EXHIBIT 10.33
L E A S E
AGREEMENT OF LEASE, made as of May 1, 2000, between XXXXXXX X. XXXXX
of the Town of Wilton, County of Fairfield and State of Connecticut, XXXX
XXXXX and FIRST UNION TRUSTEES u/w of XXXXXX X. XXXXX, of the Town of
Wilton, County of Fairfield and State of Connecticut, XXXXXXXX XXXXX
XXXXXXX, of the Town of Ridgewood, County of Bergen and State of New Jersey
and the XXX FAMILY LIMITED PARTNERSHIP, acting herein by XXXXX XXXXXXXXX,
General Partner, of the Town of New Canaan, County of Fairfield and State
of Connecticut, LANDLORD, and XXXXXXXXX.XXX INCORPORATED, a Delaware
corporation with offices at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx,
acting herein by Xxxxxxx Xxxxxx, its Senior Vice President of Operations,
duly authorized, TENANT.
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord the premises consisting of approximately 47,211 square feet
which Tenant hereby confirms ("Building" or "Premises") located at 000
Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx ("Real Property"), as shown on Exhibit A
annexed hereto (collectively referred to as "Demised Premises" ) for the
term of ten (10) years (or until such term shall sooner cease and expire as
hereinafter provided) to commence on the 1st day of May, 2000 ("Lease
Commencement Date"), and to end on the 30th day of April, 2010 ("Term"),
for the total Term base rent as stated in paragraph 42 of the Rider to
Lease annexed hereto and made a part hereof which Tenant agrees to pay in
monthly installments in advance each and every month during said term
without any set off or deduction whatsoever, at the office of the Landlord
or at such other place as the Landlord may designate, as follows:
Xxxxx-Xxx Realty
c/o Xxxxxxx X. Xxxxx
0 Xxxxx Xxxxx
Xxxxxx, XX 00000
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
hereby covenant as follows:
1. USE AND OCCUPANCY: Tenant may use and occupy the Demised Premises for
general office use, information technology, computer center and research
and development and for no other purpose without the written consent of
Landlord which consent will not be unreasonably withheld, conditioned or
delayed. Tenant will not at any time use or occupy the Demised Premises in
violation of any certificate of occupancy which may have been issued for
the building of which the demised premises form a part. In the event that
any department, agency, commission or board of any state or locality shall
hereafter at any time declare by notice, violation, order or in any other
official manner whatsoever that the premises hereby demised are used for a
purpose which is a violation of such certificate of occupancy, or should
Tenant allow said premises to be used for any illegal or immoral purposes,
or should he do, or suffer to be done, in or about said premises any act or
thing which may be a nuisance, or damage to the Landlord or Landlord's
tenants, the occupants of adjoining property or the neighborhood, then
Tenant shall, upon thirty (30) days' written notice from Landlord,
immediately discontinue any such use of said premises. Failure by Tenant to
discontinue such use after such notice shall be considered a default in the
fulfillment of a covenant of this lease and Landlord shall have the right
to exercise any and all rights and privileges and remedies given to
Landlord, in this lease. If alterations or additions are needed to permit
lawful conduct of Tenant's business or to comply with the certificate of
occupancy, the same shall be made by and at the sole expense of Tenant.
2. ALTERATIONS: Tenant may make alterations, installations, additions or
improvements in or to the demised premises, or in or to the building of
which they form a part, including, but not limited to, an air conditioning
or cooling system unit or part thereof or other apparatus of like or other
nature, provided Tenant obtains Landlord's prior written consent (except as
otherwise provided in this Lease), which will not be unreasonably withheld,
and then only by contractors or mechanics licensed in the State of
Connecticut, provided they are bonded. Such consent shall not be required
by Landlord if such improvements are non-structural in nature and would not
cost in excess of $75,000.00 provided that Tenant gives prior written
notice to Landlord of such work. All other improvements, which are
submitted to Landlord shall be approved within twenty (20) days or such
approval shall be deemed made. Landlord agrees to approve any such
alterations provided they do not materially, adversely affect the structure
or systems of the building or diminish the gross area of the building or
violate any existing laws or regulations. Any denial shall include a
detailed reason for said denial.
All horizontal and vertical penetrations to roof or walls shall
require Landlords written approval, however, Landlord shall be deemed to
have consented to all penetrations that are done in compliance with Exhibit
B annexed hereto and made a part hereof.
Landlord agrees to cooperate with Tenant in seeking any necessary
permits and to provide its written authorization for any governmental
submissions or applications based on plans approved by Landlord pursuant to
this paragraph. All alterations, decorations, installations, additions or
improvements upon demised premises, made by Tenant, including all paneling,
decorations, partitions, railings and the like, shall be done at Tenant's
sole expense and, become the property of Landlord, (except trade fixtures
not a part of the premises or as otherwise provided herein) and shall
remain up and be surrendered with, said premises, as part thereof, at the
end of the term or renewal term, as the case may be. Notwithstanding the
above, Tenant shall be permitted to remove, at the end of its lease term,
its generator installed by Tenant, raised computer flooring installed by
Tenant and other computer or telecommunications equipment, and any
equipment ancillary thereto provided however any damage caused by said
removal shall be repaired and restored at Tenant's expense to its original
condition and floors shall be recarpeted. Landlord has not conveyed to
Tenant any rights in or to the outer side of the outside walls of the
building of which the demised premises form a part, except as otherwise
provided herein.
During the term of this Lease, Tenant, at its sole cost and expense,
shall have the right to install, maintain, use, repair and replace
satellite antennas and related equipment and cabling on the roof of the
Building in a location mutually agreeable to Landlord and Tenant, provided
however, the location must be one where the satellite antennas can transmit
and receive without interference. Tenant shall also have the right to
install, maintain, use, repair and replace cabling for the satellite
antennas throughout the chases and shafts of the Building. Upon the
expiration or earlier termination of this Lease, Tenant shall remove all
satellite antennas from the roof and repair any punctures or other damage
caused to the roof as a result thereof. Tenant shall submit drawings and
specifications of a licensed engineer certifying installation procedure
including details of all penetrations through roof and/or walls.
Upon written request to Landlord, Tenant, at Tenant's cost, shall
have the right to cause the Building to be identified as the
"xxxxxxxxx.xxx" building or such other name as may from time to time
reflect its or any tenant's corporate identity, provided that the design,
dimension, construction and location of such signage shall be in compliance
with all applicable laws and regulations.
The Tenant shall not suffer or permit any mechanics' or artisans' or
other liens to be filed or placed or exist against the fee of the demised
premises nor against the Tenant's leasehold interest in said premises by
reason of work, labor, services or materials supplied or claimed to have
been supplied to the Tenant or anyone holding the demised premises or any
part thereof through or under the Tenant, and nothing in this lease
contained shall be deemed or construed in any way as constituting the
consent or request of the Landlord, expressed or implied by inference or
otherwise, to any contractor, subcontractor, laborer or materialman for the
performance of any labor or the furnishings of any materials for any
specific improvements, alteration or repair of or to the demised premises
or any part thereof, nor as giving the Tenant any right, power or authority
to contract for or permit the rendering of any services or the furnishing
of any materials that would give rise to the filing of any mechanics' or
other liens against the fee of the demised premises. If any such mechanic's
lien shall at any time be filed against the demised premises, the Tenant
shall cause the same to be discharged of record or bonded within thirty
(30) days after the date of Tenant's notice of the filing of same, at
Tenant's expense, or, in addition to any other right or remedy of the
Landlord, the Landlord may, but shall not be obligated to, discharge the
same either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit in Court or bonding. Tenant shall repay
to Landlord within fifteen (15) days of demand, all sums disbursed or
deposited by Landlord pursuant to the provisions of this paragraph,
including Landlord's costs and expenses, incurred in connection therewith
including reasonable attorney's fees.
3. REPAIRS AND MAINTENANCE OF THE PROPERTY: Tenant shall take good care of
the demised premises and the fixtures, heating, air conditioning, plumbing
and electric systems, and repair any damage it causes the roof subject to
subsection (a) below, exterior of the premises including painting and
repointing of masonry and appurtenances located within the demised premises
or its ceiling, and at its sole cost and expense maintain and repair and
replace the same as and when needed to preserve them in good working order
and condition. Landlord represents that the HVAC system shall be in good
working order on the Occupancy Date. The Tenant shall redecorate, paint the
interior of the Premises, and renovate the said premises as may be
necessary to keep them in repair and good appearance. All damage or injury
to the demised premises and to its fixtures, appurtenances and equipment or
to the building of which the same form a part caused by the Tenant, or
resulting from fire, explosion, air-conditioning unit or system, short
circuits, flow or leakage of water, steam or by frost or by bursting or
leaking of pipes or plumbing works, caused by the Tenant, or any damage or
injury caused by the Tenant in moving in or out of the building, or
installing or removing any of the Tenant's property or fixtures, or from
any other cause of any other kind or nature whatsoever due to carelessness,
omission, neglect, improper conduct or other cause of Tenant, its servants,
employees, agents or licensees shall be repaired and restored promptly by
Tenant at its sole cost and expense to the reasonable satisfaction of
Landlord. If Tenant fails to make such repairs and restorations, same may
be made by Landlord at Tenant's expense after thirty (30) days notice and
cure period has expired. Provided that (i) Landlord exercises all
reasonable efforts to minimize inconvenience to Tenant in connection
therewith and (ii) no action taken by Landlord under this provision shall
impede access to, reduce the size or otherwise diminish the utility of the
Premises in any material respect, including any services provided thereto.
There shall be no liability on the part of Landlord by reason of
inconvenience, annoyance, or injury to business arising from Landlord,
Tenant or others making any repairs, alterations or improvements in or to
any portion of the building, or in or to fixtures, appurtenances, or
equipment thereof, and no liability upon Landlord for failure of Landlord
or others to make any repairs, alterations, additions, or improvements in
or to any portion of the Building or of demised premises, or in or to the
fixtures, appurtenances or equipment thereof except for Landlord's gross
negligence and except as otherwise provided in this Lease. The Tenant
further agrees to keep said premises and all parts thereof in a clean and
sanitary condition and free from trash, inflammable material and other
objectionable matter.
Landlord covenants to make all necessary repairs and replacements to
(i) the roof (unless caused by Tenant); (ii) all structural portions of the
Building unless caused by Tenant's alterations or modifications to the
Building or any other act of Tenant; (iii) any part of the Building if
necessitated by Landlord's gross negligence.
(a) Landlord agrees to make structural repairs and replacements
required under the terms of this Lease and as follows:
(i) If Landlord fails to undertake and commence the repairs or
replacements required under this Lease, Tenant shall immediately notify
Landlord in writing of the required and outstanding repairs.
(ii) Landlord shall undertake and commence the required repairs
or replacements within thirty (30) days after receipt of written notice
from Tenant and shall make all diligent efforts to complete such
replacements in a timely manner.
(iii) If Landlord fails to fulfill its obligations as set forth
herein, Tenant may undertake said repairs or replacements upon receipt by
Landlord of a second notice from Tenant advising of its intent to commence
or complete the required repairs or replacements.
(iv) Anything in this Lease to the contrary notwithstanding,
Landlord agrees that in the event of an emergency which:
(A) poses the threat of imminent, severe damage to
Tenant, Tenant's employees, Tenant's business or Tenant's property; and
(B) necessitates prompt maintenance, repair, or
replacement of items which are otherwise required by this Lease to be
maintained, repaired, or replaced by Landlord,
then Tenant may at its option proceed forthwith to make
repairs, if Landlord is notified and fails to take required action within
48 hours.
(b) (i) If Landlord fails to reimburse Tenant for such repair or
replacement costs incurred by Tenant within twenty (20) days after written
request from Tenant therefor (which request must be supported by paid
receipts), Tenant may deduct the cost thereof from the rent otherwise
payable hereunder.
4. COMPLIANCE WITH LAWS AND REGULATIONS: Tenant at its sole expense shall
comply with all laws, orders and regulations of Federal, State, County and
Municipal Authorities, and with any direction of any public officer or
officers, pursuant to law, which shall impose any violation, order or duty
with respect to demised premises or the use or occupation thereof. Tenant
shall not do or permit to be done any act or thing upon said premises,
which will invalidate or be in conflict with fire insurance policies
covering the building of which demised premises form a part, and fixtures
and property therein, and shall not do, or permit to be done, any act or
thing upon said premises which shall or might subject Landlord to any
liability or responsibility for injury to any person or persons or to
property by reason of any business or operation being carried on upon said
premises or from any other reason. Tenant at its sole expense shall comply
with all rules, orders, regulations or requirements of the Board of Fire
Underwriters, or any other similar body, and shall not do, or permit
anything to be done, in or upon said premises, or bring or keep anything
therein, except as now or hereafter permitted by the Fire Department, Board
of Fire Underwriters, Fire Insurance Rating Organization, or other
authority having jurisdiction and then only in such quantity and manner of
storage as not to solely and directly increase the rate for fire insurance
applicable to the building, or use of the premises in a manner which solely
and directly shall increase the rate of fire insurance on the building of
which demised premises form a part, or on property located therein, over
that in effect prior to this lease. If solely by reason of failure of
Tenant to comply with the provisions of this paragraph, or by the Tenant's
use and occupancy of the premises, or by reason of any act or omission on
the part of the Tenant, the fire insurance rate shall be higher than it
otherwise would be, then Tenant shall reimburse Landlord, as additional
rent hereunder, for that part of all fire insurance premiums thereafter
paid by Landlord, which shall have been charged because of such failure or
use by Tenant and shall make such reimbursement upon the first day of the
month following such outlay by Landlord.
Landlord represents and warrants to Tenant that it has full right and
authority to enter into this Lease and it has a current, valid certificate
of occupancy for the Building and the Premises permitting Tenant's use as
contemplated herein. Landlord represents that to the best of its knowledge,
the Premises are in compliance with all current material laws, ordinances,
rules, regulations, requirements and directives of federal, state and
municipal government entities.
5. SUBORDINATION: This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect
such leases or the real property of which demised premises form a part, and
to all renewals modifications, consolidations, replacements and extensions
thereof. This clause shall be self-operative and no further instrument or
subordination shall be required by any mortgagee. In confirmation of such
subordination, Tenant shall execute promptly any certificate that Landlord
may request.
In consideration of, and as an express condition precedent to,
Tenant's agreement to permit its interest pursuant to this Lease to be
subject and subordinate to the lien of any mortgage, Landlord shall deliver
to Tenant or any subtenant provided the subtenant is paying at least the
same base rent per square foot as the Tenant at the time of the subletting,
a subordination, non-disturbance and attornment agreement executed and
delivered by each of Landlord's mortgagees for the benefit of Tenant or by
Landlord for the benefit of any subtenant and in recordable form reasonably
satisfactory to Tenant and Tenant agrees to execute and deliver any such
subordination, non-disturbance and attornment agreement. Any
non-disturbance issued to a subtenant may provide that if subtenant is
leasing less than entire building and Tenant is in default beyond any
applicable notice and cure period giving Landlord the right to terminate
this Lease, Landlord may terminate such sublease on 60 days written notice
unless subtenant cures Tenant's default within sixty (60) days of the end
of such notice period or if the default is a non-monetary default,
subtenant commences a cure within such sixty (60) day period if such cure
cannot be completed within said period. If Landlord elects not to request
such subordination, non-disturbance and attornment agreement or fails to
obtain such subordination, non-disturbance and attornment agreement, then
this Lease shall not be subject and subordinate to such mortgage.
Landlord agrees that neither the foreclosure of a mortgage, nor the
institution of any suit, action, summary or other proceeding against the
Landlord, or any successor to the Landlord, nor any foreclosure brought by
any of Landlord's mortgagees to recover possession of the premises covered
thereby, shall by operation of law or otherwise result in cancellation or
termination of this Lease or the obligations of the Tenant hereunder.
Upon Tenant's attornment to a successor Landlord, this Lease shall
continue in full force and effect as a direct Lease between the successor
in interest to Landlord ("Successor Landlord") and Tenant upon all of the
terms, conditions and covenants as are set forth in this Lease. Successor
Landlord shall be liable for any previous act or omission of Landlord under
this Lease and be subject to any offset not expressly provided in this
Lease, which theretofore shall have accrued to Tenant against Landlord and
shall be bound by any previous modification of this Lease or by any
previous prepayment of rent.
6. LANDLORD'S LIABILITY: Except for Landlord's gross negligence, Landlord
or its agents shall not be liable for any damage to property of Tenant or
of others entrusted to employees of building, nor for the loss or damage to
any property of Tenant. Except for Landlord's gross negligence, Landlord or
its agents shall not be liable for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam,
electricity, water, rain or snow or leaks from any part of said building or
from the pipes, appliances or plumbing works or from the roof, street, or
sub-surface or from any other place or by dampness or by any other cause of
whatsoever nature, nor shall Landlord or its agents be liable for any such
damage caused by other tenants or persons in said building or caused by
operations in construction of any private, public or quasi-public work; nor
shall Landlord be liable for any latent defect or any existing or future
condition in the demised premises or in the building of which they form a
part; nor shall the Landlord be liable by reason of inconvenience,
annoyance or injury to business arising from the Landlord, the Tenant or
others making any repairs, alterations or improvements in or to any portion
of the building or in or to fixtures, appurtenances, or equipment thereof.
Tenant shall reimburse and compensate Landlord as additional rent within
five (5) days after rendition of a statement for all expenditures made by
or damages or fines sustained or incurred by Landlord due to
non-performance or non-compliance with or breach or failure to observe any
term, covenant or condition of this lease upon Tenant's part to be kept,
observed, performed or complied with. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the demised premises or in the
building or defects therein or in any fixtures or equipment.
7. INSURANCE: The Tenant further agrees to purchase and keep in full force
and effect, during the entire lease term hereof, at the Tenant's sole
expense, public liability insurance and worker's compensation insurance in
companies acceptable to the Landlord with an A rating or better, to protect
both the Landlord and the Tenant against any liability for damages or
injuries to persons or property incident to the use of or resulting from
any accident in or about said premises, from any cause whatsoever,
including any elevators, in the amounts of $l,000,000/$3,000,000, together
with proper plate glass insurance, if available, it being the Tenant's
responsibility hereunder to replace at its own expense any and all glass
which may become broken in and on the demised premises. Certificates of all
insurance policies required by any of the terms of this lease shall be
promptly furnished to the Landlord naming the Landlord as an additional
insured, and at Landlord's request, its mortgagees as an additional
insured, and the Tenant shall submit to Landlord annually, in the
anniversary date of this lease, copies of all paid premiums for any such
insurance policies. The Tenant is to obtain a written obligation on the
part of the insurance carriers to notify the Landlord in writing prior to
any cancellation of insurance, and the Tenant agrees that if the Tenant
does not keep such insurance in full force and effect the Landlord may take
out the necessary insurance and pay the premium and the repayment thereof
shall be after notice and thirty (30) day cure period deemed to be part of
the rental and payable as such on the next day upon which the rent becomes
due. Tenant agrees that it shall keep its fixtures, merchandise and
equipment insured against loss or damage by fire with the usual extended
coverage endorsements. It is understood and agreed that Tenant assumes all
risk of damage to its own property arising from any cause whatsoever,
including, without limitation, loss by theft or otherwise. Except for
Landlord's, it's agents or employees gross negligence, Tenant further
agrees to indemnify, and save harmless, the Landlord and its officers,
directors, agents and employees from and against all liability (statutory
or otherwise), claims, suits, demands, judgments, costs, interest and
expenses, including reasonable counsel fees and disbursements incurred in
the defense thereof to which the Landlord or any such officer, director,
agent or employee may be subject or suffer whether by reason of, or by
reason of any claim for, injury to, or death of, any person or persons or
damage to property (including any loss of use thereof) or otherwise arising
from or in connection with the use of, or from any work or thing whatsoever
done in, any part of the premises during the terms of this lease with
respect to such part or during the period of time, if any, prior to the
commencement of such term that the Tenant may have been given access to
such part for the purpose of doing work or otherwise, or arising from any
condition of the premises due to or resulting from any default by the
Tenant in the keeping, observance or performance of any covenant,
agreement, term, provision or condition contained in this lease or from any
act or negligence of the Tenant or any of its officers, directors, agents,
contractors, servants, employees, licensees or invitees, whether the
Landlord may be legally liable therefore or not.
Landlord shall maintain during the term of this Lease a policy or
policies of insurance insuring the Building against loss or damage due to
fire and other casualties covered within the classification of fire and
extended coverage and malicious mischief, sprinkler leakage, water damage
and special extended coverage on the Building in amounts sufficient to
provide for the guaranteed replacement of the Building. Each party hereto
waives all rights of recovery against the other or the other's agents,
employees or other representatives, for any loss, damages, or injury of any
nature whatsoever to the demised premises, property therein or persons for
which the other is insured or should have been insured pursuant to the
terms contained herein. Each party shall obtain from its insurance carrier
and will deliver to the other, waivers of the subrogation rights under the
respective policies, provided same will not result in any additional
charge.
8. DAMAGES TO PREMISES: If the demised premises shall be partially damaged
by fire or other cause, the damages shall be repaired by and at the expense
of Landlord within one hundred twenty (120) days of such damage and the
rent until such repairs shall be made shall be apportioned according to the
part of the demised premises which is usable by Tenant. In the event of
partial damage, the rent shall be apportioned according to the percentage
of area that is rendered substantially untenantable. If the demised
premises are substantially damaged or are rendered substantially
untenantable by fire or other cause, and if Landlord's engineer certifies
within sixty (60) days of such casualty that it cannot restore or rebuild
the same within 180 days, or if the building shall be so damaged that
Landlord shall decide to demolish it or to rebuild it, then or in any of
such events Landlord may, within ninety (90) days after such fire or other
cause, give Tenant a notice in writing of such decision, and thereupon the
term of this lease shall expire thirty (30) days thereafter and Tenant
shall vacate the demised premises and surrender the same to Landlord. If
Tenant shall not be in default under this lease then, upon the termination
of this lease under the conditions provided for in the sentence immediately
preceding, Tenant's liability for rent shall cease as of the day following
the casualty. The demised premises shall be deemed to be "substantially
damaged" or "rendered substantially untenantable" for the purposes of this
paragraph if the loss by fire or other cause exceeds thirty (30%) percent
of the value of said premises.
9. CONDEMNATION: If the whole of the demised premises shall be acquired or
condemned for any public or quasi public use or purpose then, at the option
of the Landlord or Tenant, the term of this lease shall cease and terminate
from the date of title vesting in such proceedings, and the Tenant shall
have no claim for any portion or part of the Landlord's award. PROVIDED,
HOWEVER, that the Tenant shall have the right to assert a claim for the
unamortized value of its tenant improvements, and furniture, fixtures and
equipment and to any additional or specific award to which it might be
entitled by virtue of the other terms of this lease, providing the same
results in no diminution of the Landlord's award and shall not be any part
thereof. In the event of a partial taking of the Building pursuant to which
15% or more of the Building is taken or 15% of the Parking Lot servicing
the Tenant is taken so as to render impossible the conduct of Tenant's
business at the Premises, as determined by the parties in their reasonable
discretion, then Tenant shall have the right to terminate this Lease by
giving written notice of such termination to Landlord within 180 days after
the date of such taking. Upon the giving of such written notice, the
Termination Date under this Lease shall be the last day of the calendar
month in which such notice is given.
10. ASSIGNMENT BY TENANT: Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any
part thereof to be used by others, without the prior written consent of
Landlord in each instance which consent will not be unreasonably withheld.
If the Tenant desires to assign this Lease or sublet all or any part of the
demised premises, it shall first notify the Landlord of such desire in
writing. The Landlord shall thereupon have the right to terminate this
Lease within ten (10) business days and retake possession of the portion of
the premises proposed to be sublet or assigned. In such event the Tenant
shall be released from its obligations under this Lease upon vacating the
premises and paying all sums due Landlord under this Lease up to the time
of such vacating. If Landlord elects not to terminate the Lease, the Tenant
shall have the right with Landlord's written consent, which will not be
unreasonably withheld to sublet all or any portion of the Demised Premises
to any unrelated subtenant who has a net worth in excess of two million
($2,000,000.00) dollars. If Tenant so assigns or sublets at a rate of rent
and any other charges in excess of the rate of rent and other charges being
paid by Tenant to Landlord for the spaced involved, after deducting
Tenant's subletting costs, including the unamortized costs of leasehold
improvements excluding computer floor and generator, brokerage commissions
and reasonable attorney's fees, the Tenant shall pay Landlord 60% of such
excess. Any such assignment or sublet shall be only for the use permitted
on this Lease. The Tenant shall remain liable on this Lease in the event of
such assignment or sublet. Tenant shall be responsible for Landlord's
reasonable attorney's fees involved in said assignment or sublet.
If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Landlord may,
after default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein reserved,
but no such assignment, underletting, occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee,
under-tenant or occupant as tenant, as 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 underletting shall not in any
wise be construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or underletting. In the event
that the Tenant is a corporation, a transfer of the controlling stock
interest of the Tenant shall not constitute an assignment of lease
requiring the written consent of the Landlord. In the event that the
Landlord grants such consent in writing to any such assignment, or
underletting, Tenant shall provide Landlord, with an executed counterpart
of the instrument of assignment or sublease which shall contain provisions
regarding the obligations of such assignee or sublessee satisfactory to
Landlord.
Notwithstanding the above, Tenant may sublease or assign all portions
of the demised premises to a wholly-owned affiliate or subsidiary or in
connection with a merger, acquisition, sale or consolidation without the
consent of Landlord and Landlord shall not, under those circumstances have
the right to recapture the demised premises. Tenant shall however, be
required to notify Landlord within ten (10) days of such event and provide
Landlord with a copy of such sublease or assignment and Tenant shall
continue to remain fully liable under the terms of this Lease.
Notwithstanding anything to the contrary to this Lease, Tenant may
assign or sublet this Lease without Landlord's consent or right to
recapture to Digital Restaurant Solutions, LLC, Priceline WebHouse Club,
Inc., Xxxxxx Digital Corporation, Perfect YardSale, Inc., and Synapse
Group, Inc. In addition, Tenant may permit any corporation or other
business entities which, directly or indirectly control, are controlled by,
or are under common control with Tenant or any of the above enumerated
entities (herein referred to as a "Related Entity") to sublet all or part
of the Premises for any of the purposes permitted to Tenant, or receive an
assignment of this Lease provided that (i) Tenant shall not be in default
in the performance of any of its material obligations under this Lease
beyond the expiration of applicable notice and cure periods and (ii) ten
(10) days prior to such subletting or assignment, Tenant furnishes Landlord
with the name of any such Related Entity, together with a certification of
Tenant, and such other proof as Landlord may reasonably request, that such
subtenant/assignee is a Related Entity of Tenant. For the purposes hereof,
"control" shall be deemed to mean direct or indirect ownership of not less
than a majority of all of the voting stock of such corporation or a
majority of the legal and equitable interest in any other business
entities, or the power to direct the operation or management of such
corporation or entity, by contract or otherwise. Notwithstanding any
assignment or sublet, Tenant shall remain fully liable for all of the terms
and conditions contained herein.
11. LANDLORD'S RIGHTS OF ENTRY: To comply with Landlord's obligations
hereunder, after prior notice of not less than 24 hours, Landlord or
Landlord's agents shall have the right to enter the demised premises under
Tenant's escort at all reasonable times to examine the same, and to show
them to prospective purchasers or lessees of the buildings, and to make
such structural repairs or replacements as Landlord may deem necessary to
comply with its obligations under the terms of this Lease and Landlord
shall be allowed to take all material into and upon said premises that may
be required therefor without the same constituting an eviction of Tenant in
whole or in part and, except as otherwise provided herein, the rent
reserved shall in no wise xxxxx while said repairs, alterations,
improvements or additions are being made, by reason of loss or interruption
of business of Tenant, or otherwise, provided that (i) Landlord exercises
all reasonable efforts to minimize inconvenience to Tenant in connection
therewith and (ii) no action taken by Landlord under this provision shall
impede access to, reduce the size or otherwise diminish the utility of the
Premises in any material respect, including any services provided thereto.
Except to comply with Landlord's obligations in this Lease, nothing herein
contained shall imply or impose any duty on the Landlord to perform such
work. During the one year prior to the expiration of the terms of this
lease, or any renewal term, Landlord may place upon said premises the usual
notices "To Let" or "For Sale". If, during the last month of term, Tenant
shall have removed all or substantially all of Tenant's property therefrom,
Landlord, with Tenant's written consent, may immediately enter and alter,
renovate and redecorate the demised premises, without elimination or
abatement of rent, or incurring liability to Tenant for any compensation,
and such acts shall have no effect upon this lease. If Tenant shall not be
personally present to open and permit an entry into said premises, when for
any reason an entry therein shall be necessary in case of an emergency,
Landlord or Landlord's agents may enter the same by a master key, or in
case of emergency, may forcibly enter the same, without rendering Landlord
or such agents liable therefor (if during such entry Landlord or Landlord's
agents shall accord reasonable care to Tenant's property), and without in
any manner affecting the obligations and covenants of this lease except for
Landlord's gross negligence. Except as otherwise provided in the Lease,
nothing herein contained, however, shall be deemed or construed to impose
upon Landlord any obligation, responsibility or liability at any time,
without the same constituting an actual or constructive eviction and
without incurring any liability to Tenant therefor, to change the
arrangement and/or location of entrances or passageways, doors and
doorways, and corridors, elevators, stairs, toilets, parking areas or other
public parts of the premises and to change the name, number or designation
by which the building is commonly known.
12. DEFAULT: If the demised premises become vacant or deserted for thirty
(30) days or more and Tenant is not monitoring the Building on a daily
basis, or if Tenant fails to pay any of the rents due hereunder, or if
Tenant sells, assigns, or mortgages this lease without the Landlord's
consent, except as otherwise permitted herein, or if the Tenant shall file
a petition in bankruptcy or be adjudicated bankrupt, which petition is not
withdrawn or dismissed within 90 days, or make an assignment for the
benefit of credits, or file any petition for any composition or plan for
reorganization, or take advantage of any insolvency act, or fail to pay and
discharge all taxes and assessments which shall during the terms of this
lease be charged, laid, levied, assessed or imposed upon or become a lien
upon the personal property of the Tenant used in the operation of the
demised premises, or in connection with the Tenant's business conducted on
said premises, or if the Tenant defaults in fulfilling any other material
covenant of this lease, the Landlord may, at its sole option, without
notice, terminate this lease, reenter the demised premises, after a notice
to quit and completion of a summary process action, dispossess the Tenant
or its legal representative or any occupant of the demised premises and
remove their effects, or to institute legal proceedings to that end and the
Landlord shall have all remedies herein set forth.
In the event of a monetary default, Tenant shall have a fifteen (15)
day grace period after written demand by Landlord to cure such default.
Tenant shall only be entitled to two (2) written notices to cure a monetary
default per calendar year. In the event of a non-monetary default, Tenant
shall have a thirty (30) day grace period after written demand from
Landlord to cure such default. In the event of a non-monetary default which
cannot be cured within said thirty (30) day period, Tenant shall not be
deemed in default if it shall have commenced the cure thereof within such
thirty (30) day period and thereafter proceeds diligently to complete the
cure thereof.
13. REMEDIES FOR DEFAULT: In case of any such default, after the expiration
of any applicable notice and cure period, reentry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the total of all rents
due under this lease shall immediately thereupon become due and payable
without credits or offsets and damages shall be payable as provided below
in this paragraph; (b) Landlord shall use all reasonable efforts to re-let
the premises or any part or parts thereof, either in the name of Landlord
or otherwise for a term which may at Landlord's reasonable judgment be less
than or exceed the period which would otherwise have constituted the
balance of the term of this lease and may grant reasonable concessions or
free rent. The failure or refusal of Landlord to re-let the premises or any
part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such damages there shall be added to the above sums
and deficiency such expenses as Landlord may incur in connection with
re-letting, such as legal expenses, attorney's fees, brokerage and for
keeping the demises premises in good order and for preparing the same for
re-letting. Landlord may make such alterations, repairs, replacements
and/or decorations in the demised premises as Landlord in Landlord's sole
judgment considers advisable or desirable for the purpose of re-letting the
demises premises which shall not operate or be construed to release Tenant
from liability hereunder as aforesaid. Except for Landlord's gross
negligence, Landlord shall in no event be liable in any way whatsoever for
failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting. In the event of a material breach by Tenant of any of the
material covenants or provisions hereof, after the expiration of any
applicable notice and cure period, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law to xxx for
rent or other charges due either on a monthly basis or otherwise, or in
equity; (c) Tenant shall be liable for and shall pay to Landlord, as
damages, any deficiency between (i) the Annual Rent and Additional Rent
payable hereunder for the period which would have constituted the unexpired
portion of the Term (conclusively presuming the Additional Rent to be the
same as was payable for the year immediately preceding such termination or
re-entry) and (ii) the net amount, if any, of rent ("Net Rent") collected
under any reletting effected pursuant to the provisions of paragraph 13(b)
for any part of such period (first deducting from the rents collected under
any such reletting all of Landlord's reasonable expenses in connection with
the termination of this Lease or Landlord's re-entry upon the Premises and
in connection with such reletting as set forth in (b) above. In addition,
the Landlord shall be entitled to interest at the rate of eleven (11%)
percent per annum on the total amounts due under this Section from the date
payment was due until the date of payment; (d) Only if Landlord shall not
have collected any monthly deficiencies as aforesaid, Landlord shall at its
sole option, be entitled to recover from Tenant, and Tenant shall pay
Landlord, on demand, as and for liquidated and agreed final damages, a sum
equal to the amount by which the Annual Rent and Additional Rent payable
hereunder for the period which otherwise would have constituted the
unexpired portion of the Term (conclusively presuming the Additional Rent
to be the same as was payable for the year immediately preceding such
termination of re-entry) exceeds the then fair and reasonable rental value
of the Premises for the same period, both discounted to the then due date
at the rate of five (5%) percent per annum. If, before presentation of
proof of such liquidated damages to any court, commission or tribunal, the
Premises, or any part thereof, shall have been relet by Landlord for the
period which otherwise would have constituted the unexpired portion of the
Term, or any part thereof, the amount of rent upon such reletting shall be
deemed, prima facie, to be the fair and reasonable rental value for the
part or the whole of the Premises so relet during the term of the
reletting; (e) In no event (i) shall Tenant be entitled to receive any
excess of such Net Rent over the sums payable by Tenant to Landlord
hereunder, or (ii) shall Tenant be entitled in any suit for the collection
of damages pursuant to this Section to a credit in respect of any Net Rent
from a reletting except to the extent that such Net Rent is actually
received by Landlord prior to the commencement of such suit. If the
Premises or any part thereof should be relet in combination with other
space, then proper apportionment on a square foot area basis shall be made
of the rent received from such reletting and of the expenses of reletting.
14. INDEMNIFICATION: If Tenant shall be in default in the observance of any
term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease which
shall not have been cured within the grace period provided in this Lease,
Landlord may immediately or at any time thereafter and with notice perform
the same for the account of Tenant, including the prosecution or defense of
any action or proceeding, all at Tenant's expense. In the event that the
Tenant is in arrears in payment of any sums due under this lease, the
Tenant waives the Tenant's right, if any, to designate the items against
which any payments made by the Tenant are to be credited, and the Landlord
may apply any payments made by the Tenant to any items the Landlord sees
fit, irrespective of and notwithstanding any designation or request by the
Tenant as to the items against which any such payment shall be credited.
In no event shall any advisor, beneficiary, director, officer,
shareholder or employee (collectively, the "Tenant's Parties"), be liable
for the performance of Tenant's obligations under this Lease. Landlord
shall look solely to Tenant to enforce Tenant's obligations hereunder and
shall not seek any damages against any of the Tenant's parties.
Landlord shall indemnify and hold harmless Tenant and its respective
partners, directors, officers, agents and employees from and against any
and all claims, together with all costs, expenses and liabilities incurred
in or in connection with each such claim or action or proceeding brought
thereon, including, without limitation, attorney's fees and expenses,
arising from or in connection with:
(i) any material breach or default by Landlord in the
full and prompt payment and performance of Landlord's obligations
under this Lease; and
(ii) any wrongful act or omission or the gross negligence of
Landlord or any of its partners, directors, officers, agents, or employees
occurring on the Real Property.
15. REPRESENTATIONS: Landlord or Landlord's agents have made no
representations or promises with respect to the said building or demised
premises except as herein expressly set forth in this Lease or to induce
the Tenant to rent the said premises or to enter into this lease. Except as
otherwise provided in this Lease, nothing herein contained shall be
construed as warranting that said premises are in good condition or fit or
suitable for the use and purposes for which they are hereby let, and the
Tenant herewith agrees that it has examined the premises and is fully
satisfied with the physical condition thereof and will make all alterations
and repairs necessary for its use of the premises. Except as otherwise
provided herein, the taking possession of the demised premises by Tenant
shall be conclusive evidence as against Tenant that it accepts same "as is"
and that said premises and the building of which the same forms a part were
in good and satisfactory condition at the time such possession was so
taken.
Notwithstanding anything to the contrary contained in the Lease,
Landlord hereby represents and warrants to Tenant as follows:
A. Landlord is the sole fee simple owner of the Real
Property;
B. The Building is not subjected to control or tax
by any improvement, utility, beautification or similar private
district or association;
C. There is currently no lease or mortgage superior
in right to this Lease.
D. The Building can be used for general office use
and is approximately 47,211 square feet.
16. CONDITION ON TERMINATION: Prior to the expiration of the term of this
lease, Tenant shall quit and surrender to Landlord the demised premises,
broom clean, in good order and condition, ordinary wear excepted, and
Tenant shall remove all of its personal property. Tenant's obligation to
observe or perform this covenant shall survive the expiration or other
termination of the term of this lease. If Landlord elects to treat Tenant
as a hold-over from month to month, any concession of rent or agreement in
respect of decorations or the like in the initial term shall not apply to
such hold-over term or terms. If Tenant fails to remove all personal
property from the premises, either upon the termination of its possession
of the premises or upon the termination of this lease, the Landlord, at its
option, may remove the same in any manner that the Landlord may choose
after notice and ten (10) days opportunity to cure and may elect to store
or otherwise dispose of the said effects without liability to the Tenant
for loss thereof, at Tenant's expense; or, the Landlord, at its option,
without notice, may sell such effects, or any of the same, at private sale
and without legal process, for such prices as Landlord may obtain, and
apply the proceeds of such sale against any amounts due under this lease
from the Tenant to the Landlord and against the expense incident to the
removal and sale of such effects, rendering the surplus, if any, to the
Tenant.
17. HOLDING OVER: In the event that the Tenant shall remain in the demised
premises after the expiration of the term of this lease without having
executed a new written lease with the Landlord, such holding over shall not
constitute a renewal or extension of this lease. Any holding over after the
expiration of the term of this Lease or any renewal term shall be construed
to be a tenancy at will at 150% the fixed and any additional or percentage
rents herein specified for the last month of the term or any renewal term
and shall otherwise be on the terms herein specified so far as applicable.
18. PEACEFUL POSSESSION: Landlord covenants and agrees with Tenant that
upon Tenant paying the rent and additional rent and observing and
performing all the material, terms, covenants and conditions, on Tenant's
part to be observed and performed within any applicable notice and cure
period, Tenant may peaceably and quietly enjoy the premises hereby demised
subject, nevertheless, to the terms and conditions of this lease.
19. DELAY OF POSSESSION: If permission is given to Tenant to enter into the
possession of the demised premises or to occupy premises other than the
demised premises prior to the date specified as the commencement of the
term of this lease, Tenant covenants and agrees that such occupancy shall
be deemed to be under all the terms, conditions and provisions of this
lease, except as to the covenant to pay rent, which shall be as set forth
herein for the month of April, at the rate of $47,211.00 for the month.
20. OBLIGATION TO PAY RENT: Except as otherwise provided herein, this lease
and the obligation of Tenant to pay rent hereunder and perform all of the
other covenants and agreements hereunder on the part of Tenant to be
performed shall in no wise be affected, impaired or excused and Landlord
shall have no responsibility or liability because Landlord does not fulfill
any of its obligations under this lease or to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is unable to
make, or is delayed in making repairs, additions, alterations, or
decorations or does not supply or is delayed in supplying any equipment or
fixtures if Landlord does so because of strike or labor troubles or any
outside cause whatsoever including, but not limited to accidents, repairs,
government preemption or by reason of any law, rule, recommendation,
request, order or regulation of any department or subdivision thereof of
any government authority, agency or subdivision, or by reason of the
conditions of supply and demand which have been or are affected by any
emergency, shortage or crisis, or in the event of any business interruption
due to measures taken by the federal, state, county or municipal
authorities, including, but not being limited to, highway or street repair,
changes or restrictions in the flow of traffic or in parking provisions,
and condemnation or razing of adjacent buildings or because of the
breakdown of any equipment or any other cause beyond the Landlord's
control.
21. UTILITIES AND REPAIRS: After notice to Tenant and with Tenant's
reasonable consent, Landlord reserves the right to temporarily stop the
heating, plumbing and electric systems, when necessary, by reason of
accident, or emergency, or for prompt repairs, alterations, replacements or
improvements until same have been completed, in order to comply with its
Lease obligations hereunder.
22. SECURITY: Tenant has deposited with Landlord an irrevocable letter of
credit drawn on a bank in Fairfield County, Connecticut in the sum of
$173,107.00 as security for the faithful performance and observance by
Tenant of the terms, provisions and conditions of this lease. Said letter
of credit shall be automatically renewed during the term of this lease and
any renewal periods. Tenant shall provide Landlord with renewal at least
thirty (30) days prior to the expiration of the term of the letter of
credit. If Tenant fails to do so, Landlord at its option can draw down the
letter of credit and hold cash as security in accordance with the terms of
this paragraph 22. It is agreed that in the event Tenant defaults in
respect of any of the material, terms, provisions and conditions of this
lease, including, but not limited to, the payment of rent and additional
rent, beyond any applicable notice and cure period Landlord may use, apply
or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum
the Landlord is entitled to hereunder. In the event that Tenant shall have
fully and faithfully complied with all of the terms, provisions, covenants
and conditions of this lease, the security shall be returned to Tenant
within thirty (30) days after the date fixed as the end of the Lease and
after delivery of the entire possession of the demised premises to
Landlord, in accordance with the terms hereof. In the event of a sale of
the Real Property and Building or leasing of the Building, of which the
Demised Premises form a part, Landlord shall have the right to transfer the
security to the vendee or lessee and upon such transferee's acceptance of
the security and notice thereof to Tenant, Landlord shall thereupon be
released by Tenant from all liability for the return of such security.
Tenant further covenants that it will not assign or encumber or attempt to
assign or encumber the monies deposited herein as security and that neither
Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
23. NON RECOURSE AS TO LANDLORD: Anything contained in this Lease to the
contrary notwithstanding, Tenant shall look solely to the estate and
property of Landlord in the Premises for the collection of any judgment (or
other judicial process) requiring the payment of money by Landlord in the
event of any default or breach by Landlord with respect to any of the
terms, covenants and conditions of this Lease to be observed and performed
by Landlord, subject, however, to the prior rights of the holder or holders
of any mortgage or mortgages covering the Premises, and no other assets of
Landlord or any partner, member, trustee, fiduciary, shareholder or joint
venturer comprising Landlord or related to Landlord shall be subject to
levy, execution or other judicial process for the satisfaction of Tenant's
claims. In the event Landlord conveys or transfers its interest in the
Premises or in this Lease, except as collateral security for a loan, upon
such conveyance or transfer, Landlord (and in the case of any subsequent
conveyances or transfers, the then grantor or transferor) shall be entirely
released and relieved from all liability with respect to the performance of
any terms, covenants and conditions on the part of Landlord to be performed
hereunder from and after the date of such conveyance or transfer, provided
that any amounts then due and payable to Tenant by Landlord (or by the then
grantor or transferor) or any other obligations then to be performed by
Landlord (or by the then grantor or transferor) for Tenant under any
provisions of this Lease, shall either be paid or performed by Landlord (or
by the then grantor or transferor) or such payment or performance assumed
by the grantee or transferee; it being intended hereby that the covenants
and obligations on the part of Landlord to be performed hereunder shall be
binding on Landlord, its successors and assigns only during and in respect
of their respective periods of ownership of an interest in the Premises or
in this Lease.
24. SIGNS AND ADVERTISEMENTS: The Tenant may place any signs,
advertisement, illumination, monument or projection of any kind whatsoever
in or about the windows, or any part of the said Building or Real Property
of such size, design and color as shall be in compliance with all
applicable laws. The Tenant agrees to seek all necessary approvals and pay
all permit and license fees which may be required for the erection and
maintenance of any and all such signs.
25. CHANGES AND WAIVER: This lease or any covenant, agreement or conditions
contained herein cannot be terminated, altered, waived or modified in any
way on behalf of the Landlord or Tenant except by an instrument in writing.
Receipt of rent shall not be deemed or construed to be a waiver of any
other rent or charges due or of the rights of the Landlord under a breach
of any covenants or conditions herein contained, nor shall any waiver be
claimed as to any provisions of this lease unless the same be in writing.
Acceptance of the keys shall not be tantamount to or evidence of a
surrender. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this
lease, or any of the Rules and Regulations set forth or hereafter adopted
by Landlord, shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of
an original violation.
26. UTILITY BILLS: The Tenant will pay all charges for fuel, electricity,
water, heat, air conditioning, ventilation, garbage and refuse removal
unless publicly removed at no cost and other utilities, unless otherwise
expressly set forth. The Tenant will pay all charges for electricity as
billed by utility companies directly to Tenant based on actual usage from
Tenant's electric meter. Payment of all utilities shall be considered
additional rent.
27. ADDITIONAL RENT:
A. Except as otherwise expressly provided for herein, the rent
hereinbefore specified shall be net, net, net to the Landlord. Throughout
the entire term and any extensions or renewal thereof, Tenant shall be
responsible for and shall pay as additional rent, its proportionate share
which is agreed to be one hundred (100%) percent of all costs, expenses and
obligations of every kind except as otherwise provided in this Lease
relating to the demised premises including but not limited to all operating
costs, expenses, and obligations of every kind relating to the operating
and maintenance of the building, all utilities, building supplies,
janitorial services, maintenance and repairs, reasonable fire, hazard,
liability and other insurance(s), all of which except for this lease would
have been chargeable against the premises and payable by the Landlord, real
estate taxes, personal property taxes, assessments, water charges and other
governmental levies and charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, of any kind and nature
whatever, (all of which real estate taxes, personal property taxes,
assessments, water charges, and other governmental levies and charges are
hereinafter sometimes referred to as "Imposition"), which are assessed,
levied, confirmed, imposed or become a lien upon the demised premises or
any part thereof, or the personal property of the Tenant or become payable
with respect thereto, it being the intention of the parties hereto that the
rents reserved herein shall be received and enjoyed by Landlord as a net
sum. If, by law, an Imposition is payable, or may at the option of the
taxpayer be paid, in installments (whether or not interest shall accrue on
the unpaid balance or such imposition), Tenant may pay the same (and any
accrued interest on the unpaid balance of such imposition) in installments
as the same respectively become due, provided, however, that such
Imposition and interest thereon shall be fully paid by Tenant no later than
one (1) month prior to the expiration of the term.
The definition of "Imposition" shall exclude any and all income,
estate, inheritance, death, succession, franchise, partnership, corporate
or capital stock taxes of Landlord.
B. If any Impositions are required by Landlord's mortgagee to be
escrowed in advance with said mortgagee, payments for said Impositions
shall be made to the Landlord in the manner provided for the payment of
rental, otherwise Tenant shall pay said impositions directly and provide
Landlord with true and accurate copies and receipt of all such payments
upon request.
C. With respect to the Impositions billed directly to Tenant, Tenant
agrees to furnish to Landlord a true copy of each official receipt of the
appropriate taxing authority or other proof satisfactory to Landlord,
evidencing the payment thereof, upon request. If any Impositions which are
the responsibility of the Tenant are assessed or billed to the Landlord,
the Landlord shall immediately deliver any such xxxx or statement therefor
to the Tenant and the Tenant shall pay same when due and payable or if paid
by Landlord, within fifteen (15) days thereof.
D. The Landlord shall take such steps as are necessary in order to
authorize the Tenant to make all payments to be made by the Tenant pursuant
to any provision of this Lease to persons or entities other than the
Landlord, so that all such persons or entities shall accept such payments
from the Tenant. Tenant shall have the right to take an appeal of any tax
assessment on the Real Property or Building, if Landlord fails to do so.
E. Tenant shall pay all expenses, disbursements, outlays, advances,
costs and attorneys fees which the Landlord may incur in effecting or
enforcing any of the terms of this Lease or the Tenants obligations
hereunder. Any such expenses, disbursements, outlays, advances, costs and
attorney's fees, together with interest at the rate of ten (10%) percent
per annum, shall be paid by Tenant to Landlord within fifteen (15) days of
the rendition of any xxxx or statement to Tenant therefor.
28. PARKING AREAS: The Tenant shall have the exclusive use of all of the
parking areas at the Real Property. The Landlord shall pay for all capital
improvements to the parking areas such as repaving, however, Tenant shall
be responsible for repaving if parking area is damaged as a result of
Tenant's use (i.e., caused by snow plows or trucks). The Tenant shall pay
all costs for the care, operations, maintenance and repair of the parking
areas including, but not limited to, snow plowing, sanding, police and/or
security protection.
29. USE OF COMMON AREAS: Tenant's use of common areas, if any, shall comply
with all applicable laws, and the rules and regulations of all governmental
authorities having jurisdiction thereof. Tenant shall further pay the cost
of the care, maintenance and cleaning of such common areas. Tenant shall
maintain all landscaping, including plantings, shrubs, flower beds and
grounds located in both the interior and exterior of the Building and
common areas.
30. SIDEWALK: The Tenant, at its sole cost and expense, shall keep and
maintain the sidewalk adjacent to the leased premises clear of
obstructions, ice and snow and shall use reasonable efforts to keep the
said sidewalk free of dirt, debris and other unsightly materials.
31. GARBAGE: Tenant shall pay the cost of removal of any of Tenant's refuse
and rubbish.
32. WAIVER OF JURY TRIAL: Landlord and Tenant hereby waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties
hereto against the other on or in respect to any matter whatsoever arising
out of or in any way connected with this Lease or the relationship of
Landlord and Tenant hereunder, the Tenants use or occupancy of the Demised
Premises and/or any claim of injury or damage.
33. RECORDING: Tenant shall not record this lease without the written
consent of Landlord. However, upon the request of either party hereto the
other party shall join in the execution of a memorandum or so-called "short
form" notice of this lease for the purposes of recordation. Said memorandum
or notice of this lease shall describe the parties, the leased premises and
the term of this lease and shall incorporate this lease by reference.
34. CONSENT TO JURISDICTION: This agreement shall be deemed to have been
made in the State of Connecticut, and shall be interpreted, and the rights
and liabilities of the parties here determined, in accordance with the laws
of that State and as part of the consideration for the Landlord's executing
this lease. Tenant hereby agrees that all actions or proceedings arising
directly or indirectly from this lease shall be litigated only in the
Courts of the State of Connecticut and Tenant hereby consents to the
jurisdiction of any court located within that State.
35. WORD USAGE: As used in this indenture of lease and when required by the
context, each number (singular or plural) shall include all numbers, and
each gender shall include all genders; and unless the context otherwise
requires, the word "person" shall include "corporation, firm or
association".
36. CHANGES TO BE IN WRITING: No changes or other modification of this
lease shall be binding upon a party to this lease unless in writing and
signed by a duly authorized officer or agent of the party to be charged
therewith.
37. INVALIDITY OF PARTICULAR PROVISIONS: If any term or provision of this
lease or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this lease, or
the application of such term or provision of this lease shall be valid and
be enforced to the fullest extent permitted by law.
38. PROVISIONS BINDING, ETC.: Except as herein otherwise expressly
provided, the terms and provisions hereof shall be binding upon and
shall inure to the benefit of the heirs, executors, administrators,
successors and assigns, respectively, of Landlord and Tenant.
39. NOTICES: All notices and demands, legal or otherwise, incidental to
this lease, or the occupation of the demised premises, shall be in writing.
Any notice or demand shall be sufficient if sent by registered or certified
mail, addressed to the Tenant at the demised premises, and to the address
listed below, or to the Landlord at the place for payment of rent.
If Notice to Tenant: Xxxxxxxxx.xxx, Incorporated
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX
ATTN: General Counsel
copy to: Xxxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxx, LLP
X.X. Xxx 00000
Xxxxxxxx, XX 00000-0000
If Notice to Landlord,
copy to: Xxxxx X. Xxxxxx, Esq. Xxx Xxxxx, Esq.
Nevas, Nevas & Xxxxxxx Xxxxxxx & Xxxxx
000 Xxxx Xxxx Xxxx 000 Xxx Xxxxxxxxxx Xxxx
X.X. Xxx 000 Xxxxxx, XX 00000
Xxxxxxxx, XX 00000-0000
40. LATE PAYMENT: If Tenant fails to pay when due any rent, additional rent
or other amounts or charges which Tenant is obligated to pay under the
terms of this Lease, the unpaid amounts shall bear interest at the rate of
ten (10%) percent. Tenant acknowledges that the late payment of any monthly
installment of rent, additional rent will cause the Landlord to lose the
use of that money and incur costs and expenses not contemplated under this
Lease, including without limitation, administrative and collection costs
and processing and accounting expenses, the exact amount of which is
extremely difficult to ascertain. Therefore, in addition to interest, if
any such installment is not received by Landlord within ten (10) days from
the date it was due, Tenant shall pay Landlord a late charge equal to five
(5%) percent of such installment. Landlord and Tenant agree that this late
charge represents a reasonable estimate of such costs and expenses and is
fair compensation to Landlord for the loss suffered from such nonpayment by
Tenant. Acceptance of any interest or late charge shall not constitute a
waiver of Tenant's default with respect to such nonpayment nor prevent
Landlord from exercising any other rights or remedies available to Landlord
under this Lease.
RIDERS: Attached hereto and fully made a part hereof are the
following Riders: RIDER
Dated and sealed the day and year first above written.
WITNESSES:
---------
(L.S.)
------------------------------- ---------------------------
Xxxxxxx X. Xxxxx
-------------------------------
(L.S.)
------------------------------- -----------------------------
Xxxx Xxxxx, Trustee u/w
of Xxxxxx X. Xxxxx
-------------------------------
FIRST UNION TRUSTEE U/W
OF XXXXXX X. XXXXX
-------------------------------
By: (L.S.)
---------------------------
Its
-------------------------------
-------------------------------
(L.S.)
---------------------------
Xxxxxxxx Xxxxx Xxxxxxx
-------------------------------
XXX FAMILY LIMITED PARTNERSHIP
-------------------------------
By: (L.S.)
---------------------------
Xxxxx Xxxxxxxxx
General Partner
--------------------------------
XXXXXXXXX.XXX, INCORPORATED
-------------------------------
By: (L.S.)
---------------------------
Xxxxxxx Xxxxxx
Its Senior Vice President
of Operations
Tenant
-------------------------------
RIDER
I. The Lease is amended by the addition of the following provisions:
41. BROKER.
Tenant and Landlord warrant and represent that each party has
not had or dealt with any broker, Realtor or agent, in connection with the
negotiation of this Lease, except CB Xxxxxxx Xxxxx, Stamford, Connecticut,
and each party agrees to indemnify (including costs of suit and reasonable
attorney's fees) the other party for any compensation, commission or
charges claimed by any Realtor, broker or agent except CB Xxxxxxx Xxxxx,
Stamford, Connecticut, with respect to this Lease, renewal options and the
negotiation thereof.
42. RENT SCHEDULE.
COMMENCING ANNUAL RENT MONTHLY RENT
May 1, 2000
- April 30, 2002 $1,038,642.00 $ 86,553.50
1. For the purpose of this Lease, the term "Rental Year" shall mean
each consecutive lease year commencing on May 1, 2000. Tenant agrees to pay
to Landlord as fixed annual rent (the "Base Rent") for the Demised Premises
the amount of One Million Thirty Eight Thousand Six Hundred Forty Two
($1,039,642.00) Dollars, subject to increase as set forth below.
(a) With respect to the Third Rental year, Tenant shall pay to
Landlord as Base Rent an amount equal to the product obtained by
multiplying the Base Rent hereunder for the Second Rental Year by a
fraction, the numerator of which is the CPI-U for November 1, 2000, and the
denominator of which the CPI-U for the calendar month which is March 1,
2002.
(b) With respect to each Rental Year following the Third Rental
Year of the term of this Lease, Tenant shall pay to Landlord as Base Rent
during each such Rental Year an amount equal to the product obtained by
multiplying the Base Rent hereunder for the immediately preceding Rental
Year by a fraction, the numerator of which is the CPI-U for the calendar
month which is three calendar months prior to the first calendar month of
the Third Rental Year and each subsequent rental year, as the case may be,
and the denominator of which is the CPI-U for the calendar month which is
three calendar months prior to the first calendar month of the immediately
preceding Rental Year. As an example, if the Base Rent for the Rental Year
beginning May 1, 2002 was $1,000.00; the CPI-U for March 1, 2002 was 100;
and the CPI-U for March 2003 was 105, then the Base rent for the Rental
Year beginning May 1, 2003 would be 105/100 x $1,000.00 = $1,050.00.
(c) The CPI-U is the "Consumer Price Index - Seasonally
Adjusted U.S. City Average For All Items For All Urban Consumers (1982-84 =
100)" published monthly in the "Monthly Labor Review" by the Bureau of
Labor Statistics of the U.S. Department of Labor.
(d) If the CPI-U is discontinued, the "Consumer Price Index -
Seasonally Adjusted U.S. City Average For All Items for Urban Wage Earners
and Clerical Workers (1982-84=100)," published monthly in the "Monthly
Labor Review" by the Bureau of Labor Statistics of the United States
Department of Labor ("CPI-W"), shall be used for making the computations in
subsection (a) above. If the CPI-W is discontinued, comparable statistics
on the purchasing power of the consumer dollar published by the Bureau of
Labor Statistics of the United States Department of Labor shall be used for
making the above computations. If the Bureau of Labor Statistics shall no
longer maintain statistics on the purchasing power of the consumer dollar,
comparable statistics published by a financial periodical of recognized
authority selected by Landlord shall be used for making the above
computations. If the applicable statistics are no longer published on a
monthly basis, appropriate adjustments shall be made in performing the
above computation in order to carry out the intent of the parties
hereunder. If the base year "(1982-84=100)" or other base year used in
computing the CPI-U or CPI-W, as the case may be, is changed, the figures
used in making the adjustment in subsection (1) shall be changed
accordingly, so that all increases in the CPI-U or CPI-W, as the case may
be, are taken into account notwithstanding any such change in the base
year.
(e) Once Landlord has determined the Base Rent payable by
Tenant with respect to the third and each subsequent Rental Year, as the
case may be, Landlord shall notify Tenant in writing of the same ("Revised
Rent Notice"), which notice (notwithstanding anything to the contrary in
this Lease) may be by means of ordinary first-class mail. The Revised Rent
Notice shall contain reasonable details as to the method of calculating the
Base Rent set forth therein. Until Tenant's receipt of the Revised Rent
Notice with respect to a particular Rental year, Tenant shall continue to
pay Base Rent at the rate in effect prior to the receipt of the respective
Revised Rent Notice. As of the first day of the calendar month following
the month in which Tenant receives a particular Revised Rent Notice, Tenant
shall commence the payment of monthly installments of Base Rent at the rate
set forth in such notice. The first such installment shall include an
additional amount equal to the difference between the Base Rent theretofore
paid by Tenant for the respective Rental year, and the revised Base Rent
for such year as set forth in the Revised Rent Notice for such year.
(f) In no event shall the Base Rent for any Rental Year be less
than the Base Rent for the previous Rental year.
(g) The maximum increase in the Base Rent in any year from the
prior year shall be four (4%) percent per annum, except for the increase in
the Third Rental Year, which shall not be greater than six (6%) percent per
annum from the prior year.
43. RIGHT TO TERMINATE.
Notwithstanding a lease term of ten (10) years, provided Tenant
is not in default of the terms of the Lease beyond any applicable cure
period, Tenant shall have a unilateral right to terminate this lease at the
beginning of the 4th and 7th years therein. In order to exercise its right
to terminate, Tenant must provide Landlord with at least one year's written
notice of its intent to terminate this lease. Time shall be of the essence
with respect to the right to terminate. Together with the written notice,
tenant shall provide Landlord with a non-refundable termination fee
equivalent to five (5) months of the then current base rent. In addition,
Tenant shall reimburse Landlord for any unamortized portion of Landlord's
attorney's fees for the preparation and negotiation of this Lease as well
as Landlord's reasonable legal expenses involved in the termination of the
Lease. Landlord shall provide Tenant with a detailed statement of same,
within forty-five (45) days of incurring such costs.
44. RIGHT OF FIRST REFUSAL.
In the event the Landlord decides to sell the Demised Premises
to a third party who is not a current owner during the term of this Lease
or any renewals or extensions thereof and provided the Tenant is not in
default under any of the terms or conditions of this Lease, beyond any
applicable notice and cure period, Landlord shall first give written notice
to the Tenant of any bona fide offer setting forth each of the material
terms and conditions of the offer ("Offer"), together with a copy thereof,
in writing, and the Tenant shall have the right of first refusal to
purchase the premises on the same conditions contained in any Offer. If the
Tenant desires to exercise this right of first refusal, it must do so
within fifteen (15) days from receipt of the copy of the Offer from the
Landlord. Time shall be of the essence with respect to the exercise of this
right. This right is personal to Tenant only. The Tenant shall exercise the
right of first refusal by notifying the Landlord, in writing, by registered
mail, return receipt requested, with payment of one (1%) percent of the
purchase price which shall not be refundable, and the remaining nine (9%)
percent to be paid upon execution of the contract within 5 business days
and the balance of the purchase price to be paid upon the same terms and
conditions and within the same time as provided for in the Offer. This
right of first refusal shall terminate upon the termination of this Lease
and any renewals thereof. If Landlord fails to close on said Offer within
one year of Landlord's original written notice, any new offer shall be
subject to the terms of this paragraph.
45. OPTION TO RENEW.
Provided that the Tenant is then in possession of the premises
and not in default under any of the terms of its Lease, the Landlord grants
to the Tenant two (2) five year options to renew this Lease, upon all of
the same terms and conditions except as to base rental, the first option
commencing on the first day of May 2010 and terminating on the 30th day of
April, 2015 and the second option commencing on the first day of May 2015
and terminating on the 30th day of April 2020. The base rental for the
first year of the First Renewal Term shall be the greater of: (a) 95% of
the fair market rental value of the Premises as of May 1, 2009 for
comparable buildings in the area in which the Building is located, leased
on terms comparable to this lease as of May 1, 2009 or (b) the base rental
in effect on the last month of the original Lease Term. Such fair market
rental value shall be determined by written agreement between Landlord and
Tenant.
If Landlord and Tenant are unable to agree within 30 days after
Tenant's exercise of the option, Landlord and Tenant shall each appoint a
certified commercial real estate appraiser with a minimum of ten (10) years
experience. The two appraisers shall jointly agree on the fair market
rental value for the Premises within 30 days. If they are unable to agree,
they shall jointly select a third appraiser who meets the qualifications
described above. A decision of a majority of the appraisers shall be
binding on the parties. Each party shall bear the cost of its own appraiser
and they shall share the cost of the third appraiser, if necessary.
The base rental for the first year of the second option term shall be
100% of the fair market rental value of the Premises as of May 1, 2014 but
in no event less than the base rental paid for the last year of the first
option term and shall be determined in the same manner as set forth herein
above.
The base rental for the 12th through 15th years and 17th through 20th
years shall be determined by cost of living increases as set forth in
paragraph 46, Rental Schedule Renewal Term.
Said right shall be exercised if at all by the Tenant
delivering to the Landlord in writing its exercise of said right on or
before May 1, 2009 and May 1, 2014, for the first and second renewal terms,
respectively. Failure to exercise the right in writing in the above manner
prior to May 1, 2009, and May 1, 2014 shall cause the right to terminate
without further act by either party. The parties covenant and agree that
time shall be of the essence in the exercise of this right.
46. RENTAL SCHEDULE RENEWAL TERM.
1. For the purpose of the First and Second Renewal Terms of this
Lease, the term "Rental Year" shall mean each consecutive lease year
commencing on May 1, 2010 and 2015, respectively.
(a) With respect to each Rental Year following the initial
Rental Year of the First and Second Renewal Terms of this Lease, Tenant
shall pay to Landlord as Base Rent during each such Rental Year an amount
equal to the product obtained by multiplying the Base Rent hereunder for
the immediately preceding Rental Year by a fraction, the numerator of which
is the CPI-U for the calendar month which is three calendar months prior to
the first calendar month of the Second Rental Year of the renewal term and
each subsequent rental year, as the case may be, and the denominator of
which is the CPI-U for the calendar month which is three calendar months
prior to the first calendar month of the immediately preceding Rental Year
of the renewal term. As an example, if the Base Rent for the Rental Year
beginning May 1, 2010 was $1,000.00; the CPI-U for March 1, 2010 was 100;
and the CPI-U for March 2011 was 105, then the Base rent for the Rental
Year beginning May 1, 2011 would be 105/100 x $1,000.00 = $1,050.00.
(b) The CPI-U is the "Consumer Price Index - Seasonally
Adjusted U.S. City Average For All Items For All Urban Consumers (1982-84 =
100)" published monthly in the "Monthly Labor Review" by the Bureau of
Labor Statistics of the U.S. Department of Labor.
(c) If the CPI-U is discontinued, the "Consumer Price Index -
Seasonally Adjusted U.S. City Average For All Items for Urban Wage Earners
and Clerical Workers (1982-84=100)," published monthly in the "Monthly
Labor Review" by the Bureau of Labor Statistics of the United States
Department of Labor ("CPI-W"), shall be used for making the computations in
subsection (a) above. If the CPI-W is discontinued, comparable statistics
on the purchasing power of the consumer dollar published by the Bureau of
Labor Statistics of the United States Department of Labor shall be used for
making the above computations. If the Bureau of Labor Statistics shall no
longer maintain statistics on the purchasing power of the consumer dollar,
comparable statistics published by a financial periodical of recognized
authority selected by Landlord shall be used for making the above
computations. If the applicable statistics are no longer published on a
monthly basis, appropriate adjustments shall be made in performing the
above computation in order to carry out the intent of the parties
hereunder. If the base year "(1982-84=100)" or other base year used in
computing the CPI-U or CPI-W, as the case may be, is changed, the figures
used in making the adjustment in subsection (1) shall be changed
accordingly, so that all increases in the CPI-U or CPI-W, as the case may
be, are taken into account notwithstanding any such change in the base
year.
(d) Once Landlord has determined the Base Rent payable by
Tenant with respect to the second and each subsequent Rental Year, during
the First and Second renewal terms, respectively as the case may be,
Landlord shall notify Tenant in writing of the same ("Revised Rent
Notice"), which notice (notwithstanding anything to the contrary in this
Lease) may be by means of ordinary first-class mail. The Revised Rent
Notice shall contain reasonable details as to the method of calculating the
Base Rent set forth therein. Until Tenant's receipt of the Revised Rent
Notice with respect to a particular Rental year, Tenant shall continue to
pay Base Rent at the rate in effect prior to the receipt of the respective
Revised Rent Notice. As of the first day of the calendar month following
the month in which Tenant receives a particular Revised Rent Notice, Tenant
shall commence the payment of monthly installments of Base Rent at the rate
set forth in such notice. The first such installment shall include an
additional amount equal to the difference between the Base Rent theretofore
paid by Tenant for the respective Rental year, and the revised Base Rent
for such year as set forth in the Revised Rent Notice for such year.
(e) In no event shall the Base Rent for any Rental Year be less
than the Base Rent for the previous Rental year.
(f) The maximum increase in the Base Rent in any year from the
prior year shall be four (4%) percent per annum.
47. RECYCLING.
Tenant is responsible for separation and recycling of
all recyclable materials generated by Tenant. No recyclable
materials may be placed in the buildings' common refuse container.
If Landlord provides receptacles for recyclable materials Tenant
shall use those receptacles and follow all instructions pertaining
thereto. Tenant
shall pay for all costs for recycling . Payment for recycling shall be
considered additional rent.
48. ENVIRONMENTAL MATTERS.
Tenant shall not cause Hazardous Materials to be stored, used
or spilled, or otherwise deposited on the Real Property, except in material
compliance with all environmental laws. Tenant shall be solely responsible
for the remediation of any release of Hazardous Materials to the
satisfaction of the proper authorities. Tenant shall indemnify and hold
Landlord harmless from any and all claims made by third parties arising
from any release of Hazardous Materials by Tenant.
In the event, at the termination of the within Lease (or prior
thereto), the Landlord causes a professional engineering company to test
the land for spillage of Hazardous Materials and the same is found to be
caused by the Tenant, then in that event on immediate written notice from
the Landlord to the Tenant, the Tenant is to rid the property of all
Hazardous Materials deposited by it. In the event the Tenant fails to
commence clean up of said Hazardous Materials within ten (10) days of
Notice, then, in that event, the Landlord may commence to rid the property
of said Hazardous Materials, with the understanding, however, that the
Tenant will be liable for the cost thereof. The costs of said engineering
tests to determine whether or not spillage has been made shall be the
Landlord's unless spillage is found, in which case it shall be added to the
cost of clean up.
49. ASSIGNMENT BY LANDLORD.
Landlord reserves the right to convey title to the Real
Property known as 000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx, to a limited
liability company formed and controlled by the Landlord known as Xxxxx-Xxx
Realty, LLC and to assign this Lease to said limited liability company, at
no cost to Tenant.
50. COMPLIANCE WITH ENVIRONMENTAL LAWS.
A. Landlord shall, at Landlord's expense keep and maintain the
Real Property, in compliance with all Environmental Laws (as hereinbelow
defined). Landlord represents and warrants to Tenant that no Environmental
Permits (as hereinafter defined) are necessary to operate and/or own the
Real Property as an office building.
B. Landlord represents to the best of its knowledge
that there are no environmental conditions on the Real Property
that require remediation or notification to governmental
authorities.
C. Landlord hereby indemnifies and holds harmless Tenant from
any and all claims, liabilities, losses, damages or costs (including,
without limitation, reasonable attorney's fees) arising out of or related
to any and all Environmental Conditions (as hereinafter defined) or
Environmental Compliance Liability (as hereinafter defined), except those
resulting from Tenant's acts or omissions.
D. For purposes of this Lease, these following terms
shall have the respective meanings:
(i) "Environmental Conditions" shall mean all
circumstances with respect to soil, surface waters, groundwater, ponds,
stream sediment, air, building materials, and similar environmental media,
both on-site and off-site of the Real Property that may require remedial
action and/or that may result in claims and/or demands and/or liabilities
to third parties including, but not limited to governmental entities.
(ii) "Environmental Compliance Liability" means any and
all liabilities arising under, or related to, compliance with any
Environmental Law applicable to the Real Property or any operations or
assets associated with the Real Property, including without limitation, the
Premises, which may result in claims and/or demands by and/or liabilities
to third parties, including but not limited to, governmental entities.
(iii) "Environmental Laws" means any and all federal,
State of Connecticut, local or municipal written and published laws, rules,
orders, regulations, statutes, ordinances, codes, or requirements of any
governmental authority regulating or imposing standards of liability or
standards of conduct (including common law) concerning air, water, solid
waste, Hazardous Materials and other environmental concerns.
(iv) "Hazardous Materials" means any petroleum, petroleum
products, fuel oil, waste oil, explosives, reactive materials, ignitable
materials, corrosive materials, hazardous chemicals, hazardous wastes,
hazardous substances, extremely hazardous substances, toxic substances,
toxic chemicals, radioactive materials, pollutants, toxic pollutants,
herbicides, fungicides, rodenticides, insecticides, contaminant, or
pesticides and including, but not limited to any other element, compound,
mixture, solution or substance which may pose a present or potential hazard
to human health or the environment.
(v) "Release" means releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, ejecting, escaping,
leaching, disposing, seeping, infiltrating, draining or dumping, or as
otherwise defined under Environmental Laws. This term shall be interpreted
to include both the present, past and future tense, as appropriate.
(vi) "Environmental Permits" means all permits, approvals
or registrations required to be issued to Landlord by any governmental
authority, or made by the Landlord to any governmental authority, under any
Environmental Laws on account of any or all of the Landlord's ownership or
operation at the Real Property.
51. APPROVALS.
All approvals or consents required by Landlord pursuant to this
Lease shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding the above, any violation of this provision shall not be the
basis for an award of damages or give rise to any right of setoff, but may
be the basis for a declaratory judgment or specific injunction with respect
to the matter in question.
52. UTILITY CONNECTIONS.
Tenant shall have the right to connect with any telephone,
telex and/or any other company's service supplying data information over
telephone lines without interference from the Landlord. Tenant shall have
the right to use all electrical and plumbing risers and branch work located
in the Building for purposes of connecting its systems. Landlord represents
that the current life/safety system, including, without limitation, the
sprinkler system in the Premises is or will be in compliance with law for
purposes of an office use in the Premises.
53. GENERATOR.
Tenant shall have the right to install a generator and fuel
source on the existing concrete pad outside the Building and may modify the
same, provided that the use and installation of such generator shall be in
compliance with all applicable laws. Tenant shall submit drawings and
specification of a licensed engineer certifying as to installation
procedure, including details for penetration through roof and/or walls.
54. UNAVOIDABLE DELAYS.
The provisions of this paragraph shall be applicable if there
shall occur, on or after the date hereof, any strikes, lockouts or labor
disputes, inability to obtain labor or materials or reasonable substitutes
therefor or acts of God, governmental action, civil commotion, riot or
insurrection, fire or other casualty or other events beyond the reasonable
control of the party obligated to perform. If Landlord or Tenant, as a
result of any of the aforementioned events, shall fail punctually to
perform any term, covenant or condition on its part to be performed under
this Lease, then such failure shall be excused and not be a breach of this
Lease by the party in question, but only to the extent and for the time
occasioned by such event. Notwithstanding anything to the contrary herein
contained, however, the provisions of this paragraph shall not
be applicable to Tenant's obligations to pay, when due and payable, the
rents, additional rent or other sums reserved hereunder.
----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
Xxxx Xxxxx, Trustee u/w of
Xxxxxx X. Xxxxx
FIRST UNION, TRUSTEE u/w of
XXXXXX X. XXXXX
By:
------------------------------------
----------------------------------------
Xxxxxxxx Xxxxx Xxxxxxx
XXX FAMILY LIMITED PARTNERSHIP
By:
------------------------------------
Xxxxx Xxxxxxxxx
General Partner
XXXXXXXXX.XXX, INCORPORATED
By:
------------------------------------
Xxxxxxx Xxxxxx
Senior Vice President of Operations
