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EXHIBIT 10.53.2
LEASE
GHENT LIMITED PARTNERSHIP,
Landlord
and
RENAISSANCE COSMETICS INC.,
Tenant
Dated: March 1, 1996
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Table of Contents
Page
DATA SHEET..............................................i
ARTICLE 1...............................................1
Definitions
ARTICLE 2...............................................2
Demise; Premises; Term
ARTICLE 3...............................................2
Completion and Occupancy of the Premises
ARTICLE 4...............................................3
Rent
ARTICLE 5...............................................4
Use
ARTICLE 6...............................................5
Escalations
ARTICLE 7...............................................8
Assignment, Mortgaging and Subletting
ARTICLE 8...............................................12
Compliance with Laws; Hazardous Substances
ARTICLE 9...............................................13
Alterations; Improvements
ARTICLE 10..............................................14
Repairs
ARTICLE 11..............................................15
Utilities and Services
ARTICLE 12..............................................16
Damage to or Destruction of the Premises
ARTICLE 13..............................................17
Eminent Domain
ARTICLE 14..............................................18
Conditions of Limitation
ARTICLE 15..............................................20
Re-entry by Landlord; Remedies
ARTICLE 16..............................................22
Curing Tenant's Defaults; Fees and Expenses
ARTICLE 17..............................................22
Non-Liability and Indemnification
ARTICLE 18..............................................24
Surrender
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ARTICLE 19.....................................................24
Insurance
ARTICLE 20.....................................................26
Subordination and Attornment
ARTICLE 21.....................................................27
Access; Change in Facilities
ARTICLE 22.....................................................28
Inability to Perform and Waivers
ARTICLE 23.....................................................29
Quiet Enjoyment
ARTICLE 24.....................................................29
Rules and Regulations
ARTICLE 25.....................................................30
Brokerage
ARTICLE 26.....................................................30
Notices and Estoppel Certificate
ARTICLE 27.....................................................31
Security Deposit
ARTICLE 28.....................................................32
Parties Bound
ARTICLE 29.....................................................32
Entire Agreement; No Other Representations;
Governing Law; Separability
ARTICLE 30.....................................................33
Miscellaneous Provisions
Exhibit A: Land Description
Exhibit B: Landlord's Construction
Exhibit C: Floor Plan
Exhibit D: Cleaning Schedule
Exhibit E: Rules and Regulations
Exhibit F: Form of Estoppel Certificate
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DATA SHEET
LEASE AGREEMENT
BETWEEN
GHENT LIMITED PARTNERSHIP, LANDLORD
and
RENAISSANCE COSMETICS INC., TENANT
Section 1.01(a) 1. BUILDING:
Building #9
Greenwich Office Park
Section 1.01(f) 2. LANDLORD'S CONSTRUCTION:
Landlord will deliver the Premises, and Tenant hereby
accepts the Premises, "as is", subject to Landlord
combining Space A and Space B (at no cost to Tenant) as
shown on EXHIBIT B attached hereto and hereby made a
part hereof.
Section 1.01(i) 3.TENANT'S PROPORTIONATE SHARE:
10.91%, based upon an aggregate of 21,538 rentable square
feet in the Building.
Section 2.02 4. PREMISES:
Approximately 2,350 rentable square feet on the second
floor of the Building.
5. TERM:
Three (3) years.
Section 2.03(c) (a) COMMENCEMENT DATE:
Sixty (60) days from the date of execution of
this Lease; provided, however, Landlord shall
have the right to accelerate such date upon ten
(10) days prior written notice to Tenant.
Notwithstanding anything to the contrary
contained herein, if the Commencement Date does
not occur on or before June 1, 1996 due to
Landlord's existing tenants' failure to vacate
the Premises, Tenant shall have the option
exercisable on or before June 1, 1996 to cancel
this Lease upon ten (10) days prior written
notice to Landlord. Upon such cancellation, this
Lease shall terminate and be of no further force
or effect and neither party shall have right or
claim hereunder against the other.
Section 2.04 (b) EXPIRATION DATE:
The last day of the thirty-sixth (36th) full
calendar month of the Term.
Section 2.06 6. PARKING SPACES:
Eight (8) parking spaces shall be available to Tenant in
the parking areas of the Greenwich Office Park allocated
to the Building of which spaces four (4) shall be
located in the Building's garage.
Section 3.01 7. PROJECTED COMPLETION DATE FOR LANDLORD'S CONSTRUCTION:
Sixty (60) days from the date of execution of this
Lease.
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Section 4.01(a) 8. FIXED RENT SCHEDULE:
Fixed Rent shall be determined by multiplying 2,350
rentable square feet by an annual rate per rentable square
foot of Twenty-two Dollars ($22.00).
Section 6.01(c) 9. BASE TAX YEAR:
July 1, 1995 - June 30, 1996.
Section 6.01(h) 10. BASE EXPENSE YEAR:
Calendar year 1996.
Section 25.01 11. BROKER(S):
Xxx Xxxxxx of Xxxxx & Xxxxx Company
Section 27.01 12. SECURITY DEPOSIT:
Tenant has furnished Landlord with its balance sheet as of
December 31, 1995, and its income statement for the period
ended December 31, 1995. In reliance on these financial
statements (which Tenant hereby represents to be true and
correct in all material respects), Landlord has agreed to
the foregoing security arrangement:
Upon the signing of this Lease, Tenant shall deposit with
Landlord Twelve Thousand Nine Hundred Twenty-five Dollars
($12,925.00), being the equivalent of three (3) months of
Fixed Rent over the Term, to be retained by Landlord as a
Security Deposit in accordance with Article 27 of this
Lease.
No later than ninety (90) days after the end of each
fiscal year, Tenant shall furnish to Landlord updated
financial statements which it will certify to be true and
correct.
Section 30.01 13. (a) RIGHT TO CANCEL:
Subject to the terms and conditions of this Item 13
(a), and provided Tenant shall not be in default
under the terms and provisions of this Lease,
Tenant shall have the right to cancel this Lease on
the first of any month from and after the first day
of the nineteenth (19th) full calendar month of the
Term. In order to exercise this right pursuant to
this Item 13 (a), Tenant must (i) give Landlord
written notice of its intent to cancel and (ii) pay
to Landlord a cancellation fee of (A) $10,000, if
the effective cancellation date is the first day of
the nineteenth (19th) full calendar month of the
Term; (B) $9,500, if the effective cancellation
date is the first day of the twentieth (20th) full
calendar month of the Term; (C) $8,875, if the
effective cancellation date is the first day of the
twenty-first (21st) full calendar month of the
Term; (D) $8,300, if the effective cancellation
date is the first day of the twenty-second (22nd)
full calendar month of the Term; (E) $7,725, if the
effective cancellation date is the first day of the
twenty-third (23rd) full calendar month of the
Term; (F) $7,150, if the effective cancellation
date is the first day of the twenty-fourth (24th)
full calendar month of the Term; (G) $6,500, if the
effective cancellation date is the first day of the
twenty-fifth (25th) full calendar month of the
Term; (H) $6,000, if the effective cancellation
date is the first day of the twenty-sixth (26th)
full calendar month of the Term; (I) $5,375, if the
effective cancellation date is the first day of the
twenty-seventh (27th) full calendar month of the
Term; (J) $4,800, if the effective cancellation
date is the first day of the twenty-eighth (28th)
full calendar month of the Term; (K) $4,175, if the
effective cancellation dates is the first day of
the twenty-ninth (29th) full calendar month of the
Term; (L) $3,500, if the effective cancellation
date is the first day of the thirtieth (30th) full
calendar month of the Term; (M) $2,900, if the
effective cancellation date is the first day of the
thirty-first (31st) full calendar month of the
Term; (N) $2,300, if the effective
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cancellation date is the first day of the
thirty-second (32nd) full calendar month of the
Term; (O) $1,700, if the effective cancellation
date is the first day of the thirty-third (33rd)
full calendar month of the Term; (P) $1,050, if the
effective cancellation date is the first day of the
thirty-fourth (34th) full calendar month of the
Term; and (Q) $500, if the effective cancellation
date is the first day of the thirty-fifth (35th) or
thirty-sixth (36th) full calendar month of the
Term, in each case not later than 11:59 PM, six (6)
months prior to the effective cancellation date.
Failure to give timely notice or to make timely
payment shall render the exercise of Tenant's right
to cancel null and void.
(b) MISCELLANEOUS:
With respect to any consent required to be given
under this Lease, such consent shall not be
unreasonably withheld or delayed. All costs and
fees to be charged against Landlord or Tenant on
behalf of the other party, including but in no way
limited to items included in operating and
maintenance costs and fees, shall be required to be
reasonable in amount and in nature.
This Data Sheet will become an integral portion of the Lease. Any
discrepancy between the terms of the Data Sheet and the remaining portions of
the Lease (including all Exhibits thereto) shall be resolved in favor of the
Data Sheet.
Landlord
GHENT LIMITED PARTNERSHIP
Date: March 1, 1996 By:_____________________________________
Xxxxxx X. Xxxxxxxx
Its Authorized Representative
Tenant
RENAISSANCE COSMETICS INC.
Date: March 1, 1996 By:_____________________________________0
Name:
Title:
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AGREEMENT OF LEASE dated the 1st day of March, 1996 between GHENT
LIMITED PARTNERSHIP, a Connecticut limited partnership, with its principal
office at 000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("LANDLORD") and
RENAISSANCE COSMETICS INC., a Delaware corporation, with its principal office at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("TENANT")
W I T N E S S E T H:
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. For the purposes of this Lease, unless the context
otherwise requires:
(a) "BUILDING" shall mean the Building specified in ITEM 1 of the Data
Sheet.
(b) "BUSINESS DAYS" means Monday through Friday other than days that
are federal or state holidays.
(b) "COMMON AREAS" shall mean all portions of the Building not intended
as leasable area, the Land and other improvements thereon.
(c) "GOVERNMENTAL AUTHORITY" shall mean any Federal, state, county,
municipal or local government and all departments, commissions, boards, bureaus
and offices thereof having or claiming jurisdiction over the "PREMISES" (as
defined below).
(d) "INTEREST RATE" shall mean the lesser of (i) the prevailing prime
or base lending rate published from time to time in the Eastern Edition of the
Wall Street Journal plus 400 basis points, or (ii) the maximum rate of interest
permitted by law from time to time. In the event said prevailing prime lending
rate is published as a range, the prime or base lending rate for purposes hereof
shall be deemed to be an average of the high and low.
(e) "LAND" shall mean the parcel of land within Greenwich Office Park
situated in the Town of Greenwich, the County of Fairfield and State of
Connecticut, more particularly described on EXHIBIT A attached hereto, on which
is situated the Building.
(f) "LANDLORD'S CONSTRUCTION" shall mean the work specified on EXHIBIT
B hereto. The amount Landlord shall contribute to the cost of such Landlord's
Construction is set forth as ITEM 2 of the Data Sheet.
(g) "LEASE YEAR" shall mean every period of twelve (12) consecutive
months during the term of this Lease, commencing on the "COMMENCEMENT DATE" (as
hereinafter defined) or each anniversary thereof, or if the Commencement Date is
not the first day of a calendar month, then on the first day of the first
calendar month after the Commencement Date or each anniversary thereof.
(h) "TENANT'S PROPERTY" shall mean all trade fixtures installed at the
sole expense of Tenant, and which are not replacements of any property of
Landlord, whether any such replacement is made at Tenant's expense or otherwise.
Subject to Sections 9.01. and 18.01., Tenant's Property shall also include all
items of property installed as part of Landlord's Construction and all other
property which does not become affixed to the Premises.
(i) "TENANT'S PROPORTIONATE SHARE" is that percentage which is set
forth as ITEM 3 of the Data Sheet. For the purposes of this Lease, the rentable
square footage area of the Building shall be deemed to be the square footage
specified in ITEM 3 of the data sheet.
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(j) "UNAVOIDABLE DELAYS" shall mean any and all delays beyond
Landlord's reasonable control, including without limitation, delays caused by
Tenant; governmental restrictions, regulations, controls or preemption; order of
civil, military or naval authority; strikes, labor disputes, lock-outs; shortage
of labor or materials, inability to obtain materials or reasonable substitutes
therefor, default of any building or construction contractor or subcontractor;
enemy action, civil commotion, riot or insurrection; Acts of God, earthquake,
floods, explosions, actions of the elements, extreme weather conditions, fire or
other unavoidable casualty; or, any other cause beyond Landlord's reasonable
control.
ARTICLE 2
DEMISE; PREMISES; TERM
SECTION 2.01. Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, the premises hereinafter described ("PREMISES"), in the Building,
for the term hereinafter stated, under the terms and conditions hereinafter
provided.
SECTION 2.02. The Premises consist of that property described in ITEM 4
of the Data Sheet and shown on EXHIBIT C hereto, together with all fixtures,
equipment, improvements, and appurtenances which, at the commencement of this
Lease or at any time during the Term, are attached thereto or installed therein,
other than Tenant's Property. For the purposes of this Lease, the rentable
square footage area of the Premises shall be deemed to be the square footage as
set forth in ITEM 4 of the data sheet.
SECTION 2.03. The Premises are leased for a term ("TERM") which shall
commence on a date ("COMMENCEMENT DATE") which shall be the earliest of:
(a) the date on which the Premises are available for occupancy, as
determined pursuant to Sections 3.02 and 3.03; and
(b) the date Tenant shall occupy the Premises or any part thereof for
the purpose of conducting its business; and
(c) any fixed Commencement Date specified in ITEM 5 of the Data Sheet.
SECTION 2.04. The Term shall end on the date set forth in ITEM 5 of the
Data Sheet ("EXPIRATION DATE"), unless the Term shall sooner terminate pursuant
to Item 13 (a) of the Data Sheet or any of the terms, covenants or conditions of
this Lease or pursuant to law.
SECTION 2.05. Tenant shall have the right to use that number of parking
spaces in the parking areas of Greenwich Office Park allocated to the Building
as specified in ITEM 6 of the Data Sheet. Landlord shall not be responsible for
policing the use of the spaces; however, Landlord shall have the right (but not
the obligation) to control access to the parking areas, by the use of a card
system or otherwise. If Landlord adopts such a system, Tenant shall comply and
shall use diligent efforts to cause its employees, agents and invitees to comply
therewith. Tenant shall have the nonexclusive right to use the parking areas, in
common with other tenants of the Building, up to its maximum permissible number
of spaces.
ARTICLE 3
COMPLETION AND OCCUPANCY OF THE PREMISES
SECTION 3.01. Landlord shall perform Landlord's Construction, and shall
make diligent efforts to complete same on or before the date specified as ITEM 7
in the Data Sheet. Landlord's Construction shall be performed in a first-class
manner as to workmanship, installation and materials, and in accordance with
Tenant's approved plans. Tenant shall have the right to make change orders to
said approved plans, upon Landlord's prior written consent. Landlord shall
provide Tenant with any and all
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resulting cost increases and/or time delays associated with said change orders
upon approving same. All such cost increases and/or time delays shall be at
Tenant's expense. Landlord shall perform Landlord's Construction in compliance
with all applicable federal, state and local laws, codes, statutes, ordinances,
guidelines, rules and regulations. During the course of construction, Landlord
shall keep Tenant duly apprised of the progress of Landlord's Construction and
any claimed delays.
SECTION 3.02. Subject to Unavoidable Delays, the Premises shall be
conclusively deemed available for Tenant's occupancy on the date that the
following conditions have been met:
(a) a certificate or certificates of occupancy (conditional or
otherwise) or other certificate permitting occupancy of the Premises has or have
been issued by the applicable Governmental Authority;
(b) Landlord's Construction with respect to the Premises has been
substantially completed (excluding (i) any minor details of construction,
decoration or mechanical adjustment which do not materially interfere with
Tenant's use of the Premises, and (ii) TENANT'S WORK, which includes any other
work to be done at the commencement of the Lease Term that is not to be
performed by Landlord, provided, however, that Landlord and Tenant shall
sequence and coordinate the performance of Landlord's Construction and Tenant's
Work in accordance with good construction practice); and
(c) ten (10) days' notice of the occurrence or expected occurrence of
the events described in subsections 3.02(a) and (b) has been given to Tenant.
Landlord shall endeavor, but shall not be obligated, to give longer notice of
such events.
SECTION 3.03. Notwithstanding the provisions of Section 3.02., if there
is a delay in the availability of the Premises for occupancy due to the
availability and/or responsiveness of Tenant's architect or other construction
representative, the sequencing of Landlord's Construction and Tenant's Work, or
due to any default, delay, change order or omission by Tenant, including, but
not limited to, Tenant's failure to deliver to Landlord on or before the Plans
Due Date specified in Item 7 of the Data Sheet working drawings (i) reasonably
acceptable to Landlord, (ii) adequate for submission to, and issuance of a
building permit by, the Town of Greenwich, and (iii) sufficiently detailed and
specific for bidding purposes, then the Premises shall be deemed available for
occupancy on the date when the Premises would have been available but for such
default, delay, change order or omission.
SECTION 3.04. Tenant has inspected the Premises and accepts same in an
"as is" condition, subject to the performance of Landlord's Construction and
Tenant's Work, if any. Landlord and Landlord's agents have made no
representations to Tenant concerning the Premises except those specified herein.
By entering into occupancy of any part of the Premises, Tenant shall be deemed
to have agreed that Landlord, up to the time of such occupancy, had performed
all of its obligations hereunder with respect to such part and that such part,
except for minor details of construction, decoration and mechanical adjustment
referred to above, was in satisfactory condition as of the date of such
occupancy, unless within thirty (30) days after such date Tenant shall have
given notice to Landlord specifying the respects in which the same was not in
such condition.
ARTICLE 4
RENT
SECTION 4.01. Tenant shall pay to Landlord, without notice or demand,
in lawful money of the United States of America, at the office of Landlord or at
such other place as Landlord may designate, the following:
(a) Annual fixed rent ("FIXED RENT") in the amounts specified as ITEM 8
in the Data Sheet for each Lease Year during the Term, payable in equal monthly
installments in advance on the first day of
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each and every calendar month during the Term, for the period commencing on the
Commencement Date and until the Expiration Date.
(b) Additional rent ("ADDITIONAL RENT") consisting of all other sums of
money as shall become due and payable by Tenant hereunder (for default in the
payment of which Landlord shall have the same remedies as for a default in the
payment of Fixed Rent).
(c) If Tenant shall fail to pay within ten (10) days of when due any
installment of Fixed Rent or any Additional Rent, Tenant shall pay interest
thereon at the Interest Rate from the date when such installment or payment
shall have become due to the date of payment thereof, together with a late
charge equal to five percent (5%) of the unpaid installment, which interest and
late charge shall be deemed Additional Rent.
(d) There shall be no abatement of, deduction from, counterclaim or
setoff against Fixed Rent or Additional Rent except as otherwise specifically
provided in this Lease.
SECTION 4.02. On execution hereof, Tenant has paid Landlord the first
two (2) monthly installments of Fixed Rent payable under this Lease. If the
Commencement Date shall be any day other than the first day of a calendar month,
Fixed Rent for such calendar month shall be pro-rated on the basis provided in
the Data Sheet, and Landlord shall credit any excess amount paid pursuant to
this Section 4.02 toward the payment of the Fixed Rent for the next succeeding
calendar month, and Tenant shall pay Landlord any deficiency in the amount paid.
ARTICLE 5
USE
SECTION 5.01. Tenant shall use and occupy the Premises only for
executive and administrative offices for the Tenant's business and for no other
purpose. Tenant shall not use or occupy or suffer or permit the use or occupancy
of the Premises or any part thereof in any manner which in Landlord's judgment
shall adversely affect or interfere with (i) any services required to be
furnished by Landlord to Tenant or to any other tenant or occupant of any part
of the Building; (ii) the proper and economical delivery of any such service;
or, (iii) the use or enjoyment of any part of the Building by any other tenant
or occupant. Without limiting the foregoing, Tenant shall not use the Premises
for the storage, preparation or consumption of food or beverages beyond that
necessary to provide a kitchen/lunchroom facility for its employees.
SECTION 5.02. Tenant shall not use or occupy, suffer or permit the
Premises or any part thereof to be used in any manner, or anything to be done
therein or suffer or permit anything to be brought into or kept therein, which
would: (a) cause substantial or objectionable noise, (b) violate any laws or
requirements of a Governmental Authority, (c) make void or voidable any
insurance policy then in force with respect to the Building and Common Areas,
(d) make unobtainable from reputable insurance companies authorized to do
business in the State of Connecticut at standard rates any fire insurance with
extended coverage, or liability, elevator, boiler or other insurance required to
be furnished by Landlord under the terms of a Superior Mortgage, (e) cause, or
be likely to cause, physical damage to the Building, Common Areas or any part
thereof, (f) constitute a public or private nuisance, (g) impair the appearance,
character or reputation of the Building, (h) discharge objectionable fumes,
vapors or odors into the Building's air conditioning system or into the
Building's flues or vents or otherwise in such manner as may unreasonably offend
other occupants, or (i) impair or interfere with any of the Building's services,
including the furnishing of electrical energy, or the proper and economic
cleaning, air conditioning or other servicing of the Building or the Premises,
or impair or interfere with the use of any of the other
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areas of the Building, or occasion discomfort, annoyance or inconvenience to
Landlord or any of the other tenants or occupants of the Building. The
provisions of this Section, and the application thereof, shall not be deemed to
be limited in any way to or by the provisions of any other Section of this
Article or any of the Rules and Regulations referred to in Article 24.
SECTION 5.03. If any governmental license or permit, other than a
certificate of occupancy, shall be required for the proper and lawful conduct of
Tenant's business in the Premises or any part thereof, then Tenant, at its
expense, shall duly and timely procure and thereafter maintain such license or
permit and submit the same to inspection by Landlord. Tenant shall at all times
comply with the terms and conditions of each such license or permit, but in no
event shall failure to procure and maintain same by Tenant affect Tenant's
obligations hereunder.
SECTION 5.04. Tenant will not at any time use or occupy, or suffer or
permit the Premises to be used in violation of any certificate of occupancy
issued for the Building or the applicable zoning ordinances.
SECTION 5.05. Tenant shall not place a load upon any floor of the
Premises that exceeds the floor load per square foot that such floor was
designed to carry and which is allowed by certificate, rule, regulation, permit
or law. Subject to the terms of the next preceding sentence, if Tenant wishes to
place any safes in the Premises, it may do so at its own expense, but Landlord
reserves the right to limit their weight and position. Business machines and
mechanical equipment in the Premises shall be placed and maintained by Tenant,
at Tenant's expense, in such manner as shall be sufficient to absorb vibration
and noise and prevent annoyance or inconvenience to Landlord or any of the other
tenants or occupants of the Building.
SECTION 5.06. In the event Tenant prohibits its employees from smoking
on the Premises or designates any areas within the Premises as "non-smoking"
areas, the Tenant shall provide a suitably sized and designated smoking area for
its employees wholly within the Premises.
ARTICLE 6
ESCALATIONS
SECTION 6.01. As used herein:
(a) The term "TAXES" shall mean the aggregate of all real estate taxes,
assessments, special or otherwise, sewer rents, rates and charges, water rents,
rates and charges, or any other charge of a Governmental Authority of a similar
or dissimilar nature, of any kind, which may be levied or assessed upon or with
respect to the Building and the Common Areas, and all taxes or charges levied on
the Fixed Rent and/or Additional Rent or the gross receipts from the Building,
or charges levied on Landlord's receipts from the Building which are in lieu of
or a substitute for, any other tax or assessment or charge upon or with respect
to the Building, the Land, or Greenwich Office Park. Taxes shall not be deemed
to include:
(i) franchise or similar taxes of Landlord, or
(ii) income, excess profits or other taxes, if any, of Landlord,
except to the extent such taxes are in lieu of or a substitute
for any other tax, assessment or charge upon the Land and
Building, which, if such other tax, assessment or charge were
in effect, would be payable by Tenant as provided above, in
which event such taxes shall be computed as if the Land and
Building were the only property of Landlord, and the rent
hereunder the only income of Landlord.
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If due to a future change in the method of taxation any franchise, income (other
than an income tax which is applicable to other parties in addition to owners of
real property), profit or other tax shall be levied against Landlord in
substitution in whole or in part for or in lieu of any tax which would otherwise
constitute Taxes, or a tax or excise shall be imposed upon or measured by rents,
such franchise, income, profit or other tax, or excise imposed upon or measured
by rents, shall be deemed to be Taxes for the purpose hereof.
(b) The term "TAX YEAR" shall mean the period of twelve (12) months
commencing on July 1st of each year or such other twelve (12) month period as
may hereafter be duly adopted as the fiscal year for real estate tax purposes
for the Town of Greenwich or other applicable Governmental Authority.
(c) The term "BASE TAX YEAR" shall be the period specified as ITEM 9 in
the Data Sheet.
(d) The term "LANDLORD'S STATEMENT" shall mean an instrument containing
a computation of any Additional Rent due pursuant to the provisions of this
Article.
(e) The term "BASE TAXES" shall mean the amount of Taxes payable by
Landlord during the Base Tax Year.
(f) The term "COST OF OPERATION AND MAINTENANCE" shall mean the
aggregate of all costs incurred by Landlord, excluding costs of work done for
tenants at their own expense, with respect to the operation, maintenance and
repair of the Building and the Common Areas, including, without limitation, the
cost incurred for air conditioning; mechanical ventilation; heating; cleaning;
rubbish removal; window washing; elevators; xxxxxx and matron service; metered
or unmetered (if or to the extent not separately metered) cost of electric
current used throughout the Common Areas, if and to the extent it is not billed
directly to Tenant or a tenant; steam; protection and security services, if any;
shuttle service, if any; repairs; maintenance; all insurance; supplies, wages,
salaries, disability benefits, pensions, hospitalization, retirement plans and
group insurance and other benefits or similar expenses with respect to service
and maintenance employees; uniforms and working clothes for such employees and
the cleaning thereof; expenses imposed pursuant to any collective bargaining
agreement with respect to such employees; the current amortized portion of
capital expenses incurred with respect to the Building and Common Areas,
together with interest at Landlord's cost on the unamortized balance; payroll,
social security, unemployment and other similar taxes with respect to such
employees; sales, use and other similar taxes; water rates and sewer rents;
management fees whether actually paid to independent contractors or imputed in
accordance with the provisions of Section 6.07; cost of landscaping; legal and
accounting fees; permit and license fees; the cost of changes to comply with
governmental requirements; repairs to Common Areas; and utility and other
consultants' fees; and the costs (including but not limited to, the fees of
lawyers, appraisers and other professionals) of any application or proceeding
brought by or on behalf of the Landlord to lower the assessment on which the
taxes are based, whether or not such application or proceeding is successful in
reducing such assessment. Notwithstanding anything to the contrary contained
herein, the cost of legal services will be excluded from the definition of Cost
of Operation and Maintenance to the extent such services relate to (i) a
financing or refinancing of the Building, (ii) the preparation or negotiation of
leases, and (iii) disputes with specific tenants concerning the landlord/tenant
relationship.
(g) "OPERATIONAL YEAR" shall mean each calendar year falling wholly or
partially during the Term.
(h) "BASE EXPENSE YEAR" shall be the period specified as ITEM 10 in the
Data Sheet.
(i) The term "BASE EXPENSES" shall mean the Cost of Operation and
Maintenance for the Base Expense Year.
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(j) "TENANT'S PROJECTED SHARE" shall mean Tenant's Proportionate Share
multiplied by Landlord's written estimate of increase of Cost of Operation and
Maintenance for the ensuing Operational Year over the Base Expenses, said
written estimate to be delivered by Landlord to Tenant during December of each
year. Tenant's Projected Share shall be divided by twelve (12) and each such
one-twelfth (1/12) shall be payable on the first of each month, starting January
1 of the ensuing year, by Tenant to Landlord as Additional Rent.
SECTION 6.02. (a) If Taxes payable in any Tax Year falling wholly or
partially within the Term shall be greater than the Base Taxes, Tenant shall pay
as Additional Rent for such Tax Year a sum equal to Tenant's Proportionate Share
of the amount by which the Taxes for such Tax Year exceed the Base Taxes.
Tenant's obligation to make such payment shall commence on the first day of July
following the Base Tax Year. Subsequent to the issuance by Greenwich or any
other applicable Governmental Authority of the xxxx for Taxes, Landlord shall
submit to Tenant a copy of such xxxx together with Landlord's Statement and
Tenant shall pay the Additional Rent set forth on such statement within thirty
(30) days after the mailing of such statement by Landlord.
(b) If, as a result of any application or proceeding brought by or on
behalf of Landlord, the Base Taxes shall be decreased, Landlord's Statement next
following such decrease shall include a pro rata adjustment for prior tax years
reflecting such decrease in the Base Taxes (less all costs and expenses,
including but not limited to counsel fees, incurred by Landlord in connection
with such application or proceeding). If, as a result of any application or
proceeding brought by or on behalf of Landlord for review of the assessed
valuation of the Building or Common Areas for any fiscal year subsequent to the
Base Tax Year, there shall be a decrease in the Taxes for any Tax Year with
respect to which Landlord shall have previously rendered a Landlord's Statement
and Tenant shall have paid Additional Rent hereunder, Landlord's Statement next
following such decrease shall include an adjustment for such Tax Year reflecting
such decrease in Taxes.
(c) Any payments of Additional Rent or refunds due to Tenant hereunder
for any period of less than a full Lease Year, or any adjustment required due to
the change in the area of the Premises, shall be equitably prorated to reflect
any such event. Any expenses, including but not limited to the cost of operation
and maintenance and tax escalations, not attributable solely to the Building or
solely to the Premises, shall be equitably allocated among other buildings or
other tenants, as applicable.
SECTION 6.03. (a) After the expiration of the Base Expense Year and
each Operational Year, Landlord shall furnish Tenant a written detailed
statement prepared by Landlord of the Cost of Operation and Maintenance incurred
for such Year. During the period of thirty (30) days after receipt of Landlord's
Statement, Tenant may inspect the records of the material reflected in said
Landlord's Statement at a reasonable time mutually agreeable to Landlord and
Tenant. Within thirty (30) days after receipt of such Landlord's Statement for
any Operational Year setting forth Tenant's Proportionate Share of any increase
of Cost of Operation and Maintenance during such Operational Year over the Cost
of Operation and Maintenance in the Base Expense Year (said increase being
referred to herein as the "COST INCREASE"), Tenant shall pay same (less the
amount of Tenant's Projected Share paid by Tenant on account thereof) to
Landlord as Additional Rent.
(b) Commencing with the first Operational Year, Tenant shall pay to
Landlord, as Additional Rent, Tenant's Projected Share. If Landlord's Statement
at the end of the then Operational Year shall indicate that Tenant's Projected
Share exceeded Tenant's Proportionate Share of Cost Increase, Landlord shall
credit the amount of such excess against the subsequent payment of Additional
Rent due hereunder. If Landlord's Statement shall indicate that Tenant's
Proportionate Share of Cost Increase exceeded
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Tenant's Projected Share for the then Operational Year, Tenant shall, within
thirty (30) days of receipt of Landlord's Statement pay the amount of such
excess to Landlord.
SECTION 6.04. If the Term shall expire on a date other than December
31st, any Additional Rent for the Lease Year in which the date of expiration of
the Term shall occur shall be apportioned in that percentage which the number of
days in the period from January 1st of such Lease Year to such date of
expiration, both inclusive, shall bear to the total number of days in the
calendar year in which such expiration occurs.
SECTION 6.05. (a) Landlord's failure to render Landlord's Statement
with respect to any Operational Year or Tax Year, or Landlord's delay in
rendering said Statement beyond a date specified herein, shall not prejudice
Landlord's right to render a Landlord's Statement with respect to that or any
subsequent Operational Year or Tax Year. The obligations of Landlord and Tenant
under the provisions of this Article with respect to any Additional Rent shall
survive the expiration or any sooner termination of the Term.
(b) Each Landlord's Statement shall be conclusive and binding upon
Tenant, unless within thirty (30) days after receipt of such Landlord's
Statement, Tenant shall notify Landlord that it disputes the correctness of
Landlord's Statement, specifying the respects in which Landlord's Statement is
claimed to be incorrect. Pending the determination of such dispute, Tenant shall
pay Additional Rent in accordance with the applicable Landlord's Statement, and
such payment shall be without prejudice to Tenant's position in any legal
proceeding commenced by Tenant.
SECTION 6.06. Any Additional Rent payable pursuant to Article 6 shall
be collectible by Landlord in the same manner as Fixed Rent, and Landlord shall
have the same remedies for nonpayment thereof as Landlord has hereunder for
non-payment of Fixed Rent.
SECTION 6.07. During the period that Landlord or an affiliate of
Landlord shall manage the Building with its own employees rather than
independent contractors, the aggregate management costs and fees shall not
exceed a rate which is competitive for such services in a first class office
building in the Greenwich area.
ARTICLE 7
ASSIGNMENT, MORTGAGING AND SUBLETTING
SECTION 7.01. (a) Except as otherwise expressly provided in this
Article, neither this Lease, nor the term and estate hereby granted, nor any
part hereof or thereof, nor the interest of Tenant in any sublease or the
rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant, Tenant's legal representatives, subtenants, or
successors in interest by operation of law or otherwise, and neither the
Premises, nor any part thereof, shall be encumbered in any manner by reason of
any act or omission on the part of Tenant or anyone claiming under or through
Tenant, or shall be sublet or be used or occupied or permitted to be used or
occupied, or utilized for desk space or for mailing privileges by anyone other
than Tenant or for any purpose other than as permitted by this Lease, without
the prior written consent of Landlord in each case. The transfer (or transfers
in the aggregate) of a controlling interest in Tenant, by transfers of stock or
general partnership interests, shall be deemed an assignment of this Lease. In
the event that Tenant shall desire to assign this Lease or to sublease any
portion of the Premises, then Tenant shall submit in writing to Landlord the
name of the proposed assignee or subtenant, the nature and character of its
business, the terms and conditions of the proposed assignment or subletting,
information as to the financial responsibility of the proposed assignee or
subtenant, and such other information as Landlord may require. In the event that
Tenant desires to
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assign this Lease, then any proposed assignment must require Tenant's assignee
to assume Tenant's obligations from and after the effective date of an
assignment.
(b) Anything in subsection 7.01.(a) to the contrary notwithstanding,
the prior written consent of Landlord shall not be required with respect to an
assignment of this Lease or a sublease of part or all of the Premises to an
entity controlled by, controlling or under common control with Tenant. For this
purpose "CONTROL" shall mean (i) in the case of a corporation, ownership of more
than fifty percent (50%) of the outstanding capital stock of that corporation,
(ii) in the case of a general partnership, shall mean more than fifty percent
(50%) of the general partnership interest of the partnership, and (iii) in the
case of a limited partnership, shall mean more than fifty percent (50%) of the
general partnership interests of such limited partnership. In connection with
any such assignment or sublease, Tenant shall give notice to Landlord at least
ten (10) days prior to the transaction and shall deliver a copy of the
documentation to Landlord within ten (10) days after the execution of the
assignment or sublease.
(c) Any assignment of this Lease, or of the interest of Tenant
hereunder, or sublease as aforesaid, without full compliance with any and all
requirements set forth in this Lease shall be a breach of this Lease and a
default hereunder and shall be of no effect.
SECTION 7.02. (a) In the event that at any time or from time to time
prior to or during the Term of this Lease Tenant desires to sublet all or any
part of the Premises or assign this Lease in whole or in part, Tenant (i) shall
be deemed to have granted Landlord the option to sublet from Tenant such space
so proposed to be sublet or assigned upon the covenants, agreements, terms,
provisions and conditions hereinafter set forth, and (ii) shall not offer such
space for subletting or assignment to anyone other than Landlord until thirty
(30) days have elapsed after the receipt of such notice by Landlord. Such option
on the part of Landlord to sublet from Tenant such space so proposed to be
sublet or assigned shall be exercisable by Landlord in writing during said
period of thirty (30) days. If Landlord fails to exercise such option within
said thirty (30)-day period and Tenant fails to complete a sublease with a third
party (as hereinafter provided) within ninety (90) days thereafter, Tenant shall
again comply with all the conditions of this Section, as if the notice and
option hereinabove referred to had not been given and received.
(b) In the event Landlord exercises Landlord's option to sublet such
space, such sublease by Tenant to Landlord shall be at an annual fixed rent
equal to the Fixed Rent and Additional Rent as provided in this Lease for the
entire Premises or equal to an equitable apportionment of such Fixed and
Additional Rent if such sublease shall be in respect of less than the whole of
the Premises, and shall be for the same term as that of the proposed subletting,
and it is hereby expressly agreed that:
(i) the sublease shall be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of
this Lease, except such as are not relevant or applicable, and
except as otherwise expressly set forth to the contrary in
this Section;
(ii) such sublease to Landlord shall give Landlord the unqualified
and unrestricted right, without Tenant's permission, to assign
such sublease or any interest therein and/or sublet the space
covered by such sublease or any part or parts of such space
and to make any and all changes, alterations, and improvements
in the space covered by such sublease;
(iii) such sublease to Landlord shall provide that any assignee or
subtenant of Landlord may, at the election of Landlord, be
permitted to make alterations, decorations and installments in
such space or any part thereof and shall also provide in
substance that any such alterations, decorations and
installations therein made by any assignee or subtenant of the
Landlord may be removed, in whole or in part, by such assignee
or subtenant, at its
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option, prior to or upon the expiration or other termination
of such sublease provided that such assignee or subtenant, at
its expense, shall repair any damage and injury to such space
so sublet caused by such removal; and
(iv) such sublease to Landlord shall also provide that the parties
to such sublease expressly negate any intention that any
estate created under such sublease be merged with any other
estate held by either of said parties. Tenant covenants and
agrees (a) that any such assignment or subletting by the
subtenant may be for any purpose or purposes that Landlord, in
Landlord's uncontrolled discretion, shall deem suitable or
appropriate, (b) that Tenant, at Tenant's expense, shall and
will at all times provide and permit reasonably appropriate
means of ingress to and egress from such space so sublet by
Tenant to Landlord, and (c) that at the expiration of the term
of such sublease, Tenant will accept the space covered by such
sublease in its then existing condition, subject to the
obligations of Landlord to make such repairs thereto as may be
necessary to preserve the premises demised by such sublease in
good order and condition.
(c) In addition to the rights of Landlord specified above, if Tenant
proposes to sublet all or substantially all of the Premises or to assign this
Lease, Landlord shall have the right to cancel and terminate this Lease, by
notice to Tenant within thirty (30) days after receipt of Tenant's proposal.
SECTION 7.03. In the event Landlord does not exercise its option to so
sublet or cancel, Landlord covenants not unreasonably to withhold its consent,
which must be in writing, to a subletting or assignment, provided, however, that
Landlord shall not, in any event, be obligated to consent to any such proposed
subletting or assignment unless:
(a) At the time of the request for Landlord's consent and at the date
of the sublease or assignment, this Lease shall be in full force and effect,
without any breach or default thereunder on the part of Tenant.
(b) The proposed subtenant or assignee shall possess a business
reputation and financial credit such as are then in keeping with the standards
of Landlord for the Building.
(c) The Premises, except with Landlord's prior written consent, shall
not have been publicly advertised for subletting at a rental rate lower than the
higher of (i) the Fixed Rent and all Additional Rent then payable, or (ii) the
then prevailing rental rate for other space in the Building or comparable space
if Building is full.
(d) The subtenant or assignee assumes, by an instrument in form and
content satisfactory to Landlord, the due performance of all Tenant's
obligations under this Lease with respect to the subleased or assigned space.
(e) A copy of the sublease or the original assumption agreement, fully
executed and acknowledged, is submitted to Landlord within ten (10) days of
execution of the sublease or assignment agreement.
(f) Any such sublease or assignment provides that, in the event of any
further subleasing or assignment of any portion of the Premises by the subtenant
or assignee or anyone claiming under or through it, the prior written consent of
Landlord must be obtained as provided in Section 7.01 and any profit on such
further subletting shall be paid over entirely to Tenant, to be shared with
Landlord as provided in Section 7.05.
(g) By way of illustration and not limitation, Landlord shall not be
obligated to consent to any proposed assignment or sublease to any of the
following entities:
(i) a bank, trust company, safe deposit business, savings and loan
association or loan company;
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(ii) a tenant or subtenant whose projected or reasonably likely use
of the Premises involves the use, storage, generation, or
disposal of Hazardous Substances as defined in Section 8.02 of
this Lease;
(iii) a school, college, university or educational institution,
whether or not non-profit; (iv) a government, governmental or
quasi-governmental organization, or any agency or subdivision
thereof;
(v) a tenant or subtenant of a tenant of Landlord or its
affiliates, an occupant of the Building or any other building
in Greenwich owned by the Landlord or its affiliates, or any
party or entity with whom Landlord, or its affiliates or their
agents or representatives have engaged in active negotiations
for a lease during the ninety (90)-day period immediately
preceding the date of Tenant's request for consent; or
(vi) a tenant or subtenant whose projected or reasonably likely use
of the Premises would classify the Premises as a "place of
public accommodation" under the American with Disabilities Act
of 1990, as may be amended from time to time, or furthermore
whose projected or reasonably likely use of the Premises would
create obligations in excess of Landlord's obligations under
this Lease but for the sublease or assignment.
SECTION 7.04. If this Lease is assigned, whether or not in violation of
the provisions of this Lease, Landlord may collect rent from the assignee. If
the Premises or any part thereof are sublet or used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant and expiration of Tenant's time to cure such default, collect
rent from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the rents herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of this Article, or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord to an
assignment, mortgaging or subletting pursuant to any provision of this Lease
shall not in any way be considered to relieve Tenant or any party claiming under
or through Tenant from obtaining the express consent of Landlord to any other or
further assignment, mortgaging or subletting which consent shall be required for
all further sublettings or assignments whether or not required pursuant to the
terms and provisions of this Article 7.
SECTION 7.05. With respect to any sublease or assignment by Tenant of
all or any portion of the Premises, the following provisions shall apply. Any
profit on such sublease or assignment shall be shared twenty-five percent (25%)
by Tenant and seventy-five percent (75%) by Landlord. For purposes of this
Section, "PROFIT" shall refer to the difference between: (1) all payments made
by a subtenant or assignee to Tenant as rent or otherwise under or in connection
with said sublease or assignment; and (2) the annual Fixed Rent and Additional
Rent payable hereunder with respect to the space affected by such sublease or
assignment. Payments of Landlord's share of the profit in connection therewith
shall be made monthly as Additional Rent hereunder, on the first day of each
month.
SECTION 7.06. (a) In case of subletting to a party other than Landlord,
a duly executed and acknowledged original of the sublease shall be delivered to
Landlord, the same to provide that (i) such sublease is and shall be subject and
subordinate to this Lease and any then present or future modifications thereof;
and (ii) in the event of termination, reentry or dispossession by Landlord under
this Lease, Landlord may, at its option, take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, and such subtenant shall,
at Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not (A) be liable for
any previous acts or
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omissions of Tenant, as sublessor under such sublease; (B) be subject to any
offsets, not expressly provided for in such sublease, against Landlord or (C) be
bound by any previous modification of such sublease to which Landlord shall not
have consented in writing, or by any previous prepayments of more than one (1)
month's rent.
(b) In the case of such assignment or subletting, Tenant, as assignor
or sublessor, as the case may be, shall remain liable for the performance or
observance of all of the terms and provisions on Tenant's part to be performed
or observed under this Lease.
(c) Any consent of Landlord to any such assignment or subletting shall
not be construed as a waiver of any requirement for obtaining: (i) the consent
of Landlord to any subsequent assignment of this Lease or subletting of the
entire Premises or (ii) the consent of Landlord to any assignment of any
sublease, the undersubletting of the whole or any portion of the Premises or the
subletting of any portion of the Premises. Tenant shall pay Landlord's costs
incurred in connection with consideration of such consent, including but not
limited to counsel fees and payments to any mortgagee. If the holder of a
Superior Mortgage must approve a requested sublease or assignment and declines
to do so, it shall be reasonable for Landlord to withhold its consent.
SECTION 7.07. Notwithstanding any other provisions of this Article 7,
if the Premises consist of less than five thousand (5,000) square feet of
rentable space, not less than all of the Premises may be sublet or assigned.
Denial of consent to the subletting or assignment of less than five thousand
(5,000) square feet of rentable space shall not be construed as unreasonableness
on the part of Landlord.
ARTICLE 8
COMPLIANCE WITH LAWS; HAZARDOUS SUBSTANCES
SECTION 8.01. Tenant, at its cost and expense, shall comply with all
laws, statutes, rules, ordinances, orders, regulations and notices of
Governmental Authorities (present, future, ordinary, extraordinary, foreseen or
unforeseen), and of all insurance policies, at any time duly issued or in force,
applicable to the Premises or to the use or occupation thereof, provided
however, that Tenant shall not be responsible for making any structural
alteration of the Premises unless same shall be required as a result of the
fault or negligence of Tenant, its contractors or agents in the particular
operation of Tenant's business.
SECTION 8.02. Tenant shall not cause or permit any Hazardous Substance
to be used, stored, generated, or disposed of on or in the Premises by Tenant,
Tenant's agents, employees, contractors or invitees, without first obtaining
Landlord's written consent, which may be withheld at the Landlord's sole and
absolute discretion. Additionally, Tenant shall not use, store, generate or
dispose of any substance in any manner or undertake any act which would cause
the Premises or the Greenwich Office Park to be classified as an "establishment"
under the laws of the State of Connecticut. If Hazardous Substances are used,
stored, generated, or disposed of on or in the Premises, or if the Premises
become contaminated in any manner for which Tenant is legally liable or if
Tenant's use of the Premises causes the Premises and/or the Greenwich Office
Park to be classified as an "establishment" under applicable Connecticut law,
Tenant shall indemnify, defend, and hold harmless the Landlord from any and all
claims, damages, fines, judgments, penalties, costs, liabilities, or losses
(including, without limitation, a decrease in the value of the Premises or the
Building of which they are part, damages because of adverse impact on marketing
of the space, and any and all sums paid for settlement of claims, attorneys',
consultant, and expert fees) arising during or after the Lease Term and arising
as a result of such contamination or use by Tenant. This indemnification
includes, by way of illustration and not limitation, any and all costs
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incurred because of any investigation of the site or any cleanup, removal, or
restoration mandated by a federal, state, or local agency or political
subdivision. In addition, if Tenant causes or permits the presence of any
Hazardous Substance on the Premises and this results in contamination, Tenant
shall promptly, at its sole expense, take any and all necessary actions to
return the Premises to the condition existing before the presence of any such
Hazardous Substance on the Premises, provided, however, that Tenant shall first
obtain Landlord's written approval for any such remedial action. Tenant's
obligations pursuant to this Section 8.02 shall survive the expiration or early
termination of this Lease.
As used herein, "HAZARDOUS SUBSTANCE" means any substance which is
toxic, ignitable, reactive, or corrosive and which is regulated by the Town of
Greenwich, the State of Connecticut, or the United States government. Hazardous
Substance includes any and all material or substances which are defined as
"hazardous waste," "extremely hazardous waste," or a Hazardous Substance
pursuant to state, federal, or local governmental law. Hazardous Substance
includes but is not restricted to asbestos, polychlorinated biphenyls ("PCBs")
and petroleum.
SECTION 8.03. Tenant shall, at Tenant's sole cost and expense, comply
with any and all requirements of any statute, rule, ordinance, order, regulation
or notice of any Governmental Authority relating to the recycling of waste
generated by tenants of the Building (collectively, the "RECYCLING LAWS"),
including, without limitation, Connecticut Public Act 87-544 and the regulations
promulgated pursuant thereto. Without limiting the generality of the foregoing,
Tenant shall, at Tenant's sole cost and expense, separate all solid waste in
accordance with, and otherwise comply with, the requirements of such Recycling
Laws and any recycling plan in effect from time to time in the Building; and, in
the event Landlord is required to separate any solid waste generated by Tenant
or Landlord otherwise incurs any costs or expenses in connection with the
recycling of Tenant's solid waste, Tenant shall reimburse Landlord for all such
costs and expenses within ten (10) days after Tenant's receipt of a xxxx
therefor from Landlord.
ARTICLE 9
ALTERATIONS; IMPROVEMENTS
SECTION 9.01. Tenant shall make no changes or alterations in or to the
Premises of any nature without Landlord's prior written consent. Landlord shall
not be deemed to be unreasonably withholding its consent if Tenant's proposed
changes or alterations are not within the guidelines of Connecticut Light and
Power Company's energy conscious construction program, a program in which
Landlord participates or may participate to increase electrical efficiency. If
Landlord consents to any proposed changes or alterations, such consent shall not
(i) constitute certification of compliance with the American with Disabilities
Act of 1990, as may be amended from time to time ("ADA") or (ii) give rise to
any ADA compliance or responsibility on the part of the Landlord. All fixtures
and partitions, railings and like installations (excluding movable partitions
and Tenant's trade furniture, fixtures and equipment), installed in the Premises
at any time, either by Tenant or by Landlord on Tenant's behalf, shall at the
Expiration Date or prior termination of this Lease, become the property of
Landlord and shall remain upon and be surrendered with the Premises, unless
Landlord, by notice to Tenant no later than twenty (20) days prior to the
Expiration Date or prior termination date of this Lease, elects to have them
removed by Tenant, in which event the same shall be removed from the Premises by
Tenant forthwith, at Tenant's expense. Nothing in this Section shall be
construed to prevent Tenant's removal of Tenant's Property including Landlord's
Construction, unless in connection with Landlord's Construction, Landlord, by
notice to Tenant no later than twenty (20) days prior to the Expiration Date or
prior termination date of this Lease,
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elects to have Tenant leave any part or all of Landlord's Construction in the
Premises. However, upon removal of any Tenant's Property from the Premises or
upon removal of other installations as may be required or permitted by Landlord,
Tenant shall immediately, and at its expense, repair and restore the Premises to
the condition existing prior to installation and repair any damage to the
Premises or the Building due to such removal. If Tenant uses any paint color or
other wall covering in the Premises that is not Building standard, at the end of
the Term Tenant, at Tenant's expense, must (i) repaint the Premises or remove
the non-standard wall covering and (ii) paint the Premises in a Building
standard color. All property permitted or required by Landlord to be removed
from the Premises at the end of the Term remaining in the Premises after
Tenant's removal shall be deemed abandoned and may, at the election of Landlord,
either be retained as Landlord's property or may be removed from the Premises by
Landlord at Tenant's expense. Tenant's obligations pursuant to this Section 9.01
shall survive the expiration or early termination of this Lease.
SECTION 9.02. Tenant shall, before making any alterations, additions,
installations or improvements, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to Landlord. Tenant
agrees to carry and will cause Tenant's contractors and subcontractors to carry
such workmen's compensation, general liability, personal and property damage
insurance as Landlord may require. As permitted by law, Tenant agrees to obtain
and deliver to Landlord, written and unconditional waivers of mechanic's liens
upon the Land and Building for all work, labor and service to be performed and
all materials to be furnished in connection with such work, signed by all
contractors, sub-contractors, materialmen and laborers to become involved in
such work. Notwithstanding the foregoing, if any mechanic's lien is filed
against the Premises, Land or Building, for work claimed to have been done for,
or materials furnished to, Tenant, whether or not done pursuant to this Article,
the same shall be discharged by Tenant within thirty (30) days thereafter, at
Tenant's expense.
SECTION 9.03. Landlord shall have the right to perform any proposed
alterations to the Premises at cost, plus fifteen percent (15%) to cover general
conditions (exclusive of on-site management), management, overhead and profit.
Before commencing any alterations, Landlord, in good faith, shall, if requested
by Tenant, competitively bid same, on a "fixed price" and "sealed bid" basis, to
at least three (3) outside subcontractors for each major trade involved. The
subcontractor selected need not be the one submitting the lowest bid, if
Landlord reasonably believes that the relative reliability and skill of the
various subcontractors warrant a selection based on considerations not limited
solely to price.
ARTICLE 10
REPAIRS
SECTION 10.01. Tenant shall take good care of the Premises and, at
Tenant's sole cost and expense, shall make all repairs and replacements, as and
when needed to preserve the Premises in good working order and condition, except
that Tenant shall not be required to make any structural repairs or structural
replacements to the Building and the Building systems serving the Premises
unless necessitated or occasioned by the acts, omissions or negligence of
Tenant, or any of its servants, employees, contractors, agents, visitors,
invitees or licensees, or by the use or occupancy or manner of use or occupancy
of the Premises by Tenant or any such person; in such cases, Landlord may make
or cause such structural repairs or structural replacements to be made, but
shall not be obligated to do so, and Tenant agrees to pay to Landlord promptly
upon Landlord's demand as Additional Rent, the cost of such repairs or
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replacements. In the event Landlord elects not to make such repairs or
replacements caused by Tenant's negligence, Landlord may require Tenant to make
such repairs or replacements at Tenant's sole cost and expense.
SECTION 10.02. Landlord, at its expense, shall keep and maintain the
Common Areas and the fixtures, appurtenances, systems and facilities serving the
Premises, in good working order, condition and repair and shall make all
necessary repairs not required to be made by the Tenant.
ARTICLE 11
UTILITIES AND SERVICES
SECTION 11.01. Landlord shall provide the cleaning services described
in EXHIBIT D attached hereto. Tenant shall pay to Landlord, on demand,
Landlord's charges for any special or unusual cleaning work in the Premises,
including without limitation, the cleaning of private baths, interior glass,
pantries, kitchens, lounge areas, panelled and fabric walls, and wood floors;
provided, however, that Tenant understands that nothing herein shall require
Landlord to provide any special or unusual cleaning work. Tenant acknowledges
that the cleaning services required to be furnished by Landlord pursuant to
Section 11.01 may be furnished by a contractor or contractors employed by
Landlord and agrees that Landlord shall not be deemed in default of any of its
obligations under this Section unless such default shall continue for an
unreasonable period of time after written notice from Tenant to Landlord setting
forth the special nature of such default.
SECTION 11.02. Landlord shall provide year round air conditioning to
the Premises capable of providing and maintaining criteria as follows:
Design Condition Inside Condition Outside Condition
Cooling Cycle 78 degrees D.B. F 95 degrees D.B. F
------------- ----------------- -----------------
50% R.H. 75 degrees W.B. F
-------- -----------------
Heating Cycle 68 degrees F 0 degrees F
------------- ------------ -----------
on Business Days from 8:00 a.m. to 6:00 p.m. and Saturdays from 8:00 a.m. to
1:00 p.m. (These design standards are based on an occupancy of not more than
eight persons per 1000 sq. ft. and a total connected load not to exceed 5 xxxxx
per square foot for lighting and standard electrical office power, subject to
the recommendations of any Governmental Authority for the purpose of conserving
energy.) If Tenant requests air-conditioning/cooling or ventilation for more
extended hours, or on Sundays or on holidays, Landlord will furnish the same at
an extra cost to Tenant.
SECTION 11.03. (a) Landlord, at Tenant's expense, shall furnish
electrical energy to or for the use of Tenant in the Premises for the operation
of the lighting fixtures and the electrical receptacles. Subject to adjustment
as provided in subsection (c) below, Tenant shall pay to Landlord, as Additional
Rent, within ten (10) days of being billed therefor, a sum equal to Tenant's
Proportionate Share times one hundred percent (100%) of the actual electricity
charges for the Building (including, without limitation, charges of Landlord's
cost per kilowatt-hour of demand and cost per kilowatt-hour of consumption, as
the same are computed under such rate applicable to Landlord) and all applicable
utility company surcharges, fuel adjustments, rate adjustments, and taxes. If
either the quantity or character of electrical service is changed by the public
utility corporation supplying electrical service to the Building or if
electrical service is no longer available or suitable for Tenant's requirements,
no such change,
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unavailability or unsuitability shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord or Landlord's agents.
(b) Tenant covenants that at no time shall the use of electrical energy
in the Premises exceed the capacity of the existing feeders or wiring
installations then serving the Premises. Tenant shall not, without prior consent
of Landlord in each instance, make or perform, or permit the making or
performing of, any alteration to wiring installations or other electrical
facilities in or serving the Premises, nor make any material additions to the
business machines, office equipment, or other appliances in the Premises which
utilize electrical energy.
(c) If Tenant, at any time, shall reasonably question the cost for its
consumption of electricity charged by Landlord as Additional Rent, the validity
of such costs shall be determined by an independent electrical engineer selected
by Landlord, who shall certify such determination in writing to Landlord and
Tenant. Landlord's selection of an independent electrical engineer shall be
subject to Tenant's approval, which shall not be unreasonably withheld or
delayed. If Tenant does not disapprove or consent to Landlord's selection of an
engineer within ten (10) days, such selection shall be deemed approved. The cost
of such consultant shall be paid by Tenant. Tenant may, at its own full cost and
expense, have an electrical meter installed to measure separately the amount of
electricity used in the Premises.
(d) Tenant, at Tenant's expense, shall purchase and install all
replacement lamps (including incandescent and fluorescent), starters and
ballasts used in the Premises. All such purchases shall be from Landlord, unless
Landlord elects otherwise. Prices for such items charged to Tenant shall be at
rates competitive with those charged by other first class office buildings in
the Greenwich area.
SECTION 11.04. Landlord shall supply reasonably adequate quantities of
hot and cold water to a point or points on the floor or floors in which the
Premises are located for ordinary lavatory and drinking purposes. If Tenant
requires, uses or consumes water for any purpose in addition to the ordinary
lavatory use, Landlord may install a water meter and thereby measure Tenant's
consumption of water for all purposes. Tenant shall pay to Landlord the cost of
any such meter and its installation, and Tenant, at Tenant's sole cost and
expense, shall keep any such meter and any such installation equipment in good
working order and repair. Tenant shall pay for water consumed as shown on said
meter and sewer charges thereon, as and when bills are rendered.
SECTION 11.05. Landlord reserves the right to stop the service of the
air conditioning, elevator, plumbing, electrical, sanitary, mechanical or other
service or utility systems of the Building when necessary by reason of accident
or emergency, mechanical breakdown, requirement of law, Unavoidable Delay or for
repairs, alterations, replacements or improvements, which in the reasonable
judgment of Landlord, are desirable or necessary, until the reason for such
stoppage shall have been eliminated.
ARTICLE 12
DAMAGE TO OR DESTRUCTION OF THE PREMISES
SECTION 12.01. If the Premises or any part thereof shall be partially
damaged by fire or other casualty and Tenant gives prompt notice thereof to
Landlord, subject to its rights under Section 12.02 , Landlord shall proceed
with reasonable diligence to repair or cause such damage to be repaired to
restore the Premises to the condition the Premises were in before the tenant
installation was installed. The Fixed Rent and Additional Rent shall be abated
to the extent that the Premises shall have been rendered untenantable, such
abatement to be from the date of such damage or destruction to the date the
Premises shall be substantially repaired, restored or rebuilt. If Tenant shall
reoccupy portions of the Premises as
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the restoration continues, the abatement shall cease as to such portions.
Notwithstanding the foregoing, Landlord shall have no obligation to restore the
Premises and Fixed Rent and Additional Rent shall not be abated if the damage
was caused by an act or omission of Tenant, Tenant's servants, employees,
contractors, agents, visitors, invitees or licensees.
SECTION 12.02. If the Premises shall be totally damaged or rendered
wholly untenantable by fire or other casualty, or if the Building shall be so
damaged by fire or other casualty that substantial alteration or reconstruction
of the Building shall, in Landlord's reasonable opinion, be required (whether or
not the Premises shall have been damaged by such fire or other casualty), then
in any of such events Landlord may, at its option, terminate this Lease by
giving Tenant thirty (30) days notice of such termination, which notice shall be
given within sixty (60) days after the date of such damage. In the event that
such notice of termination shall be given, this Lease shall terminate as of the
date provided in such notice of termination (whether or not the Term shall have
commenced) with the same effect as if that were the Expiration Date, and the
Fixed Rent and Additional Rent shall be apportioned as of such date of damage or
destruction, and any prepaid portion of Fixed and Additional Rent shall be
apportioned as of such date of damage or destruction and shall be refunded by
Landlord to Tenant. If, at any time prior to Landlord giving Tenant the
aforesaid notice of termination, the holder of a Superior Mortgage takes
possession of the Building through foreclosure or otherwise, such holder or
person shall have a further period of sixty (60) days from the date of so taking
possession to terminate this Lease by written notice of termination.
Notwithstanding the foregoing, this Lease will not be terminated and Landlord
shall not be obligated to restore the Premises if the damage was caused by an
act or omission of Tenant, Tenant's servants, employees, contractors, agents,
visitors, invitees or licensees.
SECTION 12.03. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage by fire or other casualty or the repair thereof. Landlord will
not carry insurance of any kind on Tenant's Property, and Landlord shall not be
obligated to repair any damage thereto or replace the same.
SECTION 12.04. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the Building or any part
thereof by fire or other casualty, and any law providing for such a contingency
in the absence of such express agreement, now or hereafter enacted, shall have
no application in such case.
ARTICLE 13
EMINENT DOMAIN
SECTION 13.01. If the whole of the Premises, or such part thereof as
will render the remainder untenantable, shall be acquired or condemned for any
public or quasi-public use or purpose, this Lease shall end as of the date of
the vesting of title in the condemning authority (either through court order or
by voluntary conveyance by Landlord in lieu of condemnation) with the same
effect as if said date were the Expiration Date. If only a part of the Premises
shall be so acquired or condemned, then, except as otherwise provided in this
Article, this Lease and the Term shall continue in force and effect, but, from
and after the date of the vesting of title, the Fixed Rent shall be an amount
which bears the same ratio to the Fixed Rent payable immediately prior to such
condemnation pursuant to this Lease, as the value of the untaken portion of the
Premises (appraised after the taking and repair of any damage to the Building
pursuant to this Section) bears to the value of the entire Premises immediately
before the taking; and any Additional Rent payable or credits receivable
pursuant to Article 6 shall be adjusted to reflect the diminution of the
Premises. The value of the Premises before and after the taking shall be
determined
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for the purposes of this Section by an independent appraiser selected by
Landlord. If only a part of the Building but a material part of the Land shall
be so acquired or condemned, then (a) whether or not the Premises shall be
affected thereby, Landlord, at Landlord's sole option, may give to Tenant,
within sixty (60) days next following the date upon which Landlord shall have
received notice of vesting of title, thirty (30) days notice of termination of
this Lease, and (b) if the part of the Building so acquired or condemned shall
contain more than twenty-five percent (25%) of the total area of the Premises
immediately prior to such acquisition or condemnation, or if, by reason of such
acquisition or condemnation, Tenant no longer has reasonable means of access to
the Premises, Tenant, at Tenant's sole option, may give to Landlord, within
sixty (60) days following the date upon which Tenant shall have received notice
of vesting of title, thirty (30) days notice of termination of this Lease. If a
part of the Premises shall be so acquired or condemned, and the Lease shall not
be terminated pursuant to the provisions of this Section, Landlord, at
Landlord's expense, shall restore that part of the Premises not so acquired or
condemned to a self-contained rental unit. In the event of any termination of
this Lease pursuant to the provisions of this Section, the Fixed Rent and
Additional Rent shall be apportioned as of the date of such termination and any
prepaid portion of Fixed Rent and Additional Rent for any period after such date
shall be refunded by Landlord to Tenant.
SECTION 13.02. In the event of any such acquisition or condemnation of
all or any part of the Building and/or Common Areas, Landlord shall be entitled
to receive the entire award for any such acquisition or condemnation. Tenant
shall have no claim against Landlord or the condemning authority for the value
of any unexpired portion of the Term, and Tenant hereby expressly assigns to
Landlord all of its right, title and interest in and to any such award, and also
agrees to execute any and all further documents that may be required in order to
facilitate the collection thereof by Landlord. Nothing contained in this Section
shall be deemed to prevent Tenant from making a separate claim in any
condemnation proceedings for any moving expenses and for the value of any
Tenant's Property which would be removable at the end of the Term, pursuant to
the provisions of Article 9.
SECTION 13.03. If the grade of any street upon which the Land is
situated or abuts shall be changed by any competent authority, this Lease shall
nevertheless continue in full force and effect, and Landlord shall be entitled
to collect from such authority the entire award that may be made in such
proceedings. Tenant hereby expressly assigns to Landlord all of its right, title
and interest in or to every such award and also agrees to execute any and all
further documents that may be required in order to facilitate the collection
thereof by Landlord.
ARTICLE 14
CONDITIONS OF LIMITATION
SECTION 14.01. This Lease and the Term and estate hereby granted are
subject to the limitations that, if,
(a) Tenant shall file a voluntary petition in bankruptcy or insolvency,
or shall be adjudicated a bankrupt or insolvent or shall file any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future applicable federal, state
or other statute or law, or shall make an assignment for the benefit of
creditors or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any part of Tenant's
Property; or
(b) within sixty (60) days after the commencement of any such
proceeding against Tenant, such proceeding shall not have been dismissed, or
within sixty (60) days after the appointment of any trustee,
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receiver or liquidator of Tenant or of all or any part of Tenant's Property,
without the consent or acquiescence of Tenant, such appointment shall not have
been vacated or otherwise discharged, or any execution or attachment shall be
issued against Tenant or any of Tenant's Property pursuant to which the Premises
shall be taken or occupied or attempted to be taken or occupied; or
(c) Tenant shall default in the payment when due of any installment of
Fixed Rent or Additional Rent and such default shall continue for a period of
ten (10) days; or
(d) Tenant shall default in the observance or performance of any
material term, covenant or condition of this Lease on Tenant's part to be
observed or performed (other than the covenants for the payment of Fixed Rent or
Additional Rent), and Tenant shall fail to remedy such default within twenty
(20) days after written notice by Landlord to Tenant of such default, or if such
default is of such a nature that it cannot be completely remedied within said
period of twenty (20) days, if Tenant (i) shall not promptly, upon the giving of
such notice, advise Landlord in writing of Tenant's intention duly to institute
all steps necessary to remedy such situation, (ii) shall not promptly institute
and thereafter diligently prosecute to completion all steps necessary to remedy
the same, and (iii) shall not remedy the same within sixty (60) days after the
date of the giving of said notice by Landlord; or
(e) any event shall occur or any contingency shall arise whereby this
Lease or the estate hereby granted or the unexpired balance of the Term would,
by operation of law or otherwise, devolve upon or pass to any person, firm or
corporation other than Tenant, except as is expressly permitted under Article 7;
or
(f) the Premises shall become deserted or abandoned for a period of
thirty (30) consecutive days or if Tenant does not take possession of the
Premises within ninety (90) days of the Commencement Date, only if Tenant has
not timely paid Fixed Rent and Additional Rent due hereunder; or
(g) Tenant shall default in the observance or performance of any term,
covenant or condition on Tenant's part to be observed or performed under any
other lease with Landlord or any affiliate of Landlord of space in the Building,
the Greenwich Office Park or any other property owned by Landlord or any
affiliate of Landlord, and such default shall continue beyond any grace period
set forth in such other lease for the remedying of such default; then, in any of
said events, Landlord may give to Tenant written notice of intention to end the
Term at the expiration of ten (10) days from the date of the giving of such
notice, and, in the event such notice is given, this Lease (whether or not the
Term shall have commenced) shall terminate upon the expiration of said ten (10)
days with the same effect as if that day were the Expiration Date, but Tenant
shall remain liable to Landlord, as provided in Article 15.
SECTION 14.02. In the event Tenant becomes the subject debtor in a case
pending under the Bankruptcy Code (11 U.S.C. Section 101 et. seq.), Landlord's
right to terminate this Lease shall be subject to the rights of the Trustee in
bankruptcy to assume or assign this Lease. To the extent permitted or allowed by
law, the Trustee shall not have the right to assume or assign this Lease, until
the Trustee (i) promptly cures all defaults under the Lease, (ii) promptly
compensates Landlord for monetary damages incurred as a result of such default,
and (iii) provides "ADEQUATE ASSURANCE OF FUTURE PERFORMANCE", which shall mean,
in addition to any other requirements of 11 U.S.C. Section 365(b)(3), that all
of the following have been satisfied: (a) in addition to rent payable under the
Lease, the Trustee has established with Landlord a security deposit equal to
three (3) months Fixed Rent; (b) Trustee has agreed that the security deposit
will be reestablished in said amount, whenever it is drawn upon by Landlord; (c)
Trustee has agreed that Tenant's business will continue to be conducted in a
first class manner; and (d) Trustee has agreed that the use of the Premises will
not change. If all the foregoing are
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not satisfied, Tenant shall be deemed not to have provided Landlord with
adequate assurance of future performance of this Lease.
SECTION 14.03. Any monies received by Landlord from or on behalf of
Tenant during the pendency of any proceeding or appointment of the types
referred to in subsections 14.01 (a) and (b) shall be deemed paid as
compensation for the use and occupation of the Premises, and the acceptance of
any such compensation by Landlord shall not be deemed an acceptance of rent or a
waiver on the part of Landlord of any rights under Section 14.01.
ARTICLE 15
RE-ENTRY BY LANDLORD; REMEDIES
SECTION 15.01. If this Lease and the Term shall terminate for any
reason as provided in Article 14:
(a) Landlord and Landlord's agents may immediately, or at any time
after such default or after the date upon which this Lease shall terminate,
re-enter the Premises or any part thereof, without notice, either by summary
proceeding or by any other applicable action or proceeding, and may repossess
the Premises and remove any and all of its or their property and effects from
the Premises, and in no event shall re-entry be deemed an acceptance of
surrender of this Lease; and
(b) Landlord, at Landlord's option, may relet the whole or any part or
parts of the Premises from time to time, either in the name of Landlord or
otherwise, to such tenant or tenants, for such term or terms ending before, on
or after the Expiration Date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as Landlord, in
its sole discretion, may determine. Landlord shall have no obligation to relet
the Premises or any part thereof and shall in no event be liable for failure to
relet the Premises or any part thereof, or, in the event of any such reletting,
for failure to collect any rent due upon any such reletting, and no failure
shall operate to relieve Tenant of any liability under this Lease or otherwise
to affect any such liability. Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any such liability. Tenant shall be liable for
the amount of all expenses incurred by Landlord in connection with such repairs,
replacements, alterations, additions, improvements, decorations and other
physical changes made by Landlord and the costs of such reletting, including
without limitation, brokerage and reasonable legal expenses.
SECTION 15.02. In the event of any breach or threatened breach by
Tenant or any persons claiming through or under Tenant of any of the agreements,
terms, covenants or conditions contained in this Lease, Landlord shall be
entitled to enjoin such breach or threatened breach and shall have the right to
invoke any right and remedy allowed at law or in equity or by statute or
otherwise as if re-entry, summary proceedings or other specific remedies were
not provided for in this Lease.
SECTION 15.03. If this Lease and the Term shall terminate as provided
in Article 14. or by or under any summary proceeding or any other action or
proceeding, or if Landlord shall re-enter the Premises as provided in this
Article or by or under any summary proceeding or any other action or proceeding,
then, in any of said events:
(a) Tenant shall pay to Landlord all Fixed Rent and Additional Rent to
the date upon which this Lease and the Term shall have terminated or to the date
of re-entry upon the Premises by Landlord, as the case may be;
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(b) Landlord shall be entitled to retain all monies, if any, paid by
Tenant to Landlord, whether as advance rent, security or otherwise, but such
monies shall be credited by Landlord against any Fixed Rent or Additional Rent
due at the time of such termination or re-entry, or at Landlord's option,
against any damages payable by Tenant;
(c) Tenant shall be liable for and shall pay to Landlord, as damages,
any deficiency between (i) the Fixed Rent and Additional Rent payable hereunder
for the period which otherwise would have constituted the unexpired portion of
the Term (conclusively presuming the Operating Expenses and Taxes 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 rents ("NET RENT") collected under any
reletting effected pursuant to the provisions of subsection 15.01(b), for any
part of such period (first deducting from the rents collected under any such
reletting all of Landlord's expenses in connection with the termination of this
Lease or Landlord's re-entry upon the Premises and in connection with such
reletting including but not limited to all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, alteration costs and other
expenses of preparing the Premises for such reletting);
(d) Any such deficiency shall be paid in monthly installments by Tenant
on the days specified in this Lease for the payment of installments of Fixed
Rent. Landlord shall be entitled to recover from Tenant each monthly deficiency
as the same shall arise, and no suit to collect the amount of the deficiency for
any month shall prejudice Landlord's right to collect the deficiency for any
subsequent month by a similar proceeding. Alternatively, suit or suits for the
recovery of such deficiencies may be brought by Landlord from time to time, at
its election;
(e) Whether or not Landlord shall 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
Fixed Rent and Additional Rent, payable hereunder for the period which otherwise
would have constituted the unexpired portion of the Term (conclusively presuming
the Operating Expenses and Taxes to increase five percent (5%) per annum from
the year immediately preceding such termination or re-entry), exceeds the then
fair and reasonable rental value of the Premises for the same period, both
discounted to present worth at the rate of eight percent (8%) 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;
(f) 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 by Landlord 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 are 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.
SECTION 15.04. Any damages owed by Tenant to Landlord under this
Article, if not paid when due, shall be paid with interest at the Interest Rate
from the due date to the date of payment.
SECTION 15.05. Nothing herein contained shall be construed as limiting
or precluding the recovery by Landlord against Tenant of any sums or damages to
which, in addition to the damages particularly
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provided above, Landlord may lawfully be entitled by reason of any default
hereunder on the part of Tenant.
SECTION 15.06. Each right and remedy of Landlord provided for in this
Lease shall be cumulative and shall be in addition to every other right and
remedy provided for in this Lease, or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by Landlord of any one or more of the rights or remedies provided for in this
Lease, or now or hereafter existing at law or in equity or by statute or
otherwise, shall not preclude the simultaneous or later exercise by Landlord of
any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity by statute or otherwise.
ARTICLE 16
CURING TENANT'S DEFAULTS; FEES AND EXPENSES
SECTION 16.01. If Tenant shall default in the observance or performance
of any term, covenant, or condition of this Lease on Tenant's part to be
observed or performed, Landlord, without thereby waiving such default, may
perform the same for the account and at the expense of Tenant, without notice in
a case of emergency and in any other case if such default continues after twenty
(20) days from the date of the giving by Landlord to Tenant of written notice of
intention so to do or such lesser period of notice in the event that a condition
might constitute a default under a Superior Mortgage, Landlord may enter the
Premises at any time to cure any such default. Bills for any expense incurred by
Landlord in connection with any such performance by it for the account of
Tenant, and bills for all costs, expenses and disbursements of every kind and
nature whatsoever, including reasonable counsel fees, involved in collecting or
endeavoring to collect Fixed Rent or Additional Rent or other charge or any part
thereof or enforcing or endeavoring to enforce any rights against Tenant, under
or in connection with this Lease, or pursuant to law, including any such cost,
expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor or services
provided, furnished or rendered by Landlord to Tenant and any charges for
services provided under this Lease, may be sent by Landlord to Tenant monthly or
immediately, and shall be due and payable in accordance with the terms of said
bills, and, if not paid when due, the amounts thereof shall immediately become
due and payable as Additional Rent. Any such xxxx shall be payable with interest
at the Interest Rate from the date Landlord incurs the charge or expense to the
date of payment by Tenant to Landlord. Tenant's obligations under this Section
shall survive the Expiration Date or sooner termination of the Term.
ARTICLE 17
NON-LIABILITY AND INDEMNIFICATION
SECTION 17.01. (a) Except as provided in Section 17.02., neither
Landlord nor Landlord's agents shall be liable to Tenant, its employees, agents,
contractors, invitees and licensees, and Tenant shall save Landlord and
Landlord's agents harmless of and from all loss, cost, liability, claim, damage
and expense, including, but not limited to reasonable counsel fees, penalties
and fines incurred in connection with or arising from any injury to Tenant its
servants, employees, contractors, agents, visitors, invitees or licensees, or
for any damage to, or loss (by theft or otherwise) of, any of Tenant's Property,
irrespective of the cause of such injury, damage or loss (excluding Landlord's
gross negligence or willful misconduct). Any Building employees to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agents with respect to such property, and neither
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Landlord nor Landlord's agents shall be liable for any loss of or damage to any
such property by theft or otherwise.
(b) In any action brought to enforce the obligations of Landlord under
this Lease, any judgment or decree shall be enforceable against Landlord only to
the extent of Landlord's interest in the Building and Common Areas, and no such
judgment shall be the basis of execution on, or be a lien on, assets of Landlord
or any partner of Landlord other than Landlord's interest in the Building and
Common Areas.
SECTION 17.02. Neither (a) the performance by Landlord, Tenant or
others of any construction, repairs, alterations, additions, installation of
decorations or improvements in, to or on the Building, Common Areas, or the
Premises, nor (b) the failure of Landlord or others to make any such repairs,
alterations, additions, installation of decorations or improvements, nor (c) any
damage to the Premises or to Tenant's Property, nor any injury to any persons,
caused by other tenants or persons in the Building, or by operations in the
construction of any private, public or quasi-public work, or by any other cause,
nor (d) any latent defect in the Building, Common Areas, or in the Premises, nor
(e) any temporary covering of any windows of the Premises for any reason
whatsoever, including Landlord's own acts, nor any permanent covering of any
such windows if required by law, order or regulation of Federal, county, state
or municipal authorities or by any direction pursuant to law or any public
officer, nor (f) any inconvenience or annoyance to Tenant or injury to or
interruption of Tenant's business by reason of any of the events or occurrences
referred to in the foregoing subdivisions (a) through (e) shall constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant of any of its obligations
under this Lease.
SECTION 17.03. Tenant agrees to indemnify and save Landlord and
Landlord's agents harmless of and from all losses, costs, liabilities, claims,
damages and expenses including, but not limited to reasonable counsel fees,
penalties and fines, incurred in connection with or arising from (a) any default
by Tenant in the observance or performance of any of the terms, covenants or
conditions of this Lease on Tenant's part to be observed or performed, or (b)
the use or occupancy or manner of use or occupancy of the Premises by Tenant or
any person claiming through or under Tenant, or (c) any acts, omissions or
negligence of Tenant or any such person, or the contractors, agents, servants,
employees, visitors or licensees of Tenant, or any such person, in or about the
Premises or the Building, or the Common Areas, either prior to, during, or after
the expiration of the Term, including any acts, omissions or negligence in the
making or performing of any improvements, or (d) failure to comply with the
American with Disabilities Act of 1990 in connection with the Premises, as may
be amended from time to time, in accordance with the terms and provisions of
this Lease. If any action or proceeding shall be brought against Landlord or
Landlord's agents, based upon any such claim, and if Tenant, upon notice from
Landlord, shall cause such action or proceeding to be defended at Tenant's
expense by counsel reasonably satisfactory to Landlord, without any disclaimer
of liability by Tenant in connection with such claim, Tenant shall not be
required to indemnify Landlord and Landlord's agents for counsel fees in
connection with such action or proceeding.
SECTION 17.04. Tenant shall pay to Landlord, within ten (10) days next
following delivery by Landlord to Tenant of bills or statements therefor, sums
equal to all losses, costs, liabilities, claims, damages and expenses referred
to in Section 17.03. Tenant's obligations under this Article shall survive the
Expiration Date or sooner termination of the Term.
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ARTICLE 18
SURRENDER
SECTION 18.01. On the last day of the Term or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the Premises,
Tenant shall, at its own expense, quit and surrender the Premises to Landlord
broom clean, in good order, condition and repair except for ordinary wear, tear
and damage by fire or other insured casualty, together with all improvements
which have been made upon the Premises (except as otherwise provided for in this
Lease, including, but not limited to Article 9 above). Tenant shall remove from
the Premises and the Building all of Tenant's Property and all personal property
and personal effects of all persons claiming through or under Tenant, and shall
pay the cost of repairing all damage to the Premises and the Building occasioned
by such removal. Notwithstanding anything to the contrary contained herein, in
connection with Landlord's Construction, Landlord, by notice to Tenant no later
than twenty (20) days prior to the Expiration Date or prior termination of this
Lease, may require Tenant to leave any part or all of such Landlord's
Construction in the Premises.
SECTION 18.02. To the extent allowed by law, Tenant expressly waives,
for itself and for any person claiming through or under Tenant, any rights which
Tenant or any such person may have under any applicable law in connection with
any holdover summary proceedings which Landlord may institute to enforce the
provisions of this Article.
SECTION 18.03. If the Premises are not surrendered at the expiration of
the Term, such holding over without the written consent of the Landlord shall be
construed to be a tenancy from month to month at one-twelfth (1/12th) of an
amount equal to twice the Fixed Rent required to be paid by Tenant for the last
full lease year of the Lease Term, together with an amount estimated by Landlord
as equal to one-twelfth (1/12th) of the Additional Rent payable pursuant to this
Lease, and shall otherwise be on the same terms and conditions as herein
specified so far as applicable. Tenant shall indemnify Landlord against loss or
liability resulting from delay by Tenant in so surrendering the Premises,
including, but not limited to, attorneys fees and any claims made by any
succeeding tenant founded on such delay.
Nothing contained in this Section 18.03 shall (a) imply or be deemed to
grant Tenant any right to remain in the Premises after the termination of this
Lease without the execution of a new lease, (b) imply any obligation on the part
of Landlord to grant a new lease or (c) be construed to limit in any way any
remedy that Landlord may have against Tenant as a holdover tenant, including but
not limited to, resort to the summary process laws or enforcement of the
foregoing indemnity obligation of Tenant.
SECTION 18.04. Tenant's obligations under this Article shall survive
the Expiration Date or sooner termination of this Lease.
ARTICLE 19
INSURANCE
SECTION 19.01. Tenant shall not do anything, or suffer or permit
anything to be done in or about the Building or Common Areas which shall (a)
subject Landlord to any liability or responsibility for injury to any person or
property by reason of any activity being conducted in the Premises, (b) cause
any increase in the fire insurance rates applicable to the Building or equipment
or other property located therein, or (c) be prohibited by any license or other
permit required or obtained pursuant to Section 5.03. Tenant, at Tenant's
expense, shall comply with all requirements of the Connecticut Fire Safety Code.
SECTION 19.02. If by reason of any act or omission on the part of
Tenant, the rate of fire insurance with extended coverage on the Building,
Common Areas, equipment or other property of Landlord or any other tenant or
occupant of the Building shall be higher than it otherwise would be, Tenant
shall
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reimburse Landlord and all such other tenants or occupants, on demand, for that
part of the premiums for fire insurance and extended coverage paid by Landlord
and such other tenants or occupants because of such act or omission on the part
of Tenant.
SECTION 19.03. (a) Tenant shall obtain and keep in full force and
effect during the Term for the benefit of Landlord, and any mortgagees and
Tenant, at Tenant's own cost and expense and in the following amounts or such
greater amounts as Landlord or the holder of the Superior Mortgages may
reasonably request, (i) Public Liability Insurance, such insurance to afford
protection in an amount not less than $2,000,000 for personal injury or death,
and $1,000,000 for damage to property, protecting Landlord and Tenant as
insureds against any and all claims for personal injury, death or property
damage occurring in, upon, adjacent to or connected with the Premises or any
part thereof; and (ii) insurance against loss or damage by fire, and such other
risks and hazards as are insurable under present and future standard forms of
fire and "all-risk" form insurance policies, for Tenant's Property and all
improvements performed on behalf of Tenant by Landlord for the full insurable
value thereof, protecting Landlord, the holder of the Superior Mortgages, and
Tenant as insureds as their respective interests may appear; (iii) contractual
liability insurance in the amounts specified above insuring Tenant's liability
pursuant to Article 17 hereof; (iv) plate glass insurance, at full replacement
value; (v) worker's compensation coverage as required by law; and (vi) with
respect to alterations or improvements permitted to be made by Tenant under this
Lease, contingent liability and builder's insurance, in an amount reasonably
satisfactory to Landlord.
(b) Tenant shall obtain such other insurance in such amounts as may
from time to time be reasonably required by Landlord against other insurable
hazards which at the time are commonly insured against resulting from a change
in local practice in the case of construction or alteration of buildings and/or
in the case of premises similarly situated, due regard being given to the type
of building, its location, construction, use and occupancy.
(c) Said insurance is to be written in form and substance satisfactory
to Landlord, by an insurance company with a rating of A or better from a
recognized rating company such as Bests and which company shall be licensed to
write such insurance in the State of Connecticut. Tenant shall procure, maintain
and place such insurance and pay all premiums and charges therefor and, upon
failure to do so, Landlord may, but shall not be obligated to, procure, maintain
and place such insurance or make such payments, and in such event Tenant agrees
to pay the amount thereof, plus interest at the Interest Rate, to Landlord on
demand, and said sums shall be in each instance collectible as Additional Rent
on the first day of the month following the date of payment by Landlord. Tenant
shall cause to be included in all such insurance policies a provision to the
effect that (i) the same will not be cancelled or renewed except upon twenty
(20) days' prior written notice to Landlord, and (ii) Landlord will receive at
least twenty (20) days' prior written notice of any material changes in the
terms or conditions of all such insurance policies. On the Commencement Date,
the original insurance policies or appropriate certificates thereof shall be
deposited with Landlord. Any renewals, replacements or endorsements thereto
shall also be deposited with Landlord to make certain that said insurance shall
be in full force and during the Term.
SECTION 19.04. Each party shall include in each of its fire and
extended coverage insurance policies (insuring the Building, Common Areas and
Landlord's property therein, in the case of Landlord, and insuring Tenant's
Property and business interest in the Premises, in the case of Tenant, against
loss, damage or destruction by fire or other casualty) a waiver of the insurer's
right of subrogation against the other party, to the extent available and in the
case of Tenant, an additional waiver of insurer's right of subrogation against
Mill Management Inc. and Greenwich Associates, Inc. The policy of insurance or
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certificate thereof delivered to Landlord shall include reference to the waiver
of subrogation referred to above.
SECTION 19.05. Each party hereby waives any right of recovery against
the other for any loss occasioned by fire or other casualty which is an insured
risk under such policies, and each shall look solely to the proceeds of such
policies for any loss occasioned by fire or other casualty which is an insured
risk under such policies.
ARTICLE 20
SUBORDINATION AND ATTORNMENT
SECTION 20.01. This Lease, and all rights of Tenant hereunder are and
shall be subject and subordinate, in all respects, to (a) all future ground
leases, overriding leases and underlying leases and/or grants of term of the
Land and/or the Building or the portion thereof in which the Premises are
located in whole or in part; (b) all mortgages and building loan agreements,
including leasehold mortgages and building loan agreements, which may now or
hereafter affect the Land and/or the Building (collectively, the "SUPERIOR
MORTGAGES"), whether or not the Superior Mortgages shall also cover other lands
and/or buildings; and (c) each and every advance made or hereafter to be made
under the Superior Mortgages and to all renewals, modification, replacements,
substitutions and extensions of the Superior Mortgage, and spreaders and
consolidations of the Superior Mortgages. The provisions of this Section shall
be self-operative, and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall promptly execute and
deliver, at its own cost and expense, any instrument, in recordable form if
required, that Landlord or the holder of a Superior Mortgage or any of their
respective successors in interest may reasonably request to evidence such
subordination, and Tenant hereby constitutes and appoints Landlord
attorney-in-fact for Tenant to execute any such instrument for and on behalf of
Tenant.
SECTION 20.02. If, at any time prior to the expiration of the Term, the
holder of a Superior Mortgage shall become the owner of the Building as a result
of foreclosure of its mortgage or conveyance of the Building, or become a
mortgagee in possession of the Land or the Building, Tenant agrees, at the
election and upon demand of any owner of the Land or the Building, or of the
holder of any Superior Mortgage (including a leasehold mortgagee) in possession
of the Land or the Building, to attorn, from time to time, to any such owner,
holder or lessee, upon the then executory terms and conditions of this Lease,
provided that such owner, holder or lessee, as the case may be, shall then be
entitled to possession of the Premises. Such successor in interest to Landlord
shall not be bound by (a) any payment of Fixed Rent or Additional Rent for more
than one month in advance, except prepayment in the nature of security for the
performance by Tenant of its obligations under the Lease, (b) any amendment,
modification or termination of this Lease made without the consent of the holder
of the Superior Mortgage or such successor in interest whose name is disclosed
to Tenant, (c) any offsets which may be asserted by the lessee hereunder against
payments of rent as a result of any default by or claims against Landlord
hereunder arising prior to the date such successor takes possession of the
Premises, or (d) any obligation by Landlord as lessor hereunder to perform any
work or grant any concession without the mortgagee's express assumption of such
obligation to perform work or grant such concession. The foregoing provisions of
this Section shall inure to the benefit of any such owner, holder or lessee and
shall be self-operative upon any such demand, and no further instrument shall be
required to give effect to said provisions, although Tenant shall execute such
an instrument upon request of the holder of a Superior Mortgage.
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SECTION 20.03. Tenant shall execute and deliver to Landlord within a
reasonable period of time any reasonable modifications of this Lease required or
requested by the holder or potential holder of a Superior Mortgage, provided
that no such modification shall adversely affect Tenant's rights or obligations
hereunder.
ARTICLE 21
ACCESS; CHANGE IN FACILITIES
SECTION 21.01. Landlord reserves the right, at any time, without
incurring any liability to Tenant therefor, to make such changes in or to the
Building and the fixtures and equipment of the Building, as well as in the
entrances, passageways, halls, doors, doorways, corridors, elevators,
escalators, stairs, toilets and other Common Areas, as it may deem necessary or
desirable, provided any such change does not deprive Tenant of access to the
Premises, unreasonably interfere with the use of the Premises, or reduce the
rentable square footage of the Premises in excess of one percent (1%) (without
an appropriate adjustment in Fixed Rent due to such reduction in square footage
of the Premises).
SECTION 21.02. Tenant shall permit Landlord to install, use and
maintain pipes, ducts and conduits within or through the Premises, or through
the walls, columns and ceilings therein, provided that the installation work is
performed at such times and by such methods as will not reduce the useable
office space in the Premises or unreasonably interfere with Tenant's use and
occupancy of the Premises or damage the appearance thereof.
SECTION 21.03. Landlord or Landlord's agents shall have the right to
enter the Premises at all times for any of the purposes specified in this
Article: (a) to examine the Premises, to perform any obligation of Landlord or
to exercise any right or remedy reserved to Landlord in this Lease; (b) to
exhibit the Premises to a prospective purchaser, mortgagee or ground lessor of
the Building, or others and, during the last nine (9) months of the Lease Term,
to exhibit the Premises to prospective tenants, provided, that if possible
Landlord give Tenant twenty-four (24) hours prior verbal notice; (c) to make
such repairs, alterations, improvements or additions or to perform such
maintenance, including the maintenance of all air conditioning, elevator,
plumbing, electrical, sanitary, mechanical and other service or utility systems,
as Landlord may deem necessary or desirable; (d) to take all materials into and
upon the Premises that may be required in connection with any such repair,
alterations, improvements, additions or maintenance; and (e) to alter, renovate
and decorate the Premises if Tenant shall have removed all or substantially all
of Tenant's Property from the Premises. Notwithstanding the foregoing, except in
emergencies or Tenant's default hereunder, all entries by Landlord under this
Section shall be at reasonable times and shall be conducted so as not to
interfere unduly with Tenant's use and occupancy of the Premises.
SECTION 21.04. The exercise of any right reserved to Landlord in this
Article shall not constitute an actual or constructive eviction, in whole or in
part, or entitle Tenant to any abatement or diminution of rent (except as
specifically provided herein), or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord or Landlord's agents, or
upon the holder of a Superior Mortgage.
SECTION 21.05. If the Premises comprise less than five thousand (5,000)
rentable square feet (or if Tenant's Proportionate Share is less than twenty
percent), Landlord reserves the right to relocate Tenant to comparable space in
another part of the Building or to another building in Greenwich Office Park
upon sixty (60) days written notice to Tenant. The expense of relocating Tenant
in accordance with the
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provisions of this Section 21.05. shall be borne by Landlord. Upon relocation,
all the terms, covenants and conditions of this Lease shall apply to the space
into which Tenant shall be relocated.
ARTICLE 22
INABILITY TO PERFORM AND WAIVERS
SECTION 22.01. This Lease and the obligations of Tenant to pay rent and
perform all of the terms, covenants and conditions on the part of Tenant to be
performed shall in no way be affected, impaired or excused because Landlord, due
to Unavoidable Delay, is (a) unable to fulfill any of its obligations under this
Lease, or (b) unable to supply or delayed in supplying any service expressly or
impliedly to be supplied, or (c) unable to make or delayed in making any
repairs, replacements, additions, alterations or decorations, or (d) unable to
supply or delayed in supplying any equipment or fixtures. Landlord shall in each
instance exercise reasonable diligence to effect performance when and as soon as
possible. However, Landlord shall be under no obligation to pay overtime labor
rates.
SECTION 22.02. In the event Landlord commences any summary proceeding
or other action for non-payment of rent, to the extent permitted by applicable
law, Tenant covenants and agrees that it will not interpose any counterclaim in
any such proceeding.
SECTION 22.03. To the extent permitted by applicable law, Landlord and
Tenant hereby waive trial by jury in any action, proceeding or permitted
counterclaim brought by either against the other on any matter arising out of or
in any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, any claim of injury or damage, or any
emergency or other statutory remedy with respect thereto.
SECTION 22.04. The failure of Landlord to insist in any one or more
instances upon the strict performance of any one or more of the agreements,
terms, covenants, conditions or obligations of this Lease, or to exercise any
right, remedy or election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission, whether of a similar nature or otherwise.
The manner of enforcement or the failure of Landlord to enforce any of the Rules
and Regulations against Tenant and/or any other tenant in the Building shall not
be deemed a waiver of any such Rules and Regulations.
SECTION 22.05. The following specific provisions of this Section shall
not be deemed to limit the generality of the foregoing provisions of this
Article:
(a) No agreement to accept a surrender of all or any part of the
Premises shall be valid unless in writing and signed by Landlord. No delivery of
keys shall operate as a termination of this Lease or a surrender of the
Premises.
(b) The receipt or acceptance by Landlord of rents with knowledge of
breach by Tenant of any term, covenant or condition of this Lease shall not be
deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser amount than
the correct Fixed Rent or Additional Rent shall be deemed to be other than a
payment on account, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment be deemed to effect or evidence an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or to pursue any other
remedy in this Lease or provided by law.
SECTION 22.06. The provisions of this Article shall survive the
Expiration Date or sooner termination of this Lease.
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ARTICLE 23
QUIET ENJOYMENT
SECTION 23.01. If, and so long as, Tenant pays the Fixed Rent and
Additional Rent and keeps and performs each and every term, covenant and
condition herein contained on the part and on behalf of Tenant to be kept and
performed, Tenant shall quietly enjoy the Premises without hindrance or
molestation by Landlord, subject to the terms, covenants and conditions of this
Lease.
ARTICLE 24
RULES AND REGULATIONS
SECTION 24.01. Tenant, its servants, employees, agents, visitors,
invitees and licensees shall faithfully observe and strictly comply with, and
shall not permit violation of, the Rules and Regulations annexed as EXHIBIT E,
and such reasonable changes therein (whether by modification, elimination or
addition) as Landlord hereafter may make and communicate in writing to Tenant
("RULES AND REGULATIONS").
SECTION 24.02. The Building may be designated and known by any name
Landlord may choose, and such name or designation may be changed from time to
time in Landlord's sole discretion.
SECTION 24.03. If an excavation or other substructure shall be
undertaken or authorized upon land adjacent to the Building or beneath the
Building, Tenant, without liability on the part of the Landlord therefor, shall
afford to the person causing or authorized to cause such excavation or other
substructure work license to enter upon the Premises for the purpose of doing
such work as such person shall deem necessary to protect or preserve any of the
walls or structures of the Building or surrounding land from injury or damage
and to support the same by proper foundations, pinning and/or underpinning, and,
except in case of emergency, Landlord shall endeavor to have such entry
accomplished during reasonable hours in the presence of a representative of
Tenant, who shall be designated by Tenant promptly upon Landlord's request. The
said license to enter shall not constitute an actual or constructive eviction,
in whole or in part, or entitle Tenant to any abatement or diminution of rent,
or relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or Landlord's agents.
SECTION 24.04. Tenant shall give notice to Landlord, promptly after
Tenant learns thereof, of (a) any accident in or about the Premises, (b) all
fires in the Premises, (c) all damages to or defects in the Premises including
the fixtures, equipment and appurtenances thereof, for the repair of which the
Landlord might be responsible or which constitutes Landlord's property; and (d)
all damages to or defects in any parts or appurtenances to the Building's air
conditioning, elevator, plumbing, electrical, sanitary, mechanical or other
service or utility system located in or passing through the Premises.
SECTION 24.05. Tenant will not require, permit, suffer or allow the
cleaning of any window in the Premises from the outside without Landlord's prior
written consent and unless the equipment and safety devices required by law,
ordinance, rules and regulations are provided and used. Tenant hereby agrees to
indemnify Landlord and Landlord's agents for all losses, damages or fines
suffered by them as a result of the Tenant's requiring, permitting, suffering or
allowing any window in the Premises to be cleaned from the outside in violation
of the requirements of the aforesaid laws, ordinances, regulations and rules.
SECTION 24.06. It is expressly agreed that only Landlord or any one or
more persons, firms or corporations authorized in writing by Landlord will be
permitted to sell, deliver or furnish any food or beverages whatsoever for
consumption within the demised premises or elsewhere in the Building. Landlord
expressly reserves the right to act as or to designate at any time, or from time
to time, an exclusive supplier or suppliers of such food and beverages,
including but not limited to suppliers of
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coffee, bottled water and food; and Landlord further expressly reserves the
right to exclude from the Building any person, firm or corporation attempting to
deliver or purvey any such food or beverages but not so designated by Landlord.
It is understood, however, that Tenant or regular office employees of Tenant who
are not employed by any supplier of such food or beverages or by any person,
firm or corporation engaged in the business of purveying such food or beverages,
may personally bring food or beverages into the Building for consumption within
the demised premises by the said Tenant or employees of Tenant, but not for
resale to or for consumption by any other tenant, or the employees or guests of
any other tenant. Landlord may fix in its absolute discretion, at any time and
from time to time, the hours during which, and the regulations under which food
and beverages may be brought into the Building by Tenant or its regular
employees.
ARTICLE 25
BROKERAGE
SECTION 25.01. Tenant represents that in the negotiation of this Lease
it dealt with no real estate broker or salesperson except as set forth in ITEM
11 of the Data Sheet. Landlord shall compensate such broker pursuant to a
separate agreement. Tenant hereby agrees to indemnify Landlord and hold it
harmless from any and all losses, damages and expenses arising out of any
inaccuracy or alleged inaccuracy of the above representation, including court
costs and attorneys' fees. Landlord shall have no liability for brokerage
commissions arising out of a sublease by Tenant, and Tenant shall and does
hereby indemnify and hold Landlord harmless from any and all liability for
brokerage commissions arising out of any such sublease.
ARTICLE 26
NOTICES AND ESTOPPEL CERTIFICATE
SECTION 26.01. All notices, demands or communications given under this
Lease shall be sent to the addresses set forth above, or to such other addresses
as the parties may designate by written notice, and shall be sent by prepaid
registered or certified mail, return receipt requested, and shall be deemed
given on the second business day after the date mailed; provided, however, that
after the Commencement Date any notice to Tenant shall be sent to the Building.
All notices sent to Landlord shall be sent to the attention of the Chief
Executive Officer.
SECTION 26.02. (a) At any time, and from time to time upon not less
than ten (10) days prior written notice by Landlord to Tenant, Tenant shall
execute, acknowledge and deliver to Landlord a statement, in writing in form
satisfactory to Landlord, certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), and the dates to
which the Fixed Rent and Additional Rent have been paid in advance, if any,
stating whether there are any offsets to the Tenant's obligation to pay rent
thereunder and describing them, if any, and stating whether or not to the best
knowledge of the signer of such certificate (who shall be a duly authorized
officer or signatory of Tenant) Landlord is in default in performance of any
term, covenant or condition contained in this Lease and, if so, specifying each
such default of which the signer may have knowledge, it being intended that any
such statement delivered pursuant hereto may be relied upon by any prospective
purchaser of the Land and the Building or any part thereof, or of the interest
of Landlord in any part thereof, by any mortgagee or prospective mortgagee
thereof, by any lessor or prospective lessor thereof, by any lessee or
prospective lessee thereof, or by any prospective assignee of any mortgage
thereof. Failure to deliver the certificate within the ten (10) day
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period described above shall be conclusive on Tenant that this Lease is in full
force and effect and has not been modified except as may be represented by
Landlord and that Landlord is not in default of any term, covenant or condition
contained in this Lease.
(b) At the request of Landlord, Tenant shall enter into an agreement to
pay the Fixed Rent and Additional Rent to a mortgagee of Landlord upon receipt
of a notice from such mortgagee that Landlord is in default under the note held
by such mortgagee.
(c) Prior to taking occupancy of the Premises, Tenant will deliver to
Landlord a fully executed Estoppel Certificate in substantially the form
attached hereto as EXHIBIT F.
ARTICLE 27
SECURITY DEPOSIT
SECTION 27.01. Tenant has deposited with Landlord that security
provided for in ITEM 12 of the Data Sheet as security for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this Lease (the "SECURITY DEPOSIT"). In the event that Tenant defaults in
respect of any of the terms, provisions and conditions of this Lease, including
without limitation the payment of Fixed Rent and Additional Rent, Landlord may
use, apply or retain the whole or any part of the Security Deposit to the extent
required for the payment of any Fixed Rent, Additional Rent, or any other sum as
to which Tenant is in default of, or any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this Lease, including without limitation, any
damages or deficiency in reletting the Premises accrued before or after any
summary proceedings or other re-entry by Landlord.
SECTION 27.02. In the event that Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Lease, the Security Deposit, except as same may have been applied by Landlord in
accordance with this Lease, shall be returned to Tenant after the Expiration
Date or such earlier termination date of this Lease and after Tenant has
delivered entire possession of the Premises to Landlord in accordance with all
of the terms and provisions of this Lease.
SECTION 27.03. Tenant agrees that in the event Landlord applies any
portion of the Security Deposit in accordance with the provisions of this Lease,
Tenant will immediately upon demand of Landlord reimburse or pay Landlord for
the amount of the Security Deposit so applied so that the amount constituting
the Security Deposit during the Term of this Lease shall always be equal to the
amount specified in Section 27.01.
SECTION 27.04. In the event of a sale of the Building or leasing of the
Building, or of the portion of the Building in which the Premises are located,
Landlord shall have the right to transfer the Security Deposit to the vendee or
lessee and Landlord shall thereupon be released by Tenant from all liability for
the return of the Security Deposit, and Tenant agrees to look solely to the new
landlord for the return of the Security Deposit, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord.
SECTION 27.05. Tenant further agrees that it will not assign or
encumber or attempt to assign or encumber the funds constituting the Security
Deposit and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance or attempted assignment or encumbrance.
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ARTICLE 28
PARTIES BOUND
SECTION 28.01. The terms, covenants and conditions contained in this
Lease shall bind and benefit the successors and assigns of the parties with the
same effect as if mentioned in each instance where a party is named or referred
to, except that no violation of the provisions of Article 7 shall operate to
vest any rights in any successor or assignee or Tenant and that the provisions
of this Article shall not be construed as modifying the conditions of limitation
contained in Article 14.
SECTION 28.02. The obligations of Landlord arising under this Lease
shall no longer be binding upon Landlord named herein after the sale, assignment
or transfer by Landlord named herein (or upon any subsequent landlord after the
sale, assignment or transfer by such subsequent landlord) of its interest in the
Building as owner or lessee, and, in the event of such sale, assignment or
transfer, such obligations shall thereafter be binding upon the grantee,
assignee or other transferee of such interest, and any such grantee, assignee or
transferee, by accepting such interest, shall be deemed to have assumed such
obligations. A lease of Landlord's entire interest in the Building shall be
deemed a transfer for the purposes of this Section.
SECTION 28.03. In connection with the provisions of this Lease and the
obligations and covenants of Landlord herein set forth, if Landlord or any
successor in interest be an individual, joint venture, tenancy-in-common,
co-partnership, unincorporated association, or other unincorporated aggregate of
individuals (all of which are referred to below, individually and collectively,
as an "UNINCORPORATED LANDLORD"), or a limited liability company, a limited
liability partnership or any other entity which possesses the characteristics of
limited liability (all of which are referred to below, individually and
collectively, as a "LIMITED LIABILITY LANDLORD"), then anything elsewhere to the
contrary notwithstanding, Tenant shall look solely to the estate and property of
such unincorporated landlord or limited liability landlord in the Building and
Common Areas for the satisfaction of Tenant's remedies, for the collection of a
judgment (or other judicial process) requiring the payment of money by Landlord
in the event of any default or breach by Landlord with respect to any of the
terms, covenants and conditions of this Lease to be observed and/or performed by
Landlord. No other property or assets of such unincorporated landlord, or any
general or limited partner thereof, or of such limited liability landlord, shall
be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies.
SECTION 28.04. Any provision of this Lease which requires Landlord not
to unreasonably withhold its consent shall never be the basis for an award of
damages or give rise to a right of setoff to the other party, but may be the
basis for a declaratory judgment or specific injunction with respect to the
matter in question.
SECTION 28.05. Nothing contained in this Lease shall be deemed to
confer upon any tenant, or anyone claiming under or through any tenant, any
right to insist upon, or to enforce against Landlord or Tenant, the performance
or observance by Tenant of its obligations hereunder or under the Rules and
Regulations.
ARTICLE 29
ENTIRE AGREEMENT; NO OTHER REPRESENTATIONS;
GOVERNING LAW; SEPARABILITY
SECTION 29.01. This Lease contains the entire agreement between the
parties, and all prior negotiations and agreements are merged in this Lease.
This Lease may not be changed, modified or
32
39
discharged, in whole or in part, except by a written instrument executed by the
party against whom enforcement of the change, modification or discharge is
sought.
SECTION 29.02. Tenant expressly acknowledges that neither Landlord nor
Landlord's agents has made or is making, and Tenant, in executing and delivering
this Lease, is not relying upon any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
Lease. No rights, easements or licenses are or shall be acquired by Tenant, by
implication or otherwise, unless expressly set forth in this Lease.
SECTION 29.03. This Lease shall be governed in all respects by the laws
of the State of Connecticut.
SECTION 29.04. Each covenant and agreement in this Lease shall be
construed to be a separate and independent covenant and agreement, and the
breach of any such covenant or agreement by Landlord shall not discharge or
relieve Tenant from Tenant's obligations to perform every covenant and agreement
of this Lease to be performed by Tenant. If any term or provision of this Lease
or any application thereof shall be invalid or unenforceable, the remainder of
this Lease and any other application of such term shall not be affected thereby.
SECTION 29.05. This Lease may be executed in two or more counterparts,
each of which shall be considered an original, and all of which shall constitute
one and the same instrument.
ARTICLE 30
MISCELLANEOUS PROVISIONS
SECTION 30.01. Terms negotiated by Landlord and Tenant that add to or
vary from the provisions of this Lease, if any, are set forth at ITEM 13 of the
Data Sheet.
SECTION 30.02. All indemnifications contained in this Lease shall
survive the expiration or early termination of this Lease.
IN WITNESS WHEREOF Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
Signed, Sealed and Delivered
in the Presence of:
GHENT LIMITED PARTNERSHIP,
Landlord
____________________________________ By: ________________________________
Xxxxxx X. Xxxxxxxx
____________________________________ Its Authorized Representative
RENAISSANCE COSMETICS INC.
Tenant
____________________________________ By: ________________________________
___________________________________ Its ________________________________
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40
STATE OF CONNECTICUT )
) ss. Greenwich March ____, 1996
COUNTY OF FAIRFIELD )
Personally appeared Xxxxxx X. Xxxxxxxx, the authorized representative
of GHENT LIMITED PARTNERSHIP, signer and sealer of the foregoing instrument, and
acknowledged the same to be his free act and deed and the free act and deed of
said Limited Partnership, before me.
_____________________________________________
Commissioner of the Superior Court/
Notary Public
My Commission Expires:_____________________
STATE OF )
) ss. __________________ March ____, 1996
COUNTY OF )
Personally appeared _________________________________, of RENAISSANCE
COSMETICS INC., signer and sealer of the foregoing instrument, and acknowledged
the same to be his free act and deed and the free act and deed of said
Corporation, before me.
_____________________________________________
Commissioner of the Superior Court/
Notary Public
My Commission Expires:_____________________
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EXHIBIT A
LAND DESCRIPTION
Beginning at the point on the northerly line of West Xxxxxx Avenue formed by the
intersection of the division line between the premises herein described and land
formerly of Connecticut Shore Realty Co., Inc., now of Xxxxx Xxxxxx and Xxxxxxxx
X. Xxxxxx, with the northerly line of West Xxxxxx Avenue and running thence
along land of said Xxxxx Xxxxxx and Xxxxxxxx X. Xxxxxx North 12 degrees 40' West
23.3 feet, North 4 degrees 51' West 60.0 feet, North 7 degrees 26' East 32.70
feet, North 1 degree 53' West 32.0 feet, North 2 degrees 31' West 61.0 feet to
land of the Estate of Xxxxxx X. Xxxxxxxxx, thence along land of said Estate of
Xxxxxx X. Xxxxxxxxx Xxxxx 00 degrees 15' East 286.4 feet to the westerly line of
Valley Drive, thence southerly along the westerly line of Valley Drive to and
along Xxxx Xxxxxx Xxxxxx Xxxxx 00 degrees 02' West 274.0 feet, thence on a curve
to the right with a radius of 100.0 feet a distance of 71.79 feet, thence South
63 degrees 10' West 9.4 feet, South 25 degrees 33' West 1.0 feet, South 63
degrees 52' West 88.9 feet to the point and place of beginning.
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EXHIBIT B
LANDLORD'S CONSTRUCTION
Landlord's Construction shall be performed in accordance with plans drawn for
Renaissance entitled Xxxxxxxxx Xxxxxx Xxxx Xxxx - 0xx xxxxx, Xxxxxxxxx, XX. by
X. X. Xxxxxxx Arthitects, P.C. dated February 27, 1996, including drawing A1
(the "Plans") which Plans by this reference are hereby incorporated into the
Lease.
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EXHIBIT C
FLOOR PLAN
[TO BE PROVIDED]
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EXHIBIT D
CLEANING, JANITOR AND ROUTINE MAINTENANCE SERVICE
Cleaning, Janitor, and Routine Maintenance Service will be provided as follows:
NIGHTLY
Empty and clean wastepaper baskets, ashtrays and other receptacles.
Sweep all flooring, vacuum clean or carpet sweep (as required) all
carpets and rugs. Sweep or dust stone, ceramic tile, marble, terrazzo
and other unwaxed flooring, excluding kitchen area (cleaning of kitchen
is tenant's responsibility).
Dust and wipe clean all office furniture and window xxxxx.
Wipe clean all water fountains and coolers.
Dust all leather and leather-type furniture.
Sweep and dust all private stairways.
Dust all chair rails, baseboards and trim.
Replace plastic bags in wastebaskets when necessary - cost per bag
charged to Tenant.
Remove normal wastepaper and refuse; cost of unusual waste removal to
be charged to Tenant.
Clean and wash one men's and one women's washroom per floor. Paper
towels, toilet tissue and soap provided by Landlord and, unless
bathrooms are common bathrooms, billed to Tenant directly.
After cleaning, all lights shall be turned off, windows closed, doors
locked and offices left in an orderly condition.
MONTHLY
Dust all pictures, frames, charts, graphs, and similar wall hangings
not reached in nightly cleaning.
QUARTERLY
Dust all venetian blinds.
ANNUALLY
Dust ceiling surfaces other than acoustical ceiling material and vacuum
clean only acoustical materials and other similar surfaces, if
necessary.
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WINDOW CLEANING
Wash all interior and exterior windows quarterly.
SIDEWALKS, ENTRANCES, ROADWAYS AND PARKING AREAS:
To be kept free and clear of refuse, snow and ice.
AS REQUIRED BY TENANT
Clean inside of all lighting fixtures and globes at cost to Tenant.
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EXHIBIT E
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF
THIS LEASE IN ACCORDANCE WITH ARTICLE 24
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or
encumbered by any tenant or used for any purpose other than for ingress
to and egress from the Premises and for delivery of such merchandise
and equipment in a prompt and efficient manner using elevators and
passageways designated for such delivery by Landlord. There shall not
be used in any space, or in the public hall of the Building, either by
any tenant or any jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires
and sideguards.
2. The water and wash closets and plumbing fixtures shall not be used for
any purpose other than those for which they were designed or
constructed and no sweepings, rubbish, rags, acids or other substances
shall be deposited therein, and the expense of any breakage, stoppage,
or damage resulting from the violation of this rule shall be borne by
the tenant who, or whose clerks, agents, employees or visitors, shall
have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the Building; and no tenant shall sweep or throw or permit to
be swept or thrown from the Premises any dirt or other substances into
any of the corridors or halls, elevators, or out of the doors or
windows or stairways of the Building, and Tenant shall not use, keep or
permit to be used or kept any foul or noxious gas or substance in the
Premises, or permit or suffer the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the
building by reason of noise, odors and/or vibrations, or interfere in
any way with other tenants or those having business therein, nor shall
any animals or birds be kept in or about the Building. Smoking or
carrying lighted cigars or cigarettes is prohibited in the Common Areas
of the Building, including, but not limited to, the elevators, lobby,
stairwells and hallways.
4. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Landlord.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside
of the Premises or the Building or on the inside of the Premises if the
same is visible from the outside of the Premises without the prior
written consent of Landlord, except that the name of Tenant may appear
on the entrance door of the Premises after approval by Landlord. In the
event of the violation of the foregoing by any tenant, Landlord may
remove same without any liability, and may charge the expense incurred
by such removal to the tenant violating this rule. Interior signs on
doors shall be inscribed, painted or affixed by Tenant, at the expense
of Tenant, and shall be of a size, color and style acceptable to
Landlord.
6. No tenant shall xxxx, paint, drill into, or in any way deface any part
of the Premises or the Building of which they form a part. No cutting
or stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as Landlord may direct. No tenant shall lay
linoleum, or other similar floor covering, so that the same shall come
in direct contact with the floor of the Premises, and, if linoleum or
other similar floor cover is desired to be used, an interlining of
builder's deadening felt shall be first affixed to the floor, by a
paste or other material, soluble in water, the use of cement or other
adhesive material being expressly prohibited.
7. No tenant shall obtain for use upon the Premises ice, drinking water,
towel and other similar services, or accept barbering or bootblacking
services in the Premises, except from persons authorized by Landlord,
which authorization shall not be unreasonably withheld or delayed, and
at hours and under regulations fixed by Landlord. Canvassing,
soliciting and peddling in the Building is prohibited and each tenant
shall cooperate to prevent the same.
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8. Landlord reserves the right to exclude from the Building between the
hours of 6 p.m. and 8 a.m. and all hours on Sundays, and legal holidays
all persons who do not present a pass to the Building signed by
Landlord. Landlord will furnish passes to persons for whom any tenant
requires same in writing. Each tenant shall be responsible for all
persons for whom he requests such pass and shall be liable to Landlord
for all acts of such persons.
9. Landlord shall have the right to prohibit any advertising by any tenant
which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon
written notice from Landlord, Tenant shall refrain from or discontinue
such advertising; provided, however, Landlord shall not have the
foregoing right in connection with Tenant advertising its products so
long as Tenant does not use the Building's address or the name
Greenwich Office Park in any such advertisements.
10. Tenant shall not bring or permit to be brought or kept in or on the
Premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectional odors to emanate from
the Premises except for samples of Tenant's products in small
quantities which are typically kept in Tenant's executive office.
11. If the Building contains central air conditioning and ventilation,
Tenant agrees to keep all windows closed at all times and to abide by
any rules and regulations issued by the Landlord with respect to such
services. If Tenant requires air conditioning or ventilation after the
usual hours, Tenant shall give notice in writing to the Building
superintendent prior to 3 p.m. in the case of services required on week
days, and prior to 3 p.m. on the day prior in the case of service
required on weekends or on holidays.
12. No smoking of cigars or pipes shall be permitted in the Premises or the
Building.
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EXHIBIT F
TENANT ESTOPPEL CERTIFICATE
Re:
The undersigned, as Lessee under that certain Lease dated ,
19 , made with , as Lessor, does hereby certify to New York Life
Insurance Company, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000:
1. That its leased premises at the above location have been completed in
accordance with the terms of the Lease, that it has accepted possession
of said premises and that it now occupies the same, and is open for
business;
2. That the Lease term began on , 19 , that it began paying
rent on , 19 , that it pays rent on a current basis, that,
save only as may be required by the terms of the Lease, no rent has
been or will be paid by the Lessee during the term of this lease for
more than one month in advance, that the rent payable under the Lease
is the amount of fixed rent provided thereunder, which is net annual
rent payable to Lessor of $ , and that there is no claim or
basis for an adjustment thereto;
3. That there exist no defenses or offsets to enforcement of the Lease by
the Lessor and that there are, as of the date hereof, no defaults or
breaches on the part of the Lessor under the Lease known to the
undersigned and the undersigned has made no claim against the Lessor;
4. That the Lease is now in full force and effect and has not been
amended, modified or assigned and the Lease is the only agreement
between Lessor and the undersigned regarding the leased premises;
5. That all required common areas have been completed and all required
parking spaces have been furnished and/or all parking ratios have been
met.
6. That all and any special conditions to be performed by Lessor prior to
or at commencement of the term of the Lease or as a condition therefor
have been performed and satisfied.
7. That the Lessee shall not look to New York Life, it successors or
assigns for the return of the security deposit, if any, under the Lease
unless the same is actually delivered to New York Life as security for
our performance under the Lease.
8. That Lessee is in full compliance with all Federal, State and Local
laws, ordinances, rules and regulations affecting its use of the
premises, including, but not limited to the handling, storage and
disposal of hazardous and/or toxic materials used or generated as a
result of its business conducted on or about the leased premises.
It is understood that New York Life requires this statement from the
undersigned as a condition to the making of a loan to the owners of the property
comprising the leased premises, secured by a first mortgage thereon and also by
an assignment of the Lease as collateral security.
Dated:__________________________________
Lessee:________________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
