Exhibit 10.35
OFFICE LEASE
by and between
LANCDON LIMITED PARTNERSHIP
(Landlord)
and
DARWIN PROFESSIONAL UNDERWRITERS, INC.
(Tenant)
Dated: As of February 1, 2005
OFFICE LEASE
Dated: AS OF FEBRUARY 1, 2005
REFERENCE DATA
LANDLORD: Lancdon Limited Partnership
LANDLORD'S ADDRESS: c/o Mcared Realty, Inc.,
00 Xxxxxxx Xxxx Xxxx, Xxxxxxxx X,
Xxxxx X-0000, Xxxxxxxx, XX 00000
TENANT: Darwin Professional Underwriters, Inc.
TENANT'S ADDRESS: 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000
BUILDING: 0 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000
PREMISES: Approximately 36,732 rentable square feet of area in the
Building as outlined on EXHIBIT A
TERM.
COMMENCEMENT DATE: May 1, 2005
TERM: Six (6) years and five (5) months
RENEWAL TERM: One (1) term of five (5) years
ANNUAL RENT: Month 1-3: -0
Months 4-75: $20.00 per rentable square foot
Months 76 & 77: -0-
RENEWAL TERM
ANNUAL RENT: 95% of market value rent
Tenant must provide at least 9 months
notice to renew.
The foregoing data is to be used for reference purposes only and not as a
summary or interpretation of any of the terms and conditions of the Lease.
TABLE OF CONTENTS
Page
----
1. PREMISES; COMMON FACILITIES........................................ 1
2. TERM; EARLY ACCESS................................................. 1
3. RENT............................................................... 1
4. USE................................................................ 6
5. SERVICES........................................................... 6
6. UTILITIES.......................................................... 6
7. INTERRUPTION OF SERVICES AND UTILITIES............................. 6
8. EXTRA SERVICES AND UTILITIES....................................... 7
9. REPAIRS............................................................ 7
10. YIELD UP AND FIXTURES.............................................. 8
11. CHANGES AND ALTERATIONS............................................ 8
12. INDEMNITY AND INSURANCE............................................ 9
13. SUBLEASING AND ASSIGNMENT.......................................... 11
14. LANDLORD'S RIGHTS IN A TENANT BANKRUPTCY........................... 14
15. COMPLIANCE WITH LAWS............................................... 14
16. APPURTENANCES...................................................... 15
17. FIRE OR OTHER CASUALTY............................................. 15
18. CONDEMNATION....................................................... 16
19. INTENTIONALLY OMITTED.............................................. 16
20. ACCESS............................................................. 16
21. LIABILITY.......................................................... 17
22. DEFAULT............................................................ 17
23. BANKRUPTCY......................................................... 18
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24. WAIVER OF SUBROGATION.............................................. 19
25. SUBORDINATION...................................................... 19
26. DEFINITION OF LANDLORD............................................. 19
27. BROKERAGE.......................................................... 19
28. RULES AND REGULATIONS.............................................. 19
29. LIMITATION OF LIABILITY............................................ 20
30. FORCE MAJEURE...................................................... 20
31. INTENTIONALLY OMITTED.............................................. 21
32. NOTICES............................................................ 21
33. SELF HELP.......................................................... 21
34. ESTOPPEL CERTIFICATES.............................................. 22
35. MECHANICS LIENS.................................................... 22
36. CONDITION OF THE PREMISES; LANDLORD'S WORK......................... 22
37. PRE JUDGMENT REMEDY, REDEMPTION, COUNTERCLAIM AND JURY TRIAL....... 23
38. RECORDING.......................................................... 23
39. PARTIAL INVALIDITY................................................. 23
40. ENTIRE AGREEMENT................................................... 23
41. HEIRS, ASSIGNS, NUMBER AND GENDER.................................. 24
42. MORTGAGEE PROTECTION............................................... 24
43. INTENTIONALLY OMITTED.............................................. 24
44. HOLDING OVER....................................................... 24
45. FINANCING.......................................................... 24
46. SHORING............................................................ 25
47. RENEWAL OPTIONS.................................................... 25
48. SATELLITE DISH PROVISIONS.......................................... 26
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49. PARKING............................................................ 29
50. ENVIRONMENTAL CONDITION OF THE PROPERTY............................ 29
51. GENERATOR.......................................................... 30
52. SIGNAGE............................................................ 30
53. QUIET ENJOYMENT.................................................... 31
EXHIBITS
Exhibit A - Plan Showing the Premises
Exhibit B - Rules and Regulations
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OFFICE LEASE
THIS LEASE made as of the 1st day of February, 2005, between LANCDON
LIMITED PARTNERSHIP, a Pennsylvania limited partnership with an office c/o
Mcared Realty, Inc., 00 Xxxxxxx Xxxx Xxxx, Xxxxxxxx X, Xxxxx X-000X, Xxxxxxxx,
XX 00000 (hereinafter called "Landlord"), and DARWIN PROFESSIONAL UNDERWRITERS,
INC. a Delaware corporation with offices at 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx,
XX 00000 (hereinafter called "Tenant").
WITNESSETH:
1. PREMISES; COMMON FACILITIES.
(a) Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, approximately 36,732 rentable square feet of space, located on the
second floor of the building known as 0 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx, XX
(hereinafter referred to as the "Building"), as indicated on the plan attached
hereto as Exhibit A (hereinafter referred to as the "Premises").
(b) As long as this Lease is in full force and effect, Tenant shall
have the right to use, in common with others, (i) the showers and locker rooms
located on the ground floor of the Building; and (ii) any cafeteria in the
Building,
2. TERM; EARLY ACCESS.
(a) The term of this Lease shall commence on May 1, 2005 (the
"Commencement Date") and end on September 30, 2011. Notwithstanding the
foregoing, if the work to be performed by Landlord tinder paragraph 36(b) hereof
is substantially completed prior to May 1, 2005, and Tenant occupies the
Premises and commences business therein prior to May 1, 2005, then the
Commencement Date shall be such earlier date on which both of the foregoing have
occurred. The Commencement Date of this Lease and the obligation of Tenant to
pay rent, additional rent and all other charges hereunder shall not be delayed
or postponed by reason of any delay by Tenant in performing changes or
alterations in the Premises to be perforated by Tenant.
(b) Tenant shall be entitled to have access to the Premises as of the
earlier of February 7, 2005 or the date that Landlord notifies Tenant that the
existing tenant of the Premises has terminated its lease with respect thereto,
for the purpose of readying the Premises for its occupancy. All of the terms and
conditions of this Lease shall apply to any such early occupancy period.
3. RENT. Annual rent shall be as follows:
(i) Commencement Date through three (3) months after the Commencement
Date: -0-
(ii) From the date that is three (3) months after the Commencement
Date (i.e., if the Commencement Date is April 15, 2005, the date that is three
(3) months
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after the Commencement Date would be July 15, 2005) through the seventy-fifth
(75th) full month after the Commencement Date: $20.00 per rentable square foot.
(iii) Seventy-sixth (76th) and seventy-seventh (77th) full months
after the Commencement Date:
For purposes of determining the amount of annual rent payable during
the period from the Commencement Date through the thirty-sixth (36th) full month
after the Commencement Date, the following shall apply:
(A) For the fourth (4th) through twelfth (12th) full months after
the Commencement Date, annual rent shall be payable based on 20,000 rentable
square feet, provided that if at any time during such time period, Tenant has
more than 108 employees or other people working in the Premises, then during the
balance of such time period, for each employee in excess of 100, annual rent
shall be payable on an additional 225 rentable square feet (tip to a maximum
number of rentable square feet of 36,732).
(B) For the thirteenth (13th) through twenty-fourth (24th) full
months after the Commencement Date, annual rent shall be payable based on 25,000
rentable square feet, provided that if at any time during such time period,
Tenant has more than 136 employees or other people working in the Premises, then
during the balance of such time period, for each employee in excess of 125,
annual rent shall be payable on an additional 225 rentable square feet (up to a
maximum number of rentable square feet of 36,732).
(C) For the twenty-fifth (25th) through thirty-fifth (35th) full
months after the Commencement Date, annual rent shall be payable based on 30,000
rentable square feet, provided that if at any time during such time period,
Tenant has more than 163 employees or other people working in the Premises, then
during the balance of such time period, for each employee in excess of 150,
annual rent shall be payable on an additional 225 rentable square feet (up to a
maximum number of rentable square feet of 36,732).
For the thirty-sixth (36th) full month after the Commencement Date and
thereafter, annual rent shall be payable based on 36,732 rentable square feet,
regardless of the number of employees or other people working in the Premises.
Tenant covenants and agrees to pay to Landlord the rent c/o Mcared
Realty, Inc., 00 Xxxxxxx Xxxx Xxxx, Xxxxxxxx X, Xxxxx X- 000X, Xxxxxxxx, XX
00000, or at such other place as Landlord may designate in writing. Rent shall
be payable without notice or demand, without abatement, deduction or setoff,
except as specifically set forth in this Lease. Rent for any portion of a month
shall be pro rated. Annual rent shall be payable in monthly installments on the
first day of each month in advance. All amounts (other than annual rent) payable
to Landlord by Tenant under this Lease shall be deemed additional rent and
Landlord shall have the same rights and remedies by reason of non-payment of
such additional rent as if Tenant had failed to pay an installment of annual
rent.
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In addition to the annual rental payable under this Lease as set forth
above, Tenant shall pay to Landlord, the following:
(a) A pro rata percentage of any increase in the total Operating
Expenses (as hereinafter defined) for each fiscal year during the term of this
Lease over the amount of Operating Expenses during the base fiscal year of July
1, 2005 through June 30, 2006. The pro rata percentage applicable to this Lease
is twenty-seven and twenty one hundredths percent (27.20%).
(b) A pro rata percentage of any increase in Real Estate Taxes levied
upon the Building for each fiscal year during the term of this Lease over the
Real Estate Taxes levied upon said property with respect to the base fiscal year
of July 1, 2005 through June 30, 2006. The pro rata percentage applicable to
this Lease is twenty-seven and twenty one hundredths percent (27.20%).
"Operating Expenses" shall mean all expenses paid or incurred by
Landlord or on Landlord's behalf on commercially reasonable basis in respect of
the management, repair, operation and maintenance of the Building, including but
not limited to (1) salaries, wages and benefits of employees of Landlord engaged
in the management, repair, operation and maintenance of the Building, which
salaries, wages and benefits shall, with respect to any employees that do not
work full time at the Building, be pro-rated in accordance with the percentage
of their time spent at the Building; (2) payroll taxes, worker's compensation,
uniforms and related expenses for such employees; (3) the cost of all charges
for oil, gas, steam, electricity, any alternate source of energy, heating,
ventilation, air-conditioning, water, sewers and other utilities furnished to
the Building (including the Common areas and leased areas thereof), together
with any taxes on such utilities; (4) the cost of painting non-tenant space; (5)
the cost of all charges for rent, casualty, liability and fidelity insurance
with regard to the Building and the maintenance or operation thereof; (6) the
cost of all supplies (including cleaning supplies), tools, materials and
equipment, the rental thereof and sales and other taxes thereon; (7)
depreciation of hand tools and other movable equipment used in the repair,
operation or maintenance of the Building; (8) the cost of all charges for window
and other cleaning and janitorial, snow and ice removal, and security services;
(9) charges of independent contractors; (10) repairs and replacements made by
Landlord at its expense (provided that if such cost would, under generally
accepted accounting principles, be required to be capitalized, then only a
proportionate part of such costs shall be included each year in Operating
Expenses over the useful life (as reasonably estimated by Landlord) of such
repair or replacement); (11) exterior and interior landscaping; (12) alterations
and improvements to the Building made by reason of the laws and requirements of
any public authorities enacted after the Commencement Date hereunder or the
requirements of insurance bodies (provided that if such cost would, under
generally accepted accounting principles, be required to be capitalized, then
only a proportionate part of such costs shall be included each year in Operating
Expenses over the useful life (as reasonably estimated by Landlord) of such
repair or replacement); (13) management fees (which shall not exceed 5% of gross
revenues) or, if no separate managing agent is employed by Landlord, a sum in
lieu thereof which is not in excess of the then prevailing rates for management
fees of other first-class office buildings in the area in which the Building is
located; (14) Intentionally Omitted; (15) the cost of any capital improvements
or
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additions to the Building and of any machinery or equipment installed in the
Building which are made or become operational, as the case may be, after the
Base Year and which have the effect of reducing the expenses which otherwise
would be included in Operating Expenses to the extent of the lesser of (A) such
cost, as reasonably amortized by Landlord with interest on the unamortized
amount at the prime rate then generally available in the State, or (B) the
amount of such reduction in Operating Expenses; (16) reasonable legal,
accounting and other professional fees incurred in connection with the
operation, maintenance and management of the Building (provided that legal fees
incurred in negotiating or enforcing leases, or in connection with any financing
on the Building, shall be excluded); (17) subject to Tenant's approval, which
approval shall not be unreasonably withheld, any subsidy that Landlord provides
to the operator of the cafeteria in the Building (nothing herein shall require
that Landlord provide any such subsidy or that Landlord maintain the current
size or scope of the cafeteria or that Landlord keep a cafeteria open in the
Building); and (18) all other charges properly allocable to the repair,
operation and maintenance of the Building in accordance with generally accepted
accounting principles (provided that if such cost would, under generally
accepted accounting principles, be required to be capitalized, then only a
proportionate part of such costs shall be included each year in Operating
Expenses over the useful life (as reasonably estimated by Landlord) of such
repair or replacement). In addition to the above, in the event that for any
period during the base year or during the term of this Lease the Building is
less than 95% leased and occupied, and/or any utilities for any occupied space
in the Building arc directly billed to the occupant thereof, Operating Expenses
shall be equitably adjusted to include such additional expenses as Landlord
would have incurred had the Building been 95% leased and occupied, and/or the
utilities in question had not been directly billed, for such period.
Excluded from Operating Expenses shall be the following: (aa)
depreciation (except as provided above); (bb) interest on and amortization of
debts; (cc) leasehold improvements including redecorating made for tenants of
the Building; (dd) brokerage commissions and advertising expenses for procuring
new tenants of the Building; (ee) refinancing costs; (ff) Real Estate Taxes;
(gg) the cost of any item included in Operating Expenses under clauses (1) -
(18) to the extent that such cost is reimbursed by an insurance company or a
condemnor a tenant (except as a reimbursement of Operating Expenses) or any
other party.
Commencing with July 1, 2006 for purposes of payments under
subparagraphs (a) and (b) above, Landlord shall estimate the increases (if any)
which may be payable thereunder. Said estimates shall he based upon careful and
reasonable examination of all available economic data and projections. The
amounts of said estimates shall be divided into equal monthly payments which
shall be paid by Tenant in advance, commencing July 1, 2006, along with Tenant's
regular monthly rental payment. Should the actual annual increases provided for
in subparagraphs (a) and (b) be more than Landlord's estimate, then Tenant's
monthly payment as aforesaid shall be adjusted each January 1st (with respect to
Operating Expenses) and/or July 1st (with respect to real estate tax payments)
to more nearly reflect the actual increases.
Within thirty (30) days front the date Landlord presents each annual
xxxx to Tenant for payments under subparagraphs (a) and (b), which annual xxxx
shall include a
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line-item break down of Operating Expenses, Tenant will pay to Landlord in a
lump sum that amount by which Tenant's actual pro rata share exceeds the amount
of Tenant's estimated payments theretofore. Should the amount of Tenant's
estimated payments exceed Tenant's pro rata share, then Landlord shall, within
said thirty (30) day period credit such overpayment to Tenant. A certified xxxx
for Operating Expenses and a real estate tax xxxx (or copy thereof) submitted by
Landlord to Tenant shall be sufficient evidence of the amount of Operating
Expenses and real estate taxes with respect to the property and improvements
thereon. Tenant's pro rata share of any increases in such payments hereunder
shall be adjusted in the first and last years of the Lease to take into
consideration the fact that Tenant may only be in possession for a partial year.
Tenant shall have the right within twelve (12) months after receipt of
Landlord's certified xxxx for Operating Expenses for any calendar year and/or
real estate tax xxxx to review all of the books of account, documents, records
and files of Landlord regarding Operating Expenses and/or real estate taxes for
such calendar year. Any such review shall be upon prior written request of
Tenant and not later than twenty (20) days after such request. Landlord shall
make all of such records available for examination by Tenant or any designated
representative of Tenant at the office to which notices to Landlord are to be
addressed or at the offices of Landlord's management company.
"Real Estate Taxes" shall mean and include: (i) all general and
special taxes, assessments, duties and levies, if any, of any kind which are
assessed, levied, charged, confirmed or imposed by any public authority upon the
Building, its operations or the rent provided for hereunder, which are payable
(adjusted after protest or litigation, if any) for any part of the term of this
Lease, exclusive of penalties or discounts; and (ii) the reasonable expenses of
contesting the amount or validity of any such taxes, charges or assessments,
such expense to be applicable to the period if the term is contested,
Tenant shall pay for all ad valorem taxes on its personal property, if
any, and on the value of leasehold improvements to the extent that same exceed
standard building allowances (as determined by Landlord in its reasonable
discretion).
If Landlord shall receive a refund of Real Estate Taxes for any period
during the term of this Lease after the year during which the term of this Lease
shall commence, then Landlord shall pay over to Tenant the pro rata percentage
of Real Estate Taxes paid by Tenant as set forth above, to the extent Tenant
shall have borne any portion of such taxes so refunded, after deducting from any
such taxes so refunded the fees and expenses incurred by Landlord in obtaining
such refund.
Rent payable under this Paragraph shall be apportioned for any
fraction of a year at the end of the term of this Lease.
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4. USE.
(a) The Premises shall be used for Tenant's office purposes and for no
other purpose whatsoever.
(b) Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Premises, or do or permit anything to be done in
the Premises, in any manner (i) which causes or is liable to cause injury to the
Building or any equipment, facilities or systems therein; (ii) which constitutes
a violation of the laws and requirements of any public authorities or the
requirements of insurance bodies; (iii) which impairs or tends to impair the
character, reputation or appearance of the Building as a first-class office
Building; (iv) which impairs or tends to impair the proper and economic
maintenance, operation and repair of the Building and/or its equipment,
facilities or systems; or (v) which annoys or inconveniences or tends to annoy
or inconvenience other tenants or occupants of the Building.
5. SERVICES. Landlord at its expense shall: (a) provide sufficient heat and
air conditioning systems to maintain the Premises at comfortable temperatures
Mondays through Fridays, 8:00 a.m. to 6:00 p.m., and Saturdays 9:00 a.m. to
12:00 p.m., except recognized holidays; and (b) cause the common areas of the
Building in to be kept clean, provided the Premises are kept in good order by
Tenant. Landlord shall provide cleaning and janitorial services Mondays through
Fridays; (c) provide at least one automatic passenger elevator. Tenant shall
have access to the Premises on a 24 hour per day, 7 day per week basis. There is
presently a key card security system for after hours access to the Building.
Landlord shall provide one key card for each of Tenant's employees free of
charge. Landlord may charge a reasonable fee for the replacement of lost key
cards. Landlord will maintain such system or a comparable system, but does not
guarantee that such system or any comparable system will provide adequate
security for Tenant.
6. UTILITIES. Landlord shall provide electric service of not less than four
(4) xxxxx per rentable square foot connected load (exclusive of HVAC) to the
Premises. Tenant shall pay Landlord all costs and expenses necessary to provide
electric service in the Premises in excess of said standard service. In no event
shall Tenant he allowed to place a load on the electrical system that exceeds
the safe capacity thereof. Landlord shall furnish at its expense hot and cold
water service for ordinary cleaning, toilet, lavatory and drinking purposes.
7. INTERRUPTION OF SERVICES AND UTILITIES. Landlord shall not be liable for
the interruption, curtailment, stoppage or suspension of services and utilities
to be furnished by Landlord pursuant to Paragraphs 5 and 6 above when necessary
by reason of accident or emergency or suspension of utility services or when
necessary for repairs, alterations, replacements or improvements desirable or
necessary in the reasonable judgment of Landlord or for any cause beyond the
control of Landlord. In the event of any such interruption, curtailment,
stoppage or suspension, there shall be no diminution or abatement of rent,
additional rent or other charges due from Tenant to Landlord hereunder, Tenant's
obligations hereunder shall not be affected or reduced, and Landlord shall have
no responsibility or liability for any such interruption, curtailment,
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stoppage or suspension; however, Landlord shall exercise reasonable diligence to
restore any services or utilities so interrupted, curtailed, stopped or
suspended.
8. EXTRA SERVICES AND UTILITIES. Landlord will use its best efforts upon
reasonable advance written notice from Tenant of its requirements in that regard
to furnish additional services and utilities to the Premises on days and at
times other than as provided in Paragraph 5 above. Tenant agrees to pay Landlord
a reasonable charge for any such additional services and utilities, which is
currently $50.00 per hour, and if Tenant avails itself of such services or
utilities without notice to Landlord, Landlord may impose a charge therefor. Any
charges incurred pursuant to this Paragraph shall be deemed additional rent.
9. REPAIRS.
(a) Landlord shall maintain and repair the Building, including all
structural portions and the exterior, all common areas, the exterior portions of
the land that is part of the 9 Farms Springs property, including the paved and
landscaped areas, and the heating, ventilating, air-conditioning, plumbing and
electrical systems to the extent that such systems are not within the Premises.
Tenant shall maintain and repair the interior of the Premises and keep the same
in a neat and orderly condition and Tenant shall pay to Landlord all costs
incurred by Landlord in making any repairs necessitated by Tenant's, its
servants', agents', and employees' negligence as additional rent, payable within
fifteen (l5) days from the date of rendition of a xxxx therefor. Notwithstanding
the foregoing, Landlord shall, at Tenant's cost, repair and replace all lighting
tubes, lamps and ballasts within the Premises; in addition, Landlord will, upon
request of Tenant, perform any other repairs or replacements within the
Premises, at Tenant's cost. Tenant covenants that it shall not make any repairs
or in any way tamper with the heating, air conditioning, ventilating,
electrical, plumbing or mechanical systems of the Building outside of the
Premises.
(b) Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law.
(c) Business machines and mechanical equipment belonging to Tenant
which cause noise or vibration that may be transmitted to the structure of the
Building or to the Premises to such a degree as to be objectionable to Landlord
shall be placed and maintained by the party owning the machines or equipment at
such party's expense, in setting of cork, rubber or spring type vibration
eliminators sufficient to eliminate noise or vibration. In the event of any
violation, Tenant shall he obligated to make such repairs to the Premises and
Building, resulting therefrom and to take all steps reasonably necessary to
eliminate such noise or vibration.
(d) Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease, or required by law, to
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make in or to any portion of the Building or the Premises, or in or to the
fixtures, equipment or appurtenances of the Building of the Premises, however
Landlord shall exercise reasonable diligence to make such repairs or changes in
such manner as not to unreasonably interfere with Tenant's business in the
Premises and as not to impose additional expense under Tenant. Subject to
Paragraph 24 hereof, Landlord shall be responsible for damage to Tenant's
property in the Premises that is caused by Landlord's or its servants', agents',
or employees' negligence in connection with any such repairs or changes.
10. YIELD UP AND FIXTURES. Tenant shall at the termination of this Lease
peaceably yield up the Premises and Tenant's improvements and permitted
Alterations in good order, repair and condition, fire or unavoidable casualty
and reasonable use and wear excepted, provided that if required by Landlord, any
Alterations made by Tenant, including without limitation, any telephone or data
wiring installed by Tenant, shall be removed by Tenant prior to the termination
of this Lease, in which event the Premises shall be restored to their condition
prior to the Alteration. Tenant shall before the termination of this Lease
remove all furniture, fixtures, and personal property of Tenant From the
Premises and Tenant shall repair any damage to the Premises or the common areas
caused by such removal including the filling in of all holes, and the patching
or replacement of all floor areas or ceilings damaged by such removal.
11. CHANGES AND ALTERATIONS.
(a) Tenant shall not make any changes or alterations ("Alterations")
in or to the Premises without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed with regard to Alterations that do
not affect the Building's structure or systems, provided that Landlord's consent
shall not be required for purely cosmetic Alterations (such as paint and carpet)
that cost less than $25,000.00. Any approved Alterations shall be made on the
following conditions: (i) before proceeding with any Alteration, Tenant shall
submit to Landlord for Landlord's approval plans and specifications for the work
to be done, and Tenant shall not proceed with such work until it obtains
Landlord's approval; (ii) Tenant shall pay to Landlord upon demand the
reasonable cost and expense of Landlord in (A) reviewing said plans and
specifications and (B) inspecting the Alterations to determine whether the same
are being performed in accordance with the approved plans and specifications and
all laws and requirements of public authorities, including, without limitation,
the fees of any architect or engineer employed by Landlord for such purpose;
(iii) Intentionally Omitted; (iv) Tenant shall fully and promptly comply with
and observe the rules and regulations of Landlord then in force with respect to
the making of Alterations; (v) the entire cost of the Alterations shall be borne
by Tenant; and (vi) Tenant agrees that any review or approval by Landlord of any
plans or specifications with respect to any Alterations is solely for Landlord's
benefit, and without any representation or warranty whatsoever to Tenant with
respect to the adequacy, correctness or efficiency thereof or otherwise.
(b) Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of Alterations and
for final approval thereof upon completion, and shall cause Alterations to be
performed in compliance therewith and with all applicable law and requirements
of public authorities
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and with all applicable requirements of insurance bodies. Alterations shall be
diligently performed in a good and workmanlike manner, using new materials and
equipment at least equal in quality and class to the better of (i) the original
installations of the Building, or (ii) the then standards for the Building
established by Landlord. Alterations shall be performed by contractors first
approved by Landlord; provided, however, that any Alterations in or to the
mechanical, electrical, sanitary, heating, ventilating, air-conditioning or
other systems of the Building shall be performed only by contractors designated
by Landlord. Alterations shall be performed in such manner as not to
unreasonably interfere with or delay and as not to impose an additional expense
upon Landlord in the construction, maintenance, repair or operation of the
Building; and if any such additional expense shall be incurred by Landlord as a
result of Tenant's performance of any Alterations, Tenant shall pay such
additional expense upon demand. Throughout the performance of Alterations,
Tenant, at its expense, shall carry, or cause to be carried, worker's
compensation insurance in statutory limits, employer's liability in a minimum
amount of One Hundred Thousand and 00/100 Dollars ($100,000.00), comprehensive
general liability insurance, including completed operation endorsement, and
broad form general liability endorsement and comprehensive auto liability,
including owned, non-owned and hired vehicles, for any occurrence in or about
the Building, under which Landlord and its agent shall be named as parties
insured, in such limits as Landlord may reasonably require, with insurers
reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of Alterations and, on request, at reasonable intervals
thereafter during the continuance of Alterations. All insurance required by this
subparagraph 11(b) must name Landlord and Tenant as additional named insureds.
If any Alterations shall involve the removal of any fixtures, equipment or other
property in the Premises which are not Tenant's Property, such fixtures,
equipment or other property shall be promptly replaced at Tenant's expense with
new fixtures, equipment or other property of like utility and at least equal
value unless Landlord shall otherwise expressly consent.
(c) Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Alterations, or any other work, labor, services or
materials done for or supplied to Tenant, or any person claiming through or
under Tenant, which shall be issued by the Town of Farmington, or any other
public authority having or asserting jurisdiction. Tenant shall defend,
indemnify and save harmless Landlord from and against any and all mechanics' and
other liens and encumbrances filed in connection with Alterations, or any other
work, labor, services or materials done for or supplied to Tenant, or any person
claiming through or under Tenant, including, without limitation, security
interests in any materials, fixtures or articles so installed in and
constituting part of the Premises and against all costs, expenses and liability
incurred in connection with any such lien or encumbrance or any action or
proceeding brought thereon. Tenant, at its expense, shall procure tie
satisfaction or discharge or record of all such liens and encumbrances within
three (3) days after the filing thereof.
12. INDEMNITY AND INSURANCE. Tenant shall indemnify, defend and hold
harmless Landlord, its agents and employees from and against any and all
Liability (statutory or otherwise), claims, suits, demands, judgments, costs,
interest and expense
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(including, but not limited to, reasonable attorneys' fees and disbursements)
arising from any injury to, or death of, any person or persons or damage to
property (including loss of use thereof) related to (a) Tenant's use of the
Premises or conduct of business therein, (b) any work or thing whatsoever done,
or any condition created (other than by Landlord, its employees, agents or
contractors) by or on behalf of Tenant in or about the Premises, including
during the period of time, if any, prior to the term commencement date, that
Tenant may have been given access to the Premises for the purpose of doing any
work or making any installations, (c) any condition of the Premises due to or
resulting from any default by Tenant in the performance of Tenant's obligations
under this Lease, or (d) any act, omission or negligence of Tenant or its
agents, contractors, employees, subtenants, licensees or invitees. In case any
action or proceeding is brought against Landlord by reason of any one or more
thereof, Tenant shall pay all costs, reasonable attorneys' fees, expenses and
liabilities resulting therefrom and shall resist such action or proceeding if
Landlord shall so request, at Tenant's expense, by counsel reasonably
satisfactory to Landlord.
Landlord shall indemnify, defend and hold harmless Tenant, its agents
and employees from and against any and all liability (statutory or otherwise),
claims, suits, demands, judgments, costs, interest and expense (including, but
not limited to, reasonable attorneys' fees and disbursements) arising from any
injury to, or death of any person or persons or damage to property (including
loss of use thereof) related to (a) Landlord's use of the Building other than
within the Premises, (b) any work or thing whatsoever done or any condition
created (other than by Tenant, its employees, agents or contractors) by or on
behalf of Landlord in or about the Premises and the Building, (c) any condition
of the Premises and/or the Building due to or resulting from any default by
Landlord in the performance of Landlord's obligations under this Lease, or (d)
any act, omission or negligence of Landlord or its agents, contractors,
employees, subtenants, licensees or invitees (subject to Paragraph 24 hereof).
In case any action or proceeding is brought against Tenant by reason of any one
or more thereof, Landlord shall pay all costs, reasonable attorneys' fees,
expenses and liabilities resulting therefrom and shall resist such action or
proceeding if Tenant shall so request, at Landlord's expense, by counsel
reasonably satisfactory to Tenant.
Tenant shall at Tenant's expense, obtain and keep in force at all
times during the tern of this Lease Agreement, Commercial General Liability
Insurance including broad form general liability endorsement and contractual
liability on an occurrence basis and comprehensive auto liability, including
owned, non-owned and hired vehicles with limits of not less than Three Million
and 00/100 Dollars ($3,000,000.00) combined single limit insuring Landlord (and
all general partners of Landlord) and Tenant against any liability arising out
of the use, occupancy or maintenance of the Premises, the Building and all areas
appurtenant thereto. Such insurance may be provided by not less than
$1,000,000.00 of primary coverage and the balance by umbrella coverage. The
limit of said insurance shall not, however, limit the liability of Tenant
hereunder. Tenant may carry said insurance under a blanket policy provided an
endorsement naming Landlord as an additional insured is attached thereto.
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Tenant shall maintain insurance against such other perils and in such
amounts as Landlord may from time to time reasonably require in writing,
provided that such coverage is commercially reasonable.
Insurance required hereunder shall be in companies licensed in the
State of Connecticut and have a "Bests' Insurance Guide" rating of B+/-/12 or
better. Mutual insurance companies may be used only if they are nonassessable.
No policy shall he cancelable or subject to reduction of coverage except after
thirty (30) days' written notice to Landlord. All policies of insurance
maintained by Tenant shall be in form acceptable to Landlord with satisfactory
evidence that all premiums have been paid. Tenant agrees not to knowingly
violate or permit to be violated any of the conditions or provisions of the
insurance policies required to be furnished hereunder, and agrees to promptly
notify Landlord of any fire or other casualty.
Landlord nay require that the amount of Commercial General Liability
Insurance to be maintained by Tenant under this Paragraph 12 be increased from
time to time to a commercially reasonable amount.
13. SUBLEASING AND ASSIGNMENT.
(a) Tenant covenants and agrees that neither this Lease nor the term
and estate hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred, and that neither the
Premises, nor any part thereof, will be sublet or encumbered in any manner by
reason of any act or omission on the part of Tenant, or used or occupied, or
permitted to be used or occupied, or utilized for desk space or for mailing
privileges, by anyone other than Tenant, or for any use or purpose other than as
stated in Paragraph 4, without the prior written consent of Landlord, which
consent shall not he unreasonably withheld or delayed. Notwithstanding the
foregoing, Landlord's consent shall not be required with respect to an
assignment of this Lease or a sublease of all or any portion of the Premises, to
an Affiliate. An "Affiliate" shall mean any entity that Controls Tenant, is
Controlled by Tenant or is under common Control with Tenant. "Control" means,
with respect to a publicly traded company, ownership of more than 10% ownership
plus management control, and with respect to a non-publicly traded company shall
mean more than 51% ownership.
(b) If Tenant should desire to assign this Lease or sublease the
Premises or any portion thereof, Tenant shall give Landlord written notice of
such desire to make such assignment or effect such sublease. If Landlord's
consent is not required thereto, then Tenant's notice shall set forth the
reasons therefor and shall include reasonable documentation supporting the same.
If Landlord's consent is required thereto, then at the time of giving such
notice, Tenant shall provide Landlord with a copy of the proposed assignment or
sublease document, and such information as Landlord may reasonably request
concerning the proposed sublessee or assignee to assist Landlord in making an
informed judgment regarding the financial condition, reputation, operation, and
general desirability of the proposed sublessee or assignee. Landlord shall then
have a period of thirty (30) days following receipt of such notice within which
to notify Tenant in writing of Landlord's election to:
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(i) permit Tenant to assign or sublet the Premises or said portion
thereof; or
(ii) refuse to consent to Tenant's assignment or subleasing of the
Premises or said portion thereof and to continue this Lease in full force and
effect as to the entire Premises.
If Landlord should fail to notify Tenant of its election within said
thirty (30) day period, Landlord shall have elected option 13(b)(i) above.
(c) It is hereby expressly understood and agreed, however, if Tenant
is a corporation or a limited liability company, that the assignment or transfer
of this Lease, and the term and estate hereby granted, to any corporation or
limited liability company into which Tenant is merged or with which Tenant is
consolidated, which corporation or limited liability company shall have a net
worth (calculated in accordance with GAAP) at least equal to that of Tenant
immediately prior to such merger or consolidation, (such corporation or limited
liability company being hereinafter called "Assignee") without the prior written
consent of Landlord shall not be deemed to be prohibited hereby if, and upon the
express condition that, Assignee and Tenant shall promptly execute, acknowledge
and deliver to Landlord an agreement in form and substance satisfactory to
Landlord whereby Assignee shall agree to be bound by and upon all the covenants,
agreements, terms, provisions and conditions set forth in this Lease on the part
of Tenant to he performed, and whereby Assignee shall expressly agree that the
provisions of this Paragraph 13 shall, notwithstanding such assignment of
transfer, continue to be binding upon it with respect to all future assignments
and transfers.
(d) If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not having shares of
beneficial interest) and there shall occur any change in more than 50% of the
ownership interests of such corporation or trust (which 50% requirement shall
not apply as long as the new shareholders or other owners do not participate in
the management of the affairs of Tenant) that is not covered by the exception to
the Landlord consent requirement in Paragraph 13(c) above; or
(ii) a partnership, association, limited liability company or
otherwise not a natural person (and is not a corporation or a trust) and there
shall occur any change in more than 50% of the ownership interests of such
partnership, association, limited liability company or other entity (which 50%
number requirement shall not apply as long as the new owners do not participate
in the management of the affairs of Tenant) that is not covered by the exception
to the Landlord consent requirement in Paragraph 13(c) above;
The same shall constitute an assignment of this Lease for purposes of this
Paragraph 13. This Paragraph 13(d) shall not apply if the initial tenant earned
herein is a corporation and the outstanding voting stock thereof is listed on a
recognized securities exchange.
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(e) The listing of any name other than that of Tenant, whether on the
doors of the Premises or on the building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises or be
deemed to be the written consent of Landlord mentioned in this Paragraph 13, it
being expressly understood that any such listing is a privilege extended by
Landlord revocable at will by written notice to Tenant. Tenant shall be
permitted to list up to 5 names of subsidiaries or affiliates of Tenant on the
Building directory, subject to availability of space thereon. If this Lease be
assigned, or if the Premises or any part thereof he sublet or occupied by
anybody other than Tenant, Landlord may, at any time and from time to time,
collect rent and other charges from the assignee, subtenant or occupant, and
apply the net amount collected to the rent and other charges herein reserved. No
assignment, subletting, occupancy or collection shall be deemed a release of
Tenant or any guarantor of this Lease from the further performance by Tenant or
such guarantor of covenants on the part of Tenant contained in this Lease. No
assignment, subletting or use of the Premises by an affiliate of Tenant shall
affect the purpose for which the Premises may be used as stated in Paragraph 4.
(f) No assignment or subletting which requires the consent of Landlord
as provided for herein shall be effective unless consented to in writing by
Landlord and no assignment or subletting shall be effective until an instrument
in form reasonably satisfactory to Landlord's counsel has been delivered to
Landlord under the terms of which the assignee or sublessee, as the case may be,
has effectively assumed and agreed to pay the rent and additional rent hereunder
and to perform all the terms and conditions contained in this Lease. The consent
by Landlord to an assignment or subletting shall not in any way be construed to
relieve Tenant from obtaining the express consent in writing of Landlord to any
further assignment or subletting.
(g) For the purposes of this Paragraph 13, the subletting for the
remainder of the term of this Lease shall be deemed to be a subletting and not
an assignment. No subletting shall be allowed if the result thereof is to divide
the Premises into more than two (2) demised spaces.
(h) If (i) the rent and other sums received by Tenant on account of a
sublease of all or any portion of the Premises exceeds the rent and additional
rent allocable to the space subject to the sublease (in the proportion of the
area of such space to the entire Premises) plus actual out-of-pocket expenses
incurred by Tenant in connection with Tenant's subleasing of such space,
including brokerage commissions to a licensed broker and the cost of preparing
such space for occupancy by the subtenant, Tenant shall pay to Landlord, as an
additional charge, fifty percent (50%) of such excess, monthly as received by
Tenant or (ii) any payment received by Tenant on account of any assignment of
this Lease exceeds the actual out-of-pocket expenses including brokerage
commissions to a licensed broker and the cost of preparing space for the
assignee, Tenant shall pay to Landlord, as an additional charge, fifty percent
(50%) of such excess when received by Tenant.
(i) Tenant shall reimburse Landlord on demand for any reasonable costs
that Landlord may incur in connection with any assignment or sublease, including
the reasonable costs of investigation, the acceptability of the proposed
assignee or
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subtenant, and reasonable legal costs incurred in connection with the granting
of any requested consent.
14. LANDLORD'S RIGHTS IN A TENANT BANKRUPTCY. In the event any or all of
Tenant's interest in the Premises and/or this Lease is transferred by operation
of law to any trustee, receiver or other representative or agent of Tenant, or
to Tenant as a debtor in possession, and subsequently any or all of Tenant's
interest in the Premises and/or this Lease is offered or to be offered by Tenant
or any trustee, receiver, or other representative or agent of Tenant as to its
estate or property, (such person, firm or entity being hereinafter referred to
as the "Grantor"), for assignment, conveyance, lease, or other disposition to a
person, firm or entity other than Landlord, (each such transaction being
hereinafter referred to as a "Disposition"), it is agreed that Landlord has and
shall have a right of first refusal to purchase, take, or otherwise acquire the
same upon the same terms and conditions as the Grantor thereof shall accept upon
such Disposition to such other person, firm, or entity; and as to each such
Disposition the Grantor shall give written notice to Landlord in reasonable
detail of all of the terms and conditions of such Disposition within twenty (20)
days next following its determination to accept the same but prior to accepting
the same, and it shall not make the Disposition until and unless Landlord has
failed or refused to accept such right of first refusal as to the Disposition,
as set forth herein.
Landlord shall have sixty (60) days next following its receipt of the
written notice as to such Disposition in which to exercise the option to acquire
Tenant's interest by such Disposition, and the exercise of the option by
Landlord shall be effected by written notice to that effect sent to the Grantor
by certified or registered mail; but nothing herein shall require Landlord to
accept a particular Disposition or any Disposition, nor does the rejection of
any one such offer of first refusal constitute a waiver or release of the
obligation of the Grantor to submit other offers hereunder to Landlord. In the
event Landlord accepts such offer of first refusal, the transaction shall be
consummated pursuant to the terms and conditions of the Disposition described in
the notice to Landlord. In the event Landlord rejects such offer of first
refusal, the Grantor may consummate the Disposition with such other person,
firm, or entity; but any decrease in price of more than two percent (2%) of the
price sought from Landlord or any change in the terms of payment for such
Disposition shall constitute a new transaction requiring a further option of
first refusal to be given to Landlord hereunder.
15. COMPLIANCE WITH LAWS. Tenant shall, at its own cost and expense: (a)
comply with all governmental laws, ordinances, orders and regulations affecting
the Premises now in force or which hereafter may be in force, provided that with
respect to any compliance that requires capital improvements, Landlord shall be
responsible for making such capital improvements unless the same are required as
a result of Tenant's specific manner of use of the Premises or Tenant's
Alterations; (b) comply with and execute all rules, requirements and regulations
of the Board of Fire Underwriters, Landlord's insurance companies and other
organizations establishing insurance rates; provided that with respect to any
compliance that requires capital improvements, Landlord shall be responsible for
making such capital improvements unless the same are required as a result of
Tenant's specific manner of use of the
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Premises and Tenant's Alteration; and (c) not suffer, permit, or commit any
waste or nuisance.
16. APPURTENANCES. The Premises include the right of ingress and egress
thereto and therefrom; however, Landlord reserves the right to make changes and
alterations to the Building, fixtures and equipment thereof, in the street
entrances, doors, halls, corridors, lobbies, passages, elevators, escalators,
stairways, toilets and other parts thereof which Landlord may deem necessary or
desirable. Neither this Lease nor any use by Tenant of the Building or any
passage, door, tunnel, concourse, plaza or any other area connecting the garages
or other buildings with the Building, shall give Tenant any right or easement of
such use and the use thereof may, upon reasonable advance notice to Tenant, be
regulated or discontinued at any time and from time to time by Landlord without
liability of any kind to Tenant and without affecting the obligations of Tenant
under this Lease, provided that access to the Building and to the Premises
within the Building shall continue to be comparable, in quality and scope, to
the access that exists on the Commencement Date.
17. FIRE OR OTHER CASUALTY.
(a) If (i) the Premises by reason of a casualty insurable under
Landlord's insurance policy are rendered untenantable, or (ii) the Premises
should be damaged as a result of a risk which is not covered by Landlord's
insurance, or (iii) the Premises should be damaged in whole or in part during
the last three (3) years of the term or any renewal term hereof, or (iv) the
Building (whether the Premises are damaged or not) should be damaged to the
extent of fifty percent (50%) or more of the then monetary value thereof, or if
any or all of the Building or the common areas thereof are damaged, whether or
not the Premises are damaged, to such an extent that the Building cannot, in the
sole judgment of Landlord be operated as an integral unit, then or in any of
such events, Landlord may either elect to repair the damage or may cancel this
Lease by notice of cancellation within ninety (90) days after such event and
thereupon this Lease shall expire, and Tenant shall vacate and surrender the
Premises to Landlord. In addition, Landlord shall notify Tenant of its good
faith estimate of the time necessary to substantially restore any damage to the
Premises or access thereto, and if such estimate is longer than one hundred
eighty (180) days, then Tenant shall have the right to terminate this Lease, but
only if Tenant so notifies Landlord, in writing, within fifteen (15) days after
receipt of Landlord's estimate. If Landlord shall have decided to repair any
damage as aforesaid, the damage (except as to Tenant's fixtures or improvements
made by Tenant) shall be repaired by and at the expense of Landlord and the rent
shall be apportioned according to the part of the Premises which is useable by
Tenant, but Landlord shall not be required to do such repair or restoration work
except during business hours of business days.
(b) Notwithstanding any of the provisions of Paragraph 17(a) hereof,
if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, either (i) Landlord or any Mortgagee shall be unable to
collect all of the insurance proceeds (including, without limitation, rent
insurance proceeds) applicable to damage or destruction of the Premises or the
Building by fire or other casualty, or (ii) the Premises
15
of the Building shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, then without
prejudice to any other remedies which may be available against Tenant, there
shall be no abatement or reduction of rent or additional rent. Further, nothing
contained in this Paragraph 17 shall relieve Tenant from any liability that may
exist as a result of any damage or destruction by fire or other casualty.
18. CONDEMNATION.
(a) If the whole of the Building shall be lawfully taken by
condemnation or in any other manner for any public or quasi-public use or
purpose, this Lease and the terms and estate hereby granted shall forthwith
terminate as of the date of vesting of title in such condemning authority (which
date is hereinafter also referred to as the date of taking), and the rents shall
be prorated and adjusted as of such date.
(b) If any part of the Building shall be so taken, this Lease shall be
unaffected by such taking, except that (i) Landlord may, at its option,
terminate this Lease by giving Tenant notice to that effect within ninety (90)
days after the Date of the Taking, and (ii) if ten percent (10%) or more of the
Premises shall be so taken and the remaining area of the Premises shall not be
reasonably sufficient for Tenant to continue feasible operation of its business,
or if twenty percent (20%) or more of the parking at the Building is so taken
and Landlord is unable to replace the lost parking elsewhere on the 9 Farms
Springs property to the extent necessary to result in less than twenty percent
(20%) having been lost, Tenant may terminate this Lease by giving Landlord
notice to that effect within ninety (90) days after the Date of the Taking. This
Lease shall terminate on the date that such notice from Landlord or Tenant to
the other shall be given, and the rent and additional rent shall be prorated and
adjusted as of such termination date. Upon such partial taking and this Lease
continuing in force as to any part of the Premises, the rent and additional rent
shall be adjusted according to the rentable area remaining.
(c) In the event of any taking, partial or whole, provided for in this
Section, all of the 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 shall not be entitled to any portion of such award,
judgment or settlement received by Landlord from such condemning authority.
Tenant, however, may pursue its own claim against the condemning authority for
any damage or award permitted under applicable statutes of the State of
Connecticut to be paid directly to tenants without diminishing or reducing the
award, judgment or settlement generally payable with respect to the Building
(including the land that is part of the 9 Farms Springs property).
19. INTENTIONALLY OMITTED.
20. ACCESS. Landlord's agents, employees, contractors, prospective
purchasers and prospective tenants shall have the right to enter the Premises at
reasonable hours upon notice to Tenant for the purpose of inspecting the same
and, Landlord, its employees, agents and contractors shall have the right to
enter the Premises at any time for the purpose of making repairs thereto and to
the Building and its mechanical systems and for the purpose of performing the
services to be performed by Landlord pursuant to
16
the terms hereof and for the purpose of curing any violations of rules and
regulations or defaults under this Lease created by or suffered by Tenant.
21. LIABILITY. Neither Landlord, nor any agent or employee of Landlord,
shall be liable for (a) loss of or damage to any property of Tenant, or of any
other person, entrusted to any of Landlord's agents or employees, (b) loss of or
damage to any property of Tenant or of any other person by theft or otherwise,
except to the extent caused by Landlord's negligence, (c) any injury or damage
to any person or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, dust, water or snow, or leaks from any part of the
Building or from the pipes, appliances or plumbing system, or from the roof,
street or subsurface or any other place or by dampness, or from any other cause
whatsoever, except to the extent caused by Landlord's negligence (but subject to
paragraph 24 hereof), (d) any such damage caused by other occupants or persons
in the Building or by construction of any private, public or quasi-public work,
except to the extent caused by Landlord's negligence, or (e) any latent defect
in the Premises or the Building, except to the extent caused by Landlord's
negligence.
22. DEFAULT. In the event of any failure of Tenant to pay the rent or
additional rent due hereunder within ten (10) days after the same is due and
payable (provided that Landlord will, not more than two (2) times during any
twelve (12) month period, be required to provide Tenant with written notice that
a payment of rent or additional rent was not paid when due, and Tenant shall
have ten (10) days after receipt of such notice in which to make the payment,
before a default shall exist), or any failure to commence and diligently pursue
the performance of any of the other terms, covenants, and conditions of this
Lease to be observed and performed by Tenant for more than thirty (30) days
after written notice of such default, or if Tenant makes any transfer,
assignment, conveyance, sale, pledge or disposition of all or a substantial
portion of its property in a distress situation, or if the Tenant's interest
herein shall be sold under execution, or if Tenant shall abandon the Premises
(failure to occupy shall not, by itself, constitute abandonment), then Landlord,
at its option, may terminate this Lease without further notice to Tenant and
upon such termination Tenant shall quit and surrender the Premises to Landlord,
but such termination shall not affect the Landlord's right to recover damages or
exercise any other right hereinafter provided; however, in lieu of terminating
this Lease, Landlord may elect to recover possession of the Premises without
terminating this Lease and Landlord shall have the right to re-enter the
Premises and to remove all persons or property therefrom and store any property
in a public warehouse or elsewhere at the cost and for the account of Tenant,
all without service of notice, except as notice is in this Paragraph 22
required, or resort to legal process, and Landlord shall not be liable for any
loss or damage resulting from such re-entry nor shall Landlord he deemed guilty
of trespass therefor. In the event of termination of this Lease or a re-entry of
the Promises pursuant to this Xxxxxxxxx 00, Xxxxxxxx may re-let the whole or any
part of the Premises on behalf of Tenant for a period equal to, greater or less
than the remainder of the then term of this Lease, at such rental and upon such
terms and conditions as Landlord shall deem reasonable, provided that if this
Lease is terminated as a result of a Tenant default, then Landlord shall use
commercially reasonable efforts to mitigate its damages as a result of such
default. Landlord shall not be liable in any respect for the failure to relet
the Premises or in the event of such reletting, for failure to collect the rent
thereunder and any sums received by Landlord on a reletting shall belong to
Landlord. In
17
the event of a termination of this Lease, Landlord shall forthwith be entitled
to recover from Tenant, as liquidated damages, the amount by which the sum of
(a) rent and additional rent payable for the remainder of the term of this
Lease; and (h) all expenses of Landlord incurred in recovering possession of the
Premises and reletting the same including costs of repair and renovating the
Premises, management agents' commissions a
Landlord and Tenant shall each he entitled to a reasonable attorney's
fee from the other in the event that either shall retain an attorney to
successfully enforce the provisions of this Lease or successfully defend an
action brought by the other relating to this Lease, including any suit shall
brought by Landlord for recovery of possession of the Premises, for recovery of
rent or additional rent or any suit brought by either party because of the
breach of any other covenant herein contained on the part of the other party to
be performed.
In the event that Tenant is in default of any provision of this Lease
requiring the payment of monies for more than ten (10) days after the due date
thereof, then Tenant shall pay to Landlord as additional rent the greater of (a)
interest at the rate of eighteen percent (18%) per annum or the highest rate
permitted by law, whichever is less, on the amount due Landlord hereunder, or
(b) a late charge of five percent (5%) of the amount due, provided that not more
than one (1) time in any twelve (12) month period, Landlord shall give Tenant
written notice of a non-payment, and ten (10) days thereafter, before such late
charge is imposed.
In the event of a breach or threatened breach by Tenant of any of its
obligations under this Lease, Landlord shall also have the right of injunction.
The special remedies to which Landlord may resort hereunder are cumulative and
are not intended to be exclusive of any other remedies to which Landlord may
lawfully be entitled at any time and Landlord may invoke any remedy allowed at
law or in equity as if specific remedies were not provided for herein.
In addition to any remedies which Landlord may have under this Lease,
and without reducing or adversely affecting any of Landlord's rights and
remedies under this Paragraph 22, if there shall be a default hereunder by
Tenant which shall not have been remedied within the applicable grace period,
Landlord shall not be obligated to furnish to Tenant or the Premises any heat,
ventilation or air-conditioning services outside of Business Hours on Business
Days, or any extra or additional cleaning services; and the discontinuance of
any one or in more such services shall be without liability by Landlord to
Tenant and shall not reduce, diminish or otherwise affect any of Tenant's
covenants and obligations under this Lease.
23. BANKRUPTCY. To the full extent permissible under the Bankruptcy Reform
Act of 1978, specifically Section 365 thereof (11 U.S.C. 365) or any successor
thereto, if Tenant shall file a voluntary petition in bankruptcy or take the
benefit of any insolvency act or be dissolved or adjudicated a bankrupt, or if a
receiver shall be appointed for its business or its assets and the appointment
of such receiver is not vacated within sixty (60) days after such appointment,
or if it shall make an assignment for the
18
benefit of its creditors, then and forthwith thereafter the Landlord shall have
all the rights provided in Paragraph 22 above in the event of nonpayment of
rent.
24. WAIVER OF SUBROGATION. All fire and extended coverage insurance
maintained by Landlord and Tenant on the Premises, the property therein, and the
Building and its appurtenances shall include a waiver by the insurer of all
right of recovery against Landlord or Tenant in connection with any loss or
damage by fire or peril included within fire and extended coverage insurance and
neither party shall be liable to the other for loss or damage resulting from
such included peril and further, Landlord and Tenant each release the other from
any and all claims with respect to any such loss to the extent of the insurance
proceeds paid with respect thereto.
25. SUBORDINATION. This Lease shall, at Landlord's option, be subordinate
to the lien of any first mortgage which may now or hereafter affect the
Building, and to all renewals, modifications, consolidations, replacements and
extensions thereof. In confirmation of such subordination, Tenant shall execute
promptly any subordination agreement that Landlord may request. Tenant hereby
constitutes and appoints Landlord the Tenant's attorney-in-fact to execute any
such subordination agreement or agreements for and on behalf of Tenant. Landlord
represents that there are currently no mortgages encumbering the Building.
Landlord agrees to use commercially reasonable efforts to obtain for Tenant a
"non-disturbance agreement" from any mortgagee of the Building.
Tenant shall attorn to any foreclosing first mortgagee, purchaser at a
foreclosure sale or purchaser by deed in lieu of foreclosure, but no such
mortgagee or purchaser shall be (a) liable for any act or omission of Landlord,
(b) bound by any payment of rent, additional rent or other charge made more than
ten (10) days in advance of the due date thereof, or (c) bound by any
assignment, surrender, termination, cancellation, amendment or modification of
this Lease made without the express written consent of such mortgagee or
purchaser.
26. DEFINITION OF LANDLORD. The term, Landlord, as used in this Lease means
only the owner or the mortgagee in possession of the Building, or the tenant
under a ground lease of the Building, and in the event of any sale or sales of
the Building, or the creation of a leasehold estate by virtue of a ground lease,
then Landlord shall be and hereby is entirely freed and relieved of all its
covenants, obligations and liability hereunder except liabilities which accrued
prior to such sale or lease. Notwithstanding the foregoing, a mortgagee in
possession shall not be required to fulfill any of Landlord's obligations under
this Lease unless it agrees to do so in writing.
27. BROKERAGE. Landlord and Tenant represent to each other that they have
not dealt with any real estate agent or broker in connection with this Lease
other than CB Xxxxxxx Xxxxx (whose commission Landlord shall pay) and it shall
indemnify the other and hold it harmless against the claims of any other
broker(s) arising out of its actions.
28. RULES AND REGULATIONS. Tenant covenants that Tenant, Tenant's
employees, agents and licensees shall faithfully observe and strictly comply
with the
19
rules and regulations attached hereto as Exhibit B and such reasonable changes
therein (whether by modification, elimination or addition) as Landlord may
hereafter adopt, (at any time and from time to time as being, in the judgment of
Landlord necessary or desirable for (a) the reputation, safety, care or
appearance of the Building or the preservation of good order therein, (b) the
operation or maintenance of the Building or the equipment thereof, (c) the
comfort of other lessees and occupants in the Building, or (d) the use or
enjoyment of the Building, or any part thereof, by any of its occupants,
provided, however, that in the case of any conflict between the provisions of
this Lease and any such changes, the provisions of this Lease shall control.
Landlord shall notify Tenant of the adoption of any changes and they shall be
deemed to be reasonable within the meaning of the foregoing sentence unless
Tenant shall assert to the contrary by notifying Landlord within ten (10) days
after such notice to Tenant. Nothing contained in this Lease shall be construed
to impose upon Landlord any duty or obligation to enforce the rules and
regulations, or the provisions of any other lease, as against any other lessee,
and Landlord shall not be liable to Tenant for violation thereof by any other
lessee or its employees, agents or licensees, or anyone else.
29. LIMITATION OF LIABILITY. Anything in this Lease to the contrary
notwithstanding, Tenant agrees that it shall look solely to the estate and
property of Landlord in the Building, subject to the prior rights of any
mortgagee of the Building and subject to Landlord's rights under a leasehold
interest of said Building or part thereof, for the collection of any judgment
(or other judicial process) requiring the payment of money by Landlord in the
event of any default or breach by Landlord with respect to any of the terms,
covenants and conditions of this Lease to be observed and/or performed by
Landlord, and no other assets of Landlord nor any partner, member or shareholder
of Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Tenant's remedies.
30. FORCE MAJEURE. Landlord shall be excused for the period of any delay in
the performance of any obligations hereunder, when prevented from so doing by
cause or causes beyond Landlord's control which shall include, without
limitation, all labor disputes, civil commotion, war, war-like operations,
invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, fire or other casualty, inability to
obtain any material, services or financing or through acts of God. Tenant shall
similarly be excused for delay in the performance of obligations hereunder
provided:
(a) nothing contained in this Paragraph or elsewhere in this Lease
shall be deemed to excuse or permit any delay in the payment of any sums of
money required hereunder, or any delay in the cure of any default which may be
cured by the payment of money;
(b) no reliance by Tenant upon this Paragraph shall limit or restrict
in any way Landlord's right of self-help as provided in this Lease; and
(c) Tenant shall not be entitled to rely upon this Paragraph unless it
shall advise Landlord in writing, of the existence of any force majeure
preventing the
20
performance of an obligation of Tenant within five (5) days after the
commencement of the force majeure.
31. INTENTIONALLY OMITTED.
32. NOTICES. Any notice required or permitted to be given hereunder must be
in writing and may be given by personal delivery or by mail, and if given by
mail shall be deemed sufficiently given if sent by registered or certified mail,
or by recognized overnight courier service, addressed as follows:
If to Landlord: Lancdon Limited Partnership
c/o Mcared Realty, Inc.
00 Xxxxxxx Xxxx Xxxx, Xxxxxxxx X, Xxxxx X-x00X
Xxxxxxxx, XX 00000
with a copy to: Rogin, Nassau, Xxxxxx, Xxxxxxx & Xxxxxx, LLC
XxxxXxxxx 0, 00xx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to Tenant prior to the Commencement Date:
Darwin Professional Underwriters, Inc
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
If to Tenant after the Commencement Date:
Darwin Professional Underwriters, Inc.
0 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
with a copy to: Levy & Xxxxxx PC
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Either party may by written notice to the other specify a different
address for notice purposes except that the Landlord may in any event use the
Premises as Tenant's address for notice purposes.
33. SELF HELP. In the event of any breach of this Lease by Tenant which is
not cured within the applicable cure period provided for in Paragraph 22 hereof
(except in an emergency), Landlord may, at Landlord's sole option, at any time,
upon reasonable prior notice (except in an emergency), cure such breach for the
account and at the expense of Tenant. If Landlord at any tune so elects, or is
compelled, to cure any such breach and/or is compelled to incur any other
expense because of any such breach of
21
Tenant (including, without limitation, attorneys' fees and disbursements in
reasonable amounts in instituting, prosecuting or defending any suits, actions
or proceedings to enforce Landlord's rights under this Lease or otherwise), the
sum or sums so paid by Landlord, with all interest at the rate of eighteen
percent (18%) per annum, costs and damages shall be paid by Tenant to Landlord,
as additional rent, upon demand.
34. ESTOPPEL CERTIFICATES. Tenant shall, upon request by Landlord, execute
and deliver to Landlord a written declaration in recordable form: (a) ratifying
this Lease; (b) expressing the commencement and termination dates thereof; (c)
certifying that this Lease is in full force and effect and has not been
assigned, modified, supplemented or amended (except by such writings as shall be
stated); (d) that all conditions under this Lease to he performed by Landlord
have been satisfied; (e) that there are no defenses or offsets against the
enforcement of this Lease by Landlord, or stating those claimed by Tenant; (f)
the amount of advance recital, if any, (or none if such is the case) paid by
Tenant; (g) the date to which rental has been paid; and (h) the amount of
security deposited with Landlord. Such declaration shall be executed and
delivered by Tenant from time to time as may be requested by Landlord.
Landlord's mortgage lenders and/or purchasers shall be entitled to rely upon
same.
35. MECHANICS LIENS. Tenant shall not permit any mechanic's or other lien
or charge to be filed against the Premises or the Building by reason of any act
of Tenant or anyone holding the Premises through or under Tenant. If any such
mechanic's or other lien or charge shall at any time be filed against the
Premises or the Building, Tenant shall immediately cause the same to be
discharged of record, in default of which Landlord may, on three (3) days'
notice to Tenant, discharge the same, and all costs and expenses, including
attorneys' fees, incurred by Landlord in procuring such discharge shall be
payable by Tenant to Landlord as additional rent upon demand.
36. CONDITION OF THE PREMISES; LANDLORD'S WORK.
(a) Tenant represents that Tenant has inspected the Premises and the
Building and is thoroughly acquainted with their condition and, except for the
work to be performed by Landlord pursuant to paragraph 36(b) below, takes the
Premises "as is," and the taking of possession of the Premises by Tenant shall
be conclusive evidence that the Premises and the Building were in good and
satisfactory condition at the time possession was taken by Tenant. Neither
Landlord nor Landlord's agents have made any representations or promises with
respect to the condition of the Building, the Premises, the land upon which the
Building is constructed, or any other matter or thing affecting or related to
the Building or the Premises, except as herein expressly set forth, and no
rights, easements or licenses are acquired by Tenant by implication or otherwise
except as expressly set forth in this Lease.
(b) Landlord will, at its cost, on or before May 1, 2005 (subject to
force majeure delays), fill in the lobby reception area across from the second
floor elevators and create the necessary fire rating buffer overlooking the
first floor lobby, using materials that are consistent with the first floor
common areas, provided that the fire rated buffer shall be glass.
22
37. PRE JUDGMENT REMEDY, REDEMPTION, COUNTERCLAIM AND JURY TRIAL. Tenant,
for itself and for all persons claiming through or under it, hereby acknowledges
that this Lease constitutes a commercial transaction as such term is used and
defined in Section 52-278e et seq of the Connecticut General Statutes, Revision
of 1973, and hereby expressly waives any and all rights which are or may be
conferred upon Tenant by said Act to any notice or hearing prior to a
prejudgment remedy, and by any present or future law to redeem the said
Premises, or to any new trial in any action or ejection under any provisions of
law, after reentry thereupon, or upon any part thereof, by Landlord, or after
any warrant to dispossess or judgment in ejection. If Landlord shall acquire
possession of the said Premises by summary proceedings, or in any other lawful
manner without judicial proceedings, it shall be deemed a reentry within the
meaning of that word as used in this Lease. In the event that Landlord commences
any seminary proceedings, or action for nonpayment of rent or other charges
provided for in this Lease, Tenant shall not interpose any non-compulsory
counterclaim of any nature or description in any such proceeding or action.
Tenant and Landlord both waive a trial by jury of any or all issues arising in
any action or proceeding between the parties hereto or their successors, under
or connected with this Lease, or any of its provisions.
38. RECORDING. Tenant shall not record this Lease but will, at the request
of Landlord, execute a memorandum or notice thereof in recordable form
satisfactory to both the Landlord and Tenant specifying the date of commencement
and expiration of the term of this Lease and other information required by
statute. Either Landlord or Tenant may then record said memorandum or notice of
lease.
39. PARTIAL INVALIDITY. If any provision of this Lease or application
thereof to any person or circumstance shall to any event be invalid, the
remainder of this Lease or the application of such provision to persons or
circumstances other than those as to which it is held invalid shall not be
affected thereby and each provision of this Lease shall be valid and enforced to
the fullest extent permitted by law.
40. ENTIRE AGREEMENT.
(a) This Lease and the Exhibits, Riders and/or Addenda if any
attached, set forth the entire agreement between the parties. Any prior
conversations or writings are merged herein and extinguished. No subsequent
amendment to this Lease shall be binding upon Landlord or Tenant unless reduced
to writing and signed. Submission of this Lease for examination does not
constitute an option for the Premises and becomes effective as a lease only upon
execution and delivery thereof by Landlord to Tenant. If any provision contained
in a rider or addenda is inconsistent with any other provision of this Lease,
the provision contained in said rider or addenda shall supersede said other
provision, unless otherwise provided in said rider or addenda. The failure of
Landlord or Tenant to insist in any one or more instances upon the strict
performance of any one or more of the other party's obligations under this
Lease, or to exercise any election herein contained, shall not be construed as a
waiver or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such elections.
23
(b) No payment by Tenant, or acceptance by Landlord, of a lesser
amount than shall be due from Tenant to Landlord shall be treated otherwise than
as a payment on account. The acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon any letter accompanying
such check, that such lesser amount is payment in full, shall be given no
effect, and Landlord may accept such check without prejudice to any other rights
or remedies which Landlord may have against Tenant.
41. HEIRS, ASSIGNS, NUMBER AND GENDER. This agreement shall be binding upon
the parties hereto and their heirs, administrators, executors, successors and
assigns. The use of the neuter singular pronoun to refer to Tenant shall be
deemed a proper reference even though Tenant may be an individual, partnership,
a corporation or a group of two (2) or more individuals or corporations. The
necessary grammatical changes required to make the provisions of this Lease
apply in the plural number where there is more than one Tenant and to either
corporations, associations, partnerships or individuals, males or females, shall
in all instances be assumed as though in each case fully expressed.
42. MORTGAGEE PROTECTION. Tenant agrees to give any Mortgagees and/or Trust
Deed Holders, by Registered Mail, a copy of any Notice of Default served upon
the Landlord, provided that prior to such notice Tenant has been notified, in
writing (by way of Notice of Assignment of Rents and Leases, or otherwise), of
the address of such Mortgagees and/or Trust Deed Holders. Tenant further agrees
that if Landlord shall have failed to cure such default within the time provided
for in this Lease, then the Mortgagees and/or Trust Deed Holders shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
if within such thirty (30) days, any Mortgagee and/or Trust Deed Holder has
commenced and is diligently pursuing the remedies necessary to cure such
default, (including but not limited to commencement of foreclosure proceedings,
if necessary to effect such cure) in which event this Lease shall not be
terminated while such remedies are being so diligently pursued.
43. INTENTIONALLY OMITTED.
44. HOLDING OVER. Any holding over by Tenant after the expiration of the
term of this Lease shall be treated as a daily tenancy at sufferance at a rate
equal to one and one half ( l 1/2) times the rent plus additional rent and other
charges herein provided (prorated on a daily basis) and shall otherwise be on
the terms and conditions set forth in this Lease as far as applicable. In
addition, Tenant shall pay Landlord for all damages sustained by Landlord as a
result of Tenant's holding over.
45. FINANCING. If Landlord's mortgagee requires modifications of the terms
of this Lease, Landlord shall have the right to cancel this Lease if Tenant
refuses to approve in writing any such modifications within thirty (30) days
after Landlord's request therefor, provided the same are commercially
reasonable, do not affect the economic terms of this Lease and do not require
Tenant to lose any material rights. If Landlord's right to cancel is exercised
as herein provided, this Lease shall thereafter be null and
24
void, and any money or security deposited hereunder shall be returned to Tenant
and neither party shall have any liability to the other under this Lease.
46. SHORING. If any excavation or construction is made adjacent to, upon or
within the Building, or any part thereof, Tenant shall afford to any and all
persons causing or authorized to cause such excavation or construction license
to enter upon the Premises for the purpose of doing such work as such persons
shall deem necessary to preserve the Building or any portion thereof from injury
or damage and to support the same by proper foundations, braces and supports,
without any claim for damages or indemnity or abatement of rent, or of a
constructive or actual eviction of Tenant, provided that Landlord shall cause
all persons causing or authorized to cause such excavation or construction to
exercise reasonable diligence to perform such work in such manner as not to
unreasonably interfere with and as not to impose an additional expenses upon
Tenant.
47. RENEWAL OPTIONS.
(a) Provided that Tenant shall not be in default hereunder, either at
the time of exercise of an option or on the applicable term ending date, Tenant
shall, at its option, have the right to renew this Lease for one (1) period of
five (5) years commencing on the day following the initial term ending date,
which renewal period shall be on the same covenants, terms and conditions as
contained herein except with respect to the annual rent and with respect to this
option to renew. Tenant shall exercise said option by written notice to Landlord
at least nine (9) months but no more than twenty-one (21) mouths before the
expiration of the original term of this Lease, time being of the essence. The
annual rent for the renewal period shall be 95% of the Market Value Rent of the
Premises as of the Determination Date. The term "Market Value Rent" shall mean
the annual fair market rental value of the Premises calculated as of the
Determination Date. The term "Determination Date" shall mean the first date new
rent is applicable. The initial determination of Market Value Rent shall be made
by Landlord. Landlord shall give written notice to Tenant of the proposed Market
Value Rent of at least six (6) months prior to the Determination Date, provided
that if Tenant shall, at any time between twelve (12) and nine (9) months prior
to expiration of the original term of this Lease, request, in writing,
Landlord's proposed Market Value Rent, then Landlord shall provide the same to
Tenant within thirty (30) days tiller receipt of such request. If Landlord and
Tenant shall fail to agree upon the Market Value Rent proposed by Landlord
within thirty (30) days after receipt by Tenant of Landlord's notice thereof,
then the Market Value Rent shall be determined in accordance with the
arbitration and appraisal procedures set forth below.
(b) In the event Landlord and Tenant are unable to agree upon Market
Value Rent for the Premises, appraisals shall be obtained from two M.A.I.
certified real estate appraisers experienced in appraising major commercial
properties for major commercial institutions with at least five years'
experience as M.A.I. real estate appraisers in the greater Hartford area (with
Landlord and Tenant each choosing one such appraiser). Should the two appraisals
be divergent by less than ten percent (10%), their average shall be deemed the
Market Value Rent. Should the two appraisals be divergent by more than ten
percent (10%), a third appraiser shall be designated by the first two
appraisers. In the event that the first two appraisers cannot agree upon a third
appraiser
25
within five (5) days thereafter, either party upon notice to the other party,
may request such appointment by the American Arbitration Association in East
Hartford, Connecticut (or any successor thereto), or upon its failure, refusal
or inability to act, may apply for such appointment to a court of competent
jurisdiction. If the highest value set by one of the three appraisers is more
than one hundred ten percent (110%) of the next lower value set by another
appraiser, then the higher value shall be decreased to an amount equal to one
hundred ten percent (110%) of the next lower value; and/or if the lowest value
set by one of the three appraisers is less than ninety percent (90%) of the next
higher value set by another appraiser, then the lowest value shall be increased
to an amount equal to ninety percent (90%) of the next higher value. The three
(3) values, adjusted above, provided, shall be added together and divided by
three (3), and the amount resulting shall represent Market Value Rent. Each
party shall pay its own counsel fees and expenses, if any, in connection with
any arbitration or appraisal under this paragraph, including the expenses and
fees of any arbitrator or appraiser selected by it in accordance with the
provisions of this paragraph and the parties shall share equally all other
expenses and fees of any such arbitration. The determination rendered in
accordance with the provisions of this paragraph shall he final and binding in
fixing the Market Value Rent. The arbitrators and appraisers shall not have the
power to add to, modify, or change any of the provisions of the Lease.
(c) If for any reason the Market Value Rent shall not have been
determined prior to the Determination Date, then until the Market Value Rent
shall have been finally determined, rent payable subsequent to the Determination
Date shall be equal to Market Value Rent imposed by Landlord plus the additional
rent then payable by Tenant. Upon such final determination, an appropriate
adjustment shall be made reflecting such final determination, and Landlord or
Tenant, as the case may be, shall pay the other any overpayment or deficiency,
as the case, may be, from the Determination Date to the date of such final
determination.
48. SATELLITE DISH PROVISIONS.
(a) Satellite Dishes. So long as this Lease remains in effect, Tenant
shall be entitled to install, operate and maintain on the roof of the Building,
at Tenant's cost, one (1) satellite or microwave dish (the "Dish"), subject to
the terms and conditions of this Paragraph 48. Any Dish installed by Tenant on
the roof of the Building may only be used by Tenant for the purpose of
communications among Tenant's offices or with Tenant's customers, suppliers and
other parties with whom Tenant conducts business (provided that in no event
shall Tenant utilize the Dish to provide any services to any other tenants of
the Building, or to any other third parties) and no third party provider may
install any Dish on the roof of the Building as a result of this Paragraph 48
unless such third party provider and Landlord execute a separate agreement
permitting the same.
(b) Utility and Other Charges. Tenant shall pay for all utilities
consumed to install, maintain, operate and remove the Dish and associated
equipment, together with the cost of any engineers or consultants employed by
Landlord to review or monitor same, all as determined by Landlord, to the extent
not separately metered. Tenant shall be responsible for all costs associated
with such metering and electrical consumption of the Dish and associated
equipment, including, but not limited to the cost
26
of installing, maintaining, repairing and reading the metering devices and
subpanels. Tenant shall pay all taxes or other charges attributable to the Dish,
including, without limitation, any increase in the Building's real property tax
that are directly attributable to Tenant's Dish.
(c) Installation of the Dish. Prior to the installation of the Dish,
Landlord shall have the right to approve the type, size, height, weight and
location of the Dish and the manner and method of installation and removal of
the Dish and related equipment. If Landlord elects to hire structural,
mechanical, roofing and/or other engineers or consultants to review such plans
and specifications, Tenant shall reimburse Landlord for the reasonable costs
thereof within thirty (30) days after demand from Landlord. All installations by
Tenants under this Paragraph 48 shall be subject to such reasonable rules,
regulations and requirements as Landlord shall implement from time to time.
(d) Governmental Approvals. Prior to the installation of the Dish and
related equipment, Tenant shall secure and shall at all times thereafter
maintain all required approvals and permits of the Federal Communications
Commission and all other government authorities having jurisdiction over the
Dish, the Building and/or Tenant's business, including its communications,
operations and facilities. Tenant shall at all times comply with all laws
relating to the installation, maintenance, height, location, use, operations,
and removal of the Dish and related equipment and shall fully indemnify Landlord
against any loss, cost, or expense which may be sustained or incurred by it as a
result of the installation, maintenance, operation, or removal of the Dish and
equipment, except to the extent caused by the gross negligence or willful
misconduct of Landlord's agents, employees or contractors. Landlord makes no
representation that applicable Laws permit the installation or operation of the
Dish at the Building.
(e) Access to the Roof and Building. Tenant and Tenant's agents,
employees and contractors shall have the right, to be exercised as herein set
forth, to enter upon the roof of the Building for the sole purpose of gaining
access to the Tenant's installations. In addition, Tenant shall have the right,
to be exercised as herein set forth, to install such equipment conduits, cables
and materials (hereinafter called "the connecting equipment") in shafts, ducts,
conduits, chases, utility closets and other facilities of the Building as
designated by Landlord as is reasonably necessary to connect the Dish to
Tenant's other machinery and equipment in other parts of the Building, subject
to the requirements of the laws and subject to the connecting equipment not
over-burdening such shafts, ducts, conduits, chases, utility closets and other
facilities. Tenant shall have the further right of access to the areas where
such connecting equipment is located for the purposes of maintaining, repairing,
testing and replacing the connecting equipment; provided, however, Tenant shall
notify Landlord each time Tenant requires such access, and provided further that
such access and installations do not cause damage to or interfere with the
operation or maintenance of any part of the Building or with any other tenant's
operation.
(f) Notice. Anything herein to the contrary notwithstanding, Tenant
shall notify Landlord each time Tenant desires to enter upon the roof of the
Building or the areas outside the Premises where Tenant's related equipment is
located, and Tenant
27
shall enter upon the roof only at such times, in such manner and under such
circumstances as shall not cause damage or endangerment of life or limb and only
when accompanied by a representative of Landlord. Tenant shall reimburse
Landlord within 15 days after receipt of Landlord's invoice therefor, along with
bills therefor for the cost or repairs of any damage to the Building directly or
indirectly caused by Tenant's installations or the operations, maintenance or
removal thereof.
(g) Maintenance of Dish and Equipment. Tenant, at its expense, shall
be solely responsible for and shall maintain the Dish and related equipment in a
safe, structurally sound, clean and sightly condition and shall indemnify and
save harmless Landlord against all liens and claims of mechanics and materialmen
furnishing labor and materials in the construction and maintenance of same.
(h) Indemnity; Insurance. Tenant agrees to defend, indemnify and save
harmless Landlord and to assume all liability for death or injury to any persons
and all liability for loss, damage or injury to any property incurred or
sustained by Tenant arising from, growing out of or resulting from or in
connection with Tenant's installation of the Dish or Tenant's use of the roof of
the Building or any other areas in the Building where Tenant's related equipment
is located, including costs, attorney's fees and other expenses incurred by
Landlord in defending any such claim. All of Tenant's insurance obligations
under Paragraph 12 hereof shall apply to the Dish and Tenant's use of the roof
and Building under this Paragraph 48.
(i) Non-Exclusive Rights. The rights of Tenant hereunder shall not be
deemed to give to Tenant the exclusive right to use the roof of the Building and
shall not preclude Landlord from granting the right to use the roof of the
Building to others. The rights of Tenant hereunder shall be exercised without
causing interference with the activities being carried on by others with the
same or similar rights. Tenant shall not change or materially alter the Dish or
related equipment agreed to herein without the prior written consent of
Landlord. Tenant agrees to use Tenant's Dish in a manner so as not to
unreasonably interfere with Landlord's existing equipment or any existing
equipment of any existing tenant.
(j) Relocation of Dish. Landlord shall have the right to cause Tenant
to relocate the Dish from the point of installation to another area on the roof
of the Building, provided that Landlord shall reimburse Tenant for the
reasonable out-of-pocket costs of such relocation within thirty (30) days after
billing and the relocation shall not have a material adverse impact on Tenant's
use and operation of the relocated Dish.
(k) Removal. Any equipment installed by Tenant pursuant to this
Paragraph 49 shall remain Tenant's property at the termination of this Lease, at
which time the Dish and the related equipment installed under the terms of this
Paragraph 48 shall be removed by Tenant, at Tenant's sole cost and expense, and
Tenant shall restore the roof and the Building to as good condition as existed
immediately prior to installation of the Dish and related equipment.
49. PARKING. As long as this Lease is in full force and effect, Tenant
shall have the right to park up to four (4) cars per 1,000 rentable square feet
of space in the
28
Premises in the parking areas provided for the Building from time to time, on a
non-reserved, first come, first serve basis.
50. ENVIRONMENTAL CONDITION OF THE PROPERTY.
(a) Tenant Covenants. Tenant agrees (a) that Tenant will not violate
any present or future federal, state or local environmental or public health
laws, rules, regulations and ordinances (hereinafter collectively referred to as
the "Environmental Laws"); (b) that Tenant will not use, store, dispose, or
generate any "hazardous materials", "waste materials", "solid waste", "hazardous
waste", "hazardous substances", "medical waste", "biomedical waste", and
including but not limited to oil and polychlorinated hiphenyls, as those terms
are defined in the Environmental Laws (hereinafter collectively referred to as
the "Hazardous Materials") at the Building; (c) that Tenant will not cause or
permit any condition which would create Hazardous Materials contamination at the
Building or on any other property; (d) that Tenant will give notice to the
Landlord immediately upon the Tenant's acquiring knowledge of the presence of
any Hazardous Materials at the Building or of any Hazardous Materials
contamination with a full description thereof; (e) that Tenant will give notice
to the Landlord immediately of any notice of violation of any laws, rules or
regulations regulating Hazardous Materials or any requests for information from
any federal, state, county, regional or local governmental authority concerning
Hazardous Materials and Hazardous Materials contamination at the Building; (f)
that Tenant will promptly comply with any governmental requirements requiring
the removal or disposal of such Hazardous Materials or Hazardous Materials
contamination and provide the Landlord with satisfactory evidence of such
compliance, but only to the extent that the subject Hazardous Materials were
brought onto the Premises by Tenant or Tenant's agents, employees or
contractors.
(b) Indemnification. Tenant covenants and agrees at all times to
indemnify, hold harmless and defend Landlord, its successors and assigns, as
owner of the Building from and against any and all liability, loss, damage,
cost, expense (including, without limitation, reasonable attorneys' fees and
expenses), cause of action, suit, claim, demand or judgment against the Tenant
and/or the Building of any nature pertaining to Hazardous Materials located or
emanating from or relating to the Building, but only to the extent caused by
Tenant or Tenant's agents, employees or contractors, including, but not limited
to, liens or claims of any federal, state or municipal government or
quasi-governmental agency or any third person, whether arising under any
federal, state or municipal law or regulation or tort, contract or common law.
(c) Landlord's Right to Remove Hazardous Materials. Landlord shall
have the right but not the obligation, and without in any way limiting the
Landlord's rights and remedies, to enter into the Premises or to take such other
actions as it deems necessary or advisable to clean up, remove, resolve or
minimize the impact of, or otherwise deal with, any Hazardous Materials
contamination at the Building following receipt of any notice from any person or
entity asserting the existence of any Hazardous Materials or Hazardous Materials
contamination pertaining to the Building or any part thereof which, if true,
could result in an order, suit, imposition of a lien on the Building. All costs
and expenses paid or incurred by the Landlord in the exercise of any such rights
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shall be payable by the Tenant upon demand, but only to the extent that the
subject Hazardous Materials were brought onto the Premises by Tenant or Tenant's
agents, employees or contractors. Landlord's exercise of said right will not
excuse or change Tenant's initial obligations to undertake necessary actions to
remove Hazardous Materials from the Building that were brought into the Building
by Tenant or Tenant's agents, employees or contractors. Landlord will use
commercially reasonable efforts to minimize any interference with Tenant's
business in the Premises as a result of any action taken by Landlord pursuant to
this paragraph 50(c).
51. GENERATOR. Tenant shall be permitted to use the existing generator at
the Building, in common with others, on a pro-rata basis based upon the amount
of space in the Building occupied by Tenant in comparison to the total amount of
space in the Building that is occupied by Tenant and all other tenants in the
Building. All costs associated with Tenant's use of the generator shall be borne
by Tenant. To the extent that any such costs are initially borne by Landlord,
Tenant shall reimburse Landlord for its proportionate share thereof within
fifteen (15) days after receipt of invoices therefor, which proportionate share
shall equal the number of rentable square feet in the Premises divided by the
total number of rentable square feet in the Premises plus any other premises in
the Building that uses the generator. Landlord makes absolutely no
representations regarding the generator or its capacity.
52. SIGNAGE. Tenant shall have the right, at Tenant's cost, subject to
Tenant's compliance with applicable zoning ordinances and Landlord's reasonable
approval, to install its standard graphics on the retaining wall sign. After the
execution of this Lease, Landlord will apply to the Town of Farmington for a
sign permit to allow Tenant and Chubb PLC or any successor tenant to Chubb PLC
to each have their names and logos on such retaining wall. Such application
shall request a permit for two companies, using the same total area as the sign
previously approved by the Town of Farmington. If such permit is granted for
signage for two companies, then Tenant and Chubb PLC or its successor tenant
shall share the permitted area equally. If the Town of Farmington will only
permit signage for one company to be on such retaining wall, then Tenant shall
be entitled to have such sign. Tenant will cooperate with Landlord in such sign
permit application process, which cooperation shall include, without limitation,
coordinating the size, color and graphics of Tenant's sign with Chubb's sign, so
as to maximize the chances of approval of both signs. In connection with the
foregoing, the existing sign on the retaining wall will be removed. In addition,
Tenant, at Landlord's cost, shall have the right to have its standard graphics
placed on the monument sign at 9 Farm Springs, in common with up to three (3)
other tenants.
Landlord, at Landlord's expense, shall provide building standard
directory signage and main lobby signage for Tenant. Tenant, at Tenant's
expense, shall have the right to install its standard graphics on the entrance
to the Premises, subject to Landlord's reasonable approval.
53. QUIET ENJOYMENT. As long as this Lease is in full force and effect,
Tenant shall have quiet and peaceful enjoyment of the Premises, free from
interference from Landlord or anyone claiming through Landlord, subject to the
terms and conditions of this Lease.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
SIGNED, SEALED, AND DELIVERED LANDLORD:
IN THE PRESENCE OF: LANCDON LIMITED PARTNERSHIP
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------- ------------------------------------
President of Donegal
------------------------------------
/s/ Xxxxxxx Xxxxxxx Its Group
------------------------------------- ------------------------------------
TENANT:
DARWIN PROFESSIONAL UNDERWRITER, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
------------------------------------
------------------------------------
Its CFO
------------------------------------
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[BLUEPRINT]
STATE OF CONNECTICUT :
: ss.
COUNTY OF :
On this ______ day of _________, 2005, personally appeared
______________ as, __________________ of Lancdon Limited Partnership, signer and
sealer of the foregoing instrument, and acknowledged the same to be _______ free
act and deed and the free act and deed of said limited partnership, before me.
/s/ Xxxxxx Xxxxx
----------------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Expires:
-----------------
STATE OF CONNECTICUT :
: ss. Farmington
COUNTY OF HARTFORD :
On this 3rd day of February, 2005, personally appeared Xxxx X.
Xxxxxxx, Xx. as Chief Financial Officer of Darwin Professional Underwriters,
Inc., signer and sealer of the foregoing instrument, and acknowledged the same
to be his free act and deed and the free act and deed of said corporation,
/s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Expires:
-----------------
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