to the time of such re-entry,
dispossession and/or expiration, together with such reasonable expenses as
Landlord may incur for counsel fees, brokerage and/or putting the Demised
Premises in good order, or for preparing the same for re-rental; (b) Landlord
may re-let the Demised Premises or any part or parts thereof, either in the name
of Landlord or otherwise, for a term or terms, which may at Landlord's option be
less than or exceed the period which would otherwise have constituted the
balance of the Term, and may grant concessions of free rent; and/or (c) Tenant
or the legal representatives of Tenant shall also pay Landlord any deficiency
between (i) the Rent hereby reserved and/or covenanted to be paid, and (ii) the
net
17
amount, if any, of the rents collected on account of the lease or leases of the
Demised Premises for each month of the period which would otherwise have
constituted the balance of the Term. There shall be added to such deficiency
such reasonable expenses as Landlord may incur in connection with re-letting the
Demised Premises, including without limitation, counsel fees, brokerage
commissions and expenses incurred in maintaining the Demised Premises in good
order and in connection with renovating and preparing the same for re-letting.
Any such Rent deficiency shall be paid in monthly installments by Tenant on the
rent day specified in this Lease, and any suit brought to collect the amount of
the deficiency for any month shall not prejudice in any way the rights of
Landlord to collect the deficiency for any subsequent month or months by a
similar proceeding. In addition, Landlord shall have the alternative of
commencing suit against Tenant at any time for an amount equal to the Rent
reserved for the balance of the Term less the fair and reasonable rental value
of the Demised Premises for the same period. For this purpose it shall be
presumed that the Additional Rent payable under this Lease shall increase by 5%
per annum from the Additional Rent payable in the Lease Year preceding the
default. Landlord, at its option, may make such alterations, repairs,
replacements and/or decorations in the Premises, as Landlord considers advisable
for the purpose of re-letting the Premises; and the making of such alterations
and/or decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. The failure of Landlord to re- let the
Premises or any part thereof shall not release or affect Tenant's liability for
continued Rent or damages hereunder, nor shall Landlord in any event be liable
in any way whatsoever for failure to re-let the Premises. In the event of a
breach by Tenant of any of the covenants or provisions hereof, Landlord shall
have the right of injunction and the right to invoke any remedy allowed at law
or in equity, as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this Lease of any particular remedy shall not
preclude Landlord from any other remedy, in law or in equity.
22. RIGHT TO EXHIBIT PREMISES AND ACCESS TO PREMISES.
-------------------------------------------------
(a) Landlord reserves the right to enter the Demised Premises and the
Premises and exhibit same at any reasonable time on reasonable notice, which
notice can be, verbal, (i) to prospective mortgagees, purchasers and ground
lessees and (ii) to prospective tenants at any time within one year prior to the
expiration of the Term.
(b) Landlord reserves the right to have its employees and agents
enter the Demised Premises at any reasonable time on reasonable notice, which
can be verbal, (and at any time in case of emergency) in order to gain access to
any utility area, which utility area contains equipment and systems for the
Demised Premises, and in order to effect necessary repairs and replacements.
Such agents may bring necessary tools and equipment with them and may store same
within the Premises.
(c) Landlord shall have the right to enter the Demised Premises,
without notice, in the event of an emergency, and Tenant shall provide Landlord
with access through Tenant's security system for such purpose.
23. BROKERAGE. Tenant warrants and represents it has not had or dealt
----------
with any realtor, broker or agent in connection with the negotiations of this
Lease, except for Xxxxxxx &
18
Wakefield of Connecticut, Inc. and HK Group (collectively the "Broker").
Landlord shall pay the commission that is due to the Broker, pursuant to
separate agreement. Tenant shall pay and to hold Landlord harmless from any
cost, expenses or liability (including costs of suit and attorneys' fees) for
any compensation, commission or charges claimed by any realtor, broker or agent
with respect to this Lease and the negotiation thereof, other than a claim of
the Broker or a claim based upon any written agreement between such person and
Landlord.
24. FORCE MAJEURE. Landlord and Tenant, respectively, shall not be in
--------------
default hereunder if such party is unable to fulfill or is delayed in fulfilling
any of its obligations hereunder, including, without limitation, any,
obligations to supply any service hereunder, or any obligation to make repairs
or replacements hereunder, if such party is prevented from fulfilling or is
delayed in fulfilling such obligations by reason of fire or other casualty,
strikes or labor troubles, governmental preemption in connection with a national
emergency, shortage of supplies or materials, or by reason of any rule, order or
regulation of any governmental authority, or by reason of the condition of
supply and demand affected by way or other emergency, or any other cause beyond
its reasonable control. Such inability or delay by Landlord or Tenant in
fulfilling any of their respective obligations hereunder shall not affect,
impair or excuse the other party hereto from the performance of any of the
terms, covenants, conditions, limitations, provisions or agreements hereunder on
its part to be performed, nor result in any abatement of Rent. Tenant shall not,
however, be excused hereunder from the prompt and full payment of Rent, or the
performance of any obligation under this Lease that can be satisfied with the
payment of money, for any cause specified in this Article 24. Also, nothing in
this Article 24 shall in any way limit Landlord's rights under Article 18
hereof.
25. ELECTRICITY.
------------
(a) Tenant shall pay to Landlord as Additional Rental the sum of
$49,000.00 per annum payable in equal monthly installments of $4,083.33 per
month (the "Electrical Inclusion Amount") on account of Tenant's consumption of
electrical energy in the Demised Premises. The Electric Inclusion Amount is
based upon Landlord's assumption that Tenant's initial electrical installation
will not result in a total connected electrical load for lighting, and equipment
will not be in excess of, six xxxxx per rentable square foot of the Demised
Premises and that Tenant will, except for the purpose of office cleaning, use
electrical energy only during normal weekday operating hours of the Building.
Accordingly, if Tenant's initial electrical installation exceeds such criteria,
or if from time to time Tenant makes material use of electricity during hours
other than normal weekday operating hours of the Building, or if from time to
time Tenant after completion of its initial installation adds or changes any
machinery, appliances or equipment which increases the aggregate electrical load
in the Demised Premises, the Electric Inclusion Amount and the Additional Rent
shall from time to time be equitably adjusted to reflect the resulting increase
in such use. In addition, Landlord shall have the right to conduct a periodic
survey of Tenant's actual electrical usage and increase the Electric Inclusion
Amount if the survey indicates the Tenant's usage of electricity exceeds the
cost of $1.75 per rentable square feet of the Demised Premises. Landlord shall
furnish a statement of Landlord's determination as to the amount of the
adjustment, and the same shall become binding upon the parties unless, within
thirty (30) days, Tenant notifies Landlord that it disputes the amount of such
adjustment, in which event the parties shall in good faith make reasonable
attempts to come to agreement, and, if Landlord and Tenant cannot agree thereon,
the amount of such adjustment
19
shall be determined, based on standard practices, by an independent electrical
consultant selected by Landlord. Tenant shall permit said consultant to have
access to the Demised Premises and Tenant's electrical facilities for the
foregoing purpose at all reasonable times. The fee of such consultant shall be
paid by Tenant unless such consultant finds that Tenant's use does not justify
an increase in Additional Rent, in which case the fee shall be paid by Landlord.
When the amount of such adjustment is so determined, Landlord and Tenant shall
execute a supplementary agreement to reflect such adjustment, which shall be
effective from the date of the increase of such usage as determined by such
electrical consultant and shall be made retroactively if necessary. Any
adjustment shall be effective even if such supplementary agreement (in form
reasonably approved by Tenant) is not executed and delivered. Pending the
determination of the adjustment, Tenant shall pay to Landlord the amount of such
adjustment as specified in Landlord's statement. Thereafter, if it is determined
that Tenant has overpaid, Tenant shall receive a credit against Additional Rent
in the amount of the overpayment, said credit to be applied against the next
accruing installment(s) of Additional Rent.
(b) Landlord reserves the right to discontinue furnishing electric
energy to the Demised Premises at any time upon not less than ninety (90) days
notice to Tenant in which event Tenant shall arrange to obtain electric service
directly from the utility providing electric service to the Building. If
Landlord exercises such right of termination, this Lease shall continue in full
force and effect and shall be unaffected thereby, except only that, from and
after the effective date of such discontinuance, Landlord shall not be obligated
to furnish electric energy to Tenant, and the Additional Rent payable under this
Lease shall be reduced by the Electric Inclusion Amount then in effect. If
Landlord voluntarily discontinues furnishing electric energy to Tenant, Landlord
shall, prior to the effective date of such discontinuance, at Landlord's
expense, make such changes in panel boards, feeders, risers, wiring and other
conductors and equipment to the extent required to permit Tenant to obtain
electric energy directly from the public utility company. If, on the other hand,
Landlord is required by any legal requirements to discontinue furnishing
electric energy to Tenant, Landlord shall make such changes in panel boards,
feeders, risers, wiring and other conductors and equipment in order to permit
Tenant to obtain electric energy directly from the public utility company.
(c) If any tax is imposed upon Landlord with respect to electrical
energy furnished as a service to Tenant by any government authority, Tenant
agrees that, where permitted by law or applicable regulations, Tenant's pro rata
share of such taxes shall be reimbursed by Tenant to Landlord upon demand.
(d) Landlord shall not in any way be liable or responsible to Tenant
for any loss or damage or expense which Tenant may sustain or incur if either
the quantity or character of electric service is changed or is no longer
available or suitable for Tenant's requirements. Tenant's use of electric
current in the Demised Premises shall not at any time exceed the capacity of any
of the electrical conductors and facilities in or otherwise serving the Demised
Premises. In order to insure that such capacity is not exceeded and to avert
any possible adverse effect upon the Building's electric service, Tenant shall
not, without Landlord's prior written consent in each instance, connect any
fixtures, appliances or equipment (other than a reasonable number of table or
floor lamps, typewriters, word processors, small computers, photocopy machines
and similar small office machines using comparable electric current) to the
Building's electric distribution system nor make any alteration or addition to
the electric system of the Demised
20
Premises. Should Landlord grant such consent, all additional risers or other
equipment required therefor shall be provided by Landlord upon notice to Tenant,
and all costs and expenses in connection therewith, including, without
limitation, those for filing and supervision, shall be paid by Tenant. As a
condition to granting such consent, Landlord may require Tenant to agree to an
increase in the Additional Rent by an amount which will reflect the value to
Tenant of the additional service to be furnished by Landlord, to wit: the
potential additional electrical current to be made available to Tenant based
upon the estimated initial total capacity of such additional risers or other
equipment. If Landlord and Tenant cannot agree on the amount of such Additional
Rent increase, the same shall be determined by a reputable electrical
consultant, to be selected by Landlord and paid by Tenant. The parties shall
then execute an agreement prepared by Landlord amending this Lease and setting
forth the new Additional Rent resulting from such increase and confirming the
effective date thereof, but such increase shall be effective from such date even
if such agreement is not executed.
26. LEASE STATUS AND NOTICE.
------------------------
(a) Upon request of Landlord from time to time, Tenant will execute
and deliver to Landlord an instrument prepared by Landlord stating, if the same
be true, that this Lease is a true and exact copy of the Lease between the
parties hereto, that there are no amendments hereof (or stating what amendments
there may be), that the same is then in full force and effect and that, to the
best of Tenant's knowledge, there are then no offsets, defenses or counterclaims
with respect to the payment of rent reserved hereunder or in the performance of
the other terms, covenants and conditions hereof on the part of the Tenant to be
performed, and that as of such date no default has been declared hereunder by
either party hereto and that Tenant at the time has no knowledge of any facts of
circumstances which it might reasonably believe would give rise to a default by
either party. Such estoppel certificate required by any party with whom Landlord
is dealing may be in somewhat altered form from the above terms.
(b) Except as otherwise expressly provided in this Lease, any bills,
statements, consents, notices, demands, requests or other communications given
or required to be given under this Lease shall be in writing and shall be deemed
sufficiently given or rendered if delivered by hand or overnight mail via a
nationally recognized courier (against a signed receipt), or if sent by U.S.
registered or certified mail (return receipt requested) addressed:
(i) if to Tenant, at Tenant's address set forth at the
beginning of this Lease, with a copy of any default or
termination notice to Matrix One Corporation, 000 Xxxxxxxxx
Xxxx, Xxxxxxxx, XX 00000, Attn: Director of Facilities, and
Matrix One Corporation, 000 Xxxxxxxxx Xxxx, Xxxxxxxx, XX
00000, Attn: General Counsel;
(ii) if to Landlord, at Landlord's address set forth set forth
at the beginning of this Lease, and with a copy to Xxxxxx &
Associates, P.C., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000;
or to such other address(es) as Landlord, Tenant or any mortgagee or lessor may
designate as its new address(es) for such purpose by notice given to the other
in accordance with the provisions of this Article 26(b). Any such xxxx,
statement, consent, notice, demand, request or other
21
communication shall be deemed to have been rendered or given on the date when it
shall have been delivered (if by hand or by overnight courier) or on the third
(3rd) business day following the date when it shall have been mailed as provided
in this Article 26(b). Anything contained herein to the contrary
notwithstanding, any Operating Expense Statement, Tax Statement or any other
xxxx, statement, consent, notice, demand, request or other communication from
Landlord to Tenant with respect to any item of Rent (other than any "default
notice" if required hereunder) may be sent to Tenant by regular United States
mail.
27. MISCELLANEOUS.
--------------
(a) Landlord and Landlord's agent have made no representations or
promises with respect to the Property or the Park, including the uses permitted
under applicable law, except for representations herein expressly set forth.
(b) Unless found to be grossly negligent, neither Landlord, nor any
employee, agent of contractor of Landlord, shall be liable to Tenant, its
employees, agents or contractors, (i) for any damage to or loss of any property
of Tenant or such other person, irrespective of the cause of such damage or
loss; or (ii) for any personal injury to Tenant or such other person from any
cause.
(c) Except where Landlord is found to be negligent in connection
therewith, Tenant shall defend, indemnify and hold harmless Landlord, its
employees, agents, mortgagees, and contractors against and from all liabilities,
including reasonable attorneys' fees, which may be imposed upon or incurred by
or asserted against Landlord or such other persons by reason of any of the
following occurring during the Term or prior thereto when Tenant has been given
access of the Premises or during any Extended Term: (i) any work or thing done
in the Premises by or at the instance of Tenant, its employees or agents; (ii)
any negligence or wrongful act or omission of Tenant, its employees or agents;
(iii) any accident, injury, loss or damage to any person or property occurring
in the Premises; and (iv) any failure on the part of Tenant to comply with the
terms of this Lease.
(d) Any provision of this Lease which requires Landlord not to
unreasonably withhold its consent shall never be the basis for an award of
damages or give rise to a right of setoff or termination to Tenant (unless
Landlord is found to have acted in bad faith), but may be the basis for a
declaratory judgment or specific injunction with respect to the matter in
question.
(e) Tenant shall look solely to the estate and interest of Landlord,
its successors and assigns, in the Property for the collection of a judgment in
the event of a default by Landlord hereunder, and no other property or assets of
Landlord or any officer, director or partner of Landlord shall be subject to
levy, execution or other enforcement procedure for the satisfaction of 'Tenant's
remedies.
(f) The failure of Landlord to insist in any one or more instances
upon the strict performance of any one or more of the agreements, terms,
covenants, conditions or obligations of this Lease, or to exercise any right,
remedy or election herein contained, shall not be construed as waiver or
relinquishment for the future of the performance of such one or more
22
obligations to this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission, whether of a similar nature of otherwise.
(g) Tenant's obligations under this Lease shall survive the
Expiration Date or sooner termination of the Term, as same may be extended
hereunder.
(h) The Park may be designated and known by any name(s) Landlord may
choose, and such name or designation may be changed from time to time in
Landlord's sole discretion:
(i) Tenant shall comply with all applicable federal, state and local
environmental laws, rules and regulations and shall indemnify and hold Landlord,
its mortgagees) and every party claiming under and through Landlord harmless
from any liability (including reasonable attorneys' fees) incurred by Landlord
or such other entity as a result of Tenant's violation of same.
(j) Tenant and Tenant's servants, employees, agents, visitors,
invitees and licensees shall observe faithfully and comply strictly with such
reasonable Rules and Regulations as Landlord or Landlord's agents may, from time
to time, adopt.
(k) The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributes executors, administrators, successors and, except as
otherwise provided in this Lease, their assigns. The word "Landlord" as used in
this Lease means only the owner for the time being of Landlord's interest in
this Lease. In the event of any assignment of Landlord's interest in this Lease,
the assignor in each case shall no longer be liable for the performance or
observance of any agreements or conditions on the part of the Landlord to be
performed or observed.
(l) Each covenant and agreement in this Lease shall be construed to
be a separate and independent covenant and agreement, and the breach of any such
covenant or agreement by Landlord shall not discharge or relieve Tenant from
Tenant's obligations to perform every covenant and agreement of this Lease to be
performed by Tenant. If any term or provision of this Lease or any application
thereof shall be invalid or unenforceable, the remainder of this Lease and any
other application of such term. shall not be affected thereby.
(m) This Lease shall be governed in all respects by the laws of the
State of Connecticut.
(n) If either party commences litigation against the other for the
specific performance of this Lease, for damages for the breach hereof or to
otherwise enforce any remedy hereunder, the prevailing party shall be entitled
to recover from the other party such costs and reasonable attorneys' fees as may
be incurred by such party.
28. SURRENDER OF DEMISED PREMISES. At the expiration of the Term, Tenant
------------------------------
will peacefully yield up to Landlord the Demised Premises, broom clean, in as
good order and repair as when delivered to Tenant, damage by fire, casualty and
ordinary wear and tear
23
excepted. Any property left by Tenant in the Promises shall be deemed abandoned
by Tenant. Tenant shall have the right to remove improvements undertaken and
paid for by Tenant, HVAC equipment purchased and installed by Tenant and the
raised floor for the computer room provided same can be accomplished without
damage to the Demised Premises and Tenant otherwise restores the Demised
Premises as specified hereinabove.
29. APPURTENANCES. Landlord reserves the right to make changes and
--------------
alterations to the Demised Premises, fixtures and equipment thereof, in the
street entrances, doors, halls, corridors, lobbies, passages, elevators,
escalators, stairways, toilets and other parts thereof which Landlord may deem
necessary or desirable. Neither this Lease nor any use by the Tenant of the
Demised Premises or any passage, door, tunnel, concourse, plaza or any other
area connecting the garages or other demised premises with the Demised Premises,
shall give Tenant any right or easement of such use and the use thereof may,
without notice to Tenant, be regulated or discontinued at any time and from time
to time by Landlord without liability of any kind to Tenant and without
affecting the obligations of Tenant under this Lease.
30. RULES AND REGULATIONS. Tenant covenants that Tenant, Tenant's
----------------------
employees, agents and licensees shall faithfully observe and strictly comply
with the rules and regulations annexed hereto as Exhibit "F" and such reasonable
-----------
changes therein (whether by modification, elimination or addition) as Landlord
may hereafter adopt, (at any time and from time to time) as being, in the
judgment of the Landlord necessary or desirable for (a) the reputation, safety,
care or appearance of the Property or the preservation of good order therein, or
(b) the operation or maintenance of the Demised Premises or the equipment
thereof, provided, however, that in the case of any conflict between the
provisions of this Lease and any such changes the provisions of this Lease shall
control. Landlord shall notify Tenant of the adoption of any changes and they
shall be deemed to be reasonable within the meaning of the foregoing sentence
unless Tenant shall assert to the contrary by notifying Landlord within ten (10)
days after such notice to Tenant.
31. PREJUDGMENT REMEDY, REDEMPTION, COUNTERCLAIM AND JURY TRIAL. Tenant,
------------------------------------------------------------
for itself and for all persons claiming through or under it, hereby acknowledges
that this Lease constitutes a commercial transaction as such term is used and
defined in Section 52-278e of the Connecticut General Statutes, as amended, and
hereby expressly waives any and all rights which are or may be conferred upon
Tenant by said Act to any notice or hearing prior to a prejudgment remedy, and
by any present or future law to redeem the Demised Premises, or to any new trial
in any action or ejection under any provisions of law, after reentry thereupon,
or upon any part thereof, by Landlord, or after any warrant to dispossess or
judgment in ejection. If Landlord shall acquire possession of the Demised
Premises by summary proceedings, or in any other lawful manner without judicial
proceedings, it shall be deemed a reentry within the meaning of that word as
used in this Lease. In the event that Landlord commences any summary proceedings
or action for nonpayment of rent or other charges provided for in this Lease,
Tenant shall not interpose any non-compulsory counterclaim of any nature or
description in any such proceeding or action. Tenant and Landlord both waive a
trial by jury of any or all issues arising in any action or proceeding between
the parties hereto or their successors, under or connected with this Lease, or
any of its provisions.
24
32. MORTGAGEE PROTECTION. Tenant agrees to give any mortgagees a copy of
--------------------
any notice of default served upon the Landlord, provided that prior to such
notice Tenant has been notified, in writing (by way of Notice of Assignment of
Rents. and Leases, or otherwise), of the address of such mortgagees. Tenant
further agrees that if Landlord shall have failed to cure such default within
the time provided for in this Lease, then the mortgagees shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
if within such thirty (30) days, any mortgagee has commenced and is diligently
pursuing the remedies necessary to cure such default, (including but not limited
to commencement of foreclosure proceedings, if necessary to effect such cure) in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
33. FINANCING. Tenant shall not unreasonably withhold its consent to any
----------
modifications of the terms of this Lease that are requested by Landlord's
mortgagee, provided the same do not affect the economic terms of this Lease or
increase Tenant's costs, risks or liabilities.
34. SHORING. If any excavation or construction is made adjacent to, upon
-------
or within the Demised Premises, or any part thereof, Tenant shall afford to any
and all persons causing or authorized to cause such excavation or construction
license to enter upon the Premises for the purpose of doing such work as such
persons shall deem necessary to preserve the Demised Premises or any portion
thereof from injury or damage and to support the same by proper foundations,
braces and supports, without any claim for damages or indemnity or abatement of
rent, or of a constructive or actual eviction of Tenant.
35. ENVIRONMENTAL REPRESENTATIONS.
------------------------------
(a) Tenant shall, at Tenant's expense, keep and maintain the Demised
Premises in compliance with all local, state and Federal environmental laws,
ordinances and regulations, including without limitation Sections 22a-448
through 22a-457 of the Connecticut General Statutes, 42 U.S.C. Section 9601 et
--
seq 42 U.S.C. Section 6901 et seq., 49 U.S.C. Section 1801 et seq., 15 U.S.C.
--- ------ ------
Section 2601 et seq., of the United States Code, and the regulations promulgated
------
thereunder, (all of the foregoing being referred to collectively as the
"Environmental Laws"). During the Term, Tenant shall permit no spills,
discharges, or releases as defined in the Environmental Laws, in or about the
Demised Premises, the Building or Corporate Campus 1, of any hazardous,
radioactive or polluting substances, including without limitation any oil or
petroleum products or any chemical liquids or solids (all of the foregoing,
being referred to collectively as "Hazardous Materials"), it being understood
that materials and supplies used in connection with the operation of Corporate
Campus 1, provided same are used and stored in commercially reasonable
quantities in accordance with the Environmental Laws, shall not be deemed for
purposes of this Article 35 to be Hazardous Materials. Failure of Tenant to
promptly commence and diligently pursue remediation or clean up any such spill,
discharge or release as required under the Environmental Laws, at Tenant's sole
cost and expense, shall be a default hereunder.
25
(b) Landlord represents and warrants that, to the best of its
knowledge after due inquiry, the Building and the Demised Premises are free of
Hazardous Materials as of the Commencement Date. Landlord shall also be
responsible for compliance with all Environmental Laws after the date of this
Lease, and shall indemnify and hold Tenant harmless against any and all claims
with respect to any violation of this Article or the Environmental Laws, unless
any violation is caused by Tenant, its agents, contractors or employees.
36. SIGNAGE.
--------
(a) Tenant shall not affix, attach or install (i) on any exterior
Building window of the Demised Premises any sign, display or other visible
marking and (ii) on any interior Building window of the Demised Premises any
sign, display or other visible marking without the prior written consent of
Landlord.
(a) Landlord shall, at Landlord's expense, include Tenant's name in
the tenant directory in the Building lobby, and will provide standard signage
adjacent to the entrance of the Demised Premises.
37. SECURITY DEPOSIT.
----------------
(a) Tenant shall deliver the sum of $200,000.00 upon the execution of
this Lease, as security for the performance by Tenant of all of the terms,
covenants and conditions of this Lease on Tenant's part to be performed (the
"Security Deposit"). Landlord shall have the right, after the expiration of any
and all applicable grace and/or notice periods, and regardless of the exercise
of any other remedy Landlord may have by reason of a default, to apply any part
of the Security Deposit to cure any default of Tenant, and, if Landlord does so,
Tenant shall upon demand deposit with Landlord the amount so applied so that
Landlord shall have the full amount of the Security Deposit at all times during
the term of this Lease. If Tenant shall fail to make such deposit, Landlord
shall have the same remedies for such failure as Landlord has for a default in
the payment of Base Rent. In the event of an assignment or transfer of the
leasehold estate under the Lease, (a) Landlord shall have the right to transfer
the Security Deposit to the assignee, (b) Landlord shall thereupon be
automatically released by Tenant from all liability for the return of the
Security Deposit, and (c) Tenant shall look solely to the assignee for the
return of Security Deposit, and the foregoing provisions of this sentence shall
apply to every transfer made of the Security Deposit to a new assignee of
Landlord's interest in the Lease. The Security Deposit under this Lease shall
not be assigned or encumbered by Tenant without the prior consent of Landlord,
and any such assignment or encumbrance shall be void. Landlord and Tenant
acknowledge and agree that the Security Deposit shall be held by Landlord in an
interest-bearing savings account, which interest shall accrue and be paid to
Tenant annually.
(b) Notwithstanding the foregoing, provided that this Lease remains
in full force and effect, and the original Tenant remains in possession of the
Demised Premises and is not then in default under this Lease after the
expiration of any applicable grace periods expressly stated in this Lease, the
Landlord acknowledges that upon Tenant's written request thereto, it shall
permit Tenant to reduce the sum of the Security Deposit as set forth below as
security through the remaining term of the Lease. This shall be implemented by
Landlord returning the
26
appropriate sum to Tenant within fifteen (15) days after receipt by Landlord of
Tenant's written request set forth above.
(i) after the end of the first (1st) year anniversary of the
Commencement Date, the Security Deposit may be reduced to
$150,000.00;
(ii) after the end of the second (2nd) year anniversary of the
Commencement Date, the Security Deposit may be reduced to
$100,000.00; and
(iii) after the end of the third (3rd) year anniversary of the
Commencement Date, the Security Deposit may be reduced to
$50,000.00, which shall remain in effect until the
Expiration Date or sooner termination of this Lease
38. RENEWAL OPTION.
---------------
(a) Provided that Tenant shall not be in default under any of the
terms and conditions of the Lease and the Lease shall be in full force and
effect, Tenant shall have the right to renew the Term of the Lease for one (1)
additional five (5) year term (the "Renewal Option") provided that Tenant shall
have given written notice to Landlord by nationally recognized overnight carrier
or certified mail, return receipt requested which notice shall have been
received by Landlord not less than nine (9) months prior to the Expiration Date.
Time shall be of the essence as to the giving of such notice of Tenant's initial
intention to renew (the " Intent Letter"). If Tenant shall fail to exercise its
Renewal Option by delivering the Intent Letter, in strict conformance with the
terms of this Article, this provision shall be deemed deleted from the Lease and
of no further force and effect and Tenant shall have no option to renew or
extend the Term of this Lease.
(b) If Tenant shall exercise the Renewal Option in accordance with
the provisions of this Article, this Lease shall be renewed for such renewal
term upon all the terms, covenants, and conditions contained in the Lease,
except that (i) the Base Rent shall be the fair annual market rental value (the
"Fair Market Value") of the Demised Premises on the last day of the initial term
of this Lease, determined as provided in accordance with Sections (c) & (d) of
this Article, but in no event less than the Base Rent in effect on the date
preceding the first day of the renewal term, and (ii) the Expiration Date shall
be deemed extended to five (5) years following the last day of the month next
preceding the commencement of the renewal term. Tenant shall have no further
right or option to renew this Lease or the term hereof.
(c) If Tenant has fully complied with Section (a) of this Article,
Landlord shall furnish Tenant with its initial determination of the Fair Market
Value, within forty-five (45) days of Landlord's receipt of the Intent Letter
from Tenant.
(d) If Tenant shall dispute the Fair Market Value proposed by
Landlord, Tenant shall give notice of such dispute within thirty (30) days after
receipt of Landlord's
27
proposal, and any such dispute, if not resolved between the parties within
fifteen (15) days thereafter, shall be settled by arbitration in accordance with
the rules and regulations then obtaining of the American Arbitration Association
or its successor. The cost of such arbitration shall be borne equally by
Landlord and Tenant, and, until finally determined, the Base Rent subsequent to
the expiration of the term of this Lease, shall be equal to the greater of the
Fair Market Value proposed by Landlord or the Base Rent in effect on the last
day of the initial term of this Lease. The determination rendered in accordance
with the provisions of this Section (d) shall be final and binding in fixing the
Fair Market Value. If, as a result of such determination, there shall have been
an overpayment in the Base Rent, Landlord shall credit the amount thereof
against subsequent payments of Base Rent. If, as a result of such determination,
there shall have been a deficiency, Tenant shall pay the amount thereof to
Landlord within thirty (30) days after such determination.
39. RIGHT OF FIRST OFFER.
---------------------
(a) Provided the original Tenant is not in default hereunder beyond
the giving of notice and expiration of applicable grace periods expressly
provided for in this Lease, and subject and subordinate to the rights or desire
to extend or sign a new lease held by the current tenant of all or any portion
of the Expansion Space (as hereinafter defined) or any other existing tenant or
other party with a superior right to the Expansion Space, including, without
limitation, the rights of the existing tenant or any other tenant with a
superior right to the Expansion Space, the original Tenant shall have a right of
first offer (the "Right of First Offer") with respect to the leasing of any
portion of available rentable space located in the Building, or if the Building
is completely occupied, then any portion of available rentable space located in
the Xxxxxxx'x Farm complex owned by Landlord, and which Landlord has elected to
lease and which becomes available for leasing during the term of the Lease and
rights thereto have not been committed to or reserved in favor of the current or
future tenant of such spaces or any other third party (any portion of the
foregoing space being hereinafter referred to as the "Expansion Space"). Prior
to entering into any lease for any Expansion Space with any other third party,
Landlord shall give the original Tenant written notice (the "Landlord's Notice")
of the terms pursuant to which Landlord intends to lease the Expansion Space
which notice shall contain the basic economic terms (including, without
limitation, rental, term, landlord's work, if any, etc.) pursuant to which
Landlord is prepared to lease the Expansion Space. The Base Rent and Additional
Rent for the Expansion Space shall be the same as the dollar per square foot
rate in effect for the Base Rent and Additional Rent payable under this Lease on
the date the Landlord's Notice is sent to the Tenant. Within ten (10) days of
receipt of said notice, time being of the essence, the Tenant shall advise the
Landlord in writing (the "Tenant's Notice") whether the original Tenant wishes
to exercise its right to lease such space subject to all of the terms and
conditions of this Lease, except for those terms which are otherwise expressly
set forth in the Landlord's Notice including, without limitation, the (i) rental
rate and (ii) the term of the lease for the Expansion Space, which term shall
expire and come to an end on the Expiration Date of this Lease.
(b) If the Tenant shall elect to exercise its right to lease the
Expansion Space pursuant to this Article, the Landlord and Tenant shall enter
into a new lease for the Expansion Space by no later than thirty (30) days after
Landlord's receipt of Tenant's Notice, time being of the essence, failing which
the Tenant's Right of First Offer as set forth in this Article shall be
28
deemed terminated and extinguished and Landlord shall be free to lease or not
lease said space to any party free of any rights of Tenant in and to said space.
(c) If the Tenant shall fail to exercise its Right of First Offer
with respect to any Expansion Space offered to Tenant pursuant to the terms of
this Section, such right shall expire and be deemed terminated and of no further
force or effect with respect to such Expansion Space (or with respect to any
other portion of Expansion Space which may or may not become available), which
was already offered to the Tenant.
(d) All notices and obligations to be given or performed by Tenant
under this Article shall be given by either nationally recognized overnight
carrier or certified mail, return receipt requested and must be given or
performed within the time periods set forth in this Article, WITH TIME BEING OF
THE ESSENCE.
(e) Landlord shall not be liable to Tenant for any failure of an
existing tenant to vacate any portion of the Expansion Space upon the expiration
of its lease term. The obligations of Landlord and Tenant under this Article
shall be suspended during the period of holding over and until Landlord can
deliver legal possession of such space to Tenant. In the event that a tenant
fails to vacate or surrender its leased space, any right that Tenant may have in
and to such space shall be deemed extinguished without any liability on the part
of Landlord therefor.
(f) Notwithstanding anything to the contrary contained in this
Article, Landlord has advised Tenant that (i) the current or future occupant (or
any potential occupant) of any portion of the Expansion Space (collectively, the
"Prior Optionees") may currently have or in the future may obtain certain rights
to lease the Expansion Space, and (ii) the existing tenant or any future tenant,
if any (the "Existing Tenant") in any portion of the Expansion Space may extend
the terms of its lease either pursuant to an option or otherwise, and Landlord
and Tenant agree that Tenant's option under this Article with respect to the
Expansion Space is subject and subordinate to the rights of the Prior Optionees
and the Existing Tenant, so that Landlord shall have no obligation to notify
Tenant of the availability of the Expansion Space (and Tenant shall have no
option with respect thereto) until after the Prior Optionees' and Existing
Tenant's rights with respect to the Expansion Space shall have accrued and
expired without having been exercised or shall have been waived in writing.
(g) Notwithstanding anything to the contrary contained in this
Article, Tenant shall not be entitled to exercise its Right of First Offer until
Tenant has paid Base Rent as set forth in Article 5(d)(iii).
40. TENANT'S CANCELLATION OPTION. Provided that the original Tenant shall
-----------------------------
not be in default under any of the terms and conditions of the Lease and the
Lease shall be in full force and effect, the original Tenant shall have the
right and option to cancel this Lease (the "Cancellation Option") effective on
the day immediately preceding the fifth (5th) anniversary of the Commencement
Date (the "Cancellation Date"). Tenant shall deliver written notice to Landlord
evidencing its intent to exercise its Cancellation Option by either nationally
recognized overnight carrier or certified mail, return receipt requested which
notice shall have been received
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by Landlord not less than nine (9) months prior to the Cancellation Date (the
"Cancellation Notice"), and by paying to Landlord simultaneously with the
Cancellation Notice a cancellation fee equal to the unamortized principal costs
of Tenant's Alterations and the Broker's commission (at a rate of 11% per annum)
plus three (3) months of Base Rent in effect during the fourth (4th) year of the
Lease. Time shall be of the essence as to the giving of the Cancellation Notice.
If Tenant shall fail to exercise its Cancellation Option by delivering the
Cancellation Notice, in strict conformance with the terms of this Article, this
provision shall be deemed deleted from the Lease and of no further force and
effect and Tenant shall have no option to cancel this Lease.
41. Supplemental Air Conditioning Unit. Subject to the prior written
----------------------------------
approval of Landlord, not to be unreasonably withheld, Tenant shall have the
right to install a 10 - 15 ton supplemental air conditioning unit (the "A/C
Unit") on the roof of the Building for Tenant's exclusive use. The installation
and maintenance of the A/C Unit shall be performed by Tenant at its sole cost
and expense. As a prerequisite to consenting to such installation, Landlord
reserves the right to require reasonable screening of the A/C Unit and further
the right to approve the method and manner of installation so as to ensure the
structural integrity of the Building and non-interference with other tenants.
Upon expiration of the term hereof, the A/C Unit shall be the property of
Landlord and shall remain upon and be surrendered with the Demised Premises as a
part thereof without compensation to Tenant, or at Landlord's option the A/C
Unit shall be removed and the Building repaired and restored at Tenant's sole
cost and expense.
[The remainder of this page is left intentionally blank.
Signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and
seal the year and day first above written.
LANDLORD
CROWN MILFORD LLC,
By: Crown Milford Associates Limited Partnership,
its Managing Member
By: Crown Milford Realty Corp.,
its General Partner
By: /s/ Davar Rad
--------------------------------------
Name: Davar Rad
Title: President
TENANT
MATRIX ONE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxxxx
Title: CFO
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