EXHIBIT 10.14
SECOND AMENDMENT OF LEASE
This Second Amendment of Lease is made as of this 11th day of July, 1997,
by and between Three Enterprise Drive - Shelton LLC (hereinafter referred to as
"Landlord"), and TranSwitch Corporation, of Shelton, Connecticut (hereinafter
referred to as "Tenant").
In consideration of the mutual benefits and obligations set forth herein,
the parties hereby amend a certain lease between Landlord and Tenant dated
November 27, 1996, previously amended by a First Amendment of Lease dated June
25, 1997, for the lease of space in Landlord's building at Three Enterprise
Drive, Shelton, Connecticut (the November 27, 1996 lease and all amendments
thereto hereinafter referred to collectively as the "Lease"), in the following
manner:
The First Amendment of Lease is hereby canceled and restated, as amended by
this Second Amendment of Lease, such that as of the Second Amendment of Lease,
the Lease shall be read and interpreted by reference to only the original
November 27, 1997 lease and the First Amendment of Lease.
A. Paragraph 1.01 of the Lease is deleted and is replaced with the
following:
"1.01 The Leased Premises consists of 39,267 square feet of Tenant's
Net Rentable Area."
B. Paragraph 1.05 of the Lease is deleted and is replaced with the
following:
"1.05 The Basic Minimum Annual Rent for the Initial Term is $392,670
per annum, payable in equal monthly installments of $32,722.50 per month."
C. Reference to Exhibit A in the Lease means the Exhibit A attached to
the November 27, 1996 lease. Exhibit A, Sheet 2, is hereby deleted along with
the First Amendment of Lease. "Exhibit A, Sheet 3", a separate exhibit from
Exhibit A, is added to the Lease and incorporated into it as a new exhibit, and
is attached to the Third Amendment of Lease. Exhibit A, Sheet 3 shows the 2,514
sq. ft. of space added to first floor of the Leased Premises by means of this
Second Amendment of Lease.
In the event of any conflict between this Second Amendment of Amendment of
Lease and the November 27, 1996 lease, this First Amendment of Lease shall
control, the Lease being hereby ratified and to remain in full force and effect
in all other respects.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day and year first above written.
TranSwitch Corporation
By: /s/ Xxxxxxx X. XxXxx
--------------------------
Xxxxxxx X. XxXxx
its duly authorized
Director of Administration
Three Enterprise Drive - Shelton LCC
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx, a member
0
Xxxxx xx Xxxxxxxxxxx
xx Xxxx xx Xxxxxxx
Xxxxxx of Fairfield
Personally appeared Xxxxxxx X. XxXxx, singer and sealer of the foregoing
instrument, who acknowledged himself to be the Director of Administration of
TranSwitch Corporation and the execution to be his free act and deed and the
duly authorized free act and deed of TranSwitch Corporation, before me, this 8th
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day of July, 1997.
/s/ Xxxxxxx X. Xxxxxx
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Notary Public
XXXXXXX X. XXXXXX
NOTARY PUBLIC
MY COMMISSION EXPIRES JULY 31, 0000
Xxxxx xx Xxxxxxxxxxx
xx Xxxx xx Xxxxxxx
Xxxxxx of Fairfield
Personally appeared Xxxxxx X. Xxxxxx, signer and sealer of the foregoing
instrument, who acknowledged himself to be a member of Three Enterprise Drive -
Shelton LLC and the execution to be his free act and deed and the duly
authorized free act and deed of Three Enterprise - Shelton LLC, before me, this
____ day of July, 1997.
-----------------------------------
Commissioner of the Superior Court/
Notary Public
3
EXHIBIT A, SHEET 3
LEASE BETWEEN
THREE ENTERPRISE DRIVE - SHELTON LLC
TRANSWITCH CORPORATION
THREE ENTERPRISE DRIVE
SHELTON, CT
LEASE AGREEMENT
This Lease Agreement is made as of this 27th day of November, 1996, by and
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between Three Enterprise Drive - Shelton LLC, a Connecticut limited liability
company (hereinafter called "Landlord") and TranSwitch Corporation, a Delaware
corporation (hereinafter called "Tenant").
WITNESSETH:
ARTICLE I
Data Section
Wherever this Lease refers to any item specified in this Data Section, such
reference shall be deemed to incorporate the information set forth in the Data
Section. Some terms mentioned in the Data Section are further defined by other
provisions in the Lease. Whenever a term is more specifically defined, the more
specific definition shall control.
1.01 The Leased Premises consists of 36,753 square feet of Tenant's Net
Rentable Area.
1.02 The Leased Premises is located on the first and second floors in a
building to be constructed by Landlord and to be known as Three Enterprise
Drive, Shelton, Connecticut. The Leased Premises is further defined by the floor
area outline attached as Exhibit A.
1.03 The Initial Term of the Lease is from the Commencement Date to the end
of the month 120 full calendar months from and after the Commencement Date.
1.04 The Commencement Date is upon substantial completion of the Leased
Premises and the further conditions set forth in paragraph 19.04, estimated to
be October 1, 1997.
1.05 The Basic Minimum Annual Rent for the Initial Term is $367,530 per
annum, payable in equal monthly installments of $30,627.50 per month.
1.06 The Security Deposit is $0.
1.07 Tenant shall use the Leased Premises for the sole purpose of general
administrative business offices, engineering laboratories and associated light
manufacturing.
1.08 The Notice Address for each of the parties is:
Landlord Tenant
Three Enterprise Drive - Shelton LLC TranSwitch Corporation
c/o X. X. Xxxxxx, Inc. Three Enterprise Drive
Xxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000
Xxxxxxx, Xxxxxxxxxxx 00000
but until occupancy
TranSwitch Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
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ARTICLE II
Definitions
The following words and phrases shall have the following meanings.
2.01 "Leased Premises" means the usable area leased to Tenant in Landlord's
building. The outer vertical boundary of the Leased Premises is outlined on the
floor plan attached hereto as Exhibit A. The upper boundary of the Leased
Premises shall be the lower surface of the suspended or finished ceiling. The
lower boundary of the Leased Premises shall be the surface of the unfinished
floor. The vertical boundary of the Leased Premises shall be the unfinished
surface exposed to the Leased Premises of all walls bounding the exterior of the
building, other rentable area, building common area, and other area not for use
by Tenant (HVAC duct chases and structural column enclosures for example).
2.02 "Building" means the building in which the Leased Premises is located.
2.03 "Project" means the Building and the real property appurtenant to the
Building, including the parking areas for the Building. The current real
property boundary is described in Exhibit B, attached hereto. The "Project" will
not include any building other than the Building and any ancillary building
which may serve the Building (a guard station serving the Building, as an
example of a possible ancillary building). In the event that Landlord desires to
construct on the real estate comprising the Project any building not permitted
within the definition of the word "Project", the real estate constituting the
Project shall be reduced by elimination of such other building and the land
appurtenant to it.
2.04 "Tenant's Net Rentable Area" means the approximate area of the Leased
Premises plus a share of the core area of the building in which the Leased
Premises is located.
2.05 "Tenant's Pro Rata Share" means the percentage obtained by dividing
Tenant's Net Rentable area by the total Net Rentable Area in the building in
which the Leased Premises is located. Although a specific Pro Rata Share may be
set forth in the Data Section, the Pro Rata Share shall be subject to adjustment
upon increase or decrease of the total Net Rentable Area in the building.
2.06 "General Common Area" means all areas and facilities in the building
in which the Leased Premises is located and all exterior areas of the Project
which are available for the use of all tenants. The General Common Area includes
corridors, janitor closets, rest rooms and parking facilities. General Common
Area does not include restricted areas such as boiler rooms, machine rooms for
elevator equipment and utility rooms of the Landlord.
2.07 "Term of this Lease" means the Initial Term, and if the Lease grants
any option to extend the Term of this Lease, Term of this Lease shall include
any validly exercised option to extend.
2.08 "Basic Operating Cost" shall mean all Operating Expenses of the
Project, which shall be computed on the accrual basis and shall consist of all
reasonable and necessary costs and expenses incurred by Landlord to maintain all
facilities in the operation of the Project and such additional facilities now
and in subsequent years as may be determined by Landlord to be necessary to the
Project. All Operating Expenses shall be determined in accordance with generally
accepted accounting principles, which shall be consistently applied (with
accruals appropriate to Landlord's business). The term "Operating Expenses"
shall include the amortized cost of capital items, provided, however, that the
useful life of any item shall in no event exceed fifteen years. The term
"operating expenses" as used
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herein shall mean all expenses and costs of every kind and nature which Landlord
shall pay or become obligated to pay because of or in connection with the
ownership and operation of the Project and supporting facilities of the Project.
Operating Expenses shall be limited so as not to include: specific costs which
are otherwise allocated to tenant areas under other provisions of this Lease;
expenses and costs which are billed to and paid by specific tenants; and
expenses associated with any financing indebtedness of Landlord, whether or not
secured by the Project. Operating expenses, include, but are not limited to, the
following: (a) the cost of all supplies, materials and equipment used in the
operation and maintenance of the Project; (b) the cost of utilities, including
water and power, heating, lighting, air conditioning and ventilating the entire
Project; (c) management fees at rates in accordance with the prevailing rates
charged for comparable properties in the area of the Project; (d) the cost of
all maintenance, janitorial and service agreements for the Project and the
equipment therein, including, without limitation, alarm service, window cleaning
and elevator maintenance; (e) accounting costs, including the costs of audits by
certified public accountants; (f) the cost of all insurance, including but not
limited to fire, casualty, liability, rental abatement on account of casualty
damage, workers compensation and any other type of insurance reasonably
obtained, all as limited to those coverages applicable to the Project and the
employee's and Landlord's personal property used in connection therewith; (g)
the cost of repairs, replacements and general maintenance (excluding repairs and
general maintenance paid by proceeds of insurance or by Tenant or other third
parties, and alterations attributable solely to tenants of the Project other
than Tenant); (h) gardening, landscaping, planting, replanting and replacing of
flowers and shrubbery; (i) any and all General Common Area maintenance costs
relating to public areas of the Projet, including sidewalks, parking areas,
landscaping and service areas, including repaving, restriping, plowing and
sanding of the walks and parking areas, and including rubbish removal from the
Project; (j) compensation to personnel to implement all of the services set
forth in this paragraph, including wages, workers compensation insurance
premiums and other items paid for the employment of said personnel; (k) all
taxes, service payments in lieu of taxes, excises, assessments, levies, fees or
charges, general and special, ordinary and extraordinary, unforeseen as well as
foreseen, of any kind which are assessed, levied, charged, confirmed, or imposed
by any public authority upon the Project, its operation or the rent provided for
in this Lease Agreement (it is agreed that Tenant will be responsible for ad
valorem taxes on Tenant's personal property, if any, and on the value of
leasehold improvements to the extent that some exceed standard building
allowances provided by Landlord under this Lease); and (l) any other item
reasonably expended for the maintenance, operation, repair and insurance of the
Project. Notwithstanding anything in this Lease to the contrary, Operating
Expenses shall in no event include: [i] income tax of Landlord; or [ii] capital
items, except to the extent that (a) such items are incurred in the reasonable
anticipation of producing a net savings in Operating Expenses or (b) such items
are replacements.
2.09 "Repair" shall mean replacement wherever reasonably necessary.
2.10 "Consent" or "Approval" of Landlord shall mean approval or consent
in writing.
2.11 "Notice" from either party to the other shall mean written notice,
served by either party upon the other by certified mail, return receipt
requested or by a nationally recognized, receipted overnight courier service at
the address herein set forth or at such other address as either party may from
time to time designate.
ARTICLE III
Grant and Term
3.01 In consideration of the rent and covenants herein reserved and
contained on the part of Tenant to be observed and performed, Landlord demises
and leases to Tenant and Tenant rents from
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Landlord the Leased Premises and the improvements now or hereafter therin.
Together with the Leased Premises, Landlord grants to Tenant and Tenant's
employees and invitees the right to use the General Common Area, subject to the
rules and regulations reasonably established by Landlord.
3.02 The Initial Term shall be the period of time set forth in the Data
Section. The Term of this Lease shall commence on the Commencement Date.
ARTICLE IV
Rent
4.01 Tenant agrees to pay Landlord during the Term of this Lease the Basic
Minimum Annual Rent.
4.02 Tenant agrees to pay Landlord during the Term of this Lease Additional
Rent, consisting of: [i] Tenant's Pro Rata Share of the Basic Operating Cost;
[ii] all utility charges which are not included as items of Basic Operating Cost
but are the cost responsibility of Tenant under other provisions of this Lease
(which have not been paid by Tenant directly to the utility providing the
service under other provisions of this Lease); [iii] and any other item
specifically set forth elsewhere in this Lease as an item of Additional Rent or
as an item which is in any other manner the cost responsibility of Tenant.
Landlord shall give Tenant within a reasonable time after the commencement of
Landlord's fiscal operating year for the Project a statement of Tenant's Pro
Rata Share of estimated Basic Operating Cost for the ensuing year. Tenant agrees
to pay Tenant's Pro Rata Share of the Basic Operating Cost for each fiscal year
in monthly installments in accordance with Landlord's statement. Landlord shall,
within a reasonable period of time after the end of each fiscal year for which
Basic Operating Cost has been charged in accordance with the estimated charges,
give to Tenant a statement of the actual Basic Operating Cost incurred for the
previous year. Adjustment shall be made for any overpayment or underpayment of
the actual charges resulting from any variance between the actual Basic
Operating Cost for the previous year and the estimated Basic Operating Cost paid
by Tenant, which adjustment may be made by increasing or decreasing the
Additional Rent charges for the next year, or a refund or lump sum billing,
provided, however, that Landlord shall not be required to make such adjustment
more than once per year. If during any fiscal operating year, Landlord shall not
have delivered to Tenant the statement mentioned for such year, Tenant shall
continue to pay Landlord the sums payable for the immediately preceding year,
until the statement for the current year shall have been delivered, at which
time the monthly payments by Tenant shall be adjusted retroactively. If during
all or part of any fiscal year any particular item or items of service or work
(which would constitute an element of Additional Rent hereunder) are not
furnished to any portion of the Project due to the fact that such portion is not
completed, occupied or leased, then for the purposes of computing Additional
Rent payable hereunder, the amount of such expenses for such items shall be
increased by an amount equal to the expenses which would have reasonably been
incurred during such period if Landlord had at his own expense furnished such
items of service or work to such portion of the Project, provided that in no
event shall Landlord charge for any item or work or service not actually
provided to the Project and in no event shall this sentence operate to allow
Landlord to recoup more than 100% of the expenses actually incurred by Landlord.
Utility charges set forth as a portion of Additional Rent, above, may be
included with the statement of estimated Basic Operating Cost and billed and
adjusted in the same manner as Tenant's Pro Rata Share of the Basic Operating
Cost. If any part of the first or last years of the Term of this Lease shall
include part of a tax or operating expense year, Tenant's liability under this
paragraph shall be apportioned so that Tenant shall pay only for such parts of
such tax year and operating expense years that shall be included in the Term of
this Lease. Landlord may elect to xxxx the full amount of any item of Additional
Rent which is not an item of Basic Operating Cost as such item of expense is
incurred by Landlord (repair of damage caused by Tenant, for example). All items
of
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Additional Rent which are capital items not specifically the immediate cost
responsibility of Tenant pursuant to other terms of the Lease shall be amortized
in accordance with generally accepted accounting principles, provided that no
item shall have a useful life of more than fifteen years.
4.03 Limitation On Operating Expenses Chargeable To Tenant.
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Notwithstanding anything in this Lease to the contrary, in no event will items
[i] and [ii] of Additional Rent specified in the first sentence of paragraph
4.02 exceed $5.25 per square foot of Tenant's Net Rentable Area for the "Base
Year", on an annualized basis. Notwithstanding anything in this Lease to the
contrary, in no event will the "Capped Portion of Additional Rent" for any
calendar year subsequent to the Base Year exceed the "Adjusted Base Year Limit"
increased by the percentage increase in the "CPI" from October 1996 to the
October preceding the calendar year for which the limit is being determined.
The "Base Year" is the calendar year in which the Commencement Date occurs. The
"Capped Portion of Adjusted Rent" is items [i] and [ii] of Additional Rent
specified in the first sentence of paragraph 4.02, but exclusive of any tax,
utility and insurance premium components. The "Adjusted Base Year Limit" is
$5.25 per square foot of Tenant's Net Rentable Area less the tax, utility and
insurance portions of items [i] and [ii] of Additional Rent specified in the
first sentence of paragraph 4.02 incurred for the Base Year. "On an annualized
basis" means that partial years shall be pro-rated. For example, if the
Commencement Date occurs October 1, 1997, then the $5.25 per square foot limit
for which Tenant would be responsible during the Base Year would be $5.25
multiplied by the three twelfths of the calendar year remaining after the
commencement date. Accordingly, under the foregoing example, items [i] and [ii]
of Additional Rent specified in the first sentence of paragraph 4.02 would in no
event exceed $5.25 per square foot x 3/12 = $1.3125 per square foot for the
period from October 1, 1997 through December 31, 1997. The "CPI" is the United
States Department of Labor Bureau of Labor Statistics Consumer Price Index--All
Urban Consumers-All Cities (1982-4 = 100), or if such index is no longer
published, a substitute index selected by Landlord as reflecting similar changes
in purchasing power. Notwithstanding the foregoing, the CPI limit shall not
apply to any element of Operating Expenses which consists of a service provided
to the Project and allowed to be charged pursuant to paragraph 2.07 which has
not been charged for the Base Year, but the amount chargeable to Operating
Expenses for any calendar year after the calendar year in which the additional
service has been provided for a full calendar year shall be limited to the
reasonable cost of such service for the beginning full calendar year in which
such service is provided increased by the percentage increase in the CPI between
the October preceding such beginning calendar year and the October preceding the
calendar year for which the CPI limit is being determined. For example, if a 24
hour security guard service had not been provided to the Project at the outset
of the Term of the Lease but Landlord had at a later date deemed it reasonably
appropriate to provide such a guard service to the Project, the increase in
Operating Expenses due to the addition of such 24 hour security guard shall not
be affected or limited by the preceding CPI limit on the Capped Portion of
Operating Expenses for the beginning calendar year in which the 24 hour security
guard service has been provided for a full calendar year.
4.04 The Basic Minimum Annual Rent and the monthly installment portion of
the Additional Rent shall be due in installments, commencing with the
Commencement Date and continuing on the first day of each month thereafter, in
advance. If the Commencement Date is not the first day of a calendar month, the
installment due on the Commencement Date shall be pro rated for the fractional
period remaining in the month of the Commencement Date. It is the intention of
the Landlord and Tenant that the rents herein shall be net to the Landlord in
each year during the Term of this Lease, payable without any reduction,
abatement, counterclaim or setoff. All past due installments of rent shall bear
interest at the lesser of two percentage points over the prime rate of interest
as announced by People's Bank, of Bridgeport, Connecticut, or its successor, or
the maximum rate permitted by applicable law, from date due until payment is
received. Any liability for unpaid Basic Minimum Annual Rent and Additional Rent
shall survive the termination of the Lease.
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ARTICLE V
Conduct of Tenant
5.01 Tenant agrees that Tenant and Tenant's permitted assignees or
sub-lessees shall use the Leased Premises for any of the sole and exclusive
purposes set forth in the Data Section. The use of the Leased Premises shall
also be in accordance with the ordinances and regulations of the municipality in
which the Leased Premises is located. Without limitation of the foregoing,
Tenant agrees that the Leased Premises will not be used for any purpose other
than that provided above. Tenant agrees to comply with all rules and
regulations, of which Tenant is given notice, reasonably established by
Landlord for the governing of conduct of tenants in general in the Project.
The current rules and regulations for tenants in the Project are set forth in
Exhibit C.
5.02 Tenant agrees that Tenant will not keep, use, sell or offer for sale
in or upon the Leased Premises any article which may be prohibited by the
standard form of fire insurance policy. Tenant agrees to pay any increase in
premiums for fire and extended and/or all risk coverage insurance that may be
charged during the Term of this Lease on the amount of such insurance which may
be carried by Landlord on the Project, resulting from the type of equipment,
merchandise or services used by Tenant in the Leased Premises, whether or not
Landlord has consented to the same. In determining whether increased premiums
are the result of Tenant's use of the Leased Premises, a schedule issued by the
organization making the insurance rate on the Leased Premises, showing the
various components of such rate, shall be conclusive evidence of the several
items and charges which make up the fire insurance rate on the Leased Premises
and the Project.
5.03 Tenant shall not commit or suffer to be committed any waste to the
Leased Premises or Project or any nuisance or other act or thing which may
disturb the quiet enjoyment of any other tenant in the Project.
5.04 Tenant shall, at Tenant's sole cost and expense, comply with all of
the requirements of all county, municipal, state, federal and other applicable
governmental authorities, now in force or which may hereafter be in force and
not being reasonably disputed by Tenant, pertaining to the Tenant's use of the
Leased Premises or any act therein by Tenant. Tenant shall faithfully observe in
the use of the Leased Premises all federal, state, county and municipal laws,
ordinances and regulations now in force or which may hereafter be in force not
being reasonably disputed by Tenant, excepting any structural changes required
by such authorities which are not caused by the act or neglect of the Tenant or
by Tenant's specific use of the Leased Premises. Specific reference is made to
Tenant's duty to comply with all state, federal and local laws concerning
environmental protection and Tenant's conduct at the Project. Tenant agrees to
indemnify Landlord against any cost and expense which Landlord may suffer by
reason of Tenant's failure to comply with the laws governing its conduct at the
Project, including all laws concerning environmental protection. Tenant shall
undertake no acts which would result in the leased Premises being defined as an
"Establishment" under the environmental laws of the State of Connecticut.
5.05 Tenant will not place or maintain, or cause to be placed or
maintained, on any portion of the Project exterior to the Leased Premises or any
portion of the Project (including the Leased Premises) visible from the exterior
of the Leased Premises, any sign or advertising matter without Landlord's
written consent. Tenant shall not place any object on any portion of the
Project exterior to the Leased Premises without Landlord's written consent.
Tenant shall not install or maintain any window treatment without the prior
written consent of Landlord. Landlord shall not unreasonably delay or withhold
consent to a sign outside the entrance door to the Leased Premises and a
listing on the building directory sign.
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5.06 Tenant agrees to keep the Leased Premises in a clean and sanitary
condition and free from trash, inflammable material and other objectionable
matter and to make all interior repairs other than to Landlord's mechanical
systems. Tenant shall maintain all equipment installed by Tenant at Tenant's own
cost and expense. Tenant shall not make any building alteration or addition to
the Leased Premises without Landlord's consent, which shall not be unreasonably
withheld. Ordinary office trash in volumes consistent with normal office usage
may be placed in the dumpster maintained at the Project by Landlord, the cost of
which dumpster may be charged by Landlord as a part of Operating Expenses.
Tenant shall be responsible for the proper disposal of trash in excess of normal
office usage volumes and for the disposal of any trash other than ordinary
office trash. For example, any waste that may not be disposed of in an ordinary
landfill without any special handling (such as biomedical waste from a medical
office) shall be handled and disposed of by Tenant, at Tenant's sole cost and
expense, in full compliance with all laws relating to the handling and disposal
of such waste.
5.07 If Tenant refused or neglects to perform any item of maintenance or
repair which is Tenant's responsibility within a reasonable time, Landlord may
make such repairs without liability to Tenant for any loss or damage that may
accrue to Tenant's merchandise, fixtures, or other property or to Tenant's
business by reason thereof, and upon completion thereof, Tenant shall pay
Landlord's costs for making such repairs upon presentation of an invoice
therefor, as Additional Rent, which shall include interest from the date of such
repairs at the same rate as that due for overdue rental payments. In the case of
a repair which is not an emergency repair, Landlord shall not exercise
Landlord's right to make the repair unless Tenant has not commenced the repair
within ten days after written demand from Landlord and proceeds to complete same
with diligence.
5.08 Tenant shall promptly pay all contractors and materialmen hired by
Tenant to furnish any labor or materials which may give rise to the filing of a
mechanic's lien against the Project attributable to contracts entered into by
the Tenant. Should any such lien be made or filed, Tenant shall cause same to be
discharged as a lien against the Project within the sooner of [i] 60 days after
Tenant receives notice of such lien or [ii] 60 days after request by Landlord to
remove such lien. If bond is filed and such lien is discharged, Tenant shall not
be obligated to discharge the lien by payment. Notwithstanding any notice and
grace period before default elsewhere set forth in this Lease, if Tenant shall
fail to discharge such lien within the time period set forth in this paragraph
above, and shall further fail to discharge such lien within ten more business
days after notice of failure to discharge the lien is given from Landlord, then
Tenant shall be in material default of the Lease, without any further notice or
grace period.
ARTICLE VI
Landlord's Conduct and Services at the Project
6.01 Landlord agrees to keep the parking areas in the Project reasonably
free of snow, ice and debris and to keep same reasonably lighted during normal
business hours of the tenants in the Project. Landlord agrees to keep the
General Common Area (including any common restrooms) in reasonably good repair
and order. Landlord shall perform all structural repairs to the building or
buildings in the Project, all General Common Area in the Project, and all
mechanical equipment installed by Landlord for heating, ventilation and air
conditioning, plumbing and other mechanical systems of the Leased Premises.
Tenant shall pay: [i] Tenant's Pro Rata Share for maintenance and repair of the
portion of said mechanical systems which are building standard; and [ii] the
full cost of said maintenance and repair for the portion of said mechanical
systems servicing the Leased Premises in excess of building standard. Although
Landlord is responsible for the performance of certain work under this paragraph
the cost of such work may be Tenant's responsibility under this and other
provisions of the Lease, in full or as a Pro Rata Share.
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6.02 Landlord shall furnish keys to Tenant so that Tenant may have access
to the Leased Premises before and after normal business hours. No locks other
than those furnished by Landlord shall be installed on the doors providing
access to the Leased Premises without Landlord's written consent. Tenant shall
furnish to Landlord keys to any such locks allowing access to Tenant's Leased
Premises.
6.03 Landlord shall have the right to make alterations and/or additions to
the Project and the buildings and land of the Project, subject to the
limitations set forth in paragraph 2.03. The exercise by Landlord of any right
under this paragraph shall be limited so that there shall be no unreasonable
interference with Tenant's use of the Leased Premises and the General Common
Area.
6.04 Landlord shall have the right to establish rules and regulations for
the use of the parking areas by Tenant and other tenants in the project, but
Landlord shall not have any duty to police the traffic in the parking areas.
Tenant shall have the use of the parking areas, existing from time to time in
the Project, for the benefit of Tenant's employees, visitors and customers, in
common with other tenants in the Project, which use is to be in accordance with
Tenant's Pro Rata Share of the parking areas available for all tenants in the
Project, which, in the case of Tenant, shall be four parking spaces per thousand
square feet of Tenant's Net Rentable Area.
ARTICLE VII
Insurance, Indemnity and Subrogation Waiver
7.01 Tenant shall during the entire Term of this Lease keep in full force
and effect a policy of public liability and property damages insurance. Tenant's
insurance policy shall insure against Tenant's liability for all acts and
omissions with respect to conduct in the Leased Premises and the Project of
Tenant and Tenant's agents, servants, employees, licensees and invitees. The
policy limits of Tenant's Insurance shall be at least $1,000,000 per occurrence,
or such other limits as to public liability and property damage as Landlord may
reasonably require. Tenant's policy shall name Landlord as an additional insured
and shall contain a clause providing that the Insurer will not cancel or change
the insurance without first giving the Landlord fifteen days prior written
notice. Tenant's insurance policy shall be with an insurance company approved by
Landlord and a copy of the policy or a certificate of insurance shall be
delivered to Landlord prior to the Commencement Date, which approval shall not
be unreasonably withheld or delayed and the decision based solely upon a
reasonably satisfactory rating from a service such as A.M. Best.
7.02 Tenant shall during the entire Term of this Lease keep in full force
and effect a hazard and all risk insurance policy, including fire, extended and
all risk type coverage, in an amount adequate to cover the cost of repair and
replacement of all alterations, decorations, or improvements made by Tenant in
the Leased Premises. Tenant's policy shall name Landlord as an additional
insured and shall contain a clause that the insurer will not cancel or change
the insurance without first giving the Landlord fifteen days prior written
notice. Tenant's insurance policy shall be with an insurance company approved by
Landlord and a copy of the policy or a certificate of insurance shall be
delivered to Landlord prior to the Commencement Date, which approval shall not
be unreasonably withheld or delayed and the decision based solely upon a
reasonably satisfactory rating from a service such as A.M. Best.
7.03 Landlord agrees to maintain or cause to be maintained hazard and all
risk insurance, with fire, extended and all risk type coverage, upon all of the
buildings, structures or improvements (excluding tenant improvements required to
be insured by Tenant under other terms of this Lease) in the Project, in an
amount adequate to cover the cost of replacing the foregoing in the event of
fire or
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other destruction, less a commercially reasonable deductible. In the event of
fire or other destruction to such property, Landlord agrees, subject to the
rights of any mortgagee to insurance proceeds, to immediately collect or cause
to be collected the insurance proceeds and to apply the same to the
reconstruction and repair of the damaged property. Tenant shall pay Tenant's Pro
Rata Share of the premiums for the insurance specified herein as an item of
Basic Operating Cost Additional Rent.
7.04 To the extent commercially reasonably obtainable, each policy of
public liability insurance, hazard insurance or other insurance insuring risks
arising out of any occurrence at the Project, carried by Tenant or Landlord,
shall provide that the insurer waives any rights of subrogation against the
Landlord (in the case of Tenant's policies) and against the Tenant (in the case
of Landlord's policies) in connection with or arising out of any claim or
benefit provided under such insurance policy. Except to the extent not permitted
in any insurance policy obtained by Tenant in accordance with the provisions of
this Article, in no event shall Tenant or any person or corporation claiming an
interest in the Leased Premises by, through or under Tenant and over whom Tenant
shall have control, claim, maintain or prosecute any action or suit at law or in
equity against the Landlord for any loss, cost or damage caused by or resulting
from fire or other risk or casualty in the Project for which Tenant is or may be
insured under a standard hazard and all risk insurance policy, including fire,
extended and/or all risk type coverage, whether or not the property (tangible or
intangible) is insured or required to be insured under this Lease, and whether
or not caused by the negligence of the Landlord, or the agents, or servants, or
employees of the Landlord. Except to the extent not permitted in any insurance
policy obtained by Landlord in accordance with the provisions of this Article,
in no event shall Landlord or any person or corporation claiming an interest in
the Project by, through or under Landlord and over whom Landlord shall have
control, claim, maintain or prosecute any action or suit at law or in equity
against the Tenant for any property damage to the Project caused by or resulting
from fire or other risk or casualty in the Project for which Landlord is
required to be insured under the provisions of the Lease, whether or not caused
by the negligence of the Tenant or the agents, servants and/or employees of the
Tenant.
7.05 In the case of third party claims arising out of an act or omission of
Tenant or an agent, servant or employee of Tenant (a "Tenant Fault Claim") and
not out of an act or omission of Landlord or an agent, servant or employee of
Landlord (a "Landlord Fault Claim"), Tenant shall be responsible for the Tort
Indemnity of Landlord. In the event of a Landlord Fault Claim, Landlord shall be
responsible for the Tort Indemnity of Tenant. In the event of claims which are
both Tenant Fault Claims and Landlord Fault Claims, as between Landlord and
Tenant: each party shall be responsible for the claim in the proportion such
party's fault in fact bears to the total fault of Landlord and Tenant; and such
party shall indemnify the other against the portion of the claim for which such
party is responsible. Tort Indemnity shall mean that the party responsible for
the indemnification shall provide the legal defense of the claim (counsel being
subject to the approval of the indemnified party, approval not to be
unreasonably withheld) and the indemnifying party shall be responsible to pay
the amount of the claim (subject to the right to defend it) up to the limits of
the indemnification set forth in this paragraph, above, except that in the case
of claims which are both Tenant Fault Claims and Landlord Fault Claims, each
party shall be responsible for its own costs of legal defense. Tort Indemnity
shall not be owed to the extent that the party owing the indemnification has
been prejudiced by any failure of the party seeking the indemnification to give
notice to the other party within a reasonable time after said party becomes
aware of a claim in which the other party may owe an indemnity obligation under
this paragraph.
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ARTICLE VIII
Utilities
8.01 From and after the Commencement Date, Tenant shall pay all charges for
utilities used, consumed in or allocable to the Leased Premises, including, but
not limited to, fuel, electricity, water and gas. Said utilities may be either
directly metered to Tenant or shared with other tenants. If any utility
consumption in the Leased Premises is not separately metered, Landlord may
allocate the shared utility consumption to the Leased Premises in any reasonable
manner. In the case of building systems such as HVAC, utility consumption of
such systems may be allocated in accordance with Tenant's Pro Rata Share. The
charges for all utilities not paid directly to the utility providing the service
shall be paid to Landlord as an element of Additional Rent; and Tenant shall, at
Landlord's option, either pay the separately metered utilities directly to the
utility providing the service, or pay for said separately metered utilities as
an item of Additional Rent. Notwithstanding the foregoing, Landlord shall
provide a separate electric meter for the electricity to be consumed in the
Leased Premises, and Tenant shall maintain Tenant's own metered account with the
utility company providing service to the Project for such electric meter.
ARTICLE IX
Estoppel Statement, Attornment, Subordination
9.01 Upon request of Landlord or any mortgagee of Landlord, Tenant shall
execute an estoppel certificate, certifying the status of any facts with respect
to the Lease. Estoppel certification may include; whether the Lease is in full
force and effect; the rentals due under the Lease and the degree to which same
have been paid; that there are no defenses or claims against Landlord for any
alleged violation of the Lease by Landlord, or a statement of such defenses or
claims; acknowledgement of the interpretation or meaning of any term of the
Lease, provided such acknowledgement shall not change any term or provision
hereof; and such other matters reasonably requested to be certified in the
estoppel certificate.
9.02 The Tenant agrees that the Lease and all rights of the Tenant herein
shall, at the election of Landlord or mortgagee, be subordinate to the lien of
any mortgage or mortgages now or which may hereafter be placed on the Project or
any part of the Project during the term of this Lease. In the event any
proceeding is brought for the foreclosure of the Leased Premises, Tenant agrees
to attorn to the mortgagee in the event of strict foreclosure, or to the
purchaser in the event of foreclosure by sale or deed in lieu of foreclosure,
and recognize such mortgagee or purchaser (as the case may be) as the Landlord
under this Lease. Tenant further agrees to execute any further instrument or
instruments which the Landlord or its successors in title may at any time
require to evidence the subordination of this Lease to the lien of any such
mortgage or mortgages and Tenant's agreement to attorn, provided, however, that
the Landlord, if Tenant so requests, obtains a standard non-disturbance
agreement from the mortgagee for the benefit of the Tenant. Notwithstanding the
foregoing, if there shall be a first mortgage placed on all or a portion of the
Project, this Lease shall not be subordinated to any other encumbrance
subsequent in right to the first mortgage unless the first mortgagee shall
consent to such subordination, in writing; Notwithstanding the foregoing,
Tenant's right under this Lease shall not be subordinated to any mortgage, and
Tenant shall not be required to execute any subordination agreement, unless the
mortgagee provides Tenant with standard non disturbance rights, in form
reasonably acceptable to Tenant. Upon execution of this Lease, Landlord shall
use best efforts to obtain a non disturbance agreement from the existing
mortagee of the Project (People's Bank).
9.03 Tenant agrees to execute and deliver to Landlord or the party
designated by Landlord,
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within ten days after presentation of the proposed form, any estoppel
certificate and/or subordination, attornment and/or non disturbance agreement
requested to be executed by Tenant pursuant to the terms of this Lease. Tenant
further agrees to include in any such documents, if requested by Landlord: an
agreement not to pay Landlord rent for more than one month in advance; an
agreement to give any mortgagee a notice of any alleged default by Landlord and
a reasonable time for such mortgagee to have such default cured before Tenant
will exercise any right to terminate this Lease; and an agreement that Tenant
will not look to such mortgagee for the return of any security deposit or other
monies not actually received by such mortgagee. If Tenant shall not have
delivered the executed documents, required to be executed and delivered under
this Article, within the ten day period set forth above, Landlord may give
Tenant written notice of Tenant's failure to deliver such documents, and if
Tenant shall then fail to deliver said executed documents within three business
days after delivery of such written notice, notwithstanding any provision for
notice and grace period for default elsewhere contained in this Lease, Tenant
shall be in material default of the Lease, and Landlord shall have all rights
provided for in the event of such default, including termination.
ARTICLE X
Destruction of Leased Premises
10.01 Landlord agrees, subject to and excepting the other provisions of
this Article, that if the Leased Premises shall be damaged by fire or other
casualty during the term of this lease, Landlord shall, at Landlord's own
expense, use best efforts to cause the damage to be promptly repaired within a
reasonable time after such damage has occurred, which period shall not exceed
six months. If by reason of such occurrence, any portion of the Leased Premises
is thereby rendered untenantable and Tenant ceases use of said portion, the rent
and other charges payable by Tenant hereunder shall be abated in proportion to
the area of the Leased Premises which is rendered untenantable and which is not
used by Tenant, said abatement to continue until the sooner of the time when the
Leased Premises is repaired or until Tenant uses the damaged portion of the
Leased Premises. Landlord's obligation to restore under this Article shall be
limited to the extent of Landlord's deductible on Landlord's property insurance
policy and the insurance proceeds made available by any mortgagee having control
over the disposition of such proceeds. Notwithstanding the foregoing, if there
is such a casualty damage materially adversely affecting Tenant's use and
enjoyment of the Leased Premises, and if Tenant does not vacate the Leased
Premises but continues to use the same, the rent shall be equitably adjusted
based upon the fair rental value of the Leased Premises in its impaired
condition, during the period of materially adverse impairment.
10.02 In the event that fifty percent or more of the Leased Premises shall
be damaged or destroyed by fire or other cause during the Term of this Lease and
same shall not be repairable by Landlord within six months, Landlord or Tenant
shall have the right, to be exercised by written notice to the other party,
within sixty days from and after said occurrence, to elect to cancel and
terminate this Lease. Upon the giving of such notice, the term of this Lease
shall expire by lapse of time upon the thirtieth day after such notice is given,
and Tenant shall vacate the Leased Premises and surrender the same to Landlord
on such date of expiration.
ARTICLE XI
Eminent Domain and Cessation of Business
11.01 In the event any portion of the Leased Premises or any portion of
the Project which renders the Leased Premises unusable is taken in condemnation
proceedings or by any right of eminent
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domain or for any public or quasi-public use, this Lease shall terminate as of
the date of vesting of title in the condemning authority and all rent, including
additional rent, payable under this lease shall be paid to that date.
11.02 In the event of any taking provided for in this Article, all
proceeds of any award, judgment or settlement payable by the condemning
authority shall be and remain the sole and exclusive property of Landlord, and
Tenant waives any right to make any claim to said award, judgment or settlement
received by Landlord. Tenant may pursue its own claim against the condemning
authority permitted by statute to be paid to Tenant without diminishing or
reducing the award, judgment or settlement payable to Landlord.
ARTICLE XII
Assignment and Subletting
12.02 Tenant will not assign this Lease in whole or in part nor sublet all
or any part of the Leased Premises without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed. Landlord hereby
expressly consents to any assignment or subletting to an entity controlled by
Tenant, which controls Tenant, or is under the control of the same entity as
controls Tenant. For the purposes of the preceding sentence, "control" means
legal voting control. The consent by Landlord to any assignment or subletting
shall not constitute a waiver of the necessity for such consent to any
subsequent assignment or subletting. This prohibition against assigning or
subletting shall be construed to include a prohibition against any assignment or
subletting by operation of law. If the Leased Premises shall be occupied by
anybody other than Tenant, Landlord may collect rent from the assignee, under-
tenant or occupant and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee, under-
tenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained.
Notwithstanding any assignment or sublease, Tenant shall remain primarily liable
on this Lease and shall not be released from performing any of the terms,
covenants and conditions of this Lease, but Tenant and such assignee,
under-tenant or occupant shall thereafter be jointly and severally liable for
the full and faithful performance of the obligations of Tenant under this Lease.
Any attempted assignment by Tenant without the prior written consent of Landlord
shall be void. No assignment or subletting shall provide for a rental payment,
or other payment for use and occupancy or utilization, based in whole or in part
on the net income or profits derived by any person or entity from the property
assigned, subleased, occupied or utilized (other than an amount based upon a
fixed percentage of sales), and any such purported assignment or subletting
based upon such payment shall be void and any amount payable thereunder or any
rental amount therefor passed to any person or entity shall not have deducted
therefrom any expenses or costs related in any way to the leasing of such space.
12.02 In the event Tenant desires to sublet or assign this Lease in whole
or in part and the resulting agreement provides the Tenant with any gross profit
in excess of the rents payable hereunder, Landlord shall have the option of
terminating the Lease and the Tenant shall be relieved of any further liability
from the date it vacates the premises. Said option shall be exercised by written
notice from Landlord to Tenant within thirty (30) days from date Tenant notifies
Landlord of the terms of the assignment or subleases.
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ARTICLE XIII
Default of the Tenant
13.01 In the event of any failure of Tenant to pay any Basic Minimum
Annual Rent, Additional Rent or any other monies payable to Landlord under this
Lease within fifteen (15) days after written notice of failure to pay said sums,
Tenant shall be in material default of the Lease. Tenant shall also be in
material default of this Lease upon the happening of any of the following: (i)
the failure to deliver any estoppel or subordination, non disturbance and/or
attornment agreement within the time limits set forth for default in the Article
of this Lease requiring execution and delivery of such documents; (ii) the
failure to have any mechanic's lien discharged within the time period set forth
for default in the Article requiring removal of mechanic's liens; (iii) the
failure to commence within thirty (30) days after written notice of failure to
perform, and diligently pursue the performance of, any other of the terms,
conditions or covenants of this Lease to be observed or performed by Tenant;
(iv) if Tenant or any guarantor shall become bankrupt or insolvent, or file any
debtor proceedings, or take or have taken against them, in any court, pursuant
to any statute either of the United States or of any State, a petition in
bankruptcy or insolvency or for the reorganization or for the appointment of a
receiver or trustee of all or a portion of Tenant's property or make an
assignment for the benefit of creditors; or (v) if Tenant's interest in this
Lease shall be taken under any writ of execution. The foregoing conditions of
default shall be limited to the extent required by any state or federal laws
affecting this Lease and Landlord's rights against Tenant, including the United
States bankruptcy laws. To the extent permitted by law, all payments are due on
the due dates set forth in the Lease, and there shall be no grace period for the
due date of the rent other than the above 15 day period after notice from
Landlord.
13.02 In the event of default, then Landlord, besides other rights or
remedies Landlord may have, shall have the right to terminate this Lease and
proceed under any law entitling Landlord to recover possession of the Leased
Premises, and to the extent permitted by law, shall be entitled the right of
immediate reentry and to eject Tenant from the Project, without resort to court
proceedings. Upon such default, to the extent permitted by law, Tenant's
property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of Tenant. Tenant acknowledges that this Lease is a
commercial Lease, and to the extent permitted by law, Tenant waives the
requirement of a statutory notice to quit possession prior to commencement of
summary process proceedings.
13.03 Should Landlord elect to reenter, as herein provided, or should it
take possession pursuant to legal proceedings or pursuant to any notice provided
for by law, Landlord may either terminate this Lease or Landlord may from time
to time, without terminating this Lease, make such alterations and repairs as
may be necessary in order to relet the Leased Premises, or any part thereof, for
such term or terms (which may be for a term extending beyond the terms of this
Lease) and at such rental or rentals and upon such other terms and conditions as
Landlord in Landlord's discretion may deem advisable. Upon each such reletting,
all rentals received by the Landlord from such reletting shall be applied first
to the payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs and expenses of such reletting,
including brokerage fees and attorney's fees and of costs of such alterations
and repairs; third, to the payment of rent due and unpaid hereunder, and the
residue, if any, shall be held by Landlord and applied in payment of future rent
as the same may become due and payable hereunder. If such rentals received from
such reletting during any month are less than that to be paid during that month
by Tenant hereunder, Tenant shall pay any deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No such reentry or taking
possession of the Leased Premises by Landlord shall be construed as an election
on Landlord's part to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be decreed by a
court of competent jurisdiction. Notwithstanding any
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such reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedies Landlord
may have, Landlord may recover from Tenant all damages Landlord may incur by
reason of such breach, including the cost of recovering the Leased Premises,
reasonable attorney's fees, and the present value of the lost rent resulting
from the failure of Landlord or Tenant to obtain another Tenant for the Leased
Premises for any period of time after Tenant's default, and/or resulting from
the fact that the reasonable rental value of the Lease Premises at the time of
Tenant's default is less than the value of the remaining rental payments due
under this Lease.
13.04 In case Landlord shall retain an attorney to enforce the
provisions of this Lease or if suit shall be brought for recovery of possession
of the Leased Premises, for the recovery of rent or any other amount due under
the provisions of this Lease, or because of the breach of any other covenant
herein contained on the part of Tenant to be kept or performed, Tenant shall pay
to Landlord all expenses incurred therefor, including a reasonable attorney's
fee.
ARTICLE XIV
Security Deposit
(this article is intentionally omitted)
ARTICLE XV
Limitation of Liability of Landlord
15.01 In the event of any alleged default of Landlord, Tenant agrees
that Tenant shall not seek to secure any claim for damages or indemnification by
any attachment, garnishment or other security proceeding against any property of
the Landlord other than the Project or property related thereto, and in the
event Tenant obtains any judgment against Landlord by virtue of an alleged
default by Landlord under this Lease, Tenant agrees that Tenant will not look to
any property of Landlord other than the Project for satisfaction of such
judgment.
15.02 Unless caused by the gross negligence or wilful misconduct of
Landlord, Landlord shall not be liable for any damage to property of Tenant or
of others located on the Leased Premises, or for the loss of or damage to any
property of Tenant or of others by theft or otherwise. Unless caused by the
gross negligence or wilful misconduct of Landlord, Landlord shall not be liable
for any injury or damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, water, rain or snow or leaks from any
part of the Leased Premises or from the pipes, appliances or plumbing works or
from the roof, street or subsurface or from any other place or by dampness or by
any other cause of whatsoever nature. Landlord shall not be liable for any such
damage caused by other tenants or persons in the Project, by occupants of
adjacent property to the Project, by other members of the public, or caused by
operation or construction of any other private or public work. All property of
Tenant kept or stored on the Leased Premises shall be so kept or stored at the
risk of Tenant only.
15.03 Upon any transfer of Landlord's interest in the Project, the
then transferor Landlord shall be relieved of any and all liability to Tenant
under this Lease, except for claims of Tenant against Landlord arising out of
events occurring prior to such transfer.
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ARTICLE XVI
Quiet Enjoyment
16.01 Upon payment by the Tenant of the rents herein provided, and upon
the observance and performance of all the covenants, terms and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly
hold and enjoy the Leased Premises for the term hereby demised without hindrance
or interruption, subject, nevertheless to the terms and conditions of this
Lease.
ARTICLE XVII
Miscellaneous Covenants
17.01 The Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Leased Premises, and/or claim of injury or damage. In any dispute between the
parties relating to the tenancy hereby created, the exclusive forum for any such
legal action shall be the state or federal courthouse in Connecticut nearest the
Leased Premises and having jurisdiction and venue over the matter. Connecticut
law shall apply to all state law matters arising under this Lease.
17.02 The waiver by Landlord of any breach by Tenant of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance
of rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular rental so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent. No covenant, term or condition of this lease shall be
deemed to have been waived by Landlord unless such waiver be in writing by
Landlord.
17.03 No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy in this Lease provided.
17.04 This Lease and the Exhibits, attached hereto and forming a part
hereof, set forth all the covenants, promises, agreements, conditions and
understandings between Landlord and Tenant concerning the Leased Premises and
there are no covenants, promises, agreements, conditions or understandings,
either oral or written, between the parties other than those herein set forth.
No subsequent alteration, amendment, change or addition to this lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by the
party to be charged.
17.05 If any term, covenant or condition of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Lease shall be valid and enforced to
the fullest extent permitted by law.
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17.06 If the Commencement Date is not a date certain, the Commencement
Date shall in no event be later than a time which would not violate any
applicable rule against perpetuities, determined as if all relevant lives in
being ceased as of the date of execution of this Lease.
17.07 In the event that Landlord shall be delayed in, hindered in, or
prevented from, the performance of any act required hereunder by reason of Force
Majeure, which shall mean strikes, lockouts, labor troubles, inability to
procure materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war or other reason of a like nature not the
fault of the Landlord and despite his good faith efforts to avoid such Force
Majeure, then performance of such act shall be excused for the period of the
delay.
17.08 Tenant agrees that the Landlord and Landlord's agents and other
representatives shall have the right to enter into and upon the Leased Premises
at all reasonable hours, upon reasonable notice, consistent with Tenant's
security requirements, (without notice in the case of an emergency) for the
purpose of examining the Leased Premises, or making such repairs or alterations
therein as may be necessary for the safety and preservation of the Project. In
the course of any such entry, Landlord will cause the least amount of disruption
to Tenant's business and operations as is reasonably possible.
17.09 Tenant agrees to permit the Landlord or Landlord's agents to show
the Leased Premises to persons wishing to hire or purchase the same upon
reasonable notice to Tenant and at reasonable hours.
17.10 Tenant shall not encumber or obstruct the General Common area in
the Project, nor allow the same to be obstructed or encumbered in any manner.
Landlord shall not obstruct the entrance to the Leased Premises and shall not
unreasonably interfere with Tenant's use of the General Common Area.
17.11 The submission of this Lease for examination does not constitute
a reservation of or option for the Leased Premises and this Lease shall become
effective only upon execution and delivery thereof by Landlord and Tenant.
17.12 Neither party shall record this Lease, but the parties hereto
agree to execute a Notice of Lease drawn in accordance with the Connecticut
statutes, and the parties agree to execute in recordable form an agreement
establishing the specific commencement date of this Lease when the same is
ascertainable.
17.13 If there shall be one or more tenants or one or more landlords,
each tenant and landlord shall be jointly and severally liable for all of the
covenants and obligations of the Tenant and Landlord hereunder, as the case may
be, except as express provision may be elsewhere made to the contrary.
17.14 The use of the neuter singular pronoun to refer to Landlord or
Tenant shall be deemed a proper reference even though Landlord or Tenant may be
an individual, a partnership, a corporation, or a group of two or more
individuals or corporations. The necessary grammatical changes required to make
the provisions of this Lease apply in the plural sense where there is more than
one Landlord or Tenant, or to either corporations, associations, partnerships,
or individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
17.15 The headings, section numbers and article numbers appearing in
this Lease are inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or intent of such sections or articles of
this Lease nor in any way affect this Lease.
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ARTICLE XVIII
Surrender and Holding Over
18.01 At the expiration of the tenancy hereby created, whether by lapse of
time or otherwise, Tenant shall surrender the Leased Premises in the same
condition as the Leased Premises were in upon delivery of possession thereto
under this Lease, reasonable wear and tear and insured casualty excepted, and
Tenant shall surrender all keys for the Leased Premises to Landlord at the place
then fixed for the payment of rent, and Tenant shall inform Landlord of all
combinations on locks, safes and vaults, if any, in the Leased Premises. Tenant
shall remove all its trade fixtures and/or, at the option of the Landlord, any
alteration or improvements installed by Tenant, before surrendering the premises
as aforesaid and shall repair any damage to the Leased Premises caused thereby.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease. If Tenant fails to
remove such trade fixtures and restore the Leased Premises, then upon the
expiration or sooner termination of this Lease, and upon the Tenant's removal
from the premises, all such alterations, decorations, additions and improvements
shall become the property of the Landlord.
18.02 Holding over with the written consent of Landlord shall be at the
Basic Minimum Annual Rent and the Additional Rent specified herein and shall
otherwise be on all terms and conditions set forth herein, except for the term,
which shall be month to month, and without any right of first refusal or options
to extend the term, lease other space and/or purchase property. It is
acknowledged that the damages which Landlord may suffer on account of an
unconsented to holding over may be difficult to determine, as they may include
lost marketing opportunities with respect to Landlord's ability to obtain a
replacement tenant in a timely manner and other elements of damage that may be
difficult to quantify. Accordingly, should Tenant withhold possession of the
premises from Landlord after termination of the within Lease, whether by lapse
of time, by termination by either party as provided herein, or in any other
manner, and except in the case where the Landlord has given written consent to
holding over, the damages to Landlord on account of Tenant's failure to vacate
on time, plus the use and occupancy for the Leased Premises, are hereby
liquidated at a monthly sum equal to any installment Additional Rent in effect
as of the end of the Term (any utility charges and Tenant's Pro Rata Share of
the Basic Operating Expense, for example) plus one and one-half times the
monthly installment of Basic Minimum Annual Rent which would have been in effect
for the month immediately prior to the end of the Term of the Lease had the
Lease run the full course of the Initial Term and any option to extend that may
have been exercised prior to the unconsented to holding over. Tenant shall also
be responsible for any other item of Additional Rent which would be owed had the
Lease remained in effect (attorney's fees and damage to Landlord's property, for
example).
ARTICLE XIX
Construction of Building, Site and Leased Premises
19.01 The Building and site shall be constructed and improved by Landlord
in accordance with the site plans and elevational plans entitled "Enterprise III
Building, Enterprise Drive, Shelton, CT, dated October 25, 1996, prepared for
X.X. Xxxxxx, Inc. by Xxxxxx Group, Inc., Sheet SP-1 and Sheets A-1 through A-5",
and the exterior siding and windows for the Building shall be similar to that of
the neighboring Two Enterprise Drive building (the foregoing Building
construction and site improvement work herein referred to as the "General
Construction Work").
19.02 The interior Leased Premises shall be constructed by Landlord in
accordance with the Leased Premises Construction Plans (the foregoing Leased
Premises construction work herein referred to as the "Leased Premises
Construction Work"). It is acknowledged that as of the date of this Lease,
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the Leased Premises Construction Plans have not been completed. Upon execution
of this Lease, Tenant shall cooperate with Landlord in developing the Leased
Premises Construction Plans, such that the same may be finalized within 30 days
after the execution of this Lease. Landlord will provide Tenant with the free of
charge use of Landlord's architectural department for the development of the
Leased Premises Construction Plans, and Tenant agrees to provide prompt
turn-around time in making any decisions required of Tenant for the finalization
of the Leased Premises Construction Plans by the above date. The Leased Premises
Construction Plans shall be subject to Landlord's approval, which shall not be
unreasonably withheld or delayed. Notwithstanding anything in this Lease to the
contrary, if Landlord shall be delayed in completing work which is Landlord's
responsibility or if Landlord shall be otherwise delayed in obtaining a
certificate of occupancy for the Leased Premises, and if such delay is caused by
the failure of Tenant to develop the Leased Premises Construction Plans
promptly, in the manner provided above, the failure of Tenant to provide
reasonable turn around time on architectural decisions to be made by Tenant, or
the failure of Tenant to provide items to the Leased Premises on time which are
Tenant's responsibility, then the Commencement Date shall be the date on which
the Leased Premises would have been ready but for the delay due to Tenant.
19.03 Upon execution of this Lease, Landlord diligently proceed to
complete the General Construction Work and Leased Premises Construction Work on
a timetable reasonably calculated to achieve a Commencement Date of October 1,
1997. All construction work carried out by Landlord shall be carried out in a
workmanlike manner in compliance with all laws and shall be warranted by
Landlord for a period of one year from the completion date and any further
period to the extent of coverage under any manufacturer's warranties.
19.04 The Commencement Date is the date upon which all of the following
conditions have been met or such earlier date upon which Tenant has moved into
and begun conducting its business from the Leased Premises: (a) substantial
completion of the Leased Premises Construction Work; (b) substantial completion
of those portions of the Project necessary for Tenant's use and enjoyment of the
Leased Premises, including, without limitation, the Common Area of the Building
serving the Leased Premises, and the drives, parking areas and walkways
sufficient to provide Tenant with parking for and access to the Leased Premises;
and (c) issuance of a certificate of occupancy by the City of Xxxxxxx for the
Leased Premises. Substantial completion of the Leased Premises Construction Work
shall mean that the work has been completed with the possible exception of punch
list items, whose absence does not materially affect Tenant's ability to conduct
its business in the Leased Premises. Landlord shall tender possession of the
Leased Premises to Tenant upon the Commencement Date, clean and free of all
construction debris and personal property other than that belonging to Tenant,
and shall promptly and diligently pursue the completion of any punch list items.
19.05 The General Construction Work shall be carried out by Landlord at
Landlord's sole cost and expense. All of the Leased Premises Construction Work
as is consistent with "Building Standard Work" shall be carried out by Landlord
at Landlord's sole cost and expense. If the Leased Premises Construction Plans
call for Landlord to perform any work in excess of Building Standard Work
("Extra Leased Premises Construction Work"), Tenant be responsible to pay for
the cost of any Extra Leased Premises Construction Work in installments, as
Landlord's Overall Construction Work progresses, 1/3 upon delivery of an
estimate therefore by Landlord, 1/3 upon substantial completion of the
sheetrock, and 1/3 upon substantial completion of the work. Each progress
payment is due within 15 days after presentment of an invoice therefor from
Landlord. Notwithstanding the foregoing, Landlord shall perform and bear the
cost of the following, at Landlord's sole cost and expense, without any extra
charge to Tenant: (a) installation in the walls and ceilings of the Leased
Premises computer network wiring for Tenant's computer system and for Tenant's
telephone system (the hookup of Tenant's computers and telephones to the
computer and telephone wire outlets to be Tenant's responsibility); (b) removal
from 0 Xxxxxxxx Xxxxx of Tenant's telephone switching equipment and
reinstallation of it in the Leased Premises; (c) the reasonable cost of moving
Tenant's personal property form its 0
Xxxxxxxx Xxxxx premises to the Leased Premises. "Building Standard Work" is
defined in paragraph 19.07; and (d) providing sufficient power to the Leased
Premises for the operation of Tenant's business in the same character as it is
operated at B Progress Drive, Shelton as of the date of this Lease. The cost for
Extra Leased Premises Construction Work is the cost incurred by Landlord for any
item in excess of the cost of the item of Building Standard Work that it
replaces and the full cost incurred by Landlord for any item that is in addition
to and not in replacement of an item of Building Standard Work.
19.06 Landlord will, subject to all the covenants, agreements, terms,
provisions and conditions of this Lease give access to the Leased Premises to
decorators and other contractors employed by Tenant for the purpose of making
improvements therein, when so long as, in Landlord's reasonable judgment, the
work to be done in the Leased Premises by Landlord as provided herein shall have
been completed to such an extent that the making of such improvements will not
interfere with or delay Landlord's performance of the remaining portion of its
work; it being understood that Tenant shall not be deemed to have entered into
occupancy of the Leased Premises by reason of the presence in the Leased
Premises of any decorator or other contractor. If at any time such entry shall
cause disharmony, delay or interference with Landlord's performance of the
remaining portion of the work, this license may be withdrawn by Landlord
immediately upon written notice to Tenant.
19.07 "Building Standard Work" is defined as the following:
(a) Partitions of at least 5/8" sheetrock to hung ceiling, mounted on
steel or wood studs, to provide for the reasonable subdivision of the
Leased Premises at a rate not exceeding six straight lineal feet of such
partitioning per 100 square feet of rentable floor area or fraction
thereof. Sheetrock walls and/or windows shall be provided to all Leased
Premises boundary walls, and on walls separating other space in the
building, shall run to structure above ceiling;
(b) Doors at least 7'-0" high 3'-0" wide of wood construction, with
metal frames, including latch sets and doorstops, at the rate of not more
than one door per 500 square feet of rentable floor area or fraction
thereof and, in the case of the entrance door to the Leased Premises, one
lock set and door closer;
(c) Flooring: commercial grade carpeting throughout the Leased
Premises, consisting of 100% nylon static control, 30 ounce, cut pile, 10
year guaranty, Patcraft brand, or equal. Tenant may select rooms in which
anti-static vinyl composition tile may be installed in lieu of carpet;
(d) Painting of all wall surfaces, doors and trim, included in
Building Standard Work, with not more than one color in each room, with two
or three coats as necessary. The colors shall be selected by Tenant from a
spectrum of colors supplied by Landlord;
(e) Electrical distribution system sufficient to provide for a
lighting load of 2 xxxxx per square foot of useable floor area, or fraction
thereof, plus an additional electrical load of 2 xxxxx per square foot of
useable floor area or fraction thereof for electrical receptacles, at the
rate of not more than one duplex receptacle for each 125 square feet of
rentable floor area or fraction thereof. Lighting fixtures of not more than
one building standard fixture (a four 40-watt tube fixture, measuring two
feet by four feet) per 125 square feet of useable floor area or fraction
thereof. Light switches provided as per applicable building code. The
lighting shall also be "energy efficient lighting", as per United
Illuminating specifications;
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(f) Ceiling of 2 foot by 4 foot lay-in suspended acoustical tile with
medium mineral fissured texture; and
(g) Heating, Ventilating and Air Conditioning systems in general
shall consist of gas heating and electrical cooling. Building standard HVAC
shall allow the following conditions to be maintained: in the cooling
season, interior conditions of not more than 78 degrees F. Dry Bulb, and
50% relative humidity when the outside temperature is no more than 90
degrees F. Dry Bulb, and 77 degrees F. Wet Bulb; and in the heating season,
not less than 68 degrees F. Dry Bulb, when the outside temperature is not
less than 0 degrees F. Dry Bulb. Maintenance of these conditions is
contingent on the sources of heat within the Leased Premises not exceeding
one person per 100 square feet of useable floor area, or fraction thereof,
and four xxxxx of electrical consumption for all purposes, including
lighting and power, per square foot of useable floor area, or fraction
thereof. If and to the extent that the sources of heat in the Leased
Premises exceed the aforesaid design criteria, any additional cost incurred
by the Landlord in furnishing and operating equipment capable of meeting
the heating or air conditioning performance criteria set forth above shall
be reimbursed to Landlord by Tenant.
19.08 In the event Landlord shall be delayed in obtaining delivery of any
item specially ordered for Tenant's Leased Premises in accordance with Tenant's
finish plans and if such delay shall cause a delay in Landlord's obtaining a
certificate of occupancy, the Commencement Date shall be the date on which
Landlord would have been able to obtain a certificate of occupancy but for the
delay in obtaining the specially ordered item. Landlord shall use best efforts
to obtain prompt delivery of all items required for completion of the Leased
Premises in time to complete the Leased Premises on time. In the event, however,
that Landlord shall foresee difficulty in obtaining timely delivery of any such
specially ordered item referred to above, Landlord shall notify Tenant of this
condition, and Tenant shall have the option of obtaining delivery of said item
through Tenant's own source or replacing the item for which timely delivery is
not obtainable with an item with an earlier delivery date.
ARTICLE XX
Rights Of Refusal To Leasing In Building
20.01 Notice of Bona Fide Offer and Exercise of Refusal Right by Tenant.
-----------------------------------------------------------------
Tenant shall have a right of refusal to the leasing of space in the Building to
other tenants, in accordance with the provisions of this Article (the "Refusal
Right to Leasing"). Landlord shall give Tenant a "Notice of Bona Fide Offer"
prior to the initial renting of any space in the Building to another Tenant. The
"Notice of Bona Fide Offer" shall be a Notice to Tenant which sets forth the
terms and conditions of an offer that Landlord has received to rent space to
another party, which terms and conditions are acceptable to Landlord. Tenant may
only exercise Tenant's Refusal Right to Leasing by giving Landlord Notice of
exercise within 10 business days after Landlord's Notice of Bona Fide Offer to
Tenant, which Notice of exercise must unequivocally and unconditionally state:
that Tenant is exercising the Refusal Right to Leasing: and whether Tenant is
electing the "Bona Fide Offer Option" or the "Existing Rent Option" (defined
below). If Landlord's Notice of Bona Fide Offer to Tenant is in the form of a
proposed formal lease and if Tenant seeks to exercise the Refusal Right to
Leasing with election of the Bona Fide Offer Option, then the exercise shall
only be valid if the Notice of exercise is accomplished by return of the lease,
duly executed by Tenant. Tenant's Refusal Right shall not apply, and Landlord
shall not be obligated to give any Notice of Bona Fide Offer: for any rental to
a tenant after the first renting of any space; and, for any rental to another
tenant on terms not less favorable to Landlord than those contained in any
Notice of Bona Fide Offer in response to which Tenant did not duly exercise
Tenant's
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Refusal Right to Leases. If, in the course of the initial rent-up of said space,
Landlord desires to rent said space on business terms less favorable to Landlord
than those contained in Landlord's original Notice of Bona Fide Offer to Tenant,
the above process shall be repeated. Notwithstanding anything in this Article to
the contrary, Tenant's Refusal Right to Leases shall not be valid unless given
in strict compliance with the requirements of this Article and shall no longer
be in effect if Tenant has been in default of this Lease beyond any applicable
notice and grace period.
20.02 Bona Fide Offer Option. Tenant's election of the "Bona Fide Offer
----------------------
Option" means that Tenant has elected to accept the same lease terms as are
contained in Landlord's Notice of bona fide offer and enter into a lease with
Landlord on said terms, which may contain a different rent, length of term and
other provisions than those contained in the within Lease. If Landlord's Notice
of bona fide offer to Tenant is not in the form of a proposed formal lease, then
Landlord may deliver a proposed formal lease to Tenant, embodying the business
terms contained in the Notice of bona offer, and, in order to keep Tenant's
exercise of the Right of Refusal to Leasing in effect, Tenant must, within 10
business days after Tenant's delivery of the proposed lease, return the lease,
duly executed by Tenant.
20.03 Existing Rent Option. Tenant's election of the "Existing Rent
--------------------
Option" means that Tenant has elected to add the entire space that was subject
to Landlord's Notice of Bona Fide Offer in manner provided for the "Existing
Rent Option" in Article XXI. Accordingly, the space would be added at the same
rental and with all other terms and provisions as are provided in Article XXI.
ARTICLE XXI
Tenant's Expansion Right
21.01 Existence Of Tenant's Expansion Right. Tenant shall have a right of
-------------------------------------
expansion into other space in the Building in accordance with the provisions of
this Article (the "Expansion Right"). Tenant may exercise Tenant's Expansion
Right for any space only by giving Landlord Notice of exercise for said space:
prior to the time the space has been the subject of any Notice of Bona Fide
Offer (as defined in paragraph 20.01); or in response to a Notice of Bona Fide
Offer for the space (as defined in paragraph 20.01); or in response to a Notice
of Availability for the space. A "Notice of Availability" is a Notice from
Landlord to Tenant which; must designate the space to which it applies; must
state the Basic Minimum Annual Rent and length of term desired to be offered for
the space by Landlord; may state any maximum level of fit-out at no additional
charge to tenant and any other business term desired to be offered for the space
by Landlord; and may not be given earlier than 9 months prior to the date
Landlord has bona fide reason to believe will be the date said space will become
vacant, after having been rented to another tenant. Landlord shall not be
obligated to give any Notice of Availability for any space in the Building prior
to its initial rental. For the leasing of any space in the Building to a tenant
other than Tenant, subsequent to the initial leasing of the space and with a
commencement date prior to the last year of the Term of this Lease, as long as
this Article XXI Expansion Right is in effect, Landlord shall only be able to
rent such space to such other tenant if Landlord has given Tenant a Notice of
Availability for such space, in which event, Tenant may shall have the right to
Exercise Tenant's Expansion Right for such space pursuant to this Article before
the space is rented to such other tenant, and provided further that the rental
to the other tenant is on terms not less favorable to Landlord than those
contained in Landlord's Notice of Availability to Tenant for the space.
Notwithstanding anything in this Article to the contrary, Tenant's Expansion
Right shall not be valid unless given in strict compliance with the requirements
of this Article and shall no longer be in effect if Tenant has been in default
of this Lease beyond any applicable notice and grace period. Tenant's Notice of
exercise must comply with the following requirements:
(a) If the exercise is being made in response to a Notice of Bona
Fide Offer,
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the Notice of exercise shall be deemed to be for all of the space which is
the subject of the Notice of Bona Fide Offer and must:
(i) be given within 10 business days after Landlord's Notice of
Bona Fide Offer; and
(ii) state that the exercise is being made for the "Existing Rent
Option" or "Bona Fide Offer Option"; or
(b) if the exercise is being made in response to a Notice of
Availability, the Notice of exercise must:
(i) be given within 10 business days after Landlord's Notice of
Availability;
(ii) state whether the exercise is being made for the "Existing Rent
Option" or the "Availability Terms Option";
(iii) designate the portion of the space referenced in the Notice of
Availability to which Tenant is making the exercise; or
(c) If the exercise is being made prior to a Notice of Bona Fide
Offer for the space, the Notice of exercise shall be deemed to be for the
"Existing Rent Option" and must:
(i) be given within prior to the giving of any Notice of Bona Fide
Offer for the space; and
(ii) designate the portion of the space for which Tenant is making
the exercise.
21.02 Finalization of Size and Configuration of Exercised Expansion Space.
-------------------------------------------------------------------
If Tenant's exercise is pursuant to subparagraphs 21.01 (b) or (c) (in response
to a Notice of Availability or prior to a Notice of Bona Fide Offer on initial
rent-up) and Tenant has elected to take less than all of the Expansion Space
then available to Tenant, Landlord shall have the right to adjust the size and
perimeter configuration of the space designated by Tenant, but only to the least
degree reasonably determined by Landlord such that the space not taken or rented
by Tenant constitutes a commercially reasonably rentable configuration, with no
material adverse impairment on account of the manner in which it has been
separated from the space to be rented to Tenant.
21.03 Effect of Type of Exercise. As set forth in paragraph 21.01,
--------------------------
Tenant's exercise may have been for any one of the following options: the "Bona
Fide Offer Option"; the "Existing Rent Option" or the "Availability Terms
Option". The effect of each of these options is described as follows:
(a) The Bona Fide Offer Option means that Tenant has elected to
accept the terms set forth in Landlord's Notice of Bona Fide Offer to
Tenant, as provided in Article XX, in which event, the provisions of
Article XX shall control with respect to Tenant's leasing of the space.
(b) The "Existing Rent Option" means, with respect to the space to
which Tenant's exercise applies: that Landlord shall provide Tenant with
"Expansion Space Construction Work" in accordance with the provisions of
paragraph 21.04; the
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Commencement Date for such space shall be the date the Commencement Date
would have been for such space had it been a part of the original Leased
Premises and the Commencement Date had been determined in accordance with
paragraph 19.04 and 19.02; and, upon the Commencement Date for the
Expansion Space:
(i) the Leased Premises shall be increased by addition of the
Expansion Space;
(ii) the Basic Minimum Annual Rent shall be increased by the Tenant's
Net Rentable Area for the Expansion Space multiplied by the per
square foot rental rate in effect as of the Commencement Date
for the Expansion Space;
(iii) the Initial Term of the Lease shall be extended to expire at the
end 120th full calendar month from and after the Commencement
Date for the Expansion Space;
(iv) Tenant's Net Rentable Area and Tenant's Pro Rata Share shall be
adjusted for addition of the Tenant's Net Rentable Area of the
Expansion Space; and
(v) any other item based upon the Tenant's Net Rentable Area or
Tenant's Pro Rata Share shall be adjusted accordingly.
(b) The "Availability Terms Option" means that Tenant has agreed to
rent the Expansion Space to which Tenant's exercise applies on the same
business terms contained in Landlord's Notice of Availability on the same
legal terms as contained in this Lease (which, for example, would not
include the Article XX or XXI rights, unless contained in Landlord's Notice
of Availability), and with the further provision that any default by Tenant
on any lease with Landlord shall constitute a default by Tenant on any
other lease with Landlord. At any time after election of the Availability
Terms Option, Landlord may deliver a proposed formal lease to Tenant
embodying the business and legal terms to apply to the leasing. Tenant
must, within 10 business days after Landlord's delivery to Tenant of such
Lease, return the lease, duly executed by Tenant, otherwise Tenant shall
have no further rights under Article XXI or XX.
21.04 Fit-Out Work To Be Performed By Landlord For Expansion Space. If
------------------------------------------------------------
Tenant has elected the Existing Rent Option, then Tenant shall cooperate with
Landlord in developing construction plans for the Expansion Space (the
"Expansion Space Construction Plans"), such that the same may be finalized
within two weeks after finalization of the perimeter configuration of the space
for which Tenant has exercised the Expansion Right. Landlord will provide Tenant
with the free of charge use of Landlord's architectural department for the
development of the Expansion Space Construction Plans, and Tenant agrees to
provide prompt turn-around time in making any decisions required of Tenant for
the finalization of the Expansion Space Construction Plans by the above date.
The Expansion Space Construction Plans shall be subject to Landlord's approval,
which shall not be unreasonably withheld or delayed. Landlord shall carry out
the construction work for Expansion Space (the "Expansion Space Construction
Work") in the same manner as is provided for the Leased Premises Construction
Work in Article XIX. All of the Expansion Space Construction Work as is
consistent with "Building Standard Work" in Article XIX shall be carried out by
Landlord at Landlord's sole cost and expense. If the Expansion Space
Construction Plans call for Landlord to perform any work in excess of Building
Standard Work ("Extra Expansion Space Construction Work"), Tenant be responsible
to pay for the cost of the same in the same manner as is provided for any Extra
Leased Premises Construction Work
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in Article XIX.
22.05 Rental Adjustment for Expansion Space Added Pursuant to Existing
----------------------------------------------------------------
Rent Option. If any Expansion Space is added to the Leased Premises pursuant to
-----------
the Existing Rent Option and the Commencement Date for such space occurs at any
time after the fifth anniversary of the original Commencement Date of this
Lease, the Basic Minimum Annual Rent for the Leased Premises shall be adjusted
on the 10th anniversary of the original Commencement Date and every 5 years
thereafter to an amount equal to the per square foot Basic Minimum Annual Rent
in effect immediately prior to the adjustment, increased by the percentage
increase in the CPI over the five year period ending three months immediately
prior to the adjustment date. The "CPI" is defined in paragraph 4.03.
This agreement shall inure for the benefit and be binding upon the parties
hereto, their respective heirs, representatives, successors and assigns, except
where provided to the contrary by express provisions contained herein.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day and year first above written.
TranSwitch Corporation
by /s/ Xxxxxxx XxXxx
----------------------------
Three Enterprise Drive - Shelton LLC
by /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx, a member
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State of _______________________
ss City/Town of __________________________
County of _______________________
Personally appeared _________________ , signer and sealer of the
foregoing instrument, who acknowledged himself to be the ________________ of
TranSwitch Corporation and the execution to be his or her free act and deed
and the duly authorized free act and deed of TranSwitch Corporation, before me,
this ________ day of _________________ 1996.
________________________________
Commissioner of the Superior
Court/Notary Public
State of Connecticut
ss City/Town of Shelton
County of Fairfield
Personally appeared Xxxxxx X. Xxxxxx, signer and sealer of the foregoing
instrument, who acknowledged himself to be a member of Three Enterprise Drive -
Shelton LLC and the execution to be his or her free act and deed and the duly
authorized free act and deed of Three Enterprise Drive - Shelton LLC, before me,
this 2nd day of December 1996.
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Notary Public
Xxxxxxx X. Xxxxxx
Notary Public
My Commission Expires July 31, 1998
-25-
EXHIBIT A. Sheet 1
TranSwitch Corporation
Three Enterprise Drive
Shelton, Connecticut
first floor
Leased Premises
EXHIBIT A, Sheet 2
TranSwitch Corporation
Three Enterprise Drive
Shelton, Connecticut
second floor
Leased Premises
[FLOOR PLAN APPEARS HERE]
EXHIBIT B
All that certain piece or parcel of land, together with the buildings and
improvements thereon, situated in Shelton, Connecticut and shown and described
as Lot No. 5 on a certain map entitled, "Section Three Subdivision Plan of
property on Bridgeport Avenue (Old Route 8) & Commerce Drive, Shelton,
Connecticut", prepared for Xxxxxx X. Xxxxxx by J & X Xxxxxx & Associates
December 6, 1984 and on file in the Shelton Land Records as Map No. 2252.
Said property is also known as Three Enterprise Drive.
EXHIBIT C
Rules and Regulations
As of the execution of the Lease, the rules and regulations are as follows:
1. The delivery or shipping of merchandise, supplies and fixtures to and from
the Leased Premises and the Project shall be subject to such rules and
regulations as in the reasonable judgment of the Landlord are necessary for
the proper operation of the Leased Premises and Project and shall not
unreasonably interfere with other tenant's use of the Project.
2. All garbage and refuse shall be kept in the kind of container specified and
shall be placed outside of the Leased Premises, prepared for collection at
the location, in the manner and at the times specified by Landlord.
3. No aerial shall be erected on the roof or exterior wall of the Leased
Premises or in any other area of the Project exterior to the Leased
Premises without, in each instance, the prior Consent of the Landlord,
which may be withheld in Landlord's absolute discretion, unless the party
installing the aerial shall be entitled to the same under such party's
lease. Any aerial so installed without such written consent shall be
subject to removal without notice at any time.
4. No electronic interference shall emanate from the Leased Premises which
shall interfere with any reception or emission of any other person's
telephone signal, television signal, radio signal, data signal or
electricity.
5. No loud speakers, televisions, phonographs, radios or other devices shall
be used in a manner so as to be heard or seen outside of the Leased
Premises without the prior written consent of the Landlord.
6. To the extent that Tenant has thermostatic control of the temperature in
the Leased Premises, Tenant shall keep the Leased Premises at a temperature
sufficiently high to prevent freezing of water pipes and fixtures.
7. The plumbing facilities shall not be used for any other purposes than that
for which they are constructed, and no foreign substance of any kind shall
be thrown therein, other than objects made for disposal in such plumbing
facilities. The reasonable expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by Tenant who,
or whose employees, agents or invitees have, caused such damage.
8. Tenant shall not burn any trash or garbage of any kind in or about the
Leased Premises or Project.
9. Tenant and Tenant's employees and agents shall not solicit business in the
Parking areas or other General Common Area, nor shall Tenant distribute any
handbills or other advertising matter in automobiles parked in the parking
area or other General Common Area.
