7/31/02 Exhibit 10.17
LEASE
THIS INSTRUMENT IS A LEASE, dated as of August ___, 2002, in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
certain land with a building and other improvements thereon located at I Summit
Place a/k/a 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx., Xxxxxxxxxxx 00000. The Landlord and
Tenant, being the parties to this instrument, hereby agree as follows:
ARTICLE I
DEFINITIONS AND EXHIBITS
1.1. DEFINITION OF BASIC LEASE TERMS. The following cc definitions of the
basic terms used in this Lease.
Landlord: 000 Xxxx Xxxx Xxxxxx LLC
Landlord's Original, Address: 0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Tenant: The Bank of Southern Connecticut
a Connecticut banking corporation
Tenant's Principal Office: 000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
ATTN: Xxxxxx X. Xxxxxxxx
Base Rent: Annual and monthly Base Rent for the Initial Term shall be set
forth on Exhibit B.
Base Rent during the Initial Term shall commence with the first payment due
and owing on the Rent. Commencement Date, as more fully set forth in
Section 3. 1.
If Tenant shall elect to add an Extended Term to the Term of this Lease,
the Annual and monthly Base Rent for each Extended Term shall be as set
forth on Exhibit B.
Building: The building and other improvements located on that certain piece
or parcel of land known as I Summit Place a/k/a 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx, all as more particularly described on Exhibit A,,
annexed hereto, and shown on the site plan attached hereto as Exhibit A-1.
Building, Gross Area: 3,714 square feet.
Commencement Date: As defined in Article IV.
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Default of Tenant: As defined in Section 11. 1.
Expiration Date: Five (5) years following the Commencement Date, as the
same may be extended to the expiration of each Extended Term elected by the
Tenant pursuant to Article XIII.
Extended Term: Each of three (3) extended terms of five (5) years, elected
at Tenant's option, as more fully set forth in Article XIII, then for ten
(10) year term at Tenant's option, as more fully set forth in Article XIII.
Initial Term: The Term prior to any Extended Term. The Initial Term of this
Lease is for five (5) years commencing on the Commencement Date.
Landlord's Mortgage: The holder of a mortgage lien on the Premises, which
has given to Tenant written notice of its identity and its current mailing
address.
Leasehold Improvements: The work specified in Exhibit C to be completed by
the Landlord at its sole cost and expense, prior to the Commencement Date.
See Section 5.2 hereof.
Operating and Tax Expenses: The aggregate of the Operating Expenses -and
Taxes, which shall constitute additional rent payable by the Tenant
pursuant to this Lease.
Operating Expenses: The aggregate costs or expenses incurred by the Tenant
with respect to the operation, cleaning, repair, maintenance and management
of the Premises for which Tenant is responsible as more particularly set
forth in Article VII hereof.
Permitted Uses: Tenant may use the Premises for banking purposes and
support offices, and for professional and general offices.
Premises: The Building and the land parcel on which it is located
(including all parking areas and sidewalks) as further described in Exhibit
A annexed, hereto).
Public Liability Insurance: Two Million ($2,000,000.0,0) Dollars per
occurrence (combined single limit) for property damage, bodily injury or
death.
Security Deposit: Two months Base Rent.
Taxes: The real estate taxes and personal property tax assessments assessed
with respect to the Premises and/or any other tax or assessment if the same
replaces or supplements the current method of assessment of real estate
taxes and assessments in whole or in part or is additionally imposed on the
Premises or upon Landlord
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relating to the Premises and is generally applicable to owners of similar
properties, specifically excepting therefrom any tax associated with income
from said property imposed on Landlord; and further excepting any excise,
inheritance, estate, succession, transfer, gift, franchise, corporation,
income or profit tax or capital levy imposed on Landlord; and further
excepting any increases in such taxes as a result of 'a sale, an assignment
or a refinancing of the Property, or a transfer of any type which could
result in a reassessment of the base year property taxes. Tenant shall be
obligated to pay all real property taxes and personal property taxes and
assessments as Additional Rent.
Tenant's Initial Leasehold Improvements: Those improvements to the Premises
which Tenant may undertake at its sole cost and expense and which are set
forth on Exhibit D.
Tenant's Operating and Tax Expenses: Ten-ant's amount of the Operating and
Tax Expenses, which shall be payable by Tenant as Additional Rent.
Tenant's Removable Property: Tenant's personal property, machinery,
furniture, trade fixtures and equipment which Tenant may install, maintain
and remove from the Premises.
Term: The period commencing on the Commencement Date and expiring at 11:59
p.m. on the Expiration Date. The Term shall include any Extended Term if
Tenant exercise's its extension option as provided in Article XIII.
1.2 EXHIBITS. The following drawings and special provisions are attached to
this Lease as exhibits and by this reference are made a part of this Lease:
EXHIBIT A Premises Legal Description
EXHIBIT A-1 Site Plan of Premises
EXHIBIT B Base Rent for Initial Term and Extended Terms
EXHIBIT C Leasehold Improvements, by Landlord
EXHIBIT D Tenant's Initial Leasehold Improvements
EXHIBIT E Notice of Lease
EXHIBIT F Subordination, Non-disturbance and Adornment Agreement
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ARTICLE II
PREMISES
2.1 LEASE OF PREMISES. Landlord hereby demises, and leases to Tenant the
Premises for the Term of this Lease and upon the terms and conditions
hereinafter set forth
2.2 APPURTENANT RIGHTS AND RESERVATIONS.
(a) Tenant will have the right, at its sole cost and expense, to construct,
erect and locate on the fascia of the Building and upon the Premises such signs
as may be permitted by the Branford Zoning Regulations. All signage shall be in
accordance with the Branford sign criteria as established by said Branford
Zoning Regulations.
(b) Subject to such reasonable security measures, requirements and
limitations as Tenant may impose, upon restricted portions of the Building,
including vault areas, Landlord shall have the right to enter the Premises with
reasonable advance notice (except in the case of a bona fide emergency, when. no
notice shall be required) for the purpose of making any repairs for which
Landlord is expressly responsible under this Lease, and Landlord shall also have
the right to enter any public areas and common utility rooms of the Premises
during normal business hours and with reasonable advance notice for the purpose
of inspecting the same and to make access available to prospective or existing
mortgagees, purchasers, partners, investors or insurers, and with respect to
Tenant, Landlord shall have the right to show the Premises during the last nine
(9) months of the Term, including any extension thereof. Landlord agrees to use
reasonable efforts to minimize any inconvenience, annoyance or interruption to
Tenant's business operations, and to recognize and adhere to any reasonable
security requirements of Tenant in exercising such rights of entry. Landlord
shall have the right to use any and all means which Landlord may deem proper in
an emergency to obtain entry to the Premises without liability to Tenant, and
any entry to the Premises obtained by Landlord by any of said means, or
otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises or an eviction
of Tenant from the Premises or any portion thereof.
(c) Tenant shall have the right, at its sole cost and expense, to install
and maintain its own security system at the Premises, which system may prohibit
access to portions of the Premises by the Landlord, its agents, contractors or
employees.
2.3 AUTHORITY OF LANDLORD. Landlord represents and covenants that he has
full authority to enter into this Lease with Tenant.
2.4 AUTHORITY OF TENANT. Tenant represents and covenants that Tenant is a
Connecticut banking institution qualified to do business within the State of
Connecticut, Tenant has full authority to enter into the herein Lease with
Landlord, all
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action required to have been taken by Tenant to be vested with such authority
having been taken, and the party signing the herein Lease on. behalf of the
Tenant is a duly authorized officer of the Tenant authorized to execute and
deliver the herein Lease, upon the doing of which Tenant shall be fully bound
hereby.
ARTICLE III
BASE RENT
3.1 PAYMENT.
(a) Tenant agrees to pay the Base Rent to Landlord, or as otherwise
directed by Landlord with appropriate notice, commencing on October 1, 2002 or
upon issuance of a cartificate of occupancy whicher occurs first (the "Rent
Commencement Date"), without offset, abatement, deduction or demand. Following
the Rent Commencement Date, such Base Rent shall be payable in equal monthly
installments, in advance, on the first day of each and every calendar month
during the Term of this Lease, at Landlord's Original Address, or at such other
place as Landlord shall from time to time designate by written, notice.
(b) Base Rent for any partial month shall be pro-rated on a daily basis,
and if Base Rent commences on a day other than the first day of a calendar
month, the first payment which Tenant shall make to Landlord shall be payable on
the date Base Rent commences and shall be equal to a, proportionate part of the
monthly installment of Base Rent for the partial month in which Base Rent
commences.
3.2 SECURITY DEPOSIT. The Tenant has deposited with the Landlord the sum
stipulated in the definition of Basic Lease Terms as the Security Deposit for
the full and faithful performance and observance of every provision, term and
condition of this Lease to be performed by the Tenant. If Tenant defaults with
respect to any provisions, terms or conditions of this Lease, including, but not
limited to, the payment of Base Monthly Rent and additional. rent, or any other
charge due hereunder, Landlord may use, apply or retain all or any part of this
Security Deposit for the payment of any sum in default, or for the payment of
any other amount which Landlord may spend or become obligated to spend by reason
of Tenant's default, or to compensate Landlord for any other loss or damage
which Landlord may suffer by reason of Tenant's default, including, without
limitation., any damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. Landlord shall be required to keep
this Security Deposit in an segregated, interest bearing account in Tenant's
bank and may not commingle such Security Deposit with its own funds. Interest
accruing on said account shall inure to the benefit of Tenant. If Tenant shall
fully and faithfully perform every provision, term and condition of this Lease
to be performed by it, the Security Deposit, plus any accrued interest, or any
balance thereof shall be returned to Tenant (or, at Landlord's option, to the
last assignee of Tenant's interest hereunder) at the expiration of the Lease
Term and after delivery of the entire possession of the Premises to Landlord.
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In the event of the insolvency of Tenant or in the event of the entry of a
judgment in bankruptcy in any court against Tenant which is not discharged
within sixty (60) days after entry, or in the event a petition is filed by or
against Tenant under any chapter of the bankruptcy laws of the State of
Connecticut or the United States of America, then and in such event Landlord may
require the Tenant to deposit additional security in an amount which in
Landlord's sole judgment would be sufficient to adequately assure Tenant's
performance of all of its obligations under this Lease, including all payments
subsequently accruing. Failure of Tenant to deposit the security required by
this Section within ten (10) days after Landlord's written demand shall
constitute a material breach of this Lease by Tenant.
3.3 TRANSFERS.
(a) In the event of a sale or other transfer of the Premises, Landlord
shall have the right to transfer the Security Deposit to the. vendee, and the
Landlord shall thereupon be released by Tenant from all liability for the return
of such Security Deposit. Tenant agrees to look to the new landlord solely for
the return of said Security Deposit. It is agreed that the provisions hereof
shall apply to every transfer or assignment made of the security to a new
landlord.
(b) In the event of any assignment of this Lease by Tenant, at Landlord's
option, the Security Deposit shall be deemed to be held by Landlord as a
security deposit made by the assignee and Landlord shall have no further
liability in respect to the return of the Security Deposit to the assignor.
Any party succeeding to Landlord's interest in the Building or Premises by
reason of the enforcement (or proceeding in lieu thereof) of any encumbrance
shall be relieved and released from any obligation to return the Security
Deposit, except to the extent that such Security Deposit was actually
transferred to such entity as a separate fund identified as the Security
Deposit.
3.4 RENT DUE UPON TERMINATION OF LEASE. If upon, termination of this Lease
any amount due pursuant to this Article III has not yet been determined, an
appropriate payment from Tenant to Landlord, or refund from Landlord to Tenant,
shall be made promptly after such determination.
ARTICLE IV
COMMENCEMENT DATE
4.1 COMMENCEMENT DATE. The Commencement Date of this Lease, shall be
October 1, 2002 or upon issuance of a Certificate of Occupancy, whichever occurs
first.
(a) If Landlord shall fail to deliver possession to Tenant on the
Commencement Date, and such delay is not attributable to any Tenant delay or any
causes beyond Landlord's reasonable control, the Tenant shall receive a per diem
credit
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against its Base Rent for the Premises (to be applied when such Base Rent
commences) for each day of such delayed delivery. If Landlord shall fail to
deliver possession of the Premises within ten (10) days of the Commencement
Date, Tenant may elect to terminate this Lease by so notifying Landlord of such
election within ten (10) days of the expiration of such ten (10) day period, in
which event the Lease shall be null and void and of no further force or effect.
In addition to the remedy set forth above, Tenant shalt have such other remedies
as available to them in law and/or in equity.
(b) Landlord shall substantially complete all of Landlord's construction
prior to the Commencement Date. The phrases "Substantially Completed",
"Substantial Completion" or "Substantially Complete" with respect to Landlord's
construction, shall mean completion of all items of Landlord's construction
shown in said Exhibit C, and provided that same shall not prevent Tenant from.
opening the Premises for business to the general public for the purposes
contemplated under this Lease; or prevent Tenant from obtaining a Certificate of
Occupancy for the Premises' improvements.
ARTICLE V
USE AND DEVELOPMENT OF PREMISES
5.1 PERMITTED USE.
(a) Tenant may use the Premises only for Permitted Uses.
(b) All parking spaces on the Premises shall be for the exclusive use of
Tenant as shown on Exhibit X- 0.
(c) Tenant and Landlord agree to conform to the following provisions during
the Term of this Lease:
(i) Tenant shall not introduce any Hazardous Material onto the
Premises;
(ii) If Tenant's storage, use or disposal of any Hazardous Material,
in, on or adjacent to the Premises results in any contamination of the
Premises, the soil or surface or groundwater requiring remedial, removal or
cleanup action under, Environmental Laws (as defined hereinafter), Tenant
agrees, at Tenant's sole cost and expense, to undertake such action with
regard to contamination caused by Tenant in accordance with State of
Connecticut Remediation Standard Regulations, Section 22a-133K.
(iii) For purposes of this Section, "Environmental Laws" shall mean any
Federal, State or local statute, law, regulation, ordinance, code, policy,
standard or rule of common law in effect and in each case as amended as of
the Commencement Date, and any judicial or administrative interpretation
thereof as of the Commencement Date, including any judicial or
administrative order,
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consent decree or judgment, relating to the environment, health, safety or
hazardous material, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.1 as amended, 42 U.S.C. Section 9601
et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq.; the Federal Water Pollution Control Act, as amended,
33 U.S.C. Section 1251, et seq.; the Toxic Substances Control Act, 15
U.S.C. Section 2601, et seq.; the Clean Air Act, 42 U.S.C. Section 7401, et
seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f, et seq.; the Oil
Pollution Act of 1990, 33 U.S.C. Section 12701, et seq.; the Occupational
Safety and Health Act, 29 U. S.C. Section 651, et seq.; and their state and
local counterparts and equivalents, and "Hazardous Material" means any
hazardous substance, hazardous waste, petroleum or petroleum-derived
substance or waste, asbestos or any constituent of any such substance or
waste, hazardous substance, material or waste which is or become regulated
under any Environmental Law.
(iv) Tenant shall at all times, and in all respects comply with all
Environmental Laws relating to the Premises. Tenant shall not take any
remedial action in response to the presence of any Hazardous Materials in
or about the Premises, nor enter into any settlement agreement, consent
decree or other compromise with respect to any claims relating to any
Hazardous Material in any way connected with the Premises, without first
notifying Landlord of Tenant's intent to do so and affording Landlord
opportunity to appear, intervene or otherwise appropriately assert and
protect Landlord's interest with respect thereto.
(v) Tenant shall immediately notify Landlord in writing. of: (a) any
enforcement, cleanup, removal or other governmental or regulatory action
instituted, completed or threatened, against Tenant with respect to the
Premises pursuant to any Environmental Laws; (b) any claim made or
threatened by any person against Tenant or the Premises relating to damage,
contribution, cost recovery compensation, loss or injury resulting from or
claimed to result from any Hazardous Material; and (c) any reports made by
Tenant to any environmental agency arising out of or in connection with any
Hazardous Materials in or removed from the, Premises, including any
complaints, notices, warnings or asserted violations in connection
therewith. Tenant shall also supply to Landlord as promptly as possible,
and in any event within five (5) business days after Tenant first receives
or sends the same, with copies of all claims, reports, complaints, notices,
warnings or asserted violations, relating in any way to Hazardous Material
in, on or about the Premises.
(vi) Tenant shall indemnify., defend (by counsel reasonably acceptable
to Landlord), protect and hold Landlord, his successors and assigns, free
and harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses or expenses (including reasonable attorneys' fees), or
death of or injury to any person or damage to any property whatsoever,
arising from, out of or in connection with, or caused in whole or in part,
by (a) the presence in, on, under
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or about the Premises, or the discharge in, on, under or from the
Premises, of any, Hazardous Material brought or caused to be brought
into or onto the Premises by or on behalf of Tenant, its
representatives, employees, agents and/or invitees, except for the
presence in, on, under or about the Premises, or any discharge in, on,
under or from the Premises of any Hazardous Material or asbestos caused
by Landlord or their representatives, employees, agents, invitees
and/or other occupants of the building of which the Premises is a part,
existing prior or subsequent to the Tenant's occupancy, in which event,
Landlord shall indemnify, defend (by counsel reasonably acceptable to
Tenant), protect and hold Tenant, its successors and assigns, free and
harmless from and against any, and all claims, liabilities, penalties,
forfeitures, losses or expenses (including reasonable attorney's fees)
or death of or injury to any person or damage to any property
whatsoever, arising from, out of or in connection with, or caused by,
said event; or (b) Tenant's use, analysis, storage, transportation,
disposal, release, threatened release, discharge or generation of
Hazardous Material to, in, on, under., about or from the Premises; or
(c) Tenant's failure, to comply with any Environmental Law. Tenant's
and Landlord's obligations under this Section 5.1 shall include,
without limitation, and whether foreseeable or unforeseeable, all costs
of any nature required or necessary for repair, cleanup or
detoxification or decontamination of the Premises, or the preparation
and implementation of any closure, remedial action or other required
plans in connection therewith, and shall survive the expiration of the
Term or earlier termination of this Lease. For the purpose of this
Section 5.1, any acts or omissions of Tenant, or by employees, agents,
assignees, subtenants, contractors or subcontractors of Tenant or
others acting for or on behalf of Tenant (whether or not they are
negligent, intentional, willful or unlawful) shall be strictly
attributable to Tenant.
5.2 LEASEHOLD IMPROVEMENTS BY LANDLORD. Landlord, at his sole cost and
expense, shall, on or before the Commencement Date of this Lease, complete the
Leasehold Improvements set forth on Exhibit C. Tenant agrees that it has fully
inspected the Premises in its "as is" "where is" condition to its satisfaction
and s satisfaction and Tenant agrees to accept possession of the Premises upon
completion of Landlord's Improvements as provided for Tenant agrees to accept
possession of the Premises upon completion of Landlord's Improvements as
provided for herein. Tenant agrees that it has not relied upon any
representation or statements of the Landlord or his agents regarding the
Premises except as otherwise expressly provided in this Lease. Landlord
represents that all plumbing, mechanical, electrical and heating, ventilating
and air conditioning systems in the Premises, as well as all structural elements
of the Premises are in good operating condition and, repair, normal wear and
tear excepted.
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5.3 INSTALLATIONS AND ALTERATIONS BY TENANT.
(a) Tenant shall construct Tenant's Initial Leasehold Improvements
substantially in accordance with plans and specifications on Exhibit D, as the
same may be modified from time to, time as provided herein ("Tenant's
Construction"). All of Tenant's Construction shall (i) be made in accordance
with complete construction plans and specifications approved by Landlord, which
approval shall not be unreasonably withheld, delayed or conditioned; (ii) be
constructed in a good and workmanlike manner and in compliance with all
applicable laws, codes, regulations, permits and approvals required by any
governmental entities having jurisdiction therefore; and (iii) be made at
Tenant's sole expense.
(b) Subsequent to the completion of Tenant's Construction, Tenant shall
make no further alterations, additions or improvements in or to the Premises
wherein the cost of said alterations, additions or improvements exceed $20,000
per alteration, addition or improvement during the Term of this Lease without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed, provided that Tenant fully complies with the
provisions of this Section 5.3, and provided further that such consent shall
expressly indicate the extent to which such alterations, additions, or
improvements must be removed by Tenant at the expiration of this Lease or, if
applicable, must then remain on the Premises. Landlord shall not, however,
require any such removal if the alterations, additions, or improvements could be
reasonably expected to be reusable by the succeeding tenant in the Premises. Any
such alterations, additions or improvements shall (i) be made in accordance with
complete construction plans and specifications approved by Landlord, which
approval shall not be unreasonably withheld, delayed or conditioned; (ii) be
constructed in a good and workmanlike manner and in compliance with all
applicable laws, codes, regulations, permits and approvals required by any
governmental entities having jurisdiction therefore; and (iii) be made at
Tenant's sole expense.
(c) Upon any termination. or earlier expiration of this Lease. Tenant shall
surrender the Premises in the same condition as existed at the Commencement
Date, except for normal wear and tear and damage caused by the elements,
casualty or any other cause for which Tenant might not be liable.
(d) All articles of personal property and all business and trade fixtures,
communications equipment, machinery and equipment and furniture owned or
installed by Tenant in the Premises ("Tenant's Removable Property") shall remain
the property of Tenant and shall be removed by Tenant at the expiration or
earlier termination of this lease, and Tenant, at its expense, shall repair any
damage to the Building caused by such removal.
(e) Notice is hereby given that Landlord shall not, be liable for any labor
or materials furnished or to be furnished by contractors, mechanics or suppliers
to Tenant
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upon credit, and that no mechanic's or other lien for any such labor or
materials shall attach to or affect the reversion or other estate or interest of
Landlord in and to the Premises. Whenever and as often as any mechanic's lien
shall have been filed against the Premises based upon any act or interest of
Tenant or of anyone claiming through Tenant, Tenant shall forthwith take such
action by bonding, deposit or payment as will remove or satisfy the lien within
sixty (60) days after the lien is recorded.
5.4 OPERATION OF BUSINESS.
(a) Tenant shall, subject to Section 12.20, during the entire Term not use
or suffer or permit to be used the Premises or any part thereof in any manner
which constitutes a nuisance or in any manner that will adversely affect the
structural strength of the Building in which the Premises are located.
(b) Tenant shall have no covenant to operate its business in the Premises
or remain open for business in the Premises. Tenant's closing for business
shall. not alter, affect, change or modify Tenant's obligation to pay Rent or to
perform any of Tenant's other obligations under this Lease. Tenant's closing for
business pursuant to, and, in accordance with, this Section shall not constitute
a default under this Lease. Provided, however, that if the Building is
unoccupied, the Tenant agrees that the utilities shall remain operating and the
Premises shall be kept in a secure and well-maintained state, to the extent that
such maintenance obligations shall be the responsibility of Tenant.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 TENANT'S RIGHT TO ASSIGN OR SUBLEASE.
(a) This lease may be assigned, without the permission of Landlord, by
Tenant, or any entity into or with which Tenant is merged or consolidated or any
entity to which substantially all of Tenant's assets are transferred or any
entity which controls or is controlled by Tenant or which Tenant or any member
of its board of directors is under common control with Tenant or with which
Tenant or any member of its board of directors, directly or indirectly, has a
fifty (50%) percent or greater ownership interest, or which directly or
indirectly, has a fifty (50%) percent or greater interest in Tenant. As used in
this Section, "control" and its conjugations and declensions means the
possession, whether direct or indirect, of the power to direct or cause the
direction of the management and policies of the business entity. Further, Tenant
may assign this Lease to a parent, subsidiary, or affiliate corporation without
Landlord's further prior consent, provided Tenant's parent owns not less than
fifty (50%) percent of Tenant or Tenant owns not less than fifty (50%) percent
of a subsidiary affiliate corporation. Provided, however, within thirty (30)
days of said assignment, Tenant agrees to give notice to Landlord indicating the
name, address and affiliation of assignee.
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(b) In addition, Tenant shall have the further right to assign or sublease
this Lease in whole or in part without Landlord's consent to such other entity
not otherwise referenced in subparagraph (a) above, subject to the following
conditions:
(i) At the time of the making of said assignment, there is no default
under any of the agreements, terms, covenants and. conditions hereof on the
part of the Tenant to be performed.
(ii) The Landlord shall receive written notice, together with a
duplicate, of such assignment and the effective date thereof within ten
(10) days after the execution and delivery of such assignment.
(iii) Such assignment shall be in writing, duly executed and
acknowledged by the Tenant in the proper form for recording.
(iv) No assignment of this Lease shall release or discharge, in whole
or in part, the Tenant's liability for the full performance of the terms,
covenants and conditions of this Lease.
(c) Tenant shall have the further right to sublease all or a portion of the
Premises upon the terms and conditions set forth in subparagraph (b) above with
respect to an assignment; provided, however, that such subletting need not be
for the entire unexpired balance of the term of the lease.
(d) If all or any part of the leased Premises be sublet by any person other
than Tenant, Landlord may, after default by the Tenant, collect from any and all
subtenants or occupants, and apply the net amount collected to the rent herein,
but no such collection shall be deemed a waiver of any agreement, term, covenant
or condition hereof, nor acceptance by Landlord of any subtenant or occupant as
Tenant.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES
7.1 REPAIRS.
(a) During the term of the Lease, Landlord shall be responsible at his sole
cost and expense for any maintenance, repair and replacement, as may be
necessary or advisable, to the roof or roof cover, and structural components
(i.e., exterior walls and foundation) of the Building in which the Premises are
located and for the replacement as may be necessary or advisable after Tenant's
Construction of the heating, ventilating and air conditioning systems of the
Premises ("HVAC System"), if any, after all warranty periods expire, and
utilities outside of and not exclusively serving the Premises. Landlord shall
perform such work after reasonable notice to Tenant and at a time and in a
manner so as to minimize the disruption of or interference with Tenant's normal
conduct of business or access to the Premises and in conformance with all
security requirements reasonably imposed upon the Premises by the Tenant, but
nothing contained herein shall require Landlord to incur overtime expenses for
any such work.
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Except as set forth in the preceding and the succeeding paragraph, Tenant
shall, commencing on the Commencement Date and thereafter at all times during
the Term, be solely responsible at its sole cost and expense for ordinary
maintenance of the Premises ,so as to maintain the same in good order and in
sanitary and safe condition and repair and in compliance with all governmental
laws, ordinances, codes and, other requirements and all insurance requirements.
Those elements of the Premises for which Tenant shall be responsible include, by
way of example and not limitation, the following, except as otherwise provided
in. paragraph (a) above: all repairs and replacements to and maintenance of the
Building not otherwise the responsibility of Landlord, its mechanical electrical
and plumbing systems, fixtures and other improvements and the HVAC system. All
such costs incurred by Tenant in connection with this paragraph shall be deemed
Operating Expenses. Except as specifically set forth herein to be the
responsibility of Landlord, all other repairs not otherwise mentioned herein
shall be the responsibility of Tenant. Landlord shall not assess Tenant any
management or administrative fees in connection with this Lease.
(b) Landlord shall be further responsible for the Premises' sidewalks and
parking areas and shall further be responsible for snow and ice removal.
(c) Each of Landlord and Tenant shall promptly perform any maintenance and
make any repair or replacement which Landlord or Tenant is required to make
pursuant to Section 7. 1 (a) in a good and workmanlike manner and in conformance
with all applicable laws, ordinances and codes and insurance requirements. If a
party (the "Requesting Party") has given written notice to the other ("Obligor")
of the need to perform such maintenance or to make such repairs or replacements,
and the Obligor has failed to commence to take appropriate actions and/or
complete such work (as the case may be) within a reasonable time after receipt
of such notice based upon the nature of the work, but, in no event, exceeding
thirty (30) days after notice,, or thereafter fails to proceed with reasonable
diligence to complete such work, the Requesting Party may, but shall not be
obligated to, complete such work after prior written notice to the Obligor of
its or his intention to do so. The Requesting Party shall provide the Obligor
with reasonable documentation evidencing the reasonable costs and expenses,
incurred by the Requesting Party in exercising this right of self-help. The
Obligor shall reimburse the Requesting Party for reasonable costs and expenses
incurred by the Obligor within ten (10) days after receiving the Requesting
Party's documentation. Notwithstanding the foregoing, in the event that any
occurrence upon the Premises in the reasonable and good faith judgment of the
Requesting Party (such occurrence being referred- to herein as an "Emergency"),
and such Emergency is of such a nature that the Obligor is required to remedy
same under the terms of this Lease, and if the Obligor shall not immediately
take such steps as are necessary to cause an abatement of the condition or
conditions giving rise to such Emergency after receiving notice thereof from the
Requesting Party, then, in such event the Requesting Party may thereafter take
such steps and engage in such curative actions as are reasonably required to
xxxxx the Emergency without further notice to the Obligor, upon the doing of
which the Requesting Party shall be entitled to reimbursement from the
13
Obligor for the costs to the Requesting Party of all, such curative actions, and
the Obligor shall be obligated to pay same within thirty (30) days after receipt
of such invoice and supporting documentation from the Requesting Party.
(d) Tenant agrees that it will not commit or permit waste at the Premises
and will surrender the Premises in a broom-clean condition at the expiration of
the Lease, normal wear and tear and loss by casualty excepted, and except as
provided in Paragraph 5.3(a) and (c), above.
(e) Tenant may, but shall not be obligated to, trim trees to maintain
visibility Tenant's signs.
7.2 COMPLIANCE WITH LAW. In regard to the Premises and remaining property
of Landlord of which the Premises are a part, Landlord represents to Tenant,
that' Landlord has no present notices of any violations of any laws (including
ADA and applicable Environmental Laws), ordinances, rules, regulations or orders
from any governmental authority with respect to the Premises. Landlord and
Tenant each agree to comply promptly with the laws, ordinances, rules,
regulations and orders of all governmental authorities in effect from time to
time during the Term with respect to the Premises, including, without
limitation, the Americans with Disabilities Act ("ADA"). Further, Tenant shall
comply with all laws, ordinances, rules, regulations and orders of all
governmental authorities in effect from time to time during the Term with
respect to the conduct of Tenant's business at the Premises, including, without
limitation, the Federal Occupational Safety and Health Act of 1970, and will
obtain and maintain any and, all licenses and permits necessary for any such
use, and shall further comply with all reasonable insurance requirements
relating to the conduct of Tenant's business imposed by any insurers of the
Premises, provided that such insurance requirements do not unreasonably
interfere with the conduct of Tenant's business.
7.3 BUILDING SERVICES.
(a) Commencing on the Commencement Date and thereafter at all times, Tenant
shall provide or cause to be provided services to the Premises:
(i) All utilities serving the Premises.
(ii) Premises janitorial and trash removal services.
7.4 UTILITIES. Tenant shall have no responsibility for any charges accruing
prior to the Commencement Date. Commencing on the Commencement Date and
thereafter at all times, Tenant shall, at its own expense, pay before
delinquency directly to the utility company or other provider thereof for all
water, sewer, gas, electricity, telephone and all other utilities consumed on
the Premises and for all other charges for said utilities, for the Premises. In
no event shall Landlord be responsible for damages to
14
Tenant caused by the temporary interruption of utility services to Tenant or the
Premises, nor shall Rent be offset as a result of any such interruption.
Landlord shall provide separate meters, where applicable, to the Premises.
ARTICLE VIII
OPERATING AND TAX EXPENSES
8.1 TENANT'S PAYMENTS.
(a) Commencing on the Commencement Date and continuing thereafter at all
times, Tenant shall be liable for the payment of Tenant's Operating and Tax
Expenses as additional, rent, which amount shall be apportioned for any period
in which the Commencement Date falls or the Term of this Lease expires or
otherwise terminates.
(b) Prior to their payment date, Landlord shall submit to Tenant the Tax
bills and Tenant shall pay such amounts directly to the Town of Branford prior
to their due date.
8.2 PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all
license fees, public charges, property taxes and assessments. on the furniture,
fixtures, equipment and other property of the Tenant or being used by Tenant at
any time situated on or installed in the Premises.
8.3 OTHER TAXES. Nothing contained in this Lease shall require the Tenant
to pay any income, franchise, corporate-, estate, inheritance, succession,,
capital, levy or transfer tax of the Landlord.
ARTICLE IX
INDEMNITY AND INSURANCE
9.1 INDEMNITY. Tenant agrees to indemnify, defend, protect and save
harmless Landlord from and against all claims and liabilities of whatever nature
arising from, out of or in connection with any accident, injury, death or damage
whatsoever to any person or to the property of any person, occurring on or about
the Premises after Tenant enters upon the Premises to make its improvements to
the Premises or the Commencement Date, whichever, occurs first, until the end of
the Term of this Lease, including, without limitation, the negligence or willful
misconduct of Tenant or its employees, agents or contractors, any breach or
default on the part of Tenant in the performance of any covenant or agreement on
the part of Tenant to be performed pursuant to the terms of this Lease, or any
acts or omissions of any person. upon the Premises by license of Tenant or of
any person or entity deriving his, her or its right to occupy the Premises or
any part thereof from, by or through Tenant, except to the extent (if any) any
of the foregoing is caused by the negligence or willful misconduct of Landlord
or its employees, agents or. contractors, or the breach or default on the part
of the Landlord in the performance of any covenant or agreement on the part of
the Landlord
15
to be performed pursuant to the terms of this Lease, in which event, Landlord
agrees to indemnify, defend, protect and save harmless Tenant from and against
claims and liabilities of, whatever nature arising from such breach or from such
negligence or willful, misconduct of Landlord, or its employees, agents or
contractors. This indemnity and hold harmless agreement shall include indemnity
against all costs, expenses and liabilities incurred in or in connection with
any such claim or proceeding brought thereon and the costs at both the trial and
appellate levels. When the claim is caused by the joint negligence or willful
misconduct of Landlord and Tenant or Landlord and a third party unrelated to
Landlord (except Landlord's agents, contractors, employees or invites),
Landlord's and Tenant's duty to defend, indemnify and hold the other harmless
shall be .in proportion to Landlord's and Tenant's allocable share of the joint
negligence or willful misconduct. The indemnities, under this subsection are
given subject to the provisions of Section 9.4 hereof.
9.2 PUBLIC LIABILITY INSURANCE. Tenant agrees as to the Premises to
maintain in full force at Tenant's sole cost and expense from the Commencement
Date, throughout the Term of this Lease, and thereafter so long as Tenant is in
possession of any part of the Premises, a policy of Public Liability Insurance
and workers' compensation insurance as required by law (collectively "Tenant's
Policy"), Tenant's Policy shall name Tenant as an insured and Landlord shall be
named as an additional insured. Tenant's Policy shall be non-cancelable and
non-amendable with respect to Landlord without thirty (30) days' prior notice
and shall be in at least the amount of the Public Liability Insurance specified
in Section 1.1, and a duplicate original or Evidence of Insurance certificate of
Tenant's Policy shall be delivered to Landlord. Tenant shall maintain at its
sole cost and expense such insurance on its personal, property as Tenant deems
appropriate.
9.3 PROPERTY AND CASUALTY INSURANCE. Tenant shall pay for and shall
maintain in full force and effect at all times a standard policy or policies
insuring against "all risk" perils (also known as "special perils") covering the
Building and other improvements owned by Landlord at the Premises in an amount
at least sufficient to avoid the effect of coinsurance provisions of the policy
or policies (i.e., not less than eighty percent (80%) of the actual replacement
cost of the Premises and other improvements, without deduction for depreciation
and excluding foundations, excavation costs and the cost of underground flues,
pipes and drains, if such costs are properly excludable under co-insurance
requirements). Such insurance may include a standard form of lender's loss
payable endorsement, issued to the holder or holders of mortgage or deed of
trust secured in whole or in part by the Premises and the other parcels on which
the insured improvements are located. Tenant agrees that it shall cause such
policy or policies of insurance to be issued and shall provide to Landlord upon
its request made from time, to time an Evidence. of Insurance certificate
evidencing that such insurance has been procured and is in full force and
effect. Tenant may elect to maintain flood coverage. All proceeds of such
policies shall belong to Landlord and Tenant shall not claim thereto.
16
WAIVER OF SUBROGATION. Landlord and Tenant mutually agree that any property
damage insurance carried by either shall provide for the waiver by the insurance
carrier of any right of subrogation against the other, and they further mutually
agree that, with respect to any damage to property, the loss from which is
covered by insurance then being carried by them, respectively, the one carrying
such insurance and suffering such loss released the other of and from any and
all claims with respect to such loss.
ARTICLE X
FIRE, EMINENT DOMAIN, ETC.
10.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or other
casualty, Base Rent payable by Tenant shall be justly and equitably abated and
reduced according to the nature and extent of the loss of the use thereof
suffered by the Tenant for the period in which, by reason of such damage, there
is material interference with Tenant's use of the Premises, having regard to the
extent to which Tenant is required to discontinue Tenant's. use of all or a
portion of the Premises, but such abatement or reduction shall end if and when
Landlord shall have restored the Premises to the condition in which they were
prior to such damage. If the Premises shall be affected by any exercise of the
power of eminent domain, Base Rent payable by Tenant shall be justly and
equitable abated and reduced according to the nature and extent of the loss of
use thereof suffered by Tenant. In no event shall Landlord have any liability
for damages to Tenant for inconvenience, annoyance or interruption of business
arising from such fire, casualty or eminent domain.
10.2 RIGHTS OF TERMINATION. Within thirty (30) days from the date of damage
by fire or other casualty. Landlord shall notify Tenant whether or not the
Premises can be restored to its original condition within ninety (90) days from
the date of such damage. For purposes hereof, the Building or Premises shall be
deemed, "restored" if they are in substantially the same condition as they were
in prior to such damage. If the Premises cannot be so restored within ninety
(90) days, Tenant shall have the option, but not the obligation, by giving
written notice, within ten (10) days after delivery of Landlord's notice, of
terminating this Lease as of the date of such damage. In the event of the giving
of such notice, this Lease shall terminate and all interest of the Tenant in the
Premises shall terminate as of the date of such damage as if such date had been
originally fixed in this Lease for the expiration of the Term.
10.3 RESTORATION. In the event that Tenant does not exercise its above set
forth option to terminate this Lease in the event of damage by fire or other
casualty, then Landlord shall repair or restore such damage, this Lease
continuing in full force and effect, with the Base Rent hereunder to be
equitably abated as herein above provided. In the event that (a) Landlord
notifies Tenant that the Premises can be materially restored within ninety (90)
days from the date of damage by fire or other casualty pursuant to Section 10.2
and Landlord fails to materially restore the Premises within such ninety (90)
17
day period, or (b) if Landlord's notice provides that the Premises cannot be,
restored within ninety (90) days, Tenant does not elect to terminate the Lease
as provided in Section 10.2, and Landlord fails to materially restore the
Premises within a ninety (90) day period, then Tenant as its sole and exclusive
remedy shall be entitled to terminate this Lease by giving Landlord notice of
such termination within ten (10) days after the expiration of such period and
this Lease shall terminate as of the date of such damage as if such date had
been originally fixed in this Lease for the expiration of the Term; provided,
however, that if Landlord shall be delayed in, hindered in, or prevented from,
completing the restoration within said period by reason of Force Majeure
(defined in Section 12.20), or if the delay shall be due to delay in receipt of
custom ordered items, then the time for completion of the restoration shall be
extended for the period of the delay (but in no event more than thirty (30)
days). Landlord shall not be required to repair any damage by fire or other
casualty to improvements installed in the Premises by Tenant or to any of
Tenant's personal property or equipment; and if Landlord shall restore the
Premises, Tenant shall be required to repair and restore such improvements at
Tenant's cost and expense.
10.4 EMINENT DOMAIN. If possession of all or more than fifteen percent
(15%) of the floor area of the Building or parking area shall be taken by any
public or quasi-public authority under the power of eminent domain, or
conveyance in lieu thereof, Tenant shall have the right, at its option, of
giving the Landlord, at any time within thirty (30) days after such taking,
notice terminating this Lease. In the event the Tenant does not elect to
terminate the Lease as aforesaid, the Landlord shall promptly restore the
portion of the Building or Premises which have not been taken to a functional,
habitable unit, and. the parties will negotiate in good faith an equitable
adjustment to Base Rent.
10.5 CONDEMNATION AWARD. Landlord shall have and hereby reserves and
excepts, and Tenant, hereby grants and assigns to Landlord, all rights to
recover for damages to the Premises and to compensation accrued or hereafter to
accrue by reason of such taking by a condemning authority, and by way of
confirming the foregoing, Tenant hereby grants and assigns, and covenants with
Landlord to grant and assign to Landlord, .all rights to such damages or
compensation from the condemning authority; provided, however, if any such
damages or compensation award expressly includes an amount for Tenant's
Removable Property or Tenant's moving expenses, Landlord shall pay such amount
to Tenant promptly after Landlord's receipt thereof Nothing contained herein
shall be, construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the value of any of Tenant's Removable Property
installed in the Premises by Tenant and for relocation, expenses, provided such
Tenant award shall not diminish the amount of award attributable to Landlord.
18
ARTICLE XI
DEFAULT
11.1 TENANT'S DEFAULT.
(a) If at any time subsequent to the date of this Lease any one or more of
the following events (herein referred to as a "Default of Tenant") shall happen:
(i) Tenant shall fail to pay the Base Rent when due and such failure
shall continue for fifteen (15) days after such due date;
(ii) Tenant shall fail to pay Tenant's Operating and Tax Expenses or
other charges hereunder when due and such failure shall continue for thirty
(30) days after the same shall be due and payable; or
(iii) Tenant, shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or observed and
Tenant shall fail to remedy the same as soon as practicable and in any
event within thirty (30) days of the expiration of the thirty (30) days
from the date written notice to Tenant specifying such neglect or failure,
or if such failure is of such a nature that Tenant cannot reasonably remedy
the same within such thirty (30) day period following the expiration of the
thirty (30) days from the date written notice is given by Landlord, Tenant
shall fail to commence promptly (and in any event within such thirty (30)
day period) to remedy the same and to prosecute such remedy to completion
with diligence and continuity; or
(iv) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(v) Tenant shall make an assignment for the benefit of creditors or
shall file a voluntary petition in bankruptcy or shall be adjudicated
bankrupt or insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or, future
Federal, State or other statute, law or regulation for the relief of
debtors, or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or substantially all of
its properties, or shall admit in writing its inability to pay its debts
generally as they become due; or
(vi) A petition shall be filed against Tenant in bankruptcy or under
any other law seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present
or future Federal, State
19
or other statute, law or regulation and shall remain undismissed or
unstayed for an aggregate of sixty (60) days (whether or not consecutive),
or if any debtor in possession (whether or not Tenant) trustee, receiver or
liquidator of Tenant or of all or any substantial part of its properties or
of the Premises shall be appointed without the consent or acquiescence of
Tenant and such appointment shall remain unvacated or unstayed for an
aggregate of ninety (90) days (whether or not consecutive);
then in any such case, Landlord may terminate this Lease, and this
Lease shall come to an end on the date specified in such notice as fully
and completely as if such date were the date herein originally fixed for
the expiration of the Term of this Lease., and Tenant will then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
(b) If this Lease shall have been terminated as provided in this Article,
or if any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the Premises shall be taken or occupied by someone
other than Tenant, then Landlord may re-enter the Premises in conformance with
any final judgment order in a summary process action and remove and dispossess
Tenant and all other persons and any and all property from the same, as if this
Lease had not been made, and
Landlord shall use commercially reasonable efforts to relet the whole
or any portion or portions 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 of this Lease, 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; provided,
however, that provided that Landlord has complied with its obligations pursuant
to this paragraph, Landlord 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 such failure
shall operate to relieve Tenant of any liability under this Lease or otherwise
affect any such liability, and 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, on its own behalf and on behalf of all persons claiming through
or under Tenant, including all creditors, does further hereby waive any and all
rights which Tenant and all such persons might otherwise have under any present
or future law to redeem the Premises, or to reenter or repossess the Premises,
or to restore the operation of this Lease, after (a) Tenant has been
dispossessed by a judgment or by warrant of any court or judge, or (b) any
reentry by Landlord, or (c) any expiration or termination of this Lease and the
Term, whether such dispossess, reentry, expiration or termination shall be by
operation of law or pursuant to the provisions of this Lease. The words
"reenter,"
20
"reentry" and reentered" as used in this Lease shall not be deemed to be
restricted to their technical legal meanings. The right to invoke the remedies
hereinbefore set forth are cumulative and shall not preclude Landlord from
invoking any other remedy allowed at law or in equity.
If this Lease shall be terminated and come to an end as provided in (a)
hereof, or by or under any. summary proceeding or any other action or
proceeding, then in any of said events:
(i) Tenant shall pay to Landlord all Base Rent payable under this Lease
by Tenant to Landlord to the date upon which this Lease and the Term shall
have expired and come to an end or to the date of reentry upon the Premises
by Landlord, whichever occurs first;
(ii) Tenant also shall pay to Landlord, as damages, the excess if any,
of (a) the Rent for the period which otherwise would have constituted the
unexpired portion, of the Term, over (b) the net amount, if any, of rents
collected under any reletting effected pursuant to the provisions of this
Article for any part of such period (first deducting from the rents
collected under any such reletting, all of Landlord's reasonable expenses
in connection with the termination of this Lease, Landlord's reentry upon
the Premises and with such reletting, including, but not limited to, all
reasonable repossession costs, brokerage commissions, legal expenses,
attorneys' fees and disbursements alteration costs, contribution to work
and other expenses of preparing the Premises for such reletting) (such
excess being, referred to herein as a "Deficiency"); any such Deficiency
shall be paid in monthly installments by Tenant on the days specified in
this Lease for payment of installments of Base 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.
(iii) Whether or not Landlord shall have collected any monthly
Deficiency as aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiency as and for liquidated and agreed final damages, a sum equal to
the amount by which the Rental for the period which otherwise would, have,
constituted the unexpired portion of the Term (commencing on the date
immediately succeeding the last date with respect to which a Deficiency, if
any, was collected) exceeds the then fair and reasonable rental value of
the Premises for the same period, both discounted to present worth at the
Base Rent; 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 in an arms length transaction for the period
which otherwise would have constituted the unexpired portion of the Term,
or any part thereof, the amount of rent reserved upon such reletting
21
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 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.
(iv) Tenant shall in no event be entitled to any rents collected or
payable under any reletting, regardless of whether such rents exceed the
Base Rent reserved to this Lease. Nothing contained in this Article shall
limit or preclude the recovery by Landlord from Tenant of the maximum
amount allowed to be obtained as damages by any statute or rule of law, or
any sums or damages to which Landlord may be entitled in addition to the
damages set forth in this Article.
(c) Landlord may elect not -to terminate Tenant's right to possession
because ,of Tenant's default or breach, but continue this Lease in full force
and effect; and in that event Landlord may enforce all rights and remedies under
this Lease to recover the Base Rent and all other amounts due under this Lease
as such Base Rent and other amounts become due under this Lease.
ARTICLE XII
MISCELLANEOUS, PROVISIONS
12.1 WAIVER. Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of Tenant or Landlord, no matter how long the
same may continue,, shall never be a waiver by Landlord or by Tenant of any
rights hereunder. Further, no waiver at any time of any of the provisions hereof
by Landlord or by Tenant .shall be construed as waiver of any of the other
provisions hereof, and a waiver at any time of any of the provisions hereof
shall not be construed as a waiver at any subsequent time of the same
provisions. To be effective, any waiver must be in writing, signed by the
waiving party and delivered to the other party. The consent or approval of
Landlord or Tenant to or of any action requiring such consent or approval shall
not be construed to waive, or render' unnecessary Landlord's or Tenant's consent
or approval to or of any subsequent similar act by the other.
12.2 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the Base Rent and Tenant's Operating and
Tax Expenses and observing, keeping and performing all of the other terms and
provisions of this Lease on Tenant's part to be observed, kept and performed,
all within any applicable grace period allowed in this Lease, shall lawfully,
peaceably and quietly have, hold, occupy and enjoy the Premises during the term
hereof without hindrance or ejection by Landlord or persons claiming by, through
or under Landlord.
12.3 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall, to any
extent, be held by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be
22
affected thereby, and each term and provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law.
12.4 PROVISIONS BINDING, ETC. The terms hereof shall be binding upon and
shall inure to the benefit of Landlord and Tenant and the successors and
assigns, respectively, of Landlord and Tenant; however, this Section shall not
affect Article VI. Each term and each provision of this Lease to be performed by
Landlord or by Tenant shall be construed to be both a covenant and a condition.
12.5 RECORDING. Landlord and Tenant agree not to record this Lease,
however, each party hereto agrees, on the request of the other, to execute a
so-called notice of lease in recordable form, the form of which is attached
hereto as Exhibit E, which notice may be recorded on the Branford Land Records.
The party requesting such recording shall bear all costs associated therewith.
Tenant agrees to promptly execute and deliver to Landlord a termination of said
notice of lease upon termination of this Lease for any reason and hereby
appoints Landlord as its attorney in fact to execute and record such notice in
the event Tenant shall fail to do so following demand.
12.6 NOTICES. Whenever, by the terms of this Lease. notices shall or may be
given, either to Landlord or to Tenant, such notice shall be in writing. All
such notices shall be delivered in hand, sent by certified mail, postage
prepaid, return receipt requested, or sent by an overnight express courier
service which provides, evidence of delivery or attempted delivery. Copies of
any notices to Tenant shall be delivered or sent as aforesaid to:
TENANT: Bank of Southern Connecticut
000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxxx 065 10
ATTN: Xxxxxx X. Xxxxxxxx
LANDLORD: 000 Xxxx Xxxx Xxxxxx LLC
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(with alternate notice by fax at 000 000-0000)
with a copy to: Xxx X. Xxxxxx, Esq.
000 Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
(fax: 000 000-0000)
12.7 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease or a
reservation of, or option for, the Premises, and this document shall become
effective and binding only
23
upon the execution and delivery hereof by both Landlord and Tenant. All prior
negotiations,, considerations, representations and understandings between
Landlord and Tenant are of no force or effect, and this Lease expressly
supersedes any proposals or other written documents relating hereto. This Lease
may be modified or altered only by written agreement between Landlord and
Tenant, and no act or omission of any employee or agent of Landlord and Tenant
shall alter, change or modify any of the provisions hereof
12.8 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
12.9 RIGHTS OF MORTGAGEE. Upon request, Landlord and Tenant agree to
execute a non-disturbance agreement substantially in form attached as Exhibit F
hereto from each and every mortgagee and other lien holder having an interest in
the Property. Subject to the conditions hereinafter set forth, this Lease, and
all rights of Tenant hereunder, shall be subject and sub ordinate to all
mortgages which may hereafter affect the Property whether or not such mortgages
shall also cover other lands and/or buildings, to each and every advance -made
or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such mortgages and all
consolidations of such mortgages, on the express condition that, with respect to
an such mortgage hereafter placed on the Property, Tenant receives a so-called
"non-disturbance" agreement by such holder, in form reasonably acceptable to
Tenant or Tenant's counsel, substantially in the form attached hereto as Exhibit
F., to the effect that all of Tenant's rights hereunder shall be recognized by
such holder. Provided that such non-disturbance agreement has been delivered to
Tenant, such subordination shall be automatic -and without need for any
additional action or documentation. Without derogating from the foregoing, in
confirmation of such subordination, and subject to the. foregoing condition,
Tenant shall promptly execute, acknowledge and deliver any instrument that
Landlord, the holder of any such mortgage or nay of their successors in interest
may reasonably request to evidence such subordination (including an agreement
substantially in the form attached hereto as Exhibit F).
12.10 ESTOPPEL CERTIFICATES. Within ten (10) days following any written
request which Landlord or Tenant ("Requesting Party") may make from time to time
to the other party hereto ("Responding Party"), the Responding Party shall
execute and deliver to the Requesting Party, any prospective purchaser,
mortgagee or prospective mortgagee, a sworn statement certifying as to: (a) the
Commencement Date of this Lease, (b) the fact that this Lease is unmodified and
is in full force and effect, or if there have been modifications hereto, that
this Lease is in full force and effect, as modified (and attaching a copy of
such modifications), (c) the date to which the Base Rent has been paid and the
amount of such Base Rent, (d) the fact that there are no current defaults under
this Lease nor any events or conditions which, with the giving of notice or the
lapse of time or both, would constitute a default, by the Responding Party or,
to the best of the
24
Responding Party's knowledge, the Requesting Party, except as specified in the
Responding Party's statement, (e) the extent to which any options to extend the
Term or expand the Premises have been exercised by Tenant, (f) the amount of any
Security Deposit held by Landlord, (g) the fact that Tenant has not assigned,
pledged, or transferred any interest in the Lease or sublet any portion of the
Premises or, if Tenant has so assigned, pledged, transferred or sublet, the
extent of such assignment, pledge, transfer or subletting, (h) to the best of
the Responding Party's knowledge, all of Landlord's obligations with respect to
the installation of improvements to the Premises to prepare them for Tenant's
use have been satisfied (or the extent to which they have not been satisfied),
(i) that (if the Responding Party is Tenant) no actions, whether voluntary or
otherwise, are pending against Tenant under any bankruptcy laws of the United
States or any state thereof, and 0) such other matters reasonably requested by
the Requesting Party. Tenant and Landlord acknowledge that any statement
delivered pursuant to this Article may be relied upon by any such party, and the
Responding Party shall be liable for all loss, cost or expense resulting from or
caused by any material misstatement contained in such estoppel certificate.
12.11 HOLDING OVER. Any holding over by Tenant after the Term of this Lease
shall be treated as a month-to-month tenancy, terminable on thirty (30) days'
written notice by either party to the other, at one hundred thirty-five percent
(13.5%) of the Base Rent in effect for the last month of the Term, plus other
charges herein provided and shall otherwise be on the terms and conditions set
forth in this Lease as far as applicable, and Tenant shall not be liable to the
Landlord for actual or, consequential damages which Landlord may suffer as a
result of such holding over.
12.12 SURRENDER OF PREMISES. Upon the expiration or earlier termination of
the Term of this Lease, Tenant shall peaceably quit and surrender to Landlord
the Premises in neat and clean condition and in good order, condition and
repair, together with all alterations, additions and improvements which may have
been made or installed in, on or to the Premises prior to or during the Term of
this Lease (subject to requirements set forth in or established pursuant to
Section 5.3(a)), excepting only ordinary wear and use and damage by fire or
other casualty for which, under other provisions of this Lease, Tenant has no
responsibility for repair or restoration. Tenant shall remove all of Tenant's
Removable Property pursuant to Section 5.3(b) and shall repair any damages to
the Premises caused by such removal.
12.13 BROKERAGE. Landlord represents and warrants to Tenant that no broker
or finder has been engaged by it in connection with this Lease except for Xxxxx
Benz and Xxx, Realtors, whose commission will be paid by Landlord, Tenant
represents and warrants to Landlord that no broker or finder has been engaged by
it in connection with this Lease. In the event of any claim or liability for any
broker's or finder's fees or commission in connection with the negotiation,
execution or consummation of this Lease, Landlord shall indemnify, protect, save
harmless and defend Tenant from and against any such claims or liabilities if
they are based upon any statement or representation or agreement by Landlord.
Tenant shall indemnify, protect, save harmless and defend
25
Landlord from and against any such claims or liabilities if they are based upon
any statement or representation or agreement by Tenant.
12.14 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the State of Connecticut, as the same may
from time to time exist.
12.15 MODIFICATION OF LEASE. The terms, covenants and conditions of this
Lease may not be changed orally but only by an instrument in writing signed by
both parties. The failure of either party hereto to insist in any one or more
cases upon the strict performance of any term, covenant or condition of this
Lease to be performed or observed by the other party hereto shall not constitute
a waiver or relinquishment of any such term, covenant or condition.
12.16 ENTIRE AGREEMENT. This Lease represents the entire agreement between
Landlord and Tenant and supersedes all prior agreements both written and oral.
The terms, covenants and conditions of this Lease shall be binding upon and
shall inure to the benefit of Landlord and Tenant and their respective,
successors and assigns.
12.17 CONSENT OR APPROVAL. Anything in this Lease to the contrary
notwithstanding, wherever consent or approvals required hereunder, such consent
or approval shall not be unreasonably withheld, conditioned or delayed.
12.18 REMEDIES CUMULATIVE. All rights, powers, privileges, options and
remedies herein given to or conferred upon either the Landlord or the Tenant
shall be cumulative, and no one or more of them shall be exclusive of the other
or others, or of any right or remedy now or hereafter given or allowed by law,
unless otherwise specifically provided herein. No delay or failure of either the
Landlord or the Tenant to exercise any right, power, privilege or option herein
given to or conferred upon such party shall constitute a waiver or of estop said
party from afterwards exercising the same or any other right, power, privilege
or option herein granted at any time.
12.19 INDEPENDANT CONTRACTOR RELATIONSHIP. None of the provisions of this
Lease is intended to create, or shall be deemed or construed to create any
relationship between Landlord and Tenant other than that of independent entities
contracting solely for the purpose of effectuating the provisions of this Lease.
Neither of the parties nor any of their respective agents or employees shall be
construed to be the agent, partner, co-venturer, employee, or representative of
the other party.
12.20 FORCE MAJEURE. Except as otherwise specifically provided herein, if
either party shall be delayed in, hindered in, or prevented from completing any
performance hereunder by reason of Force Majeure, which shall mean strikes,
lock-outs, failure of power, riots, insurrection, war or other reason of a like
nature not the fault or beyond the reasonable control of the party in question
and despite its good faith efforts to avoid such Force Majeure, financial
inability excepted, then the time for completion of
26
the performance shall be extended, for the period of the delay; provided,
however, that the party in question shall, to the extent reasonable, make
continuing and diligent efforts to cure the events of such Force Majeure, and
mitigate any inconvenience to the other party caused thereby.
12.21 ATTORNEY'S FEES. If either party files any action or brings any
proceeding against the other party arising out of this Lease or for the
declaration of any rights under this Lease (including, but not limited to, any
action to enforce any indemnity provision set forth in this Lease), the
prevailing party therein shall be entitled to recover from the other party, all
costs and expenses, including reasonable attorney's fees, incurred by the
prevailing party as determined by the, court. If either party ("secondary
party") without its fault is made a party to litigation instituted by or against
the other party ("primary party"), the primary party shall pay to the other
secondary party all costs and expenses, including reasonable attorneys fees,
incurred by the secondary party in connection therewith.
12.22 SUBTENANCIES. The voluntary or other surrender of this Lease by
Tenant or a mutual cancellation of this Lease shall not effect a merger and
shall, at Landlord's option, terminate all existing subtenancies or operate as
an assignment to Landlord of any or all of such subtenancies.
12.23 EASEMENTS. This Lease is made expressly subject to any conditions,
covenants, conditions and restrictions or easements of record on the Premises.
All such conditions, covenants, conditions and restrictions or easements are set
forth in Exhibit A. Landlord represents that none of the foregoing will
interfere with the conduct by the Tenant of the Permitted Use.
12.24 NO OFFER. The preparation and submission of a draft of this Lease by
either party to, the other shall not constitute an offer, nor shall either party
be bound to any terms of this Lease or the entirety of the Lease itself until
both parties have signed a final document. Until such time as the parties are
bound as described in the previous sentence, either party is free to terminate
negotiations with no obligation to the other.
12.25 LATE CHARGE. If Tenant shall fail to pay the Base Rent to Landlord
within fifteen (15) days after the same is due and owing, Tenant shall pay to
Landlord a Late Charge equal to five percent (5%) of such amount past due.
12.26 INVALIDITY If any provision of this Lease or application thereof to
any person or circumstance shall to any extent be invalid, the remainder of this
Lease or the application of such provision to persons or circumstances other
than those as to which it is held invalid shall not be affected thereby and each
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
27
ARTICLE XIII
TENANT'S OPTIONS
13.1 OPTION TO EXTEND.
(a) Provided that Tenant is. in possession of the Premises on the date it
exercises its right and option to extend this Lease and is not in default of its
obligations under this Lease, Tenant shall have the right and option (the
"Extension Option") to extend the Initial Term of this Lease for three (3)
extended terms of five (5), consecutive years (each being an "Extended Term,").
The Extended Term shall be on all the, terms and conditions of this, Lease
except that the Base Rent for the Extended Term shall be established and fixed
as set forth in Exhibit B.
(b) Tenant shall exercise its Extension Option for the Extended Term by
giving written notice to Landlord of its desire to do so not later than six (6)
months prior to the Expiration Date of the Term then in effect. The giving of
such notice by Tenant shall automatically extend the Term of this Lease for the
Extended Term, and no instrument of renewal need be executed. In the event that
Tenant fails to give such notice to Landlord in a timely manner as aforesaid,
time being of the essence thereof, this Lease shall automatically terminate at
the end of the Term then in effect and Tenant shall have no further option to
extend the Term of this Lease.
(c) At the expiration of the third Extended Term, Tenant shall have an
option to further extend this Lease for two (2) consecutive ten (10) year terms
(each being an "Additional Extended Term"). The Base Rent for the Additional
Extended Term shall, be agreed upon by the parties in writing for each renewal
period upon six (6) months notice to Landlord from Tenant that it intends to
exercise its option for an Additional Extended Term. In the event that the
parties cannot agree on the Base Rent for each Additional Extended Term, the
Landlord and the Tenant will each select an appraiser who will determine a fair
market rent. Thereafter, the two appraisers will establish the Base Rent
predicated on their appraisals. In the event that the two selected appraisers
cannot agree on the Base Rent, said appraisers shall select a third appraiser,
who shall establish the Base Rent at an amount not to exceed the highest nor
less than the lowest of the two original appraisals. The cost of the third
appraiser shall be shared equally by the parties.
ARTICLE XIV
REMEDIES
14.1 REMEDIES. If any one or more of the following events (here sometimes
called "Events of Default") shall happen:
28
(a) If the payment of Rent is not made by the fifteenth (15) day of each
month;
(b) If payment of Additional Rent or any other payment required to be paid
by Tenant hereunder when due and payable, is not paid on the date it
is due, then in such event the Landlord shall have thirty (30) days to
notify Tenant that it shall be in default and thereafter the Tenant
shall have thirty (30) days to cure said default after notice from
Landlord to Tenant specifying said items of default. If payment of
said Rent and Additional Rent is made within thirty (30) days of the
expiration of the thirty (30) days from date of notice, then in such
event said default shall be deemed cured; or
(c) If default shall be made by Tenant in the performance or compliance
with any other agreements, terms, covenants, or conditions in this
Lease for a period of thirty (30) days after notice from Landlord to
Tenant specifying the items in default (provided, however, that it
shall not be considered a default if the performance or compliance by
Tenant has been commenced within said thirty (30) days and is being
diligently pursued, if the full compliance or performance is of the
type that cannot reasonably be completed within said thirty (30)
days); or
(d) If Tenant shall file a voluntary petition in bankruptcy 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 federal, state or other bankruptcy or insolvency trustee,
receiver or liquidator of Tenant or of all or any substantial part of
its properties or of the Leased Premises, and if such condition shall
continue for a period of thirty (30) days of the expiration of the
thirty (30) days from the date of notice from Landlord specifying the
matter involved; or
(e) If within sixty (60) days after the commencement of any proceeding
against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under the
present or any future federal, state or other bankruptcy or insolvency
statute or law, such proceeding shall not have been dismissed within
ten days after not ice (to be given not before the expiration of said
sixty (60) day period) from Landlord to Tenant of an intention to
terminate this Lease for failure to remove the condition in question
or if, within thirty (30) days after the appointment, without the
consent or acquiescence or of all or substantially all of its
properties or of the Leased Premises, such appointment shall not have
been vacated within ten (10) days after notice (to be given not before
the expiration of said thirty (30) day period) from Landlord to Tenant
of an intention to terminate this Lease for failure to remove the
condition in
29
question; then and in any such event Landlord at any time thereafter
may give written notice to Tenant specifying such event of default or
events of default and stating that this Lease and the term hereby
leased shall expire and terminate on the date specified in such
notice., which shall be at least five days after the giving of such
notice and upon the date specified in such notice this Lease and the,
term hereby leased and all rights of Tenant under this Lease,
including any renewal privileges whether -or not exercised shall
expire and terminate, and Tenant shall remain liable as' hereinafter
provided; or
(f) If Tenant shall vacate or abandon the Leased Premises or any portion
thereof for ninety (90) continuous days and fail to pay rent and
otherwise comply with the terms and conditions of this Lease.
Subsections 14.1 (c) and (d) shall constitute a default only if Tenant is
in default of the payment of Rent, Additional Rent or any other payment required
to be made by Tenant hereunder.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal,, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof, as of the date first set forth above.
Witnesses: LANDLORD:
000 Xxxx Xxxx Xxxxxx LLC
/s/ Xxxxx X. Xxxxxxx /s/ Xxxx Xxxxxxxxx
------------------------ ------------------------
Xxxxx X. Xxxxxxx By: Xxxx Xxxxxxxxx
Its: Member
/s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
TENANT:
/s/ Xxxxx X. Xxxxxxx The Bank of Southern Connecticut
------------------------
Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxxx
------------------------
By: Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxx Its: Chairman and Chief Executive
------------------------ Officer
Xxxxxx X. Xxxxx
30
STATE OF CONNECTICUT:
ss. Xxx Xxxxx Xxxxxx 0, 0000
XXXXXX XX XXX XXXXX:
Personally appeared Xxxx Xxxxxxxxx, known to me (or satisfactorily proven) to be
the member, of 000 Xxxx Xxxx Xxxxxx LLC and that as such member and being
authorized to do so, executed the same for the purposes therein contained.
/s/ Xxxxx X. Xxxxxxx
-----------------------------
Commissioner of Superior Court
Notary Public
STATE OF CONNECTICUT:
ss. Xxx Xxxxx Xxxxxx 0, 0000
XXXXXX XX XXX XXXXX:
Personally appeared Xxxxxx X. Xxxxxxxx, known to me (or satisfactorily proven)
to be the Chairman & CEO, of Bank of Southern Connecticut and that as such
Chairman & CEO and being authorized to do so, executed the same for the purposes
therein contained.
/s/ Xxxxx X. Xxxxxxx
-----------------------------
Commissioner of Superior Court
Notary Public
31
EXHIBIT A
Property Description
(including Easements and/or other Encumbrances)
0 Xxxxxx Xxxxx, Xxxxxxxx
All that certain piece or parcel of land designated as Xxx 00, Xxxxx Xxxxxxxx
Xxxx on a map entitled "Final Map, Xxxxx Commerce Park, O&R Associates Property,
Xxxxx Commerce Road, Branford, Connecticut, Scale 1"=40', Surveyed February 4,
1981 by X.X. Xxxxxxxxxx, Xx., Registered Land Surveyor" and recorded in the
office of the Branford Town Clerk as Map No. 1723, and more particularly
described as follows:
Beginning at the intersection of the easterly street line of Xxxxx Commerce
Road and the southerly highway line of U.S. Xxxxx #0, xxx Xxxx Xxxx Xxxxxx,
being marked by a concrete boundary monument, as shown on said map;
Thence along said southerly highway line South 73 degrees, 29 minutes, 50
seconds East, 65 feet to a Connecticut Department of Transportation boundary
monument set in said highway line at a point of curvature, as shown on said map;
Thence southeasterly along the arc- of a circle concave south having a
delta angel of 00 degrees, 55 minutes, 48 seconds, a radius of 1,850.08 feet, an
arc length of 30.03 feet to a concrete boundary monument set in said southerly
highway line being a point on curve, as shown on said map;
Thence along a line South 15 degrees, 13 minutes 17 seconds West, 300 feet
to a point, as shown on said map;
Thence along a line North 48 degrees, 48 minutes, 42 seconds West, 170.67
feet to an iron pin set in the easterly street line of Xxxxx, Commerce Road,
being a point on curve, as shown on said map;
Thence northerly along the arc of a circle concave, West, having a delta
angle of 24 degrees, 41 minutes, 08 seconds, a radius of 3 10 feet, an arc
length of 133.56 feet to a concrete monument marking the point of tangency, as
shown on said map;
Thence along the easterly street line of Xxxxx Commerce Road North. 16
degrees, 3 0 minutes,, 10 seconds East, 74.43 to a point of curvature marked by
a concrete monument, as shown on said map;
Thence easterly along the arc of a circle concave south, having a delta
angle of 90 degrees, 00 minutes, 00 seconds, a radius of 25 feet, an arc length
of 39.27 feet, to the point or place of beginning.
32
Together with the non-exclusive right to enter upon and use that adjoining land
of Xxxxx Commerce Park, Inc. shown on said map as "Sanitary Sewer Easement" for
the sole purpose of installing, repairing, replacing and maintaining' sanitary
sewer pipes within said easement area.
Said premises are subject to:
Real Estate Taxes due the Town of Branford.
Notice from Branford Zoning Board of Appeals dated January 14, 1981 and recorded
a January 22, 1981 in Volume 325 Page 681 of the Branford Land Records;
Notice from Branford Zoning Board of Appeals dated November 10, 1982 and
recorded December 20, 1982 in Volume 342 Page 795 of the Branford Land Records;
Notice from Branford Zoning Board of Appeals dated May 13, 1983 and recorded May
20, 1983 in Volume 348 Page 10 of the Branford Land Records;
Low Pressure Agreement with the South Central Connecticut Regional Water
Authority dated August 23, 1983 and recorded September 23, 1983 in Volume 352
Page 862 of the Branford Land Records;
Low Pressure Agreement with the South Central Connecticut Regional Water
Authority dated June 19, 1984 and recorded July 16, 1984 in Volume 363 Page 744
of the Branford Land Records;
Terms of a Sewer Agreement with the Town of Branford and any assessment charges
which may be due thereunder;
Easement Agreement in favor of Connecticut Light and Power Company dated June
26, 1984 and recorded July 2, 1984 in Volume 363 Page 141 of the Branford Land
Records;
Utility Easement Agreement in favor of The Southern Connecticut Gas Company
dated April 10, 1986 and recorded June 9, 1986 in Volume 397 Page 1094 of the
Branford Land Records;
Easement Agreement in favor of The Southern New England Telephone Company dated
May 30, 1989 and recorded June 12, 1989 in Volume 471 Page 644 of the Branford
Land Records. See Map therein referred to, on file as Map #2292 in the Branford
Town Clerk's Office.
20 Foot Sanitary Sewer Easement as shown on said map.
33
A mortgage in the face amount of $10,500,000.0 given by Xxxx Xxxxxxxxx and
Xxxxxx X. Xxxxxxxxx to New Haven Savings Bank dated August 19, 1999 and recorded
August 20, 1999 in Volume 683 Page 167 of the Branford Land Records, covering
this and many other properties, and which said mortgage was modified by
modification Agreement dated March 1, 2001 in Volume 719 Page 782 of said land
records.
Collateral Assignment of Leases and Rentals, Xxxx Xxxxxxxxx and Xxxxxx X.
Xxxxxxxxx to ,New Haven Savings Bank dated August 19, 1999 and recorded August
20, 1999 in Volume 683 Page 200 of said land records.
Financing Statement, UCC-I recorded August 20, 11099 in Volume 683 Page 219 of
said land records.
Financing Statement, UCC-I recorded March 22, 2001 in Volume 719 Page 795 of
said land. records.
34
EXHIBIT A-1
Site Plan of Premises
SITE PLAN FOR "THE BANK OF SOUTHERN CONNECTICUT WEST MAIN STREET & SUMMIT PLACE,
BRANFORD, CONN." prepared by Xxxxxxxx X. Xxxxxxxx, Landscape Architect, 00 Xxxx
Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx.
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
EXHIBIT B
BASE RENT FOR INITIAL TERM AND EXTENDED TERMS
Initial Term: The Annual Base-Rent shall be payable in advance in equal monthly,
installments and shall be in the annual amounts as follows:
Base Rent per Square Foot of Gross Monthly Rent
Building Area
$10.00 $3,095.00
Extension Terms Annual Base Rent for each and every Extension Term shall be as
follows:
Extension Term Base Rent per Square Monthly Rent
Foot of Gross Building
Area
Years 6-10 $10.94 $3,385.93
Years 11-15 $12.68 $3,924.46
Years 16-20 $14.70 $4,549.65
Additional Extended Term: At the expiration of the third Extended Term, Tenant
shall have an option to further extend this. Lease for two (2) consecutive ten
(10) year terms (each being an "Additional Extended Term"). The Base Rent for
the Additional .Extended Term shall be agreed upon by the parties in writing for
each renewal period upon six (6) months notice to Landlord from Tenant that it
intends to exercise its option for an Additional Extended Term. In the event
that the parties cannot agree on the Base Rent for each Additional Extended
Term, the Landlord and the Tenant will each select an appraiser who will
determine a fair market rent. Thereafter, the two appraisers will establish the
Base Rent predicated on their appraisals. In the event that the two selected,
appraisers cannot agree on the Base Rent, said appraisers shall select a third
appraiser, who shall establish the Base Rent at an amount not to exceed the
highest nor less than the lowest of the two original appraisals. The cost of the
third appraiser shall be shared equally by the parties.
36
EXHIBIT C
Leasehold Improvements by Landlord
Tenant agrees that it has inspected the premises to its full satisfaction and
accepts the premises in its "as is", "where is" condition and Landlord covenants
that there are no violations of the Branford Zoning Regulations on the property.
Landlord agrees to designate parking spaces as ','The Bank of Southern
Connecticut Parking Only".
Landlord Construction obligations prior to Commencement Date shall be as
follows:
1. Sidewalk in accordance with the requirements of the Town of Branford.
37
EXHIBIT D
Tenant's Initial Leasehold Improvements
[To be provided by Tenant and Inserted herein upon approval by Landlord]
See Plans for The Bank of Southern Connecticut prepared by Xxxxx X. Xxxxxxx,
date 7/09/02
38
EXHIBIT E
Notice of Lease
Notice is hereby given of a lease executed on the ____ day of May, 2002, by
and between 000 Xxxx xxxx Xxxxxx LLC, as Landlord, and The Bank of Southern
Connecticut., as Tenant, under the terms of which the Landlord leased to the
Tenant premises located at and known as 000 Xxxx Xxxx Xxxxxx in the Town, of
Branford, County of New Haven, and State of Connecticut situated on Property
described on Exhibit A attached hereto.
Said lease provides for the initial term of five (5) years, to commence on
________________ to expire on the last day of ______________, all dates
inclusive.
Tenant has a right to extend the term of said lease for three (3)
consecutive periods of five (5) years each and, thereafter, for two (2)
consecutive periods of ten (10) years each.
In the event of any conflict between the provisions of the Lease and this
Notice of Lease, the Lease shall be determinative and controlling.
A copy of said Lease shall be on file at the office of Landlord at 0000
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx and of Tenant at 000 Xxxxxx Xxxxxx, Xxx
Xxxxx, Xxxxxxxxxxx.
IN WITNESS WHEREOF, on this _____ day of _____________, 2002, the
below-named persons representing the Landlord and Tenant, respectively, have
caused this Notice of Lease to be executed and delivered.
Signed, Sealed and Delivered
In the Presence of:
Landlord
000 Xxxx Xxxx Xxxxxx LLC
_____________________
____________________________
By:
_____________________
39
Tenant
The Bank of Southern Connecticut
_____________________
_____________________ ____________________________
Its:
STATE OF CONNECTICUT:
ss. Branford _____________________, 2002
COUNTY OF NEW HAVEN:
Personally appeared __________________, known to me (or satisfactorily proven)
to be the ______________________, of 000 Xxxx Xxxx Xxxxxx LLC and that as such
____________________ and being authorized to do so, he executed the same for the
purposes therein contained.
____________________________
Commissioner of Superior Court
Notary Public
STATE OF CONNECTICUT:
ss. Branford _____________________, 2002
COUNTY OF NEW HAVEN:
Personally appeared __________________, known to me (or satisfactorily proven)
to be the ______________________, of Bank of Southern Connecticut and that as
such ____________________ and being authorized to do so, he executed the same
for the purposes therein contained.
____________________________
Commissioner of Superior Court
Notary Public
40
EXHIBIT F
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT THIS SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT ("Agreement") is made and entered into
to be effective as of this __________________ day of ___________, 2002, by and
among ____________________ ("Lender"), 000 Xxxx Xxxx Xxxxxx LLC ("Landlord"),
and The Bank of Southern Connecticut ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a certain lease dated as of
_________________, 2002, (the "Lease") covering the premises described therein
(the "Demised Premises") known as I Summit Place a/k/a 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx; and
WHEREAS., Lender is the holder of a certain Promissory Note made by
Landlord in the original principal amount of _______________ Dollars dated (as
the same may be amended or modified the "Note"); and
WHEREAS., the Note is secured by that certain. Open End Mortgage Deed and
Security Agreement dated _______________ and recorded on said date in the
Branford Land Records (as the same may be amended or modified, the "Mortgage");
and
WHEREAS, Tenant acknowledges that the Mortgage constitutes a lien or charge
upon the Demised Premises which is unconditionally prior and superior to the
Lease and the leasehold interest of the Tenant thereunder.
NOW THEREFORE, in consideration of the foregoing recitals, the leasing of
the Demised Premises, and of the sum of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. The Lease is and shall be subject and subordinate to the Mortgage
insofar as it affects the real property of which the Demised Premises form a
part, and to all renewals, modifications, consolidations, replacements and
extensions thereof, to the full extent of amounts secured thereby and interest
thereon.
2. Lender consents to the Lease and, in the event Lender comes into
possession of or acquires title to the Demised Premises as a result of the
foreclosure or other enforcement of the Mortgage or the Note, or as a result of
any other means, Lender agrees that, so long as Tenant is not then in default
under the Lease beyond any applicable cure period, Lender will recognize Tenant
and will not disturb Tenant in its possession of the
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Demised Premises for any reason other than one which would entitle Landlord to
terminate the Lease under its terms or would cause without any further action by
Landlord, the termination of the Lease or would entitle Landlord to dispossess
Tenant from the Demised Premises. Lender further agrees that if the interests of
Landlord under the Lease are acquired by Lender, so long as Tenant is not then
in default under the Lease beyond any applicable cure period, the Lease and all
rights of Tenant under the Lease, including but not limited to the right to use
and occupy the Demised Premises at the rental and upon the terms and conditions
set forth in the Lease, and the right to exercise and enjoy any renewal options
contained therein, shall continue in full force and effect and shall not be
terminated. Notwithstanding any other provisions of this Agreement, if Lender
succeeds to the interest of Landlord under the Lease, Lender shall be liable to
Tenant only for the obligations of the Landlord under the Lease which accrue on
or after the date that Lender takes title to the Demised Premises. Lender agrees
and covenants, provided Tenant is not in default under the Lease beyond any
applicable cure period, that:
a. Tenant, shall not be joined as an adverse party or defendant in any
action or proceedings which may be instituted or commenced by Lender to
foreclose or enforce the Mortgage, unless required by law to effectuate any such
foreclosure or implement any such remedy; and
b. Tenant shall not be evicted from the Demised Premises nor shall
Tenant's rights under the Lease be affected or disturbed in any way by reason of
this Agreement or any modifications of or default under the Mortgage.
3. Tenant agrees that it will attorn to and recognize any purchaser at a
foreclosure sale under the Mortgage, any transferee who acquires the Demised
Premises by deed in lieu of foreclosure, and the successors and assigns of such
purchaser or transferee, as its landlord for the unexpired balance (and any
extension, if exercised) of the term of the Lease upon the same terms and
conditions as are set forth in the Lease.
4. If Lender succeeds to the interest of Landlord under the Lease, Lender
shall not be:
a. liable for any act or omission of any prior landlord (including
Landlord); or
b. liable for the return of any security deposit unless the same shall be
in Lender's possession; or
c. subject to any offsets or defenses which Tenant might have against any
prior landlord (including Landlord); or
d. bound by any rent or additional rent which Tenant might have paid for
more than the current month to any prior landlord (including Landlord).
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5. This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns. As used herein, the term "Tenant"
shall include Tenant, its successors and assigns; the words "foreclosure" and
"foreclosure sale" as used herein shall be deemed, to include the acquisition of
Landlord's estate in the Demised Premises by Lender by any means, including,
without limitation, voluntary deed or assignment in lieu of foreclosure; and the
word "Lender" shall include the Lender herein specifically named and any of its
successors, participants and assigns including anyone who shall have succeeded
to Landlord's interest in the Demised Premises by, through or under foreclosure
of the Mortgage.
In WITNESS WHEREOF, the parties hereto have execute this Agreement as of
the day and year first above written.
Lender
By:____________________________
Its:
Landlord
000 Xxxx Xxxx Xxxxxx LLC
By:____________________________
Its:
Tenant
The Bank of Southern Connecticut
By:____________________________
Its:
00
XXXXX XX XXXXXXXXXXX:
ss. Branford _____________________, 2002
COUNTY OF NEW HAVEN:
Personally appeared __________________, known to me (or satisfactorily proven)
to be the ______________________, of LENDER and that he, as such
____________________ and being authorized to do so, executed the foregoing
instrument for the purposes therein contained.
____________________________
Commissioner of Superior Court
Notary Public
STATE OF CONNECTICUT:
ss. Branford _____________________, 2002
COUNTY OF NEW HAVEN:
Personally appeared __________________, known to me (or satisfactorily proven)
to be the ______________________, of 000 Xxxx Xxxx Xxxxxx LLC, and that he, as
such ____________________ and being authorized to do so, executed the foregoing
instrument for the purposes therein contained.
____________________________
Commissioner of Superior Court
Notary Public
STATE OF CONNECTICUT:
ss. Branford _____________________, 2002
COUNTY OF NEW HAVEN:
Personally appeared __________________, known to me (or satisfactorily proven)
to be the ______________________, of Bank of Southern Connecticut and that he,
as such ____________________ and being authorized to do so, executed the
foregoing instrument for the purposes therein contained.
____________________________
Commissioner of Superior Court
Notary Public
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