RECKSON OPERATING PARTNERSHIP, L.P.
LANDLORD
AND
CLARUS CORPORATION AND KANDERS & COMPANY, INC.
TENANT
XXX XXXXXXXX XXXXXX
XXXXXXXX, XXXXXXXXXXX
--------------------
LEASE
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DATED: SEPTEMBER 23, 2003
TABLE OF CONTENTS
Demise, Premises, Term, Rents.....................................................................................2
Use...............................................................................................................3
Preparation of the Demised Premises...............................................................................5
When Demised Premises Ready for Occupancy.........................................................................6
Security Deposit..................................................................................................7
Adjustments of Rent for Changes in Real Estate Taxes..............................................................9
Adjustment of Rent for Changes in Operating Costs................................................................10
Subordination, Attornment, Notice to Lessor and Mortgagees.......................................................13
Quiet Enjoyment..................................................................................................14
Assignment, Mortgaging, Subletting...............................................................................14
Compliance with Laws and Requirements of Public Authorities......................................................18
Insurance........................................................................................................18
Rules and Regulations............................................................................................19
Alterations and Tenant's Property................................................................................20
Repairs and Maintenance..........................................................................................24
Electrical Energy................................................................................................24
Heat, Ventilation and Air Conditioning...........................................................................25
Landlord's Other Services........................................................................................25
Access, Changes in Building Facilities, Name.....................................................................27
Shoring, Notice of Accidents, etc................................................................................28
Non-Liability and Indemnification................................................................................28
Destruction or Damage............................................................................................31
Eminent Domain...................................................................................................32
Surrender........................................................................................................33
Conditions of Limitation.........................................................................................33
Re-entry by Landlord - Default Provisions........................................................................35
Damages..........................................................................................................36
Waivers..........................................................................................................37
No Other Waivers or Modifications................................................................................37
Sums Due Landlord................................................................................................38
Consents - Broker................................................................................................39
Notices..........................................................................................................39
Estoppel Certificate.............................................................................................40
No Other Representations, Construction, Governing Law............................................................41
Parties Bound....................................................................................................41
Certain Definitions and Constructions............................................................................41
Subordination and Miscellaneous..................................................................................43
Partnership Tenant...............................................................................................44
Tenant's Authority to Enter Lease................................................................................45
Parking..........................................................................................................45
Satellite Dish...................................................................................................46
Renewal Option...................................................................................................47
Cancellation Option..............................................................................................48
Right of First Offer.............................................................................................49
Penthouse Space..................................................................................................49
Building Renovations.............................................................................................50
EXHIBIT A........................................................................................................52
EXHIBIT B........................................................................................................53
EXHIBIT C........................................................................................................54
EXHIBIT D........................................................................................................57
EXHIBIT E........................................................................................................64
EXHIBIT F........................................................................................................65
EXHIBIT G........................................................................................................66
SCHEDULE A TO LETTER OF CREDIT...................................................................................68
LEASE
Lease dated as of September 23, 2003, between RECKSON OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership, having an address at 000 Xxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxx Xxxx 00000 (hereafter referred to as "Landlord"), and the
lessee, CLARUS CORPORATION, a Delaware corporation, having its principal place
of business at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 and KANDERS &
COMPANY, INC., a Delaware corporation, having its principal place of business at
Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to
collectively as the "Tenant").
ARTICLE 1
DEMISE, PREMISES, TERM, RENTS
1.01 Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
that certain space in the premises hereinafter described, in the building
(referred to herein as the "Building") known as One Landmark Square in the City
of Stamford, Connecticut (the "City"), for the term hereinafter stated, for the
rents hereinafter reserved and upon and subject to the conditions (including
limitations, restrictions and reservations) and covenants hereinafter provided.
Each party hereto expressly covenants and agrees to observe and perform all of
the conditions and covenants herein contained on its part to be observed and
performed.
1.02 Landlord and Tenant hereby agree and stipulate that for purposes of this
Lease, the space consists of a total of approximately 11,500 rentable square
feet on the twenty-second (22nd) floor in the Building which is outlined on the
floor plan(s) annexed as Exhibit "A" and hereby made a part hereof. The premises
constitute and are hereinafter called the "Premises" or the "Demised Premises."
1.03 The term of this Lease, for which the Demised Premises are hereby leased,
shall commence upon execution of this Lease. Subject to the provisions of
Article 4 and Section 3.02 hereof, Tenant's right to occupy the Demised Premises
and Tenant's obligation to pay fixed rent and all items of additional rent shall
commence on the date which is the earliest of(i) the day on which the Demised
Premises are ready for occupancy (as defined in Article 4), (ii) the day Tenant
or anyone claiming under or through Tenant shall take possession of any part of
the Demised Premises (excluding any possession pursuant to Section 3.02), or
(iii) the day which is six (6) months after the date of this Lease (the "Rent
Commencement Date"). The term of this Lease shall end at noon of the last day of
the calendar month in which occurs the end of a fifteen (15) year period from
the Rent Commencement Date (the "Expiration Date") or shall end on such earlier
date upon which the term may expire or be cancelled or terminated pursuant to
any of the conditions or covenants of this Lease or pursuant to law. Promptly
following the Rent Commencement Date, Landlord shall send to Tenant a notice
fixing the Rent Commencement Date.
1.04 Tenant shall pay to Landlord without notice or demand and without
abatement, deduction or setoff, in lawful money of the United States of America,
at the office of the Landlord or at such other place as Landlord may designate,
the fixed rent and additional rent reserved under this Lease for each year of
the term thereof, which payments shall consist of:
(A) Fixed rent (the "fixed rent") as follows:
Fixed Base Rent Monthly Fixed Annual Fixed
Lease Years Per RSF Rent Amount Rent Amount
----------- ------- ----------- -----------
1 $25.50 $24,437.50 $293,250.00
2 $34.00 $32,583.33 $391,000.00
3-4 $35.00 $33,541.67 $402,500.00
5-6 $37.00 $35,458.33 $425,500.00
7-8 $40.00 $38,333.33 $460,000.00
9-10 $42.00 $40,250.00 $483,000.00
11-13 $44.00 $42,166.67 $506,000.00
14-15 $45.00 $43,125.00 $517,500.00
payable in equal monthly installments in advance on the first day of each and
every calendar month during the term of this Lease, and
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(B) Additional rent (the "additional rent") consisting of all other
sums of money as shall become due from and payable by Tenant to Landlord
hereunder (for default in payment of which Landlord shall have the same remedies
as for a default in payment of fixed rent).
1.05 Tenant shall pay to Landlord as additional rent the real estate taxes
attributable to the value of improvements made to the Demised Premises by or on
behalf of Tenant in excess of building standard improvements in connection with
the fit-up of the Demised Premises for Tenant. For purposes of this Section, the
amount of the per square foot assessment attributable to the excess improvements
shall be the amount in excess of average square foot assessment then being used
by the tax assessor's office for the fit-up of space within the Building or, if
that is not applicable, to fit-up of similar space in a similar building in
Stamford, Connecticut. The real estate taxes resulting from such assessment(s)
shall be computed separately and billed to Tenant, and shall be payable by
Tenant as additional rent within ten (10) days of the rendition of the xxxx, at
each time that real estate taxes are payable by Landlord with respect to the
Demised Premises during the term of this Lease.
If Tenant substantially renovates or alters the Demised Premises or any
part thereof after the initial fit-up, Tenant shall pay Landlord the real estate
taxes attributable to the increased assessment resulting from such renovation or
alteration, in excess of the then assessment for building standard. The real
estate taxes resulting from such excess assessment shall be computed separately
and billed to Tenant and shall be payable by Tenant as additional rent within
ten (10) days of the rendition of a xxxx at each time that real estate taxes are
payable by Landlord with respect to the Demised Premises during the term of the
Lease.
1.06 Tenant shall pay the fixed rent and additional rent herein reserved
promptly as and when the same shall become due and payable. If the Rent
Commencement Date shall occur on a day other than the first day of a calendar
month, the fixed rent for such calendar month shall be prorated for the period
from the Rent Commencement Date to the last day of the calendar month and shall
be due and payable on the Rent Commencement Date and the first Lease Year shall
include said partial month. Notwithstanding the provisions of the next preceding
sentence or of Section 4.01(a), Tenant shall pay the first full calendar monthly
installment of fixed rent on the execution of this Lease. If Tenant shall fail
to pay within ten (10) days after the same is due any fixed rent or additional
rent, such unpaid amounts shall bear interest at the annual rate equal to two
percentage points (2%) above the Prime Rate of Citibank, N.A., New York, New
York.
ARTICLE 2
USE
2.01 Tenant shall use and occupy the Demised Premises only for general and
executive offices and for no other purposes.
2.02 The use of the Demised Premises for the purposes specified in this Article
shall not in any event be deemed to include, and Tenant shall not use, or permit
the use of, the Demised Premises or any part thereof for:
(A) sale of, or traffic in, any spirituous liquors, wines, ale or
beer kept in the Demised Premises;
(B) sale at retail of any other products or materials kept in the
Demised Premises, by vending machines (except vending machines
serving Tenant's employees only) or otherwise, or
demonstrations to the public, except as may be specifically
agreed to by Landlord in writing;
(C) manufacturing, printing or electronic data processing, except
for the operation of normal business office reproducing or
printing equipment, electronic data processing equipment and
other business machines for Tenant's own requirements at the
Demised Premises; provided only that such use shall not exceed
that portion of the mechanical or electrical capabilities of
the Building equipment allocable to the Demised Premises;
(D) the rendition of medical, dental or other diagnostic or
therapeutic services;
(E) the conduct of a public auction of any kind; or
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(F) a restaurant, bar, or the sale of confectionery, tobacco,
newspapers, magazines, soda, beverages, sandwiches, ice cream,
baked goods or similar items, or the preparation, dispensing
or consumption of food and beverages in any manner whatsoever
except as otherwise provided in Section 2.07 hereof.
2.03 Tenant shall not suffer or permit the Demised Premises or any part thereof
to be used in any manner, or anything to be done therein, or suffer or permit
anything to be brought into or kept therein, which would in any way (i) violate
any of the provisions of any grant, lease or mortgage to which this Lease is
subordinate, (ii) violate any laws or requirements of public authorities, (iii)
make void or voidable any fire or liability insurance policy then in force with
respect to the Building, (iv) make unobtainable from reputable insurance
companies authorized to do business in the State of Connecticut at standard
rates any fire insurance with extended coverage, or liability, elevator or
boiler or other insurance required to be furnished by Landlord under the terms
of any lease or mortgage to which this Lease is subordinate, (v) cause, or in
Landlord's opinion be likely to cause, physical damage to the Building or any
part thereof, (vi) constitute a public or private nuisance, (vii) impair in the
opinion of the Landlord the appearance, character or reputation of the Building,
(viii) discharge objectionable fumes, vapors or odors into the Building air
conditioning system or into Building flues or vents not designed to receive them
or otherwise in such manner as may unreasonably offend other occupants, (ix)
impair or interfere with any of the Building services or the proper and economic
heating, cleaning, air conditioning or other servicing of the Building or the
Demised Premises or impair or interfere with or tend to impair or interfere with
the use of any of the other areas of the Building by, occasion or discomfort,
annoyance or inconvenience to, Landlord or any of the other tenants or occupants
of the Building, or (x) cause Tenant to default in any of its other obligations
under this Lease. The provisions of this Section, and application thereof, shall
not be deemed to be limited in any way to or by the provisions of the following
Sections of this Article or any of the Rules and Regulations referred to in
Article 13 or Exhibit "C" attached hereto, except as may therein be expressly
otherwise provided.
2.04 If any government license or permit, other than a Certificate of Occupancy,
shall be required for the proper and lawful conduct of Tenant's business in the
Demised Premises, or any part thereof and if failure to secure such license or
permit would in any way affect Landlord, then Tenant, at its expense, shall duly
procure and thereafter maintain such license or permit and submit the same to
inspection by Landlord. Tenant shall at all times comply with the terms and
conditions of each such license or permit, but in no event shall failure to
procure and maintain same by Tenant affect Tenant's obligations hereunder.
2.05 Tenant shall not at any time use or occupy or suffer or permit anyone to
use or occupy the Demised Premises, or do or permit anything to be done in the
Demised Premises, in violation of the Certificate of Occupancy for the Demised
Premises or for the Building.
2.06 Tenant shall not place a load upon any floor of the Demised Premises
exceeding the floor load per square foot which such floor was designed to carry
and which is allowed by certificate, rule, regulation, permit or law. Landlord
reserves the right to prescribe the weight and position of all safes and vaults,
which must be placed by Tenant, at Tenant's expense.
2.07 Notwithstanding anything to the contrary contained herein, Tenant may, at
its sole cost and expense, install and use a household-type oven and stove top,
refrigerator and/or microwave oven in the pantry portion of the Demised Premises
for use by Tenant's employees and for occasional use for food preparation for
clients of Tenant. All such installations and all work relating thereto (e.g.
installation of required venting, etc.) shall be performed in accordance with
the provisions of Article 14 hereof. Without limiting the generality of any
other provisions of this Lease, (a) all such installations shall be performed in
compliance with (i) laws, rules, orders and regulations of governmental
authorities having jurisdiction thereof, and (ii) rules and regulations of the
Landlord attached as Exhibit C hereto; (b) prior to the expiration or earlier
termination of this Lease, all such installations shall be removed from the
Demised Premises and the area where such installations are made shall be
restored to substantially the condition which exists on the date of this Lease,
including removal of all venting and repair of all wall and/or roof
penetrations; and (c) Tenant shall indemnify, defend and hold Landlord harmless
from any and all claims, damages, losses, liabilities, costs and expenses
(including reasonable attorneys' fees and disbursements) arising out of or in
connection with the use of any such machines and appliances. In the event that
due to Tenant's use of the Demised Premises, insects or vermin are present in or
about the Demised Premises, Tenant shall pay the cost for periodic extermination
services as Landlord may require. In the event that Landlord determines that
Tenant's use of water in the Demised Premises exceeds that of ordinary office
use, Landlord may install a water meter to measure Tenant's water consumption
and Tenant shall pay the cost of installation of such meter and for Tenant's
usage of water as measured thereby.
ARTICLE 3
6
PREPARATION OF THE DEMISED PREMISES
3.01 Landlord's Initial Work. (a) Landlord, at its expense, will cause the
Demised Premises to be in "broom clean" condition ("Landlord's Initial Work")
(b) Landlord's agreement to do Landlord's Initial Work shall not require it to
incur overtime costs and expenses and shall be subject to unavoidable delays due
to acts of God, governmental restrictions, strikes, labor disturbances, shortage
of materials and supplies and for any other causes or events beyond Landlord's
reasonable control.
3.02 Tenant's Initial Work. Tenant and its employees, agents and contractors
shall be permitted access to the Demised Premises upon full execution and
delivery of this Lease for the sole purpose of performing work and making
installations in the Demised Premises in order to prepare same for Tenant's
initial occupancy thereof, which shall include the installation of a building
standard sprinkler system in the Demised Premises and the installation of sixty
(60) tons of base building HVAC to service the Demised Premises ("Tenant's
Initial Work"). All architectural, mechanical and engineering plans and all of
Tenant's contractors shall be subject to Landlord's prior written approval which
approval shall not be unreasonably withheld. Notwithstanding anything to the
contrary contained in this Lease, Tenant shall be required to use the following
subcontractors in connection with Tenant's Initial Work: (a) Simplex for
fire/life safety systems, (b) Automated Building Controls, Inc. for the energy
management system; and (c) Fairfield County Sprinkler for installation of the
building standard sprinkler system. In addition, with respect to the
installation of sixty (60) tons of base building HVAC to service the Demised
Premises (specifically limited to providing (i) the HVAC units and the main
trunk line into the Demised Premises with respect to the HVAC units to be
installed within the core of the Demised Premises, and (ii) the HVAC units only
(i.e. without the distribution system therefor) with respect to the HVAC units
to be installed above the drop ceiling) (the "HVAC Work"), Landlord will provide
Tenant with a list of the HVAC subcontractors from whom Tenant must solicit bids
for the HVAC Work and, upon receipt of such bids, Tenant will promptly provide
Landlord with copies thereof. After review of the bids for the HVAC Work,
Landlord will have sole discretion to select the HVAC subcontractor which Tenant
must select to perform the HVAC Work (which subcontractor need not necessarily
be the low bidder). Any work relating to the HVAC system starting from the end
of the main trunk line into the Demised Premises (with respect to the HVAC units
to be installed within the core of the Demised Premises) and from the HVAC units
themselves (with respect to the HVAC units to be installed above the drop
ceiling) shall be bid out separately by Tenant. For avoidance of confusion, the
parties acknowledge that the HVAC Work is being specifically defined herein in
order to facilitate the calculation of the portion of the Tenant Improvement
Allowance (as defined in Exhibit D, Paragraph 6) payable by Landlord with
respect to the HVAC Work. It is expressly acknowledged and agreed that with
respect to the HVAC units to be installed as part of the HVAC Work above the
drop ceiling (as opposed to in the core of the Demised Premises), the
distribution system therefor will not be installed as part of the HVAC Work but,
rather, will be installed as a separate component of Tenant's Initial Work, and
therefore the cost of such distribution system will not be included in
calculating the HVAC Work component of the Tenant Improvment Allowance.
Landlord shall have the right to designate the specific types of HVAC units to
be installed as part of the HVAC Work and the exact locations of all such HVAC
units which will be installed within the core of the Demised Premises. All other
HVAC units will be installed within the Demised Premises as part of the HVAC
Work will be located above the drop ceiling to be installed in the Demised
Premises as part of Tenant's Initial Work in locations as shown on the plans for
Tenant's Initial Work, which plans are subject to approval by Landlord in
accordance with the terms of this Lease. All of Tenant's duties and obligations
set forth in Article 14 with respect to Tenant's Work in general and in Exhibit
D shall be applicable to and binding upon Tenant with respect to Tenant's
Initial Work.
ARTICLE 4
WHEN DEMISED PREMISES READY FOR OCCUPANCY
4.01 The Demised Premises shall be deemed ready for occupancy on the earliest
date on which all of the following conditions have been met:
7
(1) A Certificate of Occupancy (temporary or final or a permission
to occupy) for the Demised Premises (not the Building) has
been issued not inconsistent with Tenant's use of the Demised
Premises as permitted under Section 2.01 hereof.
(2) Landlord's Initial Work and Tenant's Initial Work have been
substantially completed. "Substantially completed" as used
herein is defined to mean when the only items to be completed
are punchlist items, which items not materially interfere with
Tenant's occupancy of the Demised Premises.
(3) The facilities and systems serving the Building and passing
through the Demised Premises have been completed to the extent
required to provide adequate services to the Demised Premises.
4.02 If the occurrence of any of the conditions listed in Section 4.01, and
thereby the making of the Demised Premises ready for occupancy, shall be delayed
due to any act or omission of Tenant within Tenant's control or any of its
employees, agents or contractors, including but not limited to, failure by
Tenant to plan or execute work to be performed by Tenant or by a party employed
by Tenant diligently and expeditiously, then the Demised Premises shall be
deemed ready for occupancy on the date when it would have been ready but for any
such delay. Each such delay shall hereinafter be referred to as a "tenant
delay".
4.03 If the whole of the Demised Premises shall not be ready for occupancy at
approximately the same time, Tenant may, with the written consent of Landlord,
take possession of any part or parts of the Demised Premises for its use and
occupancy before the Rent Commencement Date, provided that a temporary or
permanent Certificate of Occupancy shall have been obtained for the part or
parts of the Demised Premises in respect of which Tenant desires to take
possession. Tenant shall be deemed to have taken possession of a part of the
Demised Premises for use and occupancy (herein called "actual possession") when
any personnel of Tenant or anyone claiming under or through Tenant shall first
occupy such part for the conduct of business. Tenant's actual possession of any
part of the Demised Premises prior to the Rent Commencement Date shall be
subject to all of the obligations of this Lease, including the payment of fixed
and additional rent, which payment shall be reasonably apportioned.
4.04 On the Rent Commencement Date or at such time as Tenant shall take actual
possession of the whole or part of the Demised Premises, whichever shall be
earlier, it shall be conclusively presumed that the same were in satisfactory
condition as of the Rent Commencement Date or the date or dates of such taking
of possession, unless within thirty (30) days after such date Tenant shall have
given Landlord notice specifying in which respects Landlord's Initial Work was
not in satisfactory condition. However, nothing contained in this Section shall
be deemed to relieve Landlord from latent defects.
ARTICLE 5
SECURITY DEPOSIT
5.01 Tenant, upon the execution of this Lease, has deposited with Landlord the
sum of EIGHT HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($850,000.00) (the
"Security Deposit"), receipt of which is hereby acknowledged by Landlord. The
Security Deposit shall be held by Landlord in a passbook-type interest bearing
account, as security for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease by Tenant to be kept and performed
during the term hereof. If at any time during the term of this Lease any of the
rent herein reserved or any other sum payable by Tenant to Landlord hereunder
shall be overdue and unpaid beyond the expiration of the applicable notice and
cure period provided herein for the cure thereof (if any), then Landlord may, at
the option of Landlord (but Landlord shall not be required to), appropriate and
apply any portion of the Security Deposit toward any such overdue rent or other
sum. Provided Tenant is not then in default in the payment of fixed rent or
additional rent or the performance of its other obligations under this Lease
beyond the expiration of the applicable notice and cure period provided herein
for the cure thereof (if any), then, at the end of each of the first ten (10)
Lease Years, upon reasonable advance request by Tenant, Landlord shall refund to
Tenant a portion of the Security Deposit (or, if applicable, Landlord shall
authorize Tenant to reduce the Letter of Credit) so that the amount of the
Security Deposit then remaining shall be as follows:
8
End of Amount of Security
Lease Year Deposit Remaining
---------- -----------------
1 $783,300.00
2 $716,600.00
3 $649,900.00
4 $583,200.00
5 $516,500.00
6 $449,800.00
7 $291,600.00
8 $224,900.00
9 $158,200.00
10 $ 91,500.00
Notwithstanding the foregoing, the $158,200.00 refund or reduction of the Letter
of Credit following the end of the seventh (7th) Lease Year is further
conditioned upon Tenant providing Landlord with either (a) its then most recent
audited financial statement reflecting a net worth of at least $20,000,000.00;
or (b) proof acceptable to Landlord in Landlord's reasonable discretion that at
such time Tenant has free and clear cash on hand equal to at least three (3)
times Tenant's cash requirements for the trailing twelve (12) month period.
Notwithstanding the foregoing, if, at any time during the term, Tenant shall be
in default in the payment of fixed rent or additional rent or the performance of
its other obligations under this Lease, then the amount of the Security Deposit
shall not be reduced as aforesaid and the Security Deposit shall be promptly
increased to reflect the amount set forth in the first sentence of this Section
5.01 above.
5.02 In the event of the failure of Tenant to keep and perform any of the terms,
covenants and conditions of this Lease to be kept and performed by Tenant, then
Landlord, at its option, may appropriate and apply only so much of the Security
Deposit as may be necessary to compensate the Landlord for loss or damage
sustained or suffered by Landlord due to such breach on the part of Tenant.
Should the entire Security Deposit, or any portion thereof, be appropriated and
applied by Landlord for the payment of overdue rent or other sums due and
payable to Landlord by Tenant hereunder, then Tenant shall, upon the written
demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to
restore the Security Deposit to the original sum deposited, and Tenant's failure
to do so within five (5) days after receipt of such demand shall constitute a
breach of this Lease. Provided Tenant is not then in default hereunder, the
Security Deposit shall be returned in full to Tenant at the end of the term of
this Lease, or upon the earlier termination of this Lease.
5.03 Landlord may deliver the Security Deposit to the purchaser of Landlord's
interest in the Building, in the event that such interest be sold, and thereupon
Landlord shall be discharged from any further liability with respect to the
Security Deposit, provided the transferee actually receives same.
5.04 In lieu of a cash deposit set forth in Section 5.01, Tenant may deliver,
upon its execution of this lease, the Security Deposit to Landlord in the form
of a clean, irrevocable, non-documentary and unconditional, stand-by letter of
credit in the amount of the Security Deposit (the "Letter of Credit") issued by
and drawable upon any commercial bank, trust company, national banking
association or savings and loan association satisfactory to Landlord with
offices for banking and drawing purposes in New York, New York or Stamford,
Connecticut (the "Issuing Bank"), which has outstanding unsecured, uninsured and
unguaranteed indebtedness, or shall have issued a letter of credit or other
credit facility that constitutes the primary security for any outstanding
indebtedness (which is otherwise uninsured and unguaranteed), that is then
rated, without regard to qualification of such rating by symbols such as "+" or
"-" or numerical notation, "Aa" or better by Xxxxx'x Investors Service and "AA"
or better by Standard & Poor's Ratings Service (and is not on credit-watch with
negative implications), and has combined capital, surplus and undivided profits
of not less than $750,000,000. The Letter of Credit shall (i) name Landlord as
beneficiary at the following address: c/o Reckson Associates Realty Corp., 000
Xxxxxxxxxxx Xxxx, XX 0000 Xxxxxxxx, Xxx Xxxx 00000, Attention: Corporate
Controller, (ii) be in the amount of the Security Deposit, (iii) have a term of
not less than one year, (iv) permit multiple drawings, (v) be fully transferable
by Landlord multiple times without the consent of Tenant or the payment of any
fees or charges, and (vi) otherwise be in form and content satisfactory to
Landlord. If upon any transfer of the Letter of Credit, any fees or charges
shall be so imposed, then such fees or charges shall be payable solely by Tenant
and the Letter of Credit shall so specify. The Letter of Credit shall provide
that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year each thereafter during the Term through the date
that is at least sixty (60) days after the Expiration Date, or any renewal or
extension thereof, unless the Issuing Bank sends a notice (the "Non-Renewal
Notice") to Landlord by certified mail, return receipt requested, attention:
Corporate Controller (at the address set forth in this Section 5.04 above) not
less than 60 days prior to the then-current expiration date of the Letter of
Credit, stating that the Issuing Bank has elected not to renew the Letter of
Credit. Landlord shall have the right, upon receipt of a Non-Renewal Notice, to
draw the full amount of the Letter of Credit, by sight draft on the Issuing
Bank, and shall thereafter hold or apply the cash proceeds of the Letter of
Credit
9
pursuant to the terms of this Article 5. The Letter of Credit shall state
that drafts drawn under and in compliance with the terms of the Letter of Credit
will be duly honored upon presentation to the Issuing Bank at an office location
in the New York, New York or Stamford, Connecticut. The Letter of Credit must be
payable to Landlord or an authorized representative of Landlord upon
presentation of only the Letter of Credit and a sight draft, and shall not
contain as a condition to draw the requirement of Landlord's certification or
other statement as to the existence of Tenant's default. The Letter of Credit
shall be subject in all respects to the International Standby Practices 1998,
International Chamber of Commerce Publication No. 590. The Letter of Credit
shall provide that all fees and expenses are for the account of the applicant.
The Letter of Credit shall provide that all costs relating to the Letter of
Credit will be billed to and paid by Tenant. Landlord shall not be responsible
for bank error. The Letter of Credit shall not be a limitation on Landlord's
damages or other rights under this lease, or a payment of liquidated damages or
an advance payment of rent. Tenant is required to cooperate with Landlord, at
Tenant's expense, if it becomes necessary to have the Letter of Credit re-issued
to a new owner or modified or amended as reasonably required by Landlord to
carry out the intent, terms and conditions of this Article 5. In the event that
Tenant elects to deliver a Letter of Credit in lieu of a cash deposit, then such
Letter of Credit shall be in the form annexed hereto as Exhibit G.
ARTICLE 6
ADJUSTMENTS OF RENT FOR CHANGES IN REAL ESTATE TAXES
6.01 (A) The term "Tax Base Year" shall mean the tax fiscal year of
July 1, 2003 to June 30, 2004.
(B) The term "Common Areas" shall mean the land and pedestrian
deck, as shown on Exhibit "F", together with the parking
garage and loading dock facility.
(C) The term "Real Estate Taxes" shall mean 100% of the taxes and
assessments levied, assessed or imposed at any time by any
governmental authority upon or against the Building and 48.24%
of such taxes and assessments levied against the Common Areas,
and also any tax or assessment levied, assessed or imposed at
any time by any governmental authority in connection with the
receipt of income or rents from the Building and Common Areas,
to the extent that same shall be in lieu of or in addition to
all or a portion of any of the aforesaid taxes or assessments
upon or against the Building and Common Areas. The term "Real
Estate Taxes" shall not mean any interest or penalties which
may become due by reason of the failure to pay any such taxes
when due and payable; or any municipal, state or federal
income, estate, inheritance, transfer, corporate or franchise
taxes assessed against Landlord unless and to the extent that
same is assessed in lieu of part or all of real estate taxes
as presently constituted and are computed as if Landlord owned
no other property.
(D) The term "Tenant's Proportionate Share" shall be 3.85%.
(E) The phrase "Real Estate Taxes payable by Landlord" shall not
include Real Estate Taxes for which Landlord is reimbursed by
Tenant under Section 1.05 or by other tenants of the Building
under similar provisions of their leases.
(F) In the event that, after a statement has been sent to Tenant,
an assessment or valuation which had been utilized in
computing the Real Estate Taxes for a tax fiscal year is
reduced (as a result of settlement, final determination or
legal proceedings or otherwise), and as a result thereof a
refund of Taxes is actually received by or on behalf of
Landlord, promptly after receipt of such refund, Landlord
shall send Tenant a statement adjusting the Real Estate Taxes
for such tax fiscal year (taking into account the expenses
mentioned in the last sentence of this subparagraph (f) and
setting forth Tenant's Proportionate Share of such refund) and
Tenant shall be entitled to receive such share by way of a
credit against the additional rent next becoming due after the
sending of such statement; provided, however, that Tenant's
Proportionate Share of such refund shall be limited to the
amount, if any, which Tenant had theretofore paid to Landlord
as increased additional rent for such tax fiscal year on the
basis of the assessed valuation before it had been reduced.
All expenses, including attorneys' and appraisers' fees and
disbursements, expenses and other witnesses' fees, incurred in
contesting the validity or amount of any Real Estate Taxes or
in obtaining a refund shall be considered as part of the Real
Estate Taxes for such year.
(G) In the event that any time during a tax fiscal year after the
Tax Base Year the assessment or valuation which had been
utilized in computing the Real Estate Taxes for the additional
rent for any tax fiscal year is reduced (as a
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result of settlement, final determination or legal proceedings
or otherwise), so that the Taxes payable for such tax fiscal
year is less than the Taxes payable by Tenant for the Tax Base
Year then and in such event: (i) the Taxes for the Tax Base
Year shall become the lower assessment or valuation effective
as of the tax fiscal year in which said settlement or final
determination was reached (hereinafter the "Updated Tax Base
Year"); and (ii) Tenant shall pay as additional rent Tenant's
Proportionate Share of the amount by which the Taxes for each
succeeding tax fiscal year after the Updated Tax Base Year,
exceeds the taxes for the Updated Tax Base Year. Landlord
promptly shall send to Tenant a statement setting forth the
basis for the Updated Tax Base Year and all adjustments and
additional rent payments.
6.02 (A) In addition to the fixed rent, Tenant agrees to pay as
additional rent an amount equal to Tenant's Proportionate
Share of the excess of Real Estate Taxes payable by Landlord
for each tax fiscal year of the City which is subsequent to
the Tax Base Year, over the Real Estate Taxes payable by
Landlord for the Tax Base Year.
(B) Tenant's obligation to pay such additional rent under (a)
above, shall commence on the July 1st or January 1st
(whichever comes first) after the Tax Base Year; and Tenant
shall pay such additional rent, with respect of each fiscal
year subsequent to the Tax Base Year, in two equal
installments, on such July 1st or January 1st (as the case may
be) and each subsequent July 1st and January 1st during the
balance of the term of this Lease (but in no event shall such
payments be due earlier than ten (10) days after delivery to
Tenant of a statement therefor).
(C) Within thirty (30) days after the Expiration Date, Landlord
shall pay to Tenant an amount equal to the portion, if any, of
such additional rent which is attributable to the period
subsequent to the Expiration Date.
(D) The dates for the payment of taxes, July 1st and January 1st,
are based on the present dates for the payment of real estate
taxes in the City. If the City or other governmental authority
changes the dates for the payment of Real Estate Taxes then
the changed dates shall be sequentially substituted for the
July 1 and January 1 dates contained herein.
6.03 Upon Tenant's request, Landlord shall furnish to Tenant a copy of the
Assessor's report or reports showing the assessment for the Building and the
Common Areas and the report or reports showing the increased assessment therefor
and all applicable tax bills, or such other evidence coming from the Assessor's
and/or Tax Collector's office which will show the assessments and tax involved
or some other reasonable documentation of the matter.
ARTICLE 7
ADJUSTMENT OF RENT FOR CHANGES IN OPERATING COSTS
7.01 (A) In the event that the Operating Costs for an Operating
Year shall exceed the Operating Costs for the Base Year,
Landlord shall adopt a date (the "Adjustment Date"), in the
succeeding Operating Year, and within ten (10) days of the
Adjustment Date, Tenant shall pay to Landlord an amount equal
to the Tenant's Proportionate Share of such excess (without
setoff or deduction of any kind and as additional rent), less
the amount of additional rent, if any, which Tenant paid to
Landlord, as additional rent under subparagraph (b) below,
during the Operating Year in question.
(B) Tenant also shall pay to Landlord, as additional rent (in
equal monthly installments) in each Operating Year,
retroactive to the first month of such year, a sum equal to
one-twelfth (1/12th) of Tenant's Proportionate Share of the
amount by which the projected Operating Costs for the current
Operating Year exceed the Operating Costs for the Base Year.
In no event shall Tenant's Proportionate Share of Operating
Costs for any Operating Year during the Term hereof be less
than Tenant's Proportionate Share of Operating Costs for the
Base Year.
(C) If the Operating Costs for any Operating Year shall be less
than the Operating Costs for the previous year, Landlord shall
credit such amount of Tenant's Proportionate Share to Tenant,
but in no event will the fixed rent be reduced below that
amount stated in Article 1.
7.02 For the purposes of this Article, the following terms shall have the
following meanings:
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(A) The term "Base Year" shall mean January 1, 2004 through December
31, 2004.
(B) The term "Operating Year" shall mean each twelve month period
adopted by the Landlord subsequent to the Rent Commencement Date.
(C) The term "Common Areas" shall mean the land and pedestrian deck, as
shown on Exhibit "F", together with the parking garage and loading dock
facility.
(D) The term "Adjustment Date" shall be a date adopted by the
Landlord subsequent to each Operating Year.
(E) The term "Tenant's Proportionate Share" shall be 3.85%.
(F) The term "Operating Costs" shall mean the aggregate of all expenses
paid or incurred by Landlord for the operation of the Building, and 48.24% of
such expenses paid or incurred by Landlord for the operation of the Common
Areas, and shall include without limitation the following:
(I) Wages and salaries paid by Landlord, including all fringe
benefits and taxes related thereto paid by Landlord, of employees directly and
solely engaged in cleaning, maintenance and repair of the Building, Building
equipment and Common Areas, and performing the functions of garbage and snow
removal, landscaping and security, including a customary managing agent's fee,
or cost to Landlord of an independent contractor performing any such services;
(II) Any and all supplies and materials utilized by Landlord or
independent contractors of Landlord in the performance of the items set forth in
subparagraph (i) immediately preceding;
(III) The cost of supplying utilities to the Building and Common
Areas;
(IV) Insurance premiums paid by Landlord with respect to the
Building and Common Areas; and
(V) Expenditures incurred by Landlord after substantial completion
of the Building for any equipment, device or capital improvement which is
required by any law, statute or regulation or a requirement of the insurance
carrier or which is designed as a labor-saving measure or designed to effect
other economies or efficiencies in the operation or maintenance of the Demised
Premises, Common Areas or the Building Equipment except to the extent such
expenses exceed $50,000.00, in which case the annual amortization (on a
straight-line basis over a depreciable life in accordance with generally
accepted accounting principles consistently applied, with interest calculated at
an annual rate of one (1) percentage point above the prime rate at the time of
Landlord's having made such expenditure) of such expenses shall be included in
Operating Costs; and
(VI) Legal and accounting fees and disbursements, and any other
expense or charge of any nature whatsoever which, in accordance with generally
accepted accounting principles with respect to the operation of a first-class
office building, would be construed as an operating expense, excluding, however,
real property taxes, depreciation, interest on and amortization of debt, and any
items otherwise properly constituting such an operating expense to the extent
payment therefor is received from or payable by tenants for services rendered or
performed directly for the account of such tenants or for which a tenant pays
directly under an electricity schedule.
7.03 Landlord shall advise Tenant by written statement certified to be correct
by Landlord or its agent, of increased Operating Costs for any Operating Year.
The statement shall delineate the amount of Tenant's Proportionate Share caused
by such increase, shall establish the Adjustment Date, and set forth the manner
in which the adjustment is computed. Landlord's failure to render a statement
with respect to increases in Operating costs for any Operating Year shall not
prejudice Landlord's right to thereafter render a statement with respect thereto
or with respect to any subsequent Operating Year. Furthermore, nothing herein
contained shall restrict Landlord from issuing a statement or from revising an
estimate at any time that there is an increase in Operating Costs during any
Operating Year or at any time thereafter. The rights and obligations of Landlord
and Tenant under the provisions of this Article with respect to any additional
rent shall survive the termination of this Lease.
7.04 Tenant and Landlord agree that for all purposes in any way connected with
or arising out of this Article, the statement delivered by Landlord pursuant to
Section 7.03 shall be binding and conclusive on both parties hereto unless
objected to by Tenant in
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writing within sixty (60) days after receipt thereof. Tenant's objection shall
be in writing and specify the respects in which the statement is claimed to be
incorrect. Provided that Tenant has made timely payment of Tenant's
Proportionate Share of Operating Costs, the Tenant shall have the right to
require the production of Landlord's books which relate to these items of cost
and the right, within thirty (30) days subsequent to the production of
Landlord's books, to deliver notice of disagreement with respect to any item of
Operating Costs. Any review of Landlord's books shall be (a) performed by a
reputable firm of certified public accountants engaged by Tenant on a fee-paid
basis (as opposed to a contingency fee basis), who shall execute and deliver to
Landlord an undertaking, whereby such accounting firm: (i) covenants not to
disclose to any person or entity (other than Tenant) any information received by
or made available to such accounting firm in connection with the review, (ii)
agrees not to solicit or accept engagement by other tenants in the Building for
the purpose of performing a review of Landlord's books on their behalf, and
(iii) agrees that while it may review the applicable books at Landlord's
record-keeping office, no copies may be made, nor may any such books be removed
from such record-keeping office; (b) performed during Business Hours (as defined
in Section 17.01 hereof), upon prior appointment with Landlord at Landlord's
record-keeping office; and (c) shall be completed within one hundred eighty
(180) days following Tenant having received the statement delivered by Landlord
pursuant to Section 7.03.
7.05 Anything to the contrary herein notwithstanding, Landlord shall have the
right at any time to calculate Operating Costs for the Building and the other
buildings comprising the Landmark Square Complex (the "Complex") separately
rather than together and to collect from Tenant as additional rent Tenant's
Proportionate Share of the excess of the Building 's Operating Costs for the
Operating Year in question over the Building's Operating Costs for the Base
Year; in such event Landlord shall give Tenant at least thirty (30) days advance
notice of the said manner of calculation ("Landlord's Change Notice"). At the
time said adjustments are made in calculating Operating Costs for the Operating
Years (or portions thereof) falling after the effective date of Landlord's
Change Notice, appropriate adjustment shall be made in Operating Costs for the
Base Year.
7.06 Notwithstanding that in certain provisions of this Lease, it is specified
that Landlord shall perform certain obligations and services as an Operating
Cost, whereas the Lease is silent in regards to other obligations and services,
all obligations and services to be performed by Landlord shall be included as an
Operating Cost to the extent that they fall within the definition of Operating
Costs in Section 7.02(f) hereof. The costs of any services included in Operating
Costs, which services are performed by subsidiaries or affiliates of Landlord or
Landlord's agents shall be competitive in price for comparable contracts and
transactions with unaffiliated entities for the performance of such services in
comparable buildings.
ARTICLE 8
SUBORDINATION, ATTORNMENT, NOTICE TO LESSOR AND MORTGAGEES
8.01 This Lease, and all rights of Tenant hereunder, are and shall be subject
and subordinate in all respects to all present and future ground leases,
over-riding leases and underlying leases and/or grants of term of the land
and/or the Building or the portion thereof in which the Demised Premises are
located in whole or in part now or hereafter existing and to all mortgages and
building loan agreements, including leasehold mortgages and building loan
agreements, which may now or hereafter affect the land and/or the Building
and/or any of such leases, whether or not such mortgages shall also cover other
lands and/or buildings, to each and every advance made or hereafter to be made
under such mortgages, and to all renewals, modifications, replacements and
extensions of such leases and such mortgages and spreaders, consolidations and
correlations of such mortgages. This Section shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver an instrument, in
recordable form, if required, that Landlord, the lessor of any such lease or the
holder of any such mortgage or any of their respective successors in interest
may request to evidence such subordination, and Tenant hereby constitutes and
appoints Landlord attorney-in-fact for Tenant to execute any such instrument for
and on behalf of Tenant. The leases to which this Lease is, at the time referred
to, subject and subordinate pursuant to this Article are hereinafter sometimes
called "superior leases" and the mortgages to which this Lease is at the time
referred to, subject and subordinate are hereinafter sometimes called "superior
mortgages" and the lessor of a superior lease or its successor in interest at
the time referred to is hereinafter sometimes called a "lessor".
8.02 Landlord hereby notifies Tenant that in accordance with the terms of a
superior mortgage, this Lease may not be modified or amended so to reduce the
rent, shorten the term, or adversely affect in any other respect to any material
extent the rights of the Landlord hereunder, or be cancelled or surrendered
without the prior written consent of the holder of the superior mortgage in each
instance, except that said holder's consent shall not be required to the
institution or prosecution of any action or proceedings against Tenant by reason
of a default on the part of Tenant under the terms of this Lease.
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8.03 This Lease shall not terminate or be terminable by Tenant by reason of any
termination of the ground lease, by summary proceedings, foreclosure of a
superior mortgage, or otherwise. Tenant agrees without further instruments of
attornment in each case, to attorn to the lessor under the ground lease, or the
mortgagee under the superior mortgage, as the case may be, to waive the
provisions of any statute or rule of law now or hereafter in effect which may
give or purport to give Tenant any right of election to terminate this Lease or
to surrender possession of the Demised Premises in the event the ground lease is
terminated or a superior mortgage is foreclosed, and that unless and until the
lessor, or mortgagee, as the case may be, shall elect to terminate this Lease,
this Lease shall not be affected in any way whatsoever by any such proceeding or
termination, and Tenant shall take no steps to terminate this Lease without
giving written notice to the lessor under the ground lease, or mortgagee under a
superior mortgage, and a reasonable opportunity to cure (without such lessor or
mortgagee being obligated to cure), any default on the part of the Landlord
under this Lease.
8.04 If any act or omission by Landlord would give Tenant the right, immediately
or after lapse of time, to cancel or terminate this Lease or to claim a partial
or total eviction, Tenant will not exercise any such right until (a) it has
given written notice of such act or omission to each holder of a superior
mortgage and to each holder of a superior lease, whose name and address shall
have previously been furnished to Tenant, by delivering notice of such act or
omission addressed to each such party at its last address so furnished and (b) a
period for remedying such act or omission shall have elapsed following such
giving of notice and following the time when such senior interest holder shall
have become entitled under such senior interest, as the case may be, to remedy
the same (which period shall be equal to, and immediately follow, the full
period to which Landlord would be entitled under this Lease to effect such
remedy) provided such senior interest holder shall, with reasonable diligence,
give Tenant notice of its intention to remedy such act or omission and shall
commence and continue to act upon such intention. Notwithstanding the foregoing,
nothing shall impose any obligation on such holder actually to remedy such act
or omission.
8.05 Landlord shall use commercially reasonable efforts to deliver a
subordination, nondisturbance and attornment agreement ("Nondisturbance
Agreement") from Landlord's current and future mortgagees on such mortgagee's
standard form. Tenant shall be responsible for, and shall pay to Landlord upon
Landlord's request therefor, all reasonable costs incurred by Landlord in
Landlord's effort to provide such agreement. In the event that a mortgagee shall
be unwilling to enter into a Nondisturbance Agreement as aforesaid, this Lease
shall remain in full force and effect and the obligations of Tenant shall not in
any manner be affected.
ARTICLE 9
QUIET ENJOYMENT
9.01 Landlord covenants that if, and so long as, Tenant is not in default of the
terms of this Lease beyond the applicable notice and cure period provided herein
for the cure thereof (if any), Tenant shall quietly enjoy the premises without
hindrance or molestation by Landlord or by any other person lawfully claiming
the same, subject to the covenants, agreements, terms, provisions and conditions
of this Lease.
ARTICLE 10
ASSIGNMENT, MORTGAGING, SUBLETTING
10.01 Neither this Lease, nor the term and estate hereby granted, nor any part
hereof or thereof, nor the interest of Tenant in any sublease or the rentals
thereunder, shall be assigned, mortgaged, pledged, encumbered or otherwise
transferred by Tenant by operation of law or otherwise, and neither the Demised
Premises, nor any part thereof, shall be encumbered in any manner by reason of
any act or omission on the part of Tenant or anyone claiming under or through
Tenant, nor shall be sublet to be used or occupied or permitted to be used or
occupied, or utilized for desk space or for mailing privileges, by anyone other
than Tenant or for any purpose other than as permitted by this Lease, without
the prior written consent of Landlord in every case, except as expressly
otherwise provided in this Article.
Furthermore, no assignment shall be binding on Landlord unless the
assignee shall execute, acknowledge and deliver to Landlord (a) a duplicate
original instrument of assignment in form and substance reasonably satisfactory
to Landlord, duly executed by Tenant, and (b) an agreement, in form and
substance reasonably satisfactory to Landlord, duly executed by the assignee,
whereby the assignee shall unconditionally assume in accordance with the terms
and conditions of this Lease observance and performance of, and agree to be
bound by all of the terms, covenants and conditions of this Lease on Tenant's
part to be observed or performed, including, without limitation, the provisions
of this Article with respect to all future assignments; but the failure or
refusal of the assignee to execute or deliver such an agreement shall not
release the assignee from its liability for the obligations of Tenant hereunder
assumed by acceptance of the assignment of this Lease.
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10.02 If this Lease is assigned, whether or not in violation of the provisions
of this Lease, Landlord may collect rent from the assignee. If the Demised
Premises or any part thereof is sublet or is used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such default, collect
rent from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the rents herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Section 10.01, or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord to
assignment, mortgaging, subletting or use or occupancy by others shall not in
any way be considered to relieve Tenant from obtaining the express written
consent of Landlord to any other or further assignment, mortgaging or subletting
or use or occupancy by others not expressly permitted by this Article.
References in this Lease to use or occupancy by others, that is anyone other
than Tenant, shall not be construed as limited to subtenants and those claiming
under or through sub-tenants but as including also licensees and others claiming
under or through Tenant, immediately or remotely.
10.03 Tenant, upon prior written notice to Landlord, but without Landlord's
consent, may permit any corporations or other business entities which control,
are controlled by, or are under common control with Tenant (herein called
"related corporations") to use the whole or part of the Demised Premises for any
of the purposes permitted to Tenant, subject however to compliance with Tenant's
obligations under this Lease. Such use shall not be deemed to vest in any such
related corporation any right or interest in this Lease or in the Demised
Premises, nor shall such use release, relieve, discharge or modify any of
Tenant's obligations hereunder.
10.04 Tenant, upon prior written notice to Landlord, but without Landlord's
consent, may assign or transfer its entire interest in the Lease and the
leasehold estate hereby created or sublet the whole of the Demised Premises on
one or more occasions to a "wholly owned subsidiary" or "affiliate" of Tenant or
to a "successor corporation" of Tenant, as such terms are hereinafter defined,
provided that Tenant shall not then be in default in any of the terms,
covenants, conditions and agreements of this Lease beyond the expiration of the
applicable notice and cure period provided herein for the cure thereof (if any),
including but not limited to the payment of the fixed rent or additional rent
payable by Tenant hereunder. A "wholly owned subsidiary" of Tenant shall mean
any corporation all of whose outstanding voting stock shall at the time be
owned, directly or indirectly, by Tenant or by one or more of its wholly owned
subsidiaries. An "affiliate" of Tenant shall mean any corporation or other
entity or business form which directly or indirectly controls or is controlled
by or is under common control with Tenant. For purposes of this definition,
"control" (including "controlling," "controlled by" and "under common control
with") as used with respect to any corporation or other entity or business form,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such corporation or other
entity or business form, whether through the ownership of voting securities, or
by contract or otherwise. A "successor corporation" as used in this Article,
shall mean (i) a corporation into which or with which Tenant, its corporate
successors or assigns, is merged or consolidated, in accordance with applicable
statutory provisions for the merger or consolidation of corporations, provided
that by operation of law or by effective provisions contained in the instruments
of merger or consolidation the liabilities of the corporations participating in
such merger or consolidation are assumed by the corporation surviving such
merger or consolidation, or (ii) a corporation or other entity or business form
acquiring this Lease and the term hereby demised, the goodwill and all or
substantially all of the other property and assets of Tenant, its corporate
successors or assigns, and assuming all or substantially all of the liabilities
of Tenant, its successors and assigns, or (iii) any corporate successor to a
successor corporation or other entity or business form becoming such by either
of the methods described in Clauses (i) and (ii); provided that, prior to such
merger or consolidation, or such acquisition and assumption as the case may be,
Tenant delivers to Landlord (a) a fairness opinion from a reputable investment
bank stating that the price being paid for the assets or the entity being
acquired is fair, and (b) proof acceptable to Landlord in Landlord's reasonable
discretion that at such time Tenant has free and clear cash on hand equal to at
least three (3) times Tenant's cash requirements for the trailing twelve (12)
month period. The acquisition by Tenant, its corporate successors or assigns, of
all or substantially all of the assets, together with the assumption of all or
substantially all of the obligations and liabilities of any corporation, shall
be deemed to be a merger of such corporation into Tenant for the purpose of this
Article.
10.05 If Tenant is a corporation, partnership or other business form, and if at
any time during the term of this Lease the person or persons who, as of the date
this Lease is executed by Tenant, own or owns a majority of (a) such
corporation's voting stock (as hereinafter defined), (b) the interests in such
partnership, or (c) the equitable ownership interests in such other business
form, as the case may be, cease or ceases to own a majority of such voting
stock, partnership interest or other equitable ownership interest, as the case
may be, then the occurrence of any such event shall be deemed to be an
assignment of this Lease with respect to which the Landlord's prior written
consent shall be required. This Section 10.05 shall not apply to the public
trading of shares of stock of Tenant on a National Exchange (as defined under
federal securities laws). This Section 10.05 shall not apply to Kanders &
Company, Inc. so long as Clarus Corporation (as it exists on the date hereof as
opposed to a "successor corporation" as defined in Section 10.04) is one of the
entities comprising Tenant hereunder.
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10.06 (A) With respect to each and every sublease or subletting authorized by
the provisions of this Article:
(I) No subletting shall be for a term ending later than one
day prior to the Expiration Date of this Lease, and that part, if any, of the
proposed term of any sublease or any renewal or extension thereof which shall
extend beyond a date one day prior to the Expiration Date or the earlier
termination of the term of this Lease, is hereby deemed to be a nullity.
(II) Upon the execution of any such sublease as may be
authorized by this Article, Tenant shall promptly deliver to Landlord a copy of
each such sublease.
(B) Notwithstanding anything to the contrary set forth herein, within
thirty (30) days of Landlord's receipt of Tenant's notice that Tenant desires to
sublease (i) all of the Demised Premises for any length of time, or (ii) any
portion of the Demised Premises for all or substantially all of the balance of
the then current term of this Lease (i.e. resulting in less than one (1) year
remaining in the term of this Lease upon the expiration of such sublease),
except with respect to a sublease within the scope of Article 10.04 herein,
Landlord may elect to terminate this Lease, as to the entire Demised Premises or
as to the relevant portion (at Landlord's option) by delivering notice of such
election to Tenant within such thirty (30) day period; provided, however, if
Landlord elects to terminate this Lease, Tenant may withdraw its request for
consent to such sublease within five (5) days after delivery of Landlord's
termination notice, in which case Landlord's election to terminate shall be void
and of no force and effect. If Landlord shall have elected to terminate this
Lease pursuant to this Section 10.06(b) and Tenant has not withdrawn its request
as aforesaid, the Term of this Lease shall cease and come to an end on that day
with the same force and effect as though that were the original date set forth
as the Expiration Date, and Tenant shall deliver broom clean possession of the
Demised Premises or the applicable portion thereof to Landlord, in accordance
with the terms of this Lease. Thereafter, neither party shall have any
obligations to the other hereunder, except for any fixed rent or additional rent
due and owing to the Landlord up to and including the termination of this Lease,
any obligations that expressly survive the termination or expiration of this
Lease, and as the parties hereto may have agreed otherwise in this Lease or by
separate writing. If Landlord fails to exercise such option within said thirty
(30) days and Tenant fails to complete such sublease with a third party (as
hereinafter provided within ninety (90) days thereafter), Tenant shall again
comply with all the conditions of this Section, as if the notice and option
hereinabove referred to had not been given and received.
(C) In the event Landlord does not exercise its option to terminate
this Lease in whole or in part, as the case may be, Landlord covenants not to
unreasonably withhold its consent (which must be in writing) to such subletting
or assignment, provided, however, that Landlord shall not, in any event, be
obligated to consent to any such proposed subletting or assignment unless:
(I) At least thirty (30) days prior to the proposed subletting
or assignment, Tenant furnishes Landlord with the name and business address of
the proposed subtenant or assignee, a counterpart of the proposed subleasing
agreement or assignment, and satisfactory information with respect to the nature
and character of the business of the proposed subtenant or assignee together
with current financial information and references reasonably satisfactory to
Landlord;
(II) in the reasonable judgment of Landlord the proposed
subtenant or assignee is of a character and engaged in a business such as are in
keeping with the standards of Landlord in those respects for the Building;
(III) the purposes for which the proposed subtenant or
assignee intends to use the portion of the Demised Premises sublet to it are
uses expressly permitted by and not expressly prohibited by this Lease;
(IV) in the case of a subletting, Tenant shall not have listed
or publicly advertised the rental rate less than the fixed rent and additional
rent (pursuant to Articles 6 and 7) then payable hereunder for such space; but
the provisions of this subsection, however, shall not be deemed to prohibit
Tenant from negotiating a sublease at a lesser rate of rent and consummating the
same insofar as it may be permitted under the provisions of this Article;
(V) the proposed subtenant or assignee is not an existing
occupant of the Building or any other building owned by Landlord or any
affiliate of Landlord in Connecticut;
(VI) the proposed subtenant or assignee is not then
negotiating with Landlord for space in the Building or in any other building
owned by Landlord or any affiliate of Landlord in Connecticut; and
(VII) in the case of a subletting of a portion of the Demised
Premises, the portion so sublet shall be regular in
16
shape and suitable for normal renting purposes.
(D) Each subletting pursuant to this Article shall be subject to all
the covenants, agreements, terms, provisions and conditions contained in this
Lease. Tenant covenants and agrees that notwithstanding any such subletting to
Landlord or any such subletting to any other subtenant and/or acceptance of rent
or additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of the fixed rent and additional rent due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions and conditions contained in this Lease on the part of Tenant
to be performed and all acts and omissions of any licensee or subtenant or
anyone claiming under or through any subtenant which shall be in violation of
any of the obligations of this Lease and any such violation shall be deemed to
be a violation by Tenant. Tenant further covenants and agrees that
notwithstanding any such subletting, no other and further subletting of the
Demised Premises or any part thereof shall or will be made except upon
compliance with and subject to the provisions of this Article.
(E) Tenant shall reimburse Landlord for any reasonable costs incurred
by Landlord to review any proposed subletting or assignment including Landlord's
attorneys' fees and disbursements.
(F) Tenant shall reimburse Landlord for Landlord's costs incurred in
connection with plan review or plan approval should Tenant propose alterations
to the Demised Premises to make same suitable for the occupancy by Tenant's
subtenant or assignee.
(G) Notwithstanding anything to the contrary contained in this Lease,
no sublease shall be permitted (i) during the first twelve (12) full calendar
months following the Rent Commencement Date, or (ii) at any time at a sublease
rental rate lower than the then current fixed rent payable by Tenant pursuant to
this Lease. This Section 10.06(g) shall not apply to subleases under Section
10.04.
10.07 Landlord's approval is required for the use of any name other than
Tenant's name for identification on any signs or directory listings in the
Building.
The listing of any name other than that of Tenant, even though approved
by Landlord, shall not:
(A) Constitute a waiver of Landlord's right to withhold consent to any
sublet or assignment pursuant to this Article;
(B) Be deemed an implied consent by Landlord to any sublet of the
Premises or any portion thereof, to any assignment or transfer of the lease, or
to any unauthorized occupancy of the Premises, except in accordance with the
express terms of the Lease; or
(C) Operate to vest any right or interest in the Lease or in the
Premises.
The use of any such other name or listing as provided above shall
constitute a privilege extended by Landlord to Tenant, and shall be revocable at
Landlord's will by notice to Tenant; provided, however, Tenant may use the
following names during the term of this Lease: Clarus Corporation, Kanders &
Company, Inc., Xxxxxx X. Xxxxxxx Foundation, Inc. and Armor Holdings, Inc.
ARTICLE 11
COMPLIANCE WITH LAWS AND REQUIREMENTS OF PUBLIC AUTHORITIES
11.01 Tenant shall promptly notify Landlord of any written notice it receives of
the violation of any law or requirements of any Federal, State, Municipal or
other public authority, and at its expense Tenant shall comply with all laws and
requirements of such public authorities which shall, with respect to the
Building or the Demised Premises or the use and occupation thereof or the
abatement of any nuisance, impose any violation, order or duty on Landlord or
Tenant, arising from (i) Tenant's use of the Demised Premises, (ii) the manner
of conduct of Tenant's business or operation of its installations, equipment or
other property therein, (iii) any cause or condition created by or at the
instance of Tenant, or (iv) breach of any of Tenant's obligations hereunder.
ARTICLE 12
INSURANCE
12.01 Tenant shall not do, or permit anything to be done, or keep or permit
anything to be kept in the Demised Premises which
17
would increase the fire or other casualty insurance rate on the Building or the
property therein over the rate which would otherwise then be in effect (unless
Tenant pays the resulting increased amount of premium as provided in Section
12.02) or which would result in insurance companies of good standing refusing to
insure the Building or any of such property in amounts and at normal rates
reasonably satisfactory to Landlord.
12.02 If, by reason of any act or omission on the part of Tenant, the rate of
fire insurance with extended coverage on the Building or equipment or other
property of Landlord shall be higher than it otherwise would be, Tenant shall
reimburse Landlord, on demand, for that part of the premiums for fire insurance
and extended coverage paid by Landlord because of such act or omission on the
part of Tenant, which sum shall be deemed to be additional rent and collectible
as such.
12.03 In the event that any dispute should arise between Tenant and Landlord
concerning rates, a schedule or make up of rates for the Building or the Demised
Premises, as the case may be, issued by a Fire Insurance Rating Organization or
other similar body making rates for fire insurance and extended coverage for the
premises concerned, shall be presumptive evidence of the facts therein stated
and of the several items and charges in the fire insurance rates with extended
coverage then applicable to such premises.
12.04 Tenant shall obtain and keep in full force and effect during the term of
this Lease at its own cost and expense (a) General Comprehensive Commercial
Liability insurance on an occurrence basis with minimum limits of liability in
an amount of not less than $3,000,000.00 combined single limit coverage for
injury, death, damage to property, water damage and sprinkler leakage including
legal liability arising out of any one occurrence, which insurance shall contain
contractual liability insurance covering the matters set forth in Article 21,
which coverage shall be subject to periodic increase as reasonably required by
Landlord, protecting Tenant as the insured and Landlord and any other parties
whose names have been provided by Landlord to Tenant from time to time as
additional insureds (in an endorsement form satisfactory to Landlord); (b) Fire
and Extended Coverage Insurance on Tenant's property, insuring against damage by
fire, and such other risks and hazards as are insurable under present and future
standard forms of fire and extended coverage insurance policies, to Tenant's
property for the full insurable value thereof; and (c) any other insurance
required by law.
12.05 All such policies of insurance shall be issued by a financially
responsible company or companies, authorized to issue such policy or policies,
and licensed to do business in the State of Connecticut, which shall be
reasonably satisfactory to Landlord, and shall contain endorsements providing as
follows: (a) that any such insurance shall not be subject to cancellation,
termination, reduction or change, except with thirty (30) days' prior written
notice sent by registered or certified mail to Landlord by the insurance
company; and (b) that Landlord shall not be liable for any damage by fire or
other casualty covered by such insurance, regardless of the cause, it being
understood that Tenant shall look solely to its insurer or insurers for
reimbursement. Landlord and Tenant waive their right to recover damages against
each other for any reason whatsoever to the extent the damaged party recovers
from its insurance carrier. Any insurance policy procured by Tenant which does
not name the Landlord as an additional insured shall contain an express waiver
of any right of subrogation by the insurance company against Landlord. All
liability and property damage policies shall contain an endorsement that
Landlord, although named as an additional insured, shall nevertheless be
entitled to recover under said policies for any loss or damage occasioned to it,
its servants, agents and employees. The original policy or policies together
with satisfactory evidence of payment of the premium thereof, shall be delivered
to Landlord on or before the commencement of Tenant's Initial Work, and upon
renewals of such policies, not less than thirty (30) days prior to the
expiration of the term of any such coverage. The minimum limits of any insurance
coverage required herein to be carried by Tenant shall not limit Tenant's
liability under Article 21 hereof.
12.06 In the event that Tenant at any time or times shall fail to obtain or
maintain in full force and effect any or all of the insurance polices and
coverage required of it hereunder, or should Tenant violate any of the
provisions of Section 12.05 herein, Landlord, at its election after ten (10)
days written notice to Tenant, and as agent for Tenant, may obtain such
insurance or coverage, or additional insurance or coverage as the case may be,
pay the premiums thereon or take such other steps as may be necessary to meet
the requirements of this Article and thereafter, upon demand, obtain
reimbursement of the costs so expended from Tenant. The failure of Landlord to
obtain evidence of the required insurance coverage shall not relieve Tenant of
its obligations under this Article.
12.07 If Tenant shall decide not to insure for (or to self-insure or co-insure
part of any loss for) business interruption and/or if Tenant shall at any time
fail to maintain property insurance as, and to the extent, required of it
hereunder, Tenant hereby releases Landlord from all loss or damage which could
have been covered by such insurance if Tenant had maintained such insurance. In
no event, however, shall the foregoing clause increase the liability Landlord
may otherwise have under this Lease for such loss or damage.
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ARTICLE 13
RULES AND REGULATIONS
13.01 Tenant and its employees and agents shall faithfully observe and comply
with the rules and regulations set forth in the attached Exhibit "C" (the "Rules
and Regulations"), and such reasonable changes therein (whether by modification,
elimination or addition) as Landlord at any time or times hereafter may make and
communicate in writing to Tenant, which do not unreasonably affect the conduct
of Tenant's business in the Demised Premises; provided, however, that in case of
any conflict or inconsistency between the provisions of this Lease and any Rules
and Regulations enacted subsequent to the date of this Lease the provisions of
this Lease shall control. Landlord agrees not to discriminate against Tenant in
the implementation and enforcement of such Rules and Regulations.
13.02 Notwithstanding anything to the contrary in any of the Rules and
Regulations set forth in Exhibit "C":
(A) Tenant may bring into and keep in the Demised Premises such small
quantities of inflammable or combustible objects or materials as are permitted
by local law and as are incidental to the use of the Demised Premises for the
purposes permitted by Article 2, but this shall not be deemed to relieve Tenant
of responsibility to comply with all other obligations of this Lease that may be
applicable to or result from the introduction or maintenance of such objects or
materials in the Demised Premises, including but not limited to compliance with
the provisions of Sections 12.01 and 12.02.
(B) Subject to the provisions of Paragraph 2.02(c), Landlord shall not
unreasonably withhold its consent to the installation, maintenance and
operations by Tenant in the Demised Premises of data processing machines, office
duplicating machines, teletypewriter machines and other business machines and
machinery customarily used in offices in the ordinary course of business,
provided, however, that Tenant shall comply with all other obligations of this
Lease that may be applicable to or result from such installation, maintenance or
operation.
(C) Landlord shall not unreasonably withhold from Tenant any approval
provided for in the Rules and Regulations.
(D) Whenever Landlord shall claim, by written notice to Tenant, that
Tenant is violating any of the provisions of the Rules and Regulations, and
Tenant shall in good faith dispute such claim by written notice given to
Landlord within ten (10) days after service of Landlord's notice of the
violation, the dispute shall be determined by arbitration pursuant to the rules
of the American Arbitration Association.
(E) Tenant shall utilize only security and cleaning services approved
in writing by Landlord.
ARTICLE 14
ALTERATIONS AND TENANT'S PROPERTY
14.01 Tenant shall make no alterations, decorations, installations, additions or
improvements (hereinafter collectively referred to as "Tenant's Work") in or to
the Demised Premises. Tenant may make written request to Landlord that certain
Tenant's Work be performed in the Demised Premises, but all such Tenant's Work
shall be performed, if at all, (i) in the sole and absolute discretion of
Landlord, (ii) by Landlord or its designee (except for Tenant's Initial Work,
which may be performed by Tenant's contractors and subcontractors subject to all
of the provisions of Section 14.02 hereof), and (iii) at the sole cost and
expense of Tenant. Any Tenant's Work to be performed in, on or to the Demised
Premises shall be performed by Landlord (which term as used in this Article
14.01 shall be deemed to include Landlord and/or Landlord's contractor) (except
for Tenant's Initial Work, which may be performed by Tenant's contractors and
subcontractors subject to all of the provisions of Section 14.02 hereof), and
Tenant shall pay Landlord for all costs and charges for such Tenant's Work
(including, without limitation, the cost of any drawings, plans, layouts and/or
specifications prepared by Landlord or its consultants with respect to such
Tenant's Work). Notwithstanding the foregoing, Landlord shall not unreasonably
withhold its consent to the performance of any Minor Alteration (as hereinafter
defined). The term "Minor Alteration", as used herein, means any Alteration
which will not, in the reasonable opinion of Landlord (i) be structural in
nature; (ii) affect the exterior or any structural portions or components of the
Building; (iii) be visible from outside of the Demised Premises; (iv) affect the
usage or proper functioning of any of the Building systems (including, without
limitation, the heating, ventilation, air conditioning, plumbing, electrical,
sprinkler or security systems serving the Building); (v) jeopardize health
safety or life safety; (vi) require a change to the certificate of occupancy for
the Building; (vii) require the issuance of a building permit or other
authorization by any governmental or quasi-governmental entity exercising
jurisdiction over the Building; (viii) require the consent of any mortgagee or
ground lessor of the Building and/or the Real Property; (ix) cause any
previously non-mandatory legal requirement to become a mandatory legal
19
requirement with regard to the Building (including, without limitation, any such
legal requirement set forth in the Americans with Disabilities Act); or (x) have
a cost of completion in excess of $50,000.00. However, Landlord's consent shall
not be required for any Decorative Alterations to be made in the Demised
Premises. The parties acknowledge and agree that the term "Decorative
Alterations" shall only include those Minor Alterations for which a reasonable
and prudent tenant would not customarily engage a third party contractor or
professional (e.g., the hanging of standard office artwork or the relocation or
placement of standard, moveable office furniture). The parties further
acknowledge and agree that the term "Decorative Alterations" shall specifically
exclude all wall covering and floor covering work.
14.02 With respect to any Alteration to which Landlord consents under Section
14.01 which will be performed by a contractor other than Landlord or Landlord's
contractor and with respect to Decorative Alterations (any of such Alterations,
the "Permitted Tenant's Work"), the following provisions shall apply:
(A) All Permitted Tenant's Work done by Tenant shall at all times
comply with (i) laws, rules, orders and regulations of governmental authorities
having jurisdiction thereof, and (ii) rules and regulations of the Landlord
attached as Exhibit C.
(B) With respect to all Permitted Tenant's Work, architectural and
engineering plans and specifications prepared by and at the expense of Tenant
shall be submitted to Landlord for its prior written approval in accordance with
the following requirements:
(I) With respect to any Permitted Tenant's Work to be
performed by Tenant pursuant to this Lease, Tenant shall, at its expense,
furnish Landlord with complete architectural, mechanical and electrical
construction documents for work to be performed by Tenant (the "Tenant's
Plans"). All of the Tenant's Plans shall: (A) be compatible with the Landlord's
building plans, (B) comply with all applicable laws and the rules, regulations,
requirements and orders of any and all governmental agencies, departments or
bureaus having jurisdiction, and (C) be fully detailed, including locations and
complete dimensions;
(II) Tenant's Plans shall be subject to the approval of
Landlord which shall not be unreasonably withheld or delayed;
(III) Tenant shall, at Tenant's expense, (A) cause Tenant's
Plans to be filed with the governmental agencies having jurisdiction thereover,
(B) obtain when necessary all governmental permits, licenses and authorizations
required for the work to be done in connection therewith, and (C) obtain all
necessary certificates of occupancy, both temporary and permanent. Landlord
shall execute such documents as may be reasonably required in connection with
the foregoing and Landlord shall otherwise cooperate with Tenant in connection
with obtaining the foregoing, but without any expense to Landlord. Tenant shall
make no amendments or additions to Tenant's Plans without the prior written
consent of Landlord in each instance;
(IV) No work shall commence in the Premises until (A) Tenant
has procured all necessary permits therefor and has delivered copies of same to
Landlord, (B) Tenant has procured a paid builder's risk insurance policy naming
Landlord and its managing agent as additional insureds and has delivered to
Landlord a certificate of insurance evidencing such policy, and (C) Tenant or
its contractor has procured a workmen's compensation insurance policy covering
the activities of all persons working at the Premises naming Landlord and its
managing agent as additional insureds and has delivered to Landlord a
certificate of insurance evidencing such policy;
(V) Tenant may use any licensed architect or engineer to
prepare its plans and to file for permits. However, all such plans and permit
applications shall be subject to review, revision and approval by Landlord or
its architect;
(VI) Tenant, at its expense, shall perform all work in
connection with all Permitted Tenant's Work, in accordance with Tenant's Plans,
and such work shall be subject to Landlord's supervisory fee charge of 5% of the
cost thereof (with a cap of $25,000.00 with respect to Tenant's Initial Work).
In receiving such fee, Landlord assumes no responsibility for the quality or
manner (including, without limitation, the means, methods and/or techniques) in
which such work has been performed; and
(VII) Tenant agrees that it will not, either directly or
indirectly, use any contractors and/or labor and/or materials if the use of such
contractors and/or labor and/or materials would or will, in Landlord's
reasonable opinion, create any difficulty with other contractors and/or labor
engaged by Tenant or Landlord or others in the construction, maintenance or
operation of the Building or any part thereof.
(C) Tenant's Permitted Tenant's Work shall be subject to the following
additional conditions: (i) the Permitted Tenant's
20
Work will not result in a violation of, or require a change in, any Certificate
of Occupancy applicable to the Premises or the Building; (ii) the outside
appearance, character or use of the Building shall not be affected; (iii) no
part of the Building outside of the Premises shall be physically affected; and
(iv) the proper functioning of any mechanical and electrical system of the
Building shall not be affected.
(D) Tenant shall defend, indemnify and save harmless Landlord against
any and all mechanics' and other liens filed in connection with its Permitted
Tenant's Work, repairs or installations, including the liens of any conditional
sales of, or chattel mortgages upon, any materials, fixtures or articles so
installed in and constituting part of the Premises and against any loss, cost,
liability, claim, damage and expense, including reasonable counsel fees,
penalties and fines incurred in connection with any such lien, conditional sale
or chattel mortgage or any action or proceeding brought thereon. As a condition
precedent to Landlord's consent to the making by Tenant of Permitted Tenant's
Work, Tenant agrees to obtain and deliver to Landlord at the completion of the
work, written and unconditional waivers of mechanics' liens for all work, labor
and services to be performed and materials to be furnished, signed by all
contractors, subcontractors, materialmen and laborers to become involved in such
work.
(E) Tenant, at its expense, shall procure the satisfaction or discharge
of all such liens within twenty (20) days of the filing of such lien against the
Premises or the Building. If Tenant shall fail to cause such lien to be
discharged within the aforesaid period, then, in addition to any other right or
remedy, Landlord may, but shall not be obligated to, discharge the same either
by paying the amount claimed to be due or by procuring the discharge of such
lien by deposit or by bonding proceedings, and in any such event Landlord shall
be entitled, if Landlord so elects, to compel the prosecution of an action for
the foreclosure of such lien by the lienor and to pay the amount of the judgment
in favor of the lienor with interest, costs and allowances. Any amount so paid
by Landlord, and all costs and expenses incurred by Landlord in connection
therewith, together with interest thereon at the maximum rate permitted by law
from the respective dates of Landlord's making of the payments or incurring of
the cost and expense, shall constitute additional rent and shall be paid on
demand.
(F) Nothing in this Lease contained shall be construed in any way as
constituting the consent or request of Landlord, expressed or implied, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any material for any improvement, alteration or
repair of the Premises, nor as giving any right or authority to contract for the
rendering of any services or the furnishing of any materials that would give
rise to the filing of any mechanics' liens against the Premises.
(G) Permitted Tenant's Work shall be performed in compliance with all
applicable requirements of insurance bodies, and in good and first class
workmanlike manner, using materials and equipment at least equal in quality and
class to the original installations of the Building. Permitted Tenant's Work
shall be performed in such a manner as not to interfere with the occupancy of
any other tenant in the Building, nor delay or impose any additional expense
upon Landlord in the construction, maintenance or operation of the Building. In
addition to workmen's compensation insurance as described above, during the
performance of Permitted Tenant's Work, Tenant, at its expense, shall carry, or
cause to be carried, general liability insurance for any occurrence in or about
the Building, of which Landlord and its managing agent shall be named as
additional insureds, in such limits as Landlord may reasonably prescribe, with
insurers reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that all such insurance is in effect at or
before the commencement of Permitted Tenant's Work and, on request, at
reasonable intervals thereafter during the continuance of Permitted Tenant's
Work. No Permitted Tenant's Work shall involve the removal of any fixtures,
equipment or other property in the Demised Premises which are not Tenant's
property, unless Landlord's prior written consent is first obtained and unless
such fixtures, equipment or other property shall be promptly replaced at
Tenant's expense and free of superior title, liens and claims, with fixtures,
equipment or other property (as the case may be) of like utility and at least
equal value (which replaced fixture, equipment or other property shall thereupon
become the property of Landlord), unless Landlord shall otherwise expressly
consent in writing.
(H) 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 Permitted Tenant's Work which shall be issued by any
public authority having or asserting jurisdiction.
(I) Notwithstanding anything to the contrary contained hereinabove,
Landlord reserves the right to deny Tenant and/or its contractor access to the
Demised Premises and/or to request Tenant to withdraw therefrom and cease all
work being performed by it or on its behalf by any person, firm or corporation
other than Landlord, if Landlord shall, in its sole judgment, to be exercised in
good faith, determine that the commencement and/or the continuance of the
Permitted Tenant's Work shall interfere with, delay, hamper or prevent Landlord
from proceeding with the completion of any work then being or to be performed by
Landlord in the Building or the Demised Premises at the earliest possible date.
21
(J) Tenant agrees that should Tenant enter upon the Demised Premises
for the purposes of performing any Permitted Tenant's Work, the labor employed
by Tenant or anyone performing such work for or on behalf of Tenant shall always
be harmonious and compatible with the labor employed by Landlord or any
contractors or subcontractors of Landlord. Should a labor dispute arise or
result, Landlord may require Tenant to withdraw from such premises until the
completion of the work then being or to be performed by Landlord in the Building
or Demised Premises.
14.03 All alterations, decorations, installations, additions or improvements
upon the Demised Premises made by any party shall at the expiration of the term
hereof become the property of the Landlord and be surrendered with the Demised
Premises as part thereof at the end of the term. Tenant's special chandeliers,
business and trade fixtures, machinery and equipment, whether or not attached to
the Demised Premises, which are installed by or for the account of Tenant, and
can be removed without permanent structural damage to the Demised Premises or
the Building, and all furniture, furnishings and other articles of movable
personal property shall be and shall remain Tenant's property and may be removed
by it prior to the expiration date of this Lease; provided, however, that if any
of Tenant's property is removed, Tenant shall repair or pay the cost of
repairing any damage to the Demised Premises resulting from such removal. Any
equipment or other property for which Landlord shall have granted any allowance
or credit to Tenant shall not be deemed to have been installed by or for the
account of Tenant and shall not be considered Tenant's property.
14.04 At or before the Expiration Date, or the date of any earlier termination
of this Lease, Tenant at its expense, shall remove from the Demised Premises all
of Tenant's property (including telecommunications and data wiring) except such
items thereof as Tenant shall have expressly agreed in writing with Landlord
were to remain and to become the property of Landlord, and shall repair any
damage to the Demised Premises or the Building resulting from such removal. Any
other items of Tenant's property (except money, securities and other like
valuables) which shall remain in the Demised Premises after the Expiration Date
or after a period of fifteen (15) days following an earlier termination date,
may, at the option of the Landlord, be deemed to have been abandoned, and in
such case either may be retained by Landlord as its property or may be disposed
of, without accountability, in such manner as Landlord may see fit at Tenant's
expense. If carpet is glued down, then at Landlord's option Tenant may be
required to remove the carpet at Tenant's expense.
14.05 In the event Tenant or Tenant's contractor shall enter upon the Demised
Premises or any other part of the building, as may be above permitted by
Landlord, Tenant agrees to indemnify and save Landlord free and harmless from
and against any and all damages, claims, costs and expenses arising from or
claimed to arise from any act, or for any other reason whatsoever arising out of
said entry or such work.
ARTICLE 15
REPAIRS AND MAINTENANCE
15.01 Tenant shall take good care of the Demised Premises and the fixtures and
appurtenances therein, and at its sole cost and expense shall make all repairs
thereto, as and when needed to preserve them in good working order and
condition. In addition, Tenant, at its expense, shall promptly make all repairs,
ordinary or extraordinary, interior or exterior, structural or otherwise, in and
about the Demised Premises and the Building as shall be required by reason of
(i) the performance or existence of work by Tenant necessary to suit the Demised
Premises to Tenant's initial occupancy or Permitted Tenant's Work (ii) the
installation, use or operation of Tenant's property in the Demised Premises,
(iii) the moving of Tenant's property in or out of the Building, or (iv) the
misuse or neglect of Tenant or any of its employees, agents or contractors.
Tenant shall not be responsible, and Landlord shall be responsible, for any
repairs to the Demised Premises as are required by reason of Landlord's neglect
or other fault in the manner of performing any work included in the Work Letter
or Permitted Tenant's Work which may be undertaken by Landlord for Tenant's
account or as are otherwise required by reason of neglect or other fault of
Landlord or its employees, agents or contractors.
15.02 Landlord shall keep and maintain the Building and its fixtures,
appurtenances, systems and facilities serving the Demised Premises, in good
working order, condition and repair and shall make all structural repairs,
interior and exterior, except as indicated in Section 15.01 as and when needed
in the Building, except for those repairs for which Tenant is responsible
pursuant to any other provisions of this Lease, and subject to all other
provisions of this Lease, including but not limited to the provisions of Article
21.
15.03 Except as expressly otherwise provided in this Lease, Landlord shall have
no liability to Tenant by reason of any inconvenience, annoyance, interruption
or injury to business arising from Landlord or any tenant making any repairs or
changes or performing maintenance services, whether or not Landlord is required
or permitted by this Lease or by law to make such repairs or
22
changes or to perform such services in or to any portion of the Building or the
Demised Premises, or in or to the fixtures, equipment or appurtenances of the
Building or the Demised Premises, provided that Landlord shall be reasonably
diligent with respect thereto and shall perform such work, except in case of
emergency, at times reasonably convenient to Tenant and otherwise in such manner
and to the extent practical as will not unreasonably interfere with Tenant's use
and occupancy of the Demised Premises.
ARTICLE 16
ELECTRICAL ENERGY
16.01 Tenant shall pay to Landlord such amounts and at such times as is set
forth in Exhibit "E" attached hereto and made a part hereof.
16.02 Landlord shall in no way be liable for any failure of or defect in the
character or supply of electrical energy supplied to the Demised Premises,
except arising from Landlord's failure to pay the electric company for same or
Landlord's gross negligence or wilful misconduct.
16.03 Tenant shall at its expense, install all lamps (including, but not limited
to, fluorescent), starters and ballasts used in the Demised Premises.
ARTICLE 17
HEAT, VENTILATION AND AIR CONDITIONING
17.01 Landlord shall maintain and operate the heating, ventilation and air
conditioning systems in the Building and shall furnish heat, ventilation and air
conditioning in the Demised Premises through such systems, during the hours from
8:00 A.M. to 6:00 P.M. on business days (which term is used herein to mean all
days except Saturdays, Sundays and the days observed by the Federal or the
Connecticut government as legal holidays) ("Business Hours"). If Tenant shall
require ventilating and air conditioning service or heating service at any other
time (hereinafter called "after hours"), Landlord shall furnish after hours
ventilating and air conditioning service or heating service upon reasonable
advance notice from Tenant, and Tenant shall pay Landlord's then established
charges therefor on Landlord's demand (which charges are currently $33.00 per
hour, subject to future change). Such charges shall not exceed 121% of
Landlord's actual cost of labor, utilities and equipment depreciation used in
providing such after hours air conditioning or heating service. If any of the
other tenants of the Building shall request and receive after hours heating or
air conditioning service pursuant to Landlord's obligation to provide the same
to them, at the same time as Tenant, only that equitably pro-rated portion of
such labor and utilities costs as shall be incurred for such common service
shall be charged to Tenant.
17.02 Landlord will not be responsible for the failure of the air conditioning
system to meet industry-standard performance specifications if such failure
results from the occupancy of the Demised Premises with more than one person for
each 150 square feet in any room or area within the Demised Premises, or if the
Tenant installs and operates machines and appliances, the installed electrical
load of which when combined with the load of all lighting fixtures exceeds seven
xxxxx per square foot of floor area in any one room or other area. If due to use
of the Demised Premises in a manner exceeding the aforementioned occupancy and
electrical load criteria, or due to rearrangement of partitioning after the
initial preparation of the Demised Premises, interference with normal operation
of the air conditioning in the Demised Premises results, necessitating changes
in the air conditioning system servicing the Demised Premises, such changes
shall be made by Landlord upon written notice to Tenant at Tenant's sole cost
and expense. Tenant agrees to lower and close window coverings when necessary
because of the sun's position whenever the air conditioning system is in
operation, and Tenant agrees at all times to cooperate fully with Landlord and
to abide by all the regulations and requirements which Landlord may prescribe
for the proper functioning and protection of the air conditioning system.
Landlord, throughout the term of this Lease, shall have free and unrestricted
access to any and all air conditioning facilities in the Demised Premises.
17.03 In the event that Tenant requires supplemental heating, ventilation and
air conditioning in to service the Demised Premises (a "Supplemental HVAC
System"), the provisions of Article 14 shall be applicable and, without limiting
the generality of Article 14: (a) the type of Supplemental HVAC System, its
location and the method of installation shall be subject to Landlord's
reasonable approval; (b) all costs of installation and removal of the
Supplemental HVAC System at the end of the term shall be payable by Tenant; (c)
Tenant shall at all times after the installation of the Supplemental HVAC System
maintain a service contract for same with a contractor reasonably acceptable to
Landlord; and (d) electrical consumption by the Supplemental HVAC System will be
measured by Tenant's Check Meter (as defined in Exhibit E).
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ARTICLE 18
LANDLORD'S OTHER SERVICES
18.01 Landlord, at its expense, shall provide public elevator service, by
elevators serving the floors on which the Demised Premises are situated as
specified and shown in the Building plans and specifications, during Business
Hours, and shall have at least one passenger elevator subject to call at all
other times. The elevators, or any of them, may be operated by automatic control
and/or by manual control, as Landlord shall determine at any time or from time
to time. Landlord shall not be obligated to furnish an operator for any
automatic elevator and shall have no liability to Tenant for discontinuing the
service of any operator theretofore furnished. If Tenant shall require Saturday
or after hours service of elevators or of the loading area in the Building under
such circumstances as in Landlord's reasonable judgment, will require service or
attention by Landlord's personnel, Tenant shall pay Landlord, on demand, a
reasonable charge attributable to such service or attention.
18.02 Landlord, at its expense, shall cause the Demised Premises, including the
exterior and the interior of the windows thereof (subject to Tenant maintaining
unrestricted access to such windows), to be cleaned in accordance with the
standards set forth in the attached Exhibit "B" (the "Cleaning Schedule").
Tenant shall pay to Landlord on demand the costs incurred by Landlord for (a)
cleaning work in the Demised Premises or the Building required because of (i)
misuse or neglect on the part of the Tenant or its employees or visitors, (ii)
use of portions of the Demised Premises for preparation, serving, or consumption
of food or beverages, reproducing operations, private lavatories or toilets or
other special purposes requiring greater or more difficult cleaning work than
office areas, (iii) unusual quantity of interior glass surfaces, (iv)
non-standard building materials or finishes installed by Tenant or at its
request, (v) increases in frequency or scope in any of the items set forth in
Exhibit "B" as shall have been requested by Tenant, and (b) removal from the
Demised Premises and the Building of (i) so much of any refuse and rubbish of
Tenant as shall exceed that normally accumulated daily in the routine of
ordinary business office occupancy, and (ii) all of the refuse and rubbish of
Tenant's machines and the refuse and rubbish of any other eating facilities
requiring special handling (known as "wet garbage"). Landlord and its cleaning
contractor and their employees shall have after hours access to the Demised
Premises and the use of Tenant's light, power and water in the Demised Premises
as may be reasonably required for the purpose of cleaning the Demised Premises.
18.03 Landlord, at its expense, shall furnish adequate hot and cold water for
drinking, lavatory, toilet, and ordinary cleaning purposes to the plumbing
fixtures of central facilities of the Building serving the Demised Premises.
18.04 Landlord shall keep and maintain the public areas and the public
facilities of the Building clean and in good order and the sidewalks adjoining
the Building shall be kept in good repair and free of accumulation of snow and
ice or unlawful obstructions.
18.05 Landlord, subject to its prior written approval, which shall not be
unreasonably withheld or delayed, at its expense, and on Tenant's request, shall
maintain listings on the Building directory of the names of Tenant, its
organizational divisions and any other person or business entities lawfully
occupying the Demised Premises or any part thereof, and the names of any of
their officers and employees, provided that the names so listed shall not take
up more than Tenant's Proportionate Share of the space on the Building
directory, the size of which shall be determined by Landlord. The listing of any
name other than that of Tenant on the Building directory or on any of the doors
of the Demised Premises shall not be deemed to vest in the person or entity so
listed any right or interest in this Lease or in the Demised Premises or to
constitute the consent of Landlord required under Article 10, or a waiver
thereof. In addition, Landlord will include the name of each of the two (2)
entities comprising Tenant in the elevators in the same manner as other tenants
of the Building. Notwithstanding anything to the contrary herein, initial
listings on the Building directory and in the elevators shall be at Landlord's
expense, and any subsequent changes and/or additions shall be at Tenant's
expense. Tenant shall also be entitled to install, at Tenant's sole cost and
expense and in compliance with all applicable laws and/or requirements of public
authorities, signage on the front entrance to the Demised Premises and in the
elevator lobby on the 22nd floor of the Building, subject to Landlord's prior
written approval, which shall not be unreasonably withheld provided such signage
is comparable to that found elsewhere in the Complex or in other first-class
office buildings in the Central Business District of Stamford, Connecticut.
18.06 Landlord reserves the right, without any liability to Tenant, except as
otherwise expressly provided in this Lease, and without being in breach of any
covenant of this Lease, to stop, interrupt or suspend service of any of the
heating, ventilating, air conditioning, electric, sanitary, elevator or other
Building systems serving the Demised Premises, or the rendition of any of the
other services required of Landlord under this Lease, whenever and for so long
as may be necessary, by reason of accidents, emergencies, strikes or the making
of repairs or changes which Landlord is required by law to make or in good xxxxx
xxxxx advisable, or by reason of difficulty in securing proper supplies of fuel,
steam, water, electricity, labor or supplies, or by reason of any other cause
beyond Landlord's reasonable control, including Governmental restrictions on the
use of materials or the use of any of the Building systems. In each instance
Landlord shall exercise reasonable diligence to eliminate the cause of stoppage
and to effect restoration of service and
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shall give Tenant reasonable notice, when practicable, of the commencement and
anticipated duration of such stoppage, and if any work is required to be
performed in or about the Demised Premises for such purpose, the provisions of
Section 15.03 shall apply. Tenant shall not be entitled to any diminution or
abatement of rent or other compensation nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of the interruption,
stoppage or suspense of any of the Building systems or services arising out of
the causes set forth in this Section.
18.07 Throughout the Term of this Lease, Landlord will provide security in the
Complex in the same manner as it does on the date hereof.
ARTICLE 19
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
19.01 All walls, windows and doors bounding the Demised Premises (including
exterior Building walls, corridor walls and doors and any corridor entrance),
except the inside surfaces thereof, any terraces or roofs adjacent to the
Demised Premises, and any space in or adjacent to the Demised Premises used for
shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other Building facilities, and the use thereof, as well as access
thereto through the Demised Premises for the purposes of operation, maintenance,
decoration and repair are reserved to Landlord.
19.02 Tenant shall permit Landlord to install, use and maintain pipes, ducts and
conduits within or through the Demised Premises, or through the walls, columns
and ceilings therein, provided that the installation work is performed at such
times and by such methods as will not unreasonably interfere with Tenant's use
and occupancy of the Demised Premises, or damage the appearance thereof, reduce
the floor area thereof by more than two percent (2%) (without an appropriate
adjustment in rent) or materially affect Tenant's layout. Where access doors are
required for mechanical fixtures in or adjacent to the Demised Premises,
Landlord shall furnish and install such access doors and confine their location,
wherever practical to closets, coat rooms, toilet rooms, corridors and kitchen
or pantry rooms. Landlord and Tenant shall cooperate with each other in the
location of Landlord's and Tenant's facilities requiring such access doors.
19.03 Landlord or Landlord's agents or employees shall have the right upon
request made on reasonable advance notice to Tenant, or to an authorized
employee of Tenant at the Demised Premises, to enter and/or pass through the
Demised Premises or any part thereof, at reasonable times during reasonable
hours, (i) to examine the Demised Premises or to show them to the fee owners,
lessors of superior leases, holders of mortgages, insurance carriers, or
prospective purchasers, mortgagees or lessees of the land or the Building, and
(ii) for the purpose of making such repairs or changes or doing such repainting
in or to the Demised Premises or in or to the Building or its facilities as may
be provided for by this Lease or as Landlord may deem necessary or as Landlord
may be required to make by law or in order to repair and maintain the Building
or its fixtures or facilities. Landlord shall be allowed to take all materials
into and store such materials upon the Demised Premises which may be required
for such repairs, changes, repainting or maintenance. Landlord's rights under
this Section shall be exercised in such a manner as will not unreasonably
interfere with Tenant's use and occupancy of the Demised Premises. Landlord, its
agents or employees, shall also have the right to enter on and/or pass through
the Demised Premises, or any part thereof without notice at such times as such
entry shall be required by circumstances of emergency affecting the Demised
Premises or the Building.
19.04 During the period of 12 months prior to the Expiration Date Landlord may
exhibit the Demised Premises to prospective tenants upon the same notice and
subject to the same conditions as are provided in Section 19.03. If, during the
last month of the term hereof, Tenant shall have removed all of Tenant's
property therefrom, Landlord may, upon at least 48 hours notice to Tenant, enter
and alter, renovate and redecorate the Demised Premises without incurring any
liability to Tenant therefor.
19.05 Landlord reserves the right, at any time after completion of the Building,
without incurring any liability to Tenant therefor, to make such changes in or
to the Building and the fixtures and equipment thereof, as well as in or to the
street entrances, halls, passages, elevators, and stairways thereof, as it may
deem necessary or desirable; provided that there be no unreasonable lengthy
interference with the use of the Demised Premises or in the services furnished
to the Demised Premises, and no reduction in the area of the Demised Premises in
excess of two percent without an appropriate adjustment in rent.
19.06 The Landlord reserves the right to select a name for the Building and to
make such change or changes of name as it may deem appropriate during Tenant's
occupancy, and Tenant agrees not to refer to the Building by any other name than
(i) the name selected by Landlord, or (ii) the postal address approved by the
U.S. Post Office.
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19.07 Landlord may limit and restrict, as provided in the Rules and Regulations
attached hereto, the means of access to the Demised Premises outside of Business
Hours, so long as Tenant's employees and authorized agents have reasonable
access to all parts of the Demised Premises. Tenant and its agents, employees
and visitors shall be entitled to access from the Demised Premises to, and the
right to use, the toilets, lavatories and powder rooms only on the floor (or
floors) on which the Demised Premises are located.
ARTICLE 20
SHORING, NOTICE OF ACCIDENTS, ETC.
20.01 If an excavation or other substructure work shall be undertaken or
authorized upon land adjacent to the Building or in the vaults beneath the
Building or in subsurface space adjacent to the said vaults, Tenant, without
liability on the part of the Landlord therefor, shall afford to the person
causing or authorized to cause such excavation or other substructure work
license to enter upon the Demised Premises for the purpose of doing such work as
such person shall deem necessary to protect or preserve any of the walls or
structures of the Building or surrounding lands from injury or damage and to
support the same by proper foundations, pinning and/or underpinning, and, except
in case of emergency, if so requested by Tenant such entry shall be accomplished
in the presence of a representative of Tenant, who shall be designated by Tenant
promptly upon Landlord's request. The said license to enter shall be afforded by
Tenant without any claim for damages or indemnity against the Landlord and
Tenant shall not be entitled to any diminution or abatement of rent on account
hereof.
20.02 Tenant shall give notice to Landlord promptly after Tenant learns of (i)
any accident in or about the Demised Premises or the Building, (ii) any fire in
the Demised Premises, (iii) all damages to or defects in the Demised Premises,
including the fixtures, equipment and appurtenances thereof, for the repair of
which Landlord might be responsible or which constitutes Landlord's property,
and (iv) all damage to or defects in any parts of the Building's sanitary,
electrical, heating, ventilating, air conditioning, elevator and other systems
located in or passing through the Demised Premises.
ARTICLE 21
NON-LIABILITY AND INDEMNIFICATION
21.01 Neither Landlord nor any agent or employee of Landlord shall be liable to
Tenant, its employees, agents, contractors and licensees, and Tenant shall hold
Landlord harmless for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant
and/or of any other person, irrespective of the cause of such injury, damage or
loss, unless (with respect to personal injury only) such injury was caused by or
due to the negligence of Landlord, its agents or employees; it being understood
that no property, other than such as might normally be brought upon or kept in
the Demised Premises as incident to the reasonable use of the Demised Premises
for the purposes herein permitted, will be brought upon or be kept in the
Demised Premises. Landlord shall not be liable in any event for loss of, or
damage to, any property entrusted to any of Landlord's employees or agents by
Tenant without Landlord's specific written consent.
21.02 Tenant shall defend, indemnify and save harmless Landlord and its agents
and employees against and from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable architects' and
attorneys' fees, which may be imposed upon or incurred by or asserted against
Landlord and/or its agents by reason of any of the following occurring during
the term of this Lease, or during any period of time prior to the Rent
Commencement Date that Tenant may have been given access to or possession of all
or any part of the Demised Premises pursuant to Section 3.02:
(A) any work or thing done in or about the Demised Premises or any part
thereof by or at the instance of Tenant, its agents, contractors,
subcontractors, servants, employees, licensees or invitees;
(B) any negligence or otherwise wrongful act or omission on the part of
Tenant or any of its agents, contractors, subcontractors, servants, employees,
subtenants, licensees or invitees;
(C) any accident, injury or damage to any person or property occurring
in, on or about the Demised Premises or any part thereof; or
(D) any failure on the part of Tenant to perform or comply with any of
the covenants, agreements, terms, provisions, conditions or limitations
contained in this Lease on its part to be performed or complied with.
26
In case any action or proceeding is brought against Landlord by reason
of any such claim, Tenant upon written notice from Landlord, shall at Tenant's
expense resist or defend such action or proceeding by counsel approved by
Landlord in writing, which approval Landlord shall not be unreasonably withheld.
21.03 Whenever either party shall be obligated under the terms of this Lease to
indemnify the other party, the indemnifying party may select legal counsel
(subject to the consent of the indemnified party, which consent shall not be
unreasonably withheld) and shall keep the indemnified party fully apprised at
all times of the status of such defense. Legal counsel of the insurer for either
party is hereby deemed satisfactory to both parties.
21.04 Except as otherwise expressly provided herein, this Lease and the
obligations of Tenant to pay rent hereunder and perform all of the other
covenants, agreements, terms, provisions and conditions hereunder on the part of
Tenant to be performed shall in no way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease or is
unable to supply or is delayed in supplying any service, express or implied, to
be supplied or is unable to make or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by reason of any
cause whatsoever beyond Landlord's reasonable control, including, but not
limited to, Acts of God, strikes, labor troubles, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any governmental agency
or by reason of the conditions of supply and demand which have been or are
affected by war, hostilities or other similar emergency; provided that Landlord
shall in each instance exercise reasonable diligence to effect performance when
and as soon as possible.
21.05 Notwithstanding any contrary provisions of this Lease whatsoever,
including, without limitation, those pertaining to use and Permitted Use, Tenant
shall not use, or permit the use of the Demised Premises, the Building or the
Complex so as to create or result in, directly or indirectly, (a) any sudden or
gradual spill, leak, discharge, escape, seepage, infiltration, abandonment,
dumping, disposal or storage of any hazardous or industrial waste, substance or
contamination, effluent, sewage, pollution or other detrimental or deleterious
material or substance (including without limitation asbestos), or the disposal,
storage or abandonment on the Complex of any material, tank or container holding
or contaminated by any of the foregoing residues thereof, or the installation of
any material or product containing or composed of any of the foregoing, in, on,
from under or above the Complex (the foregoing occurrences being hereinafter
collectively called "Environmental Hazard"), or (b) any violation, or state of
facts or condition which would result in a violation, of any Federal, State or
local statute, law, code, rule, regulation or order applicable to any
Environmental Hazard (the foregoing being hereinafter collectively call "Legal
Violation"). In the event of the violation of the foregoing by Tenant, in
addition to all other rights and remedies of Landlord under this Lease,
regardless of when the existence of the Environmental Hazard or Legal Violation
is determined, and whether during the Term or after the Expiration Date, (I)
Tenant shall, immediately upon notice from Landlord, at Tenant's sole cost and
expense, at Landlord's option, either (x) take all action necessary to test,
identify and monitor the Environmental Hazard and to remove the Environmental
Hazard from the Complex and dispose of the same and restore the Complex to the
condition existing prior to such removal, and/or to remedy any Legal Violation,
all in accordance with applicable Federal, State and local statutes, laws,
codes, rules, regulations or orders or (y) reimburse Landlord for all costs and
expenses incurred by Landlord for engineering or environmental consultant or
laboratory services, in testing, investigating, identifying and monitoring the
Environmental Hazard and in removing and disposing of the Environmental Hazard
and in restoring the Complex, and/or in remedying any Legal Violation, and (ii)
Tenant shall and hereby does defend with legal counsel acceptable to Landlord,
indemnify and save harmless Landlord and Landlord's employees, agents, officers
and directors ("Others in Interest") against and from all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
architects' and attorneys' fees and disbursements which may be imposed upon or
incurred by or asserted against Landlord and Others in Interest, whether by any
governmental authority, Tenant or other third party, by reason of any violation
or alleged violation of any of the foregoing provisions of this Section.
21.06 Landlord shall defend, indemnify and save harmless Tenant and its agents
and employees against and from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable architects' and
attorneys' fees, which may be imposed upon or incurred by or asserted against
Tenant and/or its agents by reason of any of the following occurring during the
term of this Lease, or during any period of time prior to the Rent Commencement
Date that Tenant may have been given access to or possession of all or any part
of the Demised Premises pursuant to Section 3.02:
(a) any work or thing done in or about the Demised Premises or any part
thereof by or at the instance of Landlord, its agents, contractors,
subcontractors, servants or employees;
(b) any negligence or otherwise wrongful act or omission on the part of
Landlord or any of its agents, contractors, subcontractors, servants, or
employees; or
27
(c) any failure on the part of Landlord to perform or comply with any
of the covenants, agreements, terms, provisions, conditions or limitations
contained in this Lease on its part to be performed or complied with.
Notwithstanding the foregoing, Landlord's indemnification obligations in this
Section 21.06 shall be limited to the extent of the coverage provided under
Landlord's insurance for such indemnity provided such indemnification obligation
is a covered item under such insurance. In no event shall Landlord be liable to
pay Tenant for any punitive or consequential damages the Tenant must pay,
including, without limitation, damages for loss of business.
21.07 The agreements to indemnify, defend and hold harmless contained in this
Article 21 are not intended to and shall not relieve any insurance carrier of
its obligations under policies required to be carried by Landlord or Tenant,
respectively, pursuant to this Lease to the extent that such policies cover the
subject incident. The parties' respective obligations under this Article 21
shall survive the expiration or earlier termination of the term of this Lease.
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ARTICLE 22
DESTRUCTION OR DAMAGE
22.01 If the Demised Premises and/or access thereto shall be partially or
totally damaged or destroyed by fire or other casualty, then, Landlord shall,
subject to its right under Section 22.03 hereof, repair such damage and restore
and rebuild the Demised Premises and/or access thereto as nearly as may be
reasonably practical to its condition and character immediately prior to such
damage or destruction, with reasonable diligence after notice to it of the
damage or destruction.
22.02 If the Demised Premises and/or access thereto shall be partially or
totally damaged or destroyed by fire or other casualty not attributable to the
fault, negligence or misuse of the Demised Premises by the Tenant, its agents or
employees under the provisions of this Lease, the rents payable hereunder shall
be abated to the extent that the Demised Premises shall be rendered untenantable
from the date of such damage or destruction to the date the damage shall be
substantially repaired, restored or rebuilt. Should Tenant reoccupy a portion of
the Demised Premises during the period that the repair, restoration, or
rebuilding is in progress and prior to the date that the same are made
completely tenantable, rents allocable to such portion shall be payable by
Tenant from the date of such occupancy to the date the Demised Premises are made
tenantable.
22.03 In case the Building shall be so damaged by such fire or other casualty
that substantial renovation, reconstruction or demolition of the Building shall,
in Landlord's sole opinion, be required (whether or not the Demised Premises
shall have been damaged by such fire or other casualty), then Landlord may, at
its option, terminate this Lease and the term and estate hereby granted, by
notifying Tenant in writing of such termination, within 60 days after the date
of such damage. If at any time prior to Landlord giving Tenant the aforesaid
notice of termination or commencing the repair and restoration pursuant to
Section 22.01, the holder of a superior mortgage or any person claiming under or
through the holder of such superior mortgage takes possession of the Building
through foreclosure or otherwise, such holder or person shall have a further
period of 60 days from the date of so taking possession to terminate this Lease
by appropriate written notice to Tenant. In the event that such a notice of
termination shall be given pursuant to either of the two immediately preceding
sentences, this Lease and the term and estate hereby granted shall expire as of
the date of such termination with the same effect as if that were the date
hereinbefore set for the expiration of the term of this Lease, and the fixed and
additional rent due and to become due hereunder shall be apportioned as of such
date if not earlier abated pursuant to Section 22.02. Nothing contained in this
Section shall relieve Tenant from any liability to Landlord or to its insurers
in connection with any damage to the Demised Premises or the Building by fire or
other casualty if Tenant shall be legally liable in such respect.
22.04 No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use commercially reasonable efforts to effect
such repair or restoration promptly and in such manner as not unreasonably to
interfere with Tenant's use and occupancy.
22.05 Landlord will not carry insurance of any kind on Tenant's property, and,
except as provided by law or its breach of any of its obligations hereunder,
shall not be obligated to repair any damage thereto or replace the same.
22.06 The provisions of this Article shall be considered an express agreement
governing any case of damage or destruction of the Demised Premises by fire or
other casualty, and any law to the contrary, now or hereafter in force, shall
have no application in such case.
22.07 Notwithstanding any of the foregoing provisions of this Article, if
Landlord or the holder of any superior mortgage shall be unable to collect all
of the insurance proceeds (including rent insurance proceeds) applicable to
damage or destruction of the Demised Premises or the Building by fire or other
cause, by reason of some action or inaction on the part of the Tenant or any of
its employees, agents or contractors, then, without prejudice to any other
remedies which may be available against Tenant, the abatement of Tenant's rents
provided for in this Article shall not be effective to the extent of the
uncollected insurance proceeds.
22.08 If the Demised Premises shall be totally damaged or rendered wholly
untenantable or inaccessible by fire or other casualty, and Landlord has not
exercised its option to terminate this lease (as set forth in Section 22.03
above), then Landlord shall, as soon as reasonably practicable following the
occurrence of the subject fire or other casualty, deliver to Tenant written
notice of Landlord's estimated time for restoration of the Premises. If the
estimated date of completion of such restoration work is more than twelve (12)
months following the date of occurrence of the subject fire or other casualty,
then Tenant shall have the right to terminate this Lease by written notice
delivered to Landlord within fifteen (15) days following receipt of such written
notice by Landlord. In the case of proper exercise of any termination right
afforded to Tenant under this Section 22.08, this Lease shall terminate as of
the date of
29
delivery of such written notice by Tenant, and neither party shall
have any further obligation or liability to the other hereunder (except for
obligations or liabilities previously accrued which remain unsatisfied).
ARTICLE 23
EMINENT DOMAIN
23.01 In the event that the land, Building or any part thereof or the Demised
Premises or any part thereof shall be taken in condemnation proceedings or by
the exercise of any right of eminent domain or by agreement between the Landlord
on the one hand and any governmental authority authorized to exercise such right
on the other hand, Landlord shall be entitled to collect from any condemnor the
entire award or awards that may be made in any such proceeding without deduction
therefrom for any estate hereby vested in or owned by Tenant, to be paid out as
in this Article provided. Tenant hereby expressly assigns to Landlord all of its
right, title and interest in or to every such award and also agrees to execute
any and all further documents that may be required in order to facilitate the
collection thereof by Landlord.
23.02 At any time during the term of this Lease if title to the whole or
substantially all of the land, Building and/or Demised Premises shall be taken
in condemnation proceedings or by the exercise of any right of eminent domain or
by agreement between the Landlord on the one hand and any governmental authority
authorized to exercise such right on the other hand, this Lease shall terminate
and expire on the date of such taking and the fixed rent and additional rent
provided to be paid by Tenant shall be apportioned and paid to the date of such
taking. For the purposes of this Article "substantially all of the land,
Building and/or Demised Premises" shall be deemed to have been taken if the
remaining portion of such land, Building or Demised Premises not so taken cannot
reasonably or practicably be repaired or reconverted so as to permit the use
thereof for substantially the same purposes for which such land, Building or
Demised Premises were used immediately prior to such taking.
23.03 However, if substantially all of the land or Building is not so taken and
if only a part of the entire Demised Premises shall be so taken, this Lease
nevertheless shall continue in full force and effect, except that Tenant may
elect to terminate this Lease if that portion of the Demised Premises then
occupied by Tenant shall be reduced by more than 25%. Tenant shall give notice
of such election to Landlord not later than thirty (30) days after (i) notice of
such taking is given by Landlord to Tenant, or (ii) the date of such taking,
whichever occurs first. Upon the giving of such notice by Tenant this Lease
shall terminate on the date of service of Tenant's notice and the fixed rent and
additional rent due and to become due, shall be prorated and adjusted as of the
date of the taking. If Tenant fails to give such notice upon such partial
taking, and this Lease continues in force as to any part of the Demised Premises
not taken, the rents apportioned to the part taken shall be prorated and
adjusted as of the date of taking and from such date the fixed rent and
additional rent shall be reduced to the amount apportioned to the remainder of
the Demised Premises.
23.04 In the event of any such taking of less than the whole of the Building
which does not result in a termination of this Lease, or in the event of such a
taking of all or any part of the Demised Premises which does not result in a
termination of this Lease, Landlord, at its expense, shall proceed with
reasonable diligence to repair, alter and restore the remaining parts of the
Building and the Demised Premises to substantially the same condition as it was
in immediately prior to such taking to the extent that the same may be feasible,
so as to constitute a tenantable Building and Demised Premises, provided that
Landlord's liability under this Section shall be limited to the proportionate
amount received by Landlord as an award arising out of such taking.
ARTICLE 24
SURRENDER
24.01 On the last day of the term of this Lease, or upon any earlier termination
of this Lease, or upon any reentry by Landlord upon the Demised Premises, Tenant
shall quit and surrender the Demised Premises to Landlord broom clean, in good
order, condition and repair except for ordinary wear and tear and damage by fire
or other insured casualty; Tenant shall remove Tenant's property subject to the
provisions of Article 14 hereof; and Tenant shall surrender to Landlord all keys
to offices, lavatories and mail boxes and all Building identification and
parking cards possessed by Tenant's employees.
24.02 In the event Tenant remains in possession of the Demised Premises after
the termination of this Lease without the execution by Landlord and Tenant of a
new lease, Tenant shall, at Landlord's option, be deemed to be occupying the
Demised Premises as a tenant from month to month, at a monthly rental equal to
one and one-half (1.5) times the fixed rent and additional rent payable during
the last month of the term, subject to all of the other terms of this Lease
insofar as the same are applicable to a month to month tenancy.
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24.03 In the event Tenant remains in possession of the Demised Premises
following the termination of this Lease and Landlord does not elect to treat
Tenant as a month-to-month tenant as provided in the Section 24.02 above, Tenant
hereby indemnifies and agrees to hold Landlord harmless from and against any
loss, cost, liability, claim, damage, fine, penalty, and expense, including
attorneys' fees and disbursements, resulting from such delay by Tenant in
surrendering the Demised Premises upon the termination of this Lease as provided
in this Article 24, including without limitation, any claims made by any
succeeding tenant or prospective tenant based upon such delay. In the event
Tenant remains in possession of the Demised Premises for any period of time
following the Expiration Date, Tenant shall be in default, and in addition to
the rent provided in Section 24.02 hereof, Landlord shall be entitled to all of
its rights and remedies provided in this Lease.
ARTICLE 25
CONDITIONS OF LIMITATION
25.01 (A) This Lease and the term and estate hereby granted are subject, inter
alia, to the limitation that whenever Tenant shall make an assignment for the
benefit of creditors, or shall file a voluntary petition under any bankruptcy or
insolvency law, or an involuntary petition alleging an act of bankruptcy or
insolvency is filed against Tenant, or whenever a petition shall be filed by or
against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
any future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, or shall seek or consent to or acquiesce
in the appointment of any trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties, or whenever a permanent or temporary
receiver of Tenant or of or for the property of Tenant shall be appointed, or if
Tenant shall plead bankruptcy or insolvency as a defense in any action or
proceeding, then, Landlord (a) at any time after receipt of notice of the
occurrence of any such event, or (b) if such event occurs without the
acquiescence of Tenant, at any time after the event continues for 60 days, may
give Tenant a notice of intention to end the term of this Lease at the
expiration of five (5) days from the service of such notice of intention, and
upon the expiration of said five (5) day period this Lease and the term and
estate hereby granted, whether or not the term shall theretofore have commenced,
shall terminate with the same effect as if that day were the Expiration Date,
but Tenant shall remain liable for damages as provided in Article 27.
(B) If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the
"Bankruptcy Code"), any and all consideration payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies and other consideration constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly paid
to or turned over to Landlord.
(C) If, pursuant to the provisions of the Bankruptcy Code, Tenant
assumes this Lease and proposes to assign the same to any person or entity who
shall have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant then notice of such proposed assignment, setting forth (i)
the name and address of such person, (ii) all of the terms and conditions of
such offer, and (iii) the adequate assurance to be provided Landlord to assure
such person's future performance under this Lease, including, without
limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy
Code, shall be given to Landlord by Tenant no later than twenty (20) days after
receipt by Tenant but in any event no later than ten (10) days prior to the date
that approval to enter into such assignment and assumption, and Landlord shall
thereupon have the prior right and option, subject to all legal restrictions
under the Bankruptcy Code, and to be exercised by notice to Tenant given at any
time prior to the effective date of such proposed assignment, to accept an
assignment of this Lease upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made by such person, less any
brokerage commissions which may be payable out of the consideration to be paid
by such person for the assignment of this Lease.
25.02 This Lease and the term and estate hereby granted are subject to the
further limitation that:
(A) whenever Tenant shall default in the payment of any installment of
fixed rent, or in the payment of any additional rent, on any day upon which the
same shall be due and payable and such default shall continue for ten (10) days
after the date on which the same was due and payable (five (5) days after
written notice from Landlord that such payment is overdue with respect to the
first two (2) late payments in any twelve (12) month period); or
(B) whenever Tenant shall do or permit anything to be done, whether by
action or inaction, contrary to any of Tenant's obligations hereunder, and if
such situation shall continue and shall not be remedied by Tenant within thirty
(30) days after Landlord shall have given to the Tenant a notice specifying the
same, or, in the case of a happening or default which cannot with due diligence
31
be cured within a period of thirty (30) days and the continuance of which for
the period required for cure will not subject Landlord to the risk of criminal
liability or termination of any superior lease or foreclosure of any superior
mortgage, if Tenant shall not duly institute within such thirty (30) day period
and promptly and diligently prosecute to completion all steps necessary to
remedy the same; or
(C) whenever any event shall occur or any contingency shall arise
whereby this Lease or any interest therein or the estate hereby granted or any
portion thereof or the unexpired balance of the term hereof would by operation
of law or otherwise, devolve upon or pass to any person, firm or corporation
other than Tenant, except as expressly permitted in Article 10.
Then in any such event at any time thereafter, Landlord may give to
Tenant a three (3) day notice ending the term of this Lease upon the expiration
of such three (3) day period and thereupon this Lease and the term and estate
hereby granted, whether or not the term has theretofore commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 27.
25.03 Notwithstanding anything to the contrary set forth in this Lease, if:
(A) Tenant or its employees, agents, contractors or invitees (such
employees, agents, contractors and invitees being hereinafter referred to
as "Related Persons") shall violate the provisions of this Lease relating
to parking; or
(B) Tenant or any of its Related Persons shall violate the provisions of
this Lease dealing with excessive noise, loitering or other conduct that
shall constitute a nuisance to the other tenants of the Building; or
(C) Tenant shall allow a population density in the Demised Premises of
more than one (1) person per 150square feet;
and Landlord shall give Tenant notice of its breach of any of the foregoing
provisions or any other provision of this Lease two (2) times during the Term of
this Lease, then, notwithstanding that any such breach shall have been timely
cured, any future breach of the subject provision shall be deemed to be a
"Deliberate Default". Upon the occurrence of a Deliberate Default, Landlord,
without giving Tenant any notice of such default and without giving Tenant any
opportunity to cure such default, may (in addition to resorting to the other
remedies afforded to Landlord under this Lease or at law or equity) give to
Tenant a notice of Landlord's intention to end the Term of this Lease at the
expiration of three (3) days from the date of service of such notice of
intention and, upon the expiration of said three (3) days, this Lease and the
Term and estate hereby granted (whether or not the Term shall have theretofore
commenced) shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 27.
ARTICLE 26
RE-ENTRY BY LANDLORD - DEFAULT PROVISIONS
26.01 If this Lease shall terminate for any reason whatsoever, Landlord or
Landlord's agents and employees may without further notice immediately or at any
time thereafter enter upon and reenter the Demised Premises or any part thereof,
and possess or repossess itself thereof either by summary dispossess
proceedings, ejectment or by any suitable action or proceeding at law, or by
agreement, or otherwise (excluding force) and may dispossess and remove Tenant
and all other persons and property from the Demised Premises without being
liable to indictment, prosecution or damage therefor, and may repossess the
Demised Premises and the right to receive all rental income again as and of its
first estate and interest therein. The words "enter" or "reenter", "possess or
"repossess" as herein used, are not restricted to their technical legal meaning.
In the event of any termination of this Lease, or of reentry by summary
dispossess proceedings, ejectment or by any suitable action or proceeding at
law, or by agreement, or by force or otherwise by reason of default hereunder on
the part of Tenant, Tenant shall thereupon pay to Landlord the fixed rent and
additional rent due up to the time of such termination of this Lease, or such
recovery of possession of the Demised Premises by Landlord, as the case may be,
and shall also pay to Landlord damages as provided in Article 27.
26.02 In the event of any breach or threatened breach by Tenant of any of the
agreements, terms, covenants or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity or by statute
or otherwise as though reentry, summary proceedings, and other remedies were not
provided for in this Lease.
26.03 Each right and remedy of Landlord provided for in this Lease shall be
cumulative and shall be in addition to every other right
32
or remedy provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by Landlord of any one or more of the rights or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by Landlord of
any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.
26.04 If this Lease shall terminate under the provisions of Article 25, or if
Landlord shall reenter the Demised Premises under the provisions of this
Article, or in the event of the termination of this Lease or of reentry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such monies shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or reentry or, at Landlord's option, against any damages
payable by Tenant under Article 27 or pursuant to law.
ARTICLE 27
DAMAGES
27.01 If this Lease is terminated under the provisions of Article 25, or if
Landlord shall reenter the Demised Premises under the provisions of Article 26
or in the event of the termination of this Lease, or of reentry by summary
dispossess proceedings, ejectment or by any suitable action or proceeding at
law, or by agreement, or otherwise, by reason of default hereunder on the part
of Tenant, Tenant shall pay Landlord as damages, at the election of Landlord,
either:
(A) on demand, a sum which at the time of such termination of this
Lease or at the time of any such reentry by Landlord, as the case may be,
represents the excess of (i) the aggregate of the fixed rent and the additional
rent payable hereunder which would have been payable by Tenant (conclusively
presuming the additional rent to be the same as was payable for the year
immediately preceding such termination) for the period commencing with such
earlier termination of this Lease or the date of such reentry, as the case may
be, and ending with the Expiration Date, had this Lease not so terminated or had
Landlord not so reentered the Demised Premises, over (ii) the aggregate rental
value (calculated as of the date of such termination or reentry) of the Demised
Premises for the same period; or
(B) sums equal to the fixed rent and the additional rent (as above
presumed) payable hereunder which would have been payable by Tenant had this
Lease not so terminated, or had Landlord not so reentered the Demised Premises,
payable quarterly, in advance, but otherwise upon the terms therefor specified
herein following such termination or such reentry and until the Expiration Date,
provided, however, that if Landlord shall relet the Demised Premises or any
portion or portions thereof during said period, Landlord shall credit Tenant
with the net rents received by Landlord from such reletting, such net rents to
be determined by first deducting from the gross rents as and when received by
Landlord from such reletting the expenses incurred or paid by Landlord in
terminating the Lease or in reentering the Demised Premises and in securing
possession thereof, as well as the expenses of reletting, including altering and
preparing the Demised Premises or any portion or portions thereof for new
tenants, brokers' commissions, advertising expenses, and all other expenses
properly chargeable against the Demised Premises and the rental therefrom; it
being understood that any such reletting may be for a period shorter or longer
than the remaining term of this Lease, but in no event shall Tenant be entitled
to receive any excess of such net rents over the sums payable by Tenant to
Landlord hereunder, nor shall Tenant be entitled in any suit for the collection
of damages pursuant to this subsection to a credit in respect of any net rents
from a reletting, except to the extent that such net rents are actually received
by Landlord. If the Demised Premises or any part thereof should be relet in
combination with other space, then proper apportionment shall be made of the
rent received from such reletting and of the expenses of reletting, and Landlord
shall have the right to grant reasonable rent concessions to attract one or more
new tenants and to permit the term of any new lease covering part or all of the
Demised Premises to be for a shorter or longer period than provided for herein.
If the Demised Premises or any part thereof be relet by Landlord for
the unexpired portion of the term of this Lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. In the event of the termination of this Lease
following a default by Tenant, Landlord shall have a duty to employ commercially
reasonable efforts to relet the Demised Premises.
27.02 In the event Landlord elects to collect damages from Tenant under Section
27.01(b) at any time subsequent to such election and upon ten days prior written
notice to Tenant, Landlord may elect to collect a lump sum under Section
27.01(a), crediting Tenant with amounts theretofore received by Landlord as
damages.
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27.03 Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
so terminated under the provisions of Article 25, or under any provision of law,
or had Landlord not reentered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder or
otherwise on the part of Tenant. Nothing herein contained shall be construed to
limit or prejudice the right of the Landlord to provide for and obtain as
liquidated damages by reason of the termination of this Lease or reentry on the
Demised Premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time, and
governing the proceedings in which such damages are to be proved whether or not
such amount be greater, equal to, or less than any of the sums referred to in
Section 27.01.
27.04 The foregoing Sections of this Article shall apply even if the default by
Tenant has occurred prior to the Rent Commencement Date and/or prior to Tenant
taking possession of the Demised Premises. The parties acknowledge that this
instrument is a lease and not a contract to make a lease.
ARTICLE 28
WAIVERS
28.01 Tenant, for itself, and on behalf of any and all persons claiming through
or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege so far as is permitted by law, which they or
any of them might have under or by reason of any present or future law, of the
service of any notice of intention to reenter and also waives any and all right
to redemption or reentry or repossession in case Tenant shall be dispossessed or
ejected by process of law or in case of reentry or repossession by Landlord upon
any expiration or termination of this Lease as herein provided.
28.02 Tenant waives Tenant's rights, if any, to designate the items against
which any payments made by Tenant are to be credited, and Tenant agrees that
Landlord may apply any payments made by Tenant to any items it sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items against which any such payments shall be credited.
28.03 Tenant waives Tenant's rights, if any, to assert a counterclaim in any
summary proceeding brought by Landlord against Tenant, and Tenant agrees to
assert any such claim against Landlord only by way of a separate action or
proceeding.
28.04 TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, OR TENANT'S
USE OR OCCUPANCY OF THE DEMISED PREMISES, OR ANY EMERGENCY OR OTHER STATUTORY
REMEDY WITH RESPECT THERETO.
ARTICLE 29
NO OTHER WAIVERS OR MODIFICATIONS
29.01 The failure of either party to insist in any one or more instances upon
the strict performance of any one or more of the agreements, terms, covenants,
conditions or obligations of this Lease, or to exercise any right, remedy or
election herein contained, shall not be construed as a waiver or relinquishment
for the future of the performance of such one or more obligations of this Lease
or of the right to exercise such election, but the same shall continue and
remain in full force and effect with respect to any subsequent breach, act or
omission. The manner of enforcement or the failure of Landlord to enforce any of
the Rules and Regulations set forth herein, or hereafter adopted against the
Tenant and/or any other tenant in the Building shall not be deemed a waiver of
any such Rules and Regulations. No executory agreement hereafter made between
Landlord and Tenant shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or part,
unless such executory agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge or termination or effectuation of the abandonment is
sought.
29.02 The following specific provisions of this Section shall not be deemed to
limit the generality of the foregoing provisions of this Article:
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(A) No agreement to accept a surrender of all or any part of the
Demised Premises shall be valid unless in writing and signed by Landlord. The
delivery of keys to an employee of Landlord or of its agent shall not operate as
a termination of this Lease or a surrender of the Demised Premises. If Tenant
shall at any time request Landlord to sublet the Demised Premises for Tenant's
account, Landlord or its agent is authorized to receive said keys for such
purposes without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Landlord of any liability for loss or damage to any
of Tenant's property in connection with such subletting.
(B) The receipt or acceptance by Landlord of rents with knowledge of
breach by Tenant of any term, agreement, covenant, condition or obligation of
this Lease shall not be deemed a waiver of such breach.
(C) No payment by Tenant or receipt by Landlord of a lesser amount than
the correct fixed rent or additional rent due hereunder shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be deemed to effect or
evidence an accord and satisfaction, and Landlord may accept such check on
payment without prejudice to Landlord's right to recover the balance or pursue
any other remedy in this Lease or at law provided. Payment by Tenant for any
amount of fixed rent or additional rent shall not be deemed a waiver of any
claims Tenant may have against Landlord.
(D) If, in connection with obtaining, continuing or renewing financing,
for which the Building, land or the leasehold or any interest therein represents
collateral in whole or in part, a banking, insurance or other lender shall
request reasonable modifications of this Lease as a condition of such financing,
Tenant will not unreasonably withhold, delay or defer its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder or adversely affect to a material degree the Tenant's leasehold
interest hereby created.
ARTICLE 30
SUMS DUE LANDLORD
30.01 If Tenant shall default in the performance of any covenant, term,
provision or condition herein contained, Landlord, without thereby waiving such
default, may perform the same for the account and at the expense of Tenant
without notice in a case of emergency and in any other case if such default
continues after the expiration of the applicable notice and cure period provided
herein for the cure thereof (if any). Bills for any reasonable and necessary
expense incurred by Landlord in connection with any such performance by Landlord
for the account of Tenant, and reasonable and necessary bills for all costs,
expenses and disbursements, including (without being limited to) reasonable
counsel fees, incurred in collecting or endeavoring to collect the fixed rent or
additional rent or other charge or any part thereof or enforcing or endeavoring
to enforce any rights against Tenant under or in connection with this Lease, or
pursuant to law, including (without being limited to) any such cost, expense and
disbursement involved in instituting and prosecuting summary proceedings, as
well as bills for any property, material, labor or services provided, furnished
or rendered, or caused to be provided, furnished or rendered, by Landlord to
Tenant including (without being limited to) electric lamps and other equipment,
construction work done for the account of Tenant, water, ice, drinking water,
drinking cups, towel and other services, as well as for any charges for any
additional elevator, heating, air conditioning or cleaning services and any
charges for other services incurred by Tenant under this Lease, may be sent by
Landlord to Tenant monthly, or immediately, at Landlord's option, and shall be
due and payable by Tenant in accordance with the terms of said bills and if not
paid when due, the amounts thereof shall immediately become due and payable as
additional rent under the Lease together with interest thereon at the rate of
12% per annum from the date said bills should have been paid in accordance with
their terms. In addition, Tenant shall reimburse Landlord for any and all
reasonable attorney fees incurred by Landlord in connection with the
preparation, review, negotiation and/or consummation of any amendment,
modification, agreement or other understanding made at the request of, or as an
accommodation to, Tenant with respect to this Lease.
ARTICLE 31
CONSENTS - BROKER
31.01 Any provision of this Lease which requires Landlord not to unreasonably
withhold or delay its consent shall never be the basis for an award of damages
or give rise to a right of setoff to Tenant, but shall only be the basis for a
declaratory judgment or specific injunction with respect to the matter in
question.
31.02 (a) Tenant represents and warrants that the sole broker with whom it has
dealt with in this transaction is Newmark & Company Real Estate, Inc. (the
"Broker"), and that no other broker interested Tenant in the Demised Premises.
Landlord shall be
35
responsible for the payment of any real estate commission to Broker but Tenant
shall hold Landlord harmless from the claim of any other real estate broker or
salesman claiming to have interested or have been responsible for Tenant's
execution of this Lease. With respect to the foregoing, in the event Tenant
elects to use any broker (the "New Broker") other than or together with the
Broker in connection with the extension of this Lease (whether by way of a
renewal option or a separate extension agreement), Landlord shall be responsible
for the commission (if any) due and owing to the Broker in connection with such
extension and Tenant shall be responsible for (and indemnify Landlord against)
the commission claimed by the New Broker and any liabilities and expenses,
including reasonable attorney fees, incurred by Landlord with respect thereto.
(b) Landlord represents and warrants that the sole broker with whom it
has dealt with in this transaction is the Broker. Landlord shall be responsible
for the payment of any real estate commission to Broker and shall hold Tenant
harmless from the claim of any other real estate broker or salesman claiming to
have dealt with Landlord in connection with this Lease.
ARTICLE 32
NOTICES
32.01 Any notice, statement, demand, request or other communication required or
permitted to be given, rendered or made by either party to the other, pursuant
to this Lease or pursuant to any applicable law or requirement of public
authority, shall be in writing (whether or not so stated elsewhere in this
Lease) and shall be deemed to have been properly given, rendered or made, if
sent by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) if to Tenant, at the address hereinabove set forth (except that
after the Rent Commencement Date, Tenant's address, unless Tenant shall give
written notice to the contrary, shall be the Building), with a courtesy copy to
Xxxx Xxxxxxx P.C., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Xxxxxx X. Xxxxxxxx, Esq., and
(b) if to Landlord, at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx
00000, Attn: Managing Director, with a copy to 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx,
Xxx Xxxx 00000, Attn: Vice President and Legal Counsel - Real Estate,
and shall be deemed to have been given, rendered or made on the date received or
rejected by the addressee. Either party may, by notice as aforesaid, designate a
different address or addresses for notices, statements, demands or other
communications intended for it.
32.02 However, notices requesting after hours service pursuant to Sections 17.01
and 18.01 may be delivered, provided they are in writing, to the Building
Superintendent or any other person in the Building designated by Landlord to
receive such notices, and notice of fire, accident or other emergency shall be
given by facsimile or by personal delivery of written notice to that address
designated for this purpose from time to time by the respective parties hereto.
32.03 Whenever either party shall consist of more than one person or entity, any
notice, statement, demand, or other communication required or permitted to be
given, rendered or made to or by, and any payment to be made to such party,
shall be deemed duly given, rendered, made or paid if addressed to or by (or in
the case of payment by check, to the order of) any one of such persons or
entities who shall be designated from time to time as the authorized
representative of such party. Such party shall promptly notify the other of the
identity of such person or entity who is so to act on behalf of all persons and
entities then comprising such party and of all changes in such identity.
ARTICLE 33
ESTOPPEL CERTIFICATE
33.01 Tenant agrees, at any time, and from time to time, within ten (10) days
after Landlord's request therefor, to execute and deliver, without cost or
expense to the Landlord, a statement in writing (i) certifying that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), (ii) certifying the dates to which the fixed rent and additional
rent have been paid, (iii) stating whether, to the best knowledge of the signer
of the certificate, the Landlord is in default in performance of any of its
obligations under this Lease, and, if so, specifying each such default of which
the Tenant may have knowledge, and (iv) containing such other information as to
the status of this Lease as Landlord shall reasonably request. Tenant hereby
acknowledges that the statement delivered pursuant hereto may be relied upon by
any other person with whom the Landlord may be dealing.
36
33.02 Landlord agrees, at any time, and from time to time, within ten (10) days
after Tenant's request therefor, to execute and deliver, without cost or expense
to the Tenant, a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), (ii) certifying the dates to which the fixed rent and additional
rent have been paid, (iii) stating whether, to the best knowledge of the signer
of the certificate, the Tenant is in default in performance of any of its
obligations under this Lease, and, if so, specifying each such default of which
the Landlord may have knowledge, and (iv) containing such other information as
to the status of this Lease as Tenant shall reasonably request. Landlord hereby
acknowledges that the statement delivered pursuant hereto may be relied upon by
any other person with whom the Tenant may be dealing.
33.03 Should the Tenant fail to execute and deliver to the Landlord the
certificate and statement set forth in Section 33.01, above, then the Landlord
may execute the statement as attorney-in-fact for the Tenant specifying to the
best of Landlord's knowledge, the items called for in said Section 33.01.
37
ARTICLE 34
NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW
34.01 Tenant expressly acknowledges and agrees that Landlord has not made and is
not making, and Tenant in executing and delivering this Lease is not relying
upon, any warranties, representations, promises or statements, except to the
extent that the same are expressly set forth in the Lease, or in any other
written agreement which may be made and executed between the parties
concurrently with the execution and delivery of this Lease, which agreement
shall expressly refer to this Lease.
34.02 If any of the provisions of this Lease, or the application thereof to any
person or circumstances, shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and every provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
34.03 This Lease shall be governed in all respects by the laws of the State
of Connecticut.
34.04 Landlord and Tenant understand, agree and acknowledge that this Lease has
been freely negotiated by both parties and that, in the event of any
controversy, dispute, or contest over the meaning, interpretation, validity, or
enforceablity of this lease or any of its terms and conditions, there shall be
no inference, presumption or conclusion drawn whatsoever against either party by
virtue of that party having drafted this Lease or any portion hereof.
ARTICLE 35
PARTIES BOUND
35.01 The obligations of this Lease shall bind and benefit the successors and
assigns of the parties with the same effect as if mentioned in each instance
where a party is named or referred to, except that no violation of the
provisions of Article 10 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 25.
However, the obligations of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in the event of such
transfer the obligations thereafter shall be binding upon each transferee of the
interest of Landlord herein named as such owner or lessee of the Building, but
only with respect to the period ending with a subsequent transfer within the
meaning of this Article, and such transferee, by accepting such interest, shall
be deemed to have assumed such obligations except only as may be expressly
otherwise provided in this Lease. A lease of Landlord's entire interest in the
Building as owner or lessee thereof shall be deemed a transfer within the
meaning of this Article. For any transfer, Landlord shall require the transferee
to assume and accept the obligations relating to the Security Deposit hereunder.
35.02 Tenant shall look solely to the estate and interest of Landlord, its
successors and assigns, in the land and Building (or the proceeds thereof) for
the collection of a judgment (or other judicial process) requiring the payment
of money by Landlord in the event of any default by Landlord hereunder, and no
other property or assets of Landlord shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies under or
with respect to either this Lease, the relationship of Landlord and Tenant
hereunder or Tenant's use and occupancy of the Demised Premises.
ARTICLE 36
CERTAIN DEFINITIONS AND CONSTRUCTIONS
36.01 For the purposes of this Lease and all agreements supplemental to this
Lease, unless the context otherwise requires:
(A) The term "Mortgage" shall include any indenture of mortgage and
deed of trust to a trustee to secure an issue of bonds and debentures, and the
term "Mortgagee" shall include such a trustee.
(B) The terms "include", "including" and "such as" shall each be
construed as if followed by the phrase "without being limited to."
(C) The term "obligations of this Lease" and words of like import,
shall mean covenants to pay rent and additional rent under this Lease and all of
the other covenants and conditions contained in this Lease. Any provision in
this Lease that one party or the other or both shall do or not do, or shall
cause or permit or not cause or permit a particular act, condition or
circumstance shall be
38
deemed to mean that such party so covenants or both parties so covenant, as the
case may be.
(D) The term "Tenant's obligations hereunder" and words of like import,
and the term "Landlord's obligations hereunder" and words of like import, shall
mean the obligations to this Lease which are to be performed or observed by
Tenant, or by Landlord, as the case may be. Reference to "performance" of either
party's obligations under this Lease shall be construed as "performance and
observance." Tenant's obligations hereunder shall be construed in every instance
as conditions as well as covenants.
(E) Reference to Tenant being or not being "in default hereunder" or
words of like import, shall mean that Tenant is in default in the performance of
one or more of Tenant's obligations hereunder, or that Tenant is not in default
in the performance of any of Tenant's obligations hereunder, or that a condition
of the character described in Section 25.01 has occurred and continues or has
not occurred or does not continue, as the case may be.
(F) References to Landlord as having "no liability to Tenant" or being
"without liability to Tenant" shall mean that Tenant is not entitled to
terminate this Lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any of its other obligations hereunder, or to be compensated for
loss or injury suffered or to enforce any other kind of liability whatsoever
against the Landlord under or with respect to this Lease or with respect to
Tenant's use or occupancy of the Demised Premises.
(G) The term "laws and/or requirements of public authorities" and words
of like import shall mean laws and ordinances of any or all of the federal,
state, city and county governments and rules, regulations, orders and or
directives of any or all departments, subdivisions, boards, agencies or offices
thereof, or any other governmental, public or quasi-public authorities, having
jurisdiction in the premises, and/or the direction of any public officer
pursuant to law.
(H) The term "requirements of insurance bodies" and words of like
import shall mean rules, regulations, orders and other requirements of the Board
of Fire Underwriters and/or the Fire Insurance Rating Organization in
Connecticut and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance of the Building and/or the
Demised Premises.
(I) The term "repair" shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition, and the term "untenantable" shall be deemed to include being
inaccessible.
(J) Reference to "termination of this Lease" includes expiration or
earlier termination of the term of this Lease or cancellation of this Lease
pursuant to any of the provisions of this Lease or pursuant to law. Upon a
termination of this Lease, the term and estate granted by this Lease shall end
at noon on the date of termination as if such date were the date of expiration
of the term of this Lease and neither party shall have any further obligation or
liability to the other after such termination (i) except as shall be expressly
provided for in this Lease, or (ii) except for such obligations as by their
nature or under the circumstances can only be, or by the provisions of this
Lease, may be, performed after such termination, and, in any event, unless
expressly otherwise provided in this Lease, any liability for a payment which
shall have accrued to or with respect to any period ending at the time of
termination shall survive the termination of this Lease.
(K) The term "in full force and effect" when herein used in reference
to this Lease as a condition to the existence or exercise of a right on the part
of Tenant shall be construed in each instance as including the further condition
that at the time in question no default on the part of Tenant exists, and no
event has occurred which has continued to exist for such period of time (after
the notice, if any, required by this Lease), as would entitle Landlord in either
such instance to terminate this Lease or to dispossess Tenant.
(L) The term "Landlord" as used in this Lease means only the owner, or
other mortgagee in possession, for the time being of the land and Building (or
the owner of a lease of the Building or of the land and Building) of which the
Demised Premises form a part, so that in the event of any sale or sales of said
land and Building or of said Lease, or in the event of a lease of said Building,
or of the land and Building, the said Landlord shall be and hereby is entirely
freed and relieved of all covenants and obligations of Landlord hereunder, and
it shall be deemed and construed without further agreement between the parties
or their successors in interest, or between the parties and the purchaser, at
any such sale, or the said lessee of the Building, or of the land and Building,
that the purchaser or the lessee of the Building has assumed and agreed to carry
out any and all covenants and obligations of Landlord, hereunder.
(M) The term "Tenant" shall mean Tenant herein named or any assignee or
other successor in interest (immediate or remote) of Tenant herein named, when
Tenant herein named or such assignee or other successor in interest, as the case
may be, is
39
in possession of the Demised Premises as owner of the Tenant's estate and
interest granted by this Lease, and also if Tenant is not an individual or
corporation, all of the individuals, firms and/or corporations and other
entities comprising Tenant.
(N) Words and phrases used in the singular shall be deemed to include
the plural and vice versa, and nouns and pronouns used in any particular gender
shall be deemed to include any other gender.
(O) The rule of "ejusdem generis" shall not be applicable to limit a
general statement following or referable to an enumeration of specific matter or
matters similar to the matters specifically mentioned.
(P) All references in this Lease to numbered Articles, numbered
Sections and Subsections and lettered Exhibits are references to Articles and
Sections and Subsections of this Lease, and Exhibits annexed to (and thereby
made a part of) this Lease, as the case may be, unless expressly otherwise
designated in the context.
(Q) The term "rent" or "rents" shall, except where the context
expressly implies to the contrary, be deemed to mean fixed rent and additional
rent as such terms are defined in Section 1.04.
36.02 The various terms which are defined in other Articles of this Lease or are
defined in exhibits annexed hereto, shall have the meaning specified in such
other Articles and such exhibits for all purposes of this Lease and all
agreements supplemental thereto, unless the context shall otherwise require.
36.03 The Article headings in this Lease and Index prefixed to this Lease are
inserted only as a matter of convenience or reference, and are not to be given
any effect whatsoever in construing this Lease.
ARTICLE 37
SUBORDINATION AND MISCELLANEOUS
37.01 (A) This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all covenants, agreements and
restrictions of record as of the date hereof, with respect to the land and/or
the Building, including but not limited to those restrictions and conditions
contained in the deed from the City of Stamford, Connecticut to Landlord or
Landlord's predecessor in title. In said deed, Landlord agrees in part, that in
the sale, lease or occupancy of the property, it would not effect or execute any
agreement, lease, conveyance or other instrument whereby the property or any
part thereof is restricted upon the basis of race, sex, religion, color or
national origin, and it would comply with all state and local laws in effect
from time to time prohibiting discrimination or segregation by reason of race,
sex, religion, color or national origin.
(B) Tenant shall not take or permit any action with respect to the
Demised Premises which would violate any covenants, agreements and restrictions
of record with respect to the land and/or the Building.
37.02 (A) Promptly after the execution of this Lease, Landlord shall have the
right to submit a copy of the Lease to Landlord's mortgagee for approval. If the
Lease has not been approved by the mortgagee within thirty (30) days after its
execution, then Landlord shall have the right to cancel this Lease by written
notice to Tenant within five (5) days after the expiration of such thirty (30)
day period. Upon such cancellation, neither party shall have any further
liability to the other by reason of this Lease.
(B) If Landlord fails to cure any default on its part under this Lease,
the holder of any superior mortgage shall have the right, at its option, to cure
such default in order to prevent termination of this Lease by Tenant.
ARTICLE 38
PARTNERSHIP TENANT
38.01 If Tenant is a partnership (or is comprised of two (2) or more persons or
entities individually or as co-partners of a partnership) or if Tenant's
interest in this lease shall be assigned to a partnership (or to two (2) or more
persons or entities individually or as co-partners of a partnership) pursuant to
Article 10 (any such partnership and such persons or entities are referred to in
this Article as "Partnership Tenant"), the following provisions of this Article
shall apply to such Partnership Tenant: (a) the liability of each of the parties
comprising Partnership Tenant shall be joint and several, and (b) each of the
parties comprising Partnership Tenant hereby consents in advance to, and agrees
to be bound by, any modifications of this lease which may hereafter be made, and
by any
40
notices, demands, requests or other communications which may hereafter be given,
by Partnership Tenant or by any of the parties comprising Partnership Tenant,
and (c) any bills, statements, notices, demands, requests and other
communications given or rendered to Partnership Tenant or to any of the parties
comprising Partnership Tenant shall be deemed given or rendered to Partnership
Tenant and to all such parties and shall be binding upon Partnership Tenant and
all such parties, and (d) if Partnership Tenant shall admit new partners, all of
such new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms, covenants and conditions of this
lease on Tenant's part to be observed and performed, and (e) Partnership Tenant
shall give prompt notice to Landlord of the admission of any such new partners,
and upon demand of Landlord, shall cause each such new partner to execute and
deliver to Landlord an agreement in form satisfactory to Landlord, wherein each
such new partner shall assume performance of all of the terms, covenants and
conditions of this lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subdivision (d) of this Section).
38.02 Provided Tenant is not then in default under this Lease beyond the
expiration of the applicable notice and cure period provided herein for the cure
thereof (if any), and further provided that Clarus Corporation is still one of
the entities comprising the Tenant hereunder, Landlord will, at Tenant's
request, release Kanders & Company, Inc. from future liability under this Lease.
This Section 38.02 shall be deemed deleted from this Lease upon the occurrence
of the release of Clarus Corporation pursuant to Section 38.03 hereof.
38.03 At any time after the expiration of the eighteenth (18th) month following
the Rent Commencement Date, provided Tenant is not then in default under this
Lease beyond the expiration of the applicable notice and cure period provided
herein for the cure thereof (if any), and further provided that Kanders &
Company, Inc. has not previously been released pursuant to Section 38.02,
Landlord will, at Tenant's request, release Clarus Corporation from future
liability under this Lease provided Kanders & Company, Inc. provides proof
acceptable to Landlord in its reasonable discretion that Kanders & Company, Inc.
has a net worth of at least $10,000,000.00 at that time. Landlord agrees to
accept as such proof bank references (including approximate current account
balances) together with a letter from a certified public accountant stating the
estimated net worth of Kanders & Company, Inc.
In the event that such release is requested after the expiration of the
seventh (7th) Lease Year, then, in lieu of the net worth test set forth above,
Kanders & Company, Inc. may provide proof acceptable to Landlord in its
reasonable discretion that Kanders & Company, Inc. has free and clear cash on
hand equal to at least three (3) times Tenant's cash requirements for the
trailing twelve (12) month period, in which case Clarus Corporation may be
released from future liability under this Lease.
ARTICLE 39
TENANT'S AUTHORITY TO ENTER LEASE
39.01 In the event that the Tenant hereunder is a corporation, Tenant represents
that the officer or officers executing this lease have the requisite authority
to do so.
ARTICLE 40
PARKING
40.01 (A) Provided Tenant is not in default under any material terms, conditions
or covenants of this Lease beyond the expiration of the applicable notice and
cure period provided herein for the cure thereof (if any), Tenant is entitled to
twenty-four (24) parking cards for employees use for parking in undesignated
spaces in the Landmark Square parking garage, twelve (12) of which shall be
self-park cards and twelve (12) of which shall be valet parking cards, at the
following rates:
Lease Year Parking Rate
---------- ------------
1-3 $25.00 per card per month
4-10 $40.00 per card per month
11-15 The then prevailing rate per card per month
Tenant must provide name and registration of vehicle of each person in its
employment who will have the right to use said parking
41
cards and all such persons shall be subject to all rules and regulations as may
be prescribed by Landlord from time to time and to any modifications and/or
additions thereto regarding the use of said parking cards in the parking garage.
(B) All parking by Tenant's employees shall be on a first come, first
serve basis.
(C) All parking garage spaces, ramps and driveways, walkways, lobbies
and elevators used by Tenant, its employees and patrons will be specifically and
exclusively at their own risk, and Landlord shall not be liable for any damage
to any vehicle or its contents, resulting from theft, collision, vandalism or
any other cause whatsoever or for harm or injury to any person from any cause
whatsoever, the failure of any garage attendant or other personnel or device to
patrol, monitor, guard or service such parking garage, and Landlord shall in no
way be liable for any acts or omissions of such personnel, or device in failing
to prevent any such theft, vandalism or loss or damage by other cause. Tenant's'
indemnity in Article 21 hereof shall include the parking garage and all related
parts thereof and thereto as though specifically set forth therein.
(D) There shall not be any overnight parking in the garage. If any
automobile owned by Tenant or by its personnel or visitors remains in the
parking garage overnight and the same interferes with the cleaning or
maintenance of said area (including, without limitation, snow removal), any
costs or liabilities incurred by Landlord in removing said automobile to
effectuate cleaning or maintenance, or any damages resulting to said automobile
or to Landlord's equipment or equipment owned by others by reason of the
presence or removal of said automobile shall be paid by Tenant to Landlord, as
additional rent.
(E) In the event that Tenant validates parking for any person parking
in the garage, Tenant shall pay Landlord's then prevailing parking rate for each
such validation within ten (10) days after being billed therefor.
(F) Tenant acknowledges that parking fees including, without
limitation, fees for parking cards and validations, may be billed on Landlord's
behalf by the garage operator or other agent designated by Landlord and that
such fees shall be deemed additional rent under this Lease.
ARTICLE 41
SATELLITE DISH
41.01 Upon request by Tenant in accordance herewith during the term of this
Lease, Tenant may (subject to the terms hereof), at its own cost and expense,
install, operate, and maintain a satellite dish (hereinafter the "Satellite
Dish") on the roof of the Building in a location to be designated by Landlord.
Such installation of the Satellite Dish shall be deemed "Tenant's Work" under
Article 14 and shall be performed in strict accordance therewith.
41.02 Tenant's right to install and operate the Satellite Dish as set forth
above shall be subject to the further provisions of this Article 41. Tenant
shall submit to Landlord, along with its request to install the Satellite Dish,
(i) plans and specifications for the installation of the Satellite Dish, (ii)
copies of all necessary governmental and quasi-governmental permits, licenses
and authorizations for the installation of such Satellite Dish, which the Tenant
shall obtain at its own expense; and (iii) a certificate of insurance evidencing
insurance coverage as required by this Lease and any other insurance reasonably
required by the Landlord for the installation and operation of the Satellite
Dish. Landlord may withhold its approval to the installation and operation of
the Satellite Dish if such installation and/or operation of the Satellite Dish
may damage the structural integrity of the Building, interfere with any service
provided by the Landlord or any tenant, interfere with any then existing
tenant's business or reduce the amount of rentable space in the Building, or if
such installation, and/or operation shall be in violation of any of the terms
hereof.
41.03 The installation and size of such Satellite Dish shall meet the
specifications of Landlord and the Federal Communications Commission and shall
comply with all other governmental requirements (local, state and federal) and
all reasonable requirements of Landlord. In no event shall the Satellite Dish be
more than eighteen (18") inches in diameter. Tenant shall, at its own cost and
expense, maintain and repair the Satellite Dish and keep same in good condition
for as long as same is installed and remains.
41.04 Tenant covenants and agrees that neither the Tenant nor its agents will
cause any damage to the roof during the installation and operation of the
Satellite Dish.
41.05 If Landlord's insurance premium or Real Estate Taxes (or any other taxes)
are increased as a result of the Satellite Dish or if
42
any other tax or charge is imposed on Landlord in connection therewith, Tenant
shall pay such increase or such other tax or charge, as additional rent, upon
receipt of a xxxx from the Landlord therefor.
41.06 Tenant shall have no right to an abatement or reduction in the amount of
fixed rent or additional rent set forth in this Lease if for any reason the
Tenant is unable to use the Satellite Dish.
41.07 Tenant covenants and agrees that the installation, operation and removal
of the Satellite Dish and all related cabling and wiring will be at its sole
risk and expense. Tenant agrees to indemnify, defend and hold harmless Landlord
against all claims, actions, damages, liability and expenses (including
reasonable attorneys' fees and disbursements) in connection with the loss of
life, personal injury, damage to property or business or any other loss or
injury arising out of the installation, operation or removal of the Satellite
Dish, unless caused by Landlord and not covered by Tenant's insurance. Tenant
agrees to indemnify Landlord for all costs and expenses (including reasonable
attorneys' fees and disbursements) incurred as a result of any litigation
concerning the Satellite Dish.
41.08 Landlord, at its sole option, may require the Tenant, at any time prior to
the expiration of this Lease, to terminate the operation of the Satellite Dish
and to remove the Satellite Dish at Tenant's sole expense if it is causing
physical damage to the structural integrity of the Building, interfering with
any other service provided by the Building, or interfering with the business of
any other tenant that was operating in the Building prior to installation of
Tenant's Satellite Dish.
41.09 At the expiration or sooner termination of this Lease or upon termination
of the operation of the Satellite Dish by Landlord, Tenant or otherwise, Tenant
shall be required to remove the Satellite Dish and all related cabling and
wiring from the Building, at its sole cost and expense, on or prior to such
date. Tenant shall repair all damage attributable to the installation or removal
of such Satellite Dish and all related cabling and wiring and shall leave the
portion of the Building where the Satellite Dish was located in good order and
repair, reasonable wear and tear excepted. If Tenant does not promptly remove
the Satellite Dish and all related cabling and wiring when so required, Tenant
hereby authorizes Landlord to remove and dispose of the Satellite Dish and all
related cabling and wiring and charge Tenant for all costs and expenses incurred
thereby. Tenant agrees that Landlord shall not be liable for any property
(including the Satellite Dish and all related cabling and wiring) disposed of or
removed by Landlord in accordance herewith.
41.10 Access to the roof by Tenant's contractor to install the Satellite Dish
shall be coordinated with Landlord's property manager. Tenant shall be permitted
access to the roof for the purpose of maintenance, repair or replacement of the
Satellite Dish during the hours of 9:00 a.m. to 5 p.m. Monday through Friday
(except holidays) upon reasonable prior written notice to Landlord.
ARTICLE 42
RENEWAL OPTION
42.01 Tenant shall have the right, to be exercised as hereinafter provided, to
extend the term of this Lease with respect to the entire Demised Premises for
one (1) period of five (5) years (the "Renewal Term") upon the following terms
and conditions:
(a) That at the time of the exercise of such right and at the
commencement of the Renewal Term, Tenant shall not be in default in the
performance of any of the terms, covenants or conditions which Tenant is
required to perform under this Lease beyond the expiration of the applicable
notice and cure period provided herein for the cure thereof (if any).
(b) That Tenant shall notify Landlord in writing that Tenant intends to
exercise this option at least twelve (12) months prior to the Expiration Date.
(c) That the Renewal Term shall be upon the same terms, covenants and
conditions as in this Lease provided, except that (i) there shall be no further
option to extend this Lease beyond the Renewal Term referred to above; (ii) the
Demised Premises shall be delivered in its then "as is" condition; and (iii) the
fixed rent to be paid by Tenant during the Renewal Term shall be ninety-five
(95%) percent of the fair market annual minimum rent (as hereinafter defined)
during the first year of the Renewal Term, but in no event less than $45.00 per
rentable square foot per year, subject to escalations during each of the second
through fifth years of the Renewal Term of three (3%) percent per annum over the
fixed rent payable for the prior year.
"Fair market annual minimum rent" as such term is used in this Article
42 shall mean the rate then being received by landlords when entering into new
leases for comparable space for a comparable term in Class A buildings in the
Central Business
00
Xxxxxxxx xx Xxxxxxxx, Xxxxxxxxxxx. "Fair market annual minimum rent" shall not
mean "net effective rent to Landlord". In determining fair market annual minimum
rent, no adjustment shall be made in consideration of and Tenant shall not be
entitled to a credit for Tenant improvements, brokerage commissions, rent
concessions and other concessions which Landlord may typically offer to other
tenants.
(d) This Renewal Option is offered exclusively to Clarus Corp. and
Kanders & Company, Inc. and shall not be transferable by operation of law or
otherwise except to a permitted assignee of this Lease.
(e) Time shall be of the essence with respect to all of Tenant's
obligations under this Article 42.
ARTICLE 43
CANCELLATION OPTION
43.01 (a) Provided Tenant has complied with all of the terms, covenants and
conditions of this Lease and is not then in default of its obligations hereunder
beyond the expiration of the applicable notice and cure period provided herein
for the cure thereof, if any, Tenant shall have the right to cancel this Lease
as of the last day of the eighth (8th) or tenth (10th) Lease Year (in either
case, the "Cancellation Date") by notifying Landlord in writing (the
"Cancellation Notice"), at least twelve (12) months prior to the desired
Cancellation Date of Tenant's intent to exercise this Cancellation Option and by
delivering to Landlord, together with the Cancellation Notice, a check (subject
to collection) in the amount of the applicable Cancellation Fee (as hereinafter
defined). The "Cancellation Fee" shall mean the sum of: (i) (A) if the
Cancellation Date is at the end of eighth (8th) Lease Year, an amount equal to
the fixed rent that would have been payable hereunder during the twelve (12)
calendar months following the Cancellation Date, or (B) if the Cancellation Date
is at the end of the tenth (10th) Lease Year, an amount equal to the fixed rent
that would have been payable hereunder during the nine (9) calendar months
following the Cancellation Date; and (ii) the Unamortized Costs (as defined
below). The term "Unamortized Costs", as used herein, shall be deemed to mean
those portions of all costs incurred by Landlord in connection with this Lease
that have not been amortized as of the Cancellation Date, which costs shall
include, without limitation, each of the following: (y) construction,
architectural, engineering and other costs and fees associated with the
performance of any and all construction performed by Landlord or Landlord's
contractors on behalf of Tenant (including the Landlord's Initial Work), and (z)
$191,820.00, representing the Broker's commission. For the purpose of
calculating the Unamortized Costs, the total costs described above shall be
amortized over the entire Term of this Lease as if same were a ten (10) year,
self-amortizing loan at an annual interest rate of eight (8%) percent, payable
in equal monthly installments of principal and interest combined. The amount of
the Unamortized Costs shall be equal to the amount that would be outstanding
under such loan as of the Cancellation Date.
(b) Upon satisfaction by Tenant of each of the above conditions, and
upon the Demised Premises having been surrendered to Landlord and vacated by
Tenant (in accordance with the provisions of Article 24 hereof) on or before the
Cancellation Date as if that date were the Expiration Date under this Lease,
this Lease shall be deemed canceled and terminated as of the Cancellation Date.
Time is of the essence with respect to all time periods referenced in this
Article 43. In the event that Tenant shall fail to fully and timely comply with
each of the conditions herein contained, Tenant will be deemed to have waived
all of its rights contained in this Article 43. Tenant acknowledges that,
following exercise of this Cancellation Option by Tenant, Tenant may not revoke
such cancellation without the prior written consent of Landlord (which may be
granted or withheld in Landlord's sole discretion).
(c) This Cancellation Option is offered exclusively to Clarus Corp. and
Kanders & Company, Inc. and shall not be transferable by operation of law or
otherwise except to a permitted assignee of this Lease.
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ARTICLE 44
RIGHT OF FIRST OFFER
44.01 (a) In the event that Landlord, at its option, obtains the legal right to
lease the penthouse space or any portion thereof located directly above the
Demised Premises consisting of approximately 1,500 square feet (the "Penthouse
Space"), and desires to lease the Penthouse Space, then, provided Tenant is not
then in default under this Lease beyond the expiration of the applicable notice
and cure period provided herein for the cure thereof (if any), Landlord shall
notify Tenant of the availability of the Penthouse Space ("Landlord's Notice"),
provided that Landlord shall not be liable to Tenant for any costs, expenses,
damages or liabilities which are or may be incurred by Tenant by reason of
Landlord's unintentional failure to so notify Tenant. Tenant shall have a period
of five (5) days after receipt of Landlord's Notice in which to notify Landlord
that Tenant will either lease the Penthouse Space pursuant to the terms of this
Article 44 or not lease the Penthouse Space ("Tenant's Notice"), time being of
the essence with respect to all of Tenant's obligations hereunder.
(b) In the event that Tenant elects not to lease the Penthouse Space or
fails to deliver Tenant's Notice in strict accordance with the terms hereof (in
which case Tenant shall be deemed to have elected not to lease the Penthouse
Space), Landlord shall thereafter not be permitted to lease the Penthouse Space
to any other party.
(c) Tenant's exercise of this Right of First Offer by the giving of
Tenant's Notice to Landlord shall be self-operative and no additional document
of confirmation of Tenant's exercise of this Right of First Offer shall be
necessary. Notwithstanding the foregoing, at Landlord's option, Landlord and
Tenant shall execute a lease modification agreement (the "Lease Modification
Agreement") to confirm Tenant's exercise of this Right of First Offer. In the
event that Tenant properly and timely exercises this Right of First Offer as
provided above, Tenant shall lease the Penthouse Space from Landlord upon all of
the same terms as this Lease, except: (i) that the fixed rental rate for the
Penthouse Space shall be equal to the fair market annual minimum rent (as
defined below), (ii) for other matters dependent upon the size of the Penthouse
Space, such as Tenant's Proportionate Share, which shall be adjusted
accordingly, (iii) that Tenant will accept the Penthouse Space in its "as is"
condition and Landlord shall not be required to perform any work in or to the
Penthouse Space or incur any expense in order to prepare such space for Tenant's
occupancy, and (iv) for such other terms and conditions as may be mutually
agreed to by Landlord and Tenant.
"Fair market annual minimum rent" as used in this Article 44 shall mean
the rate then being received by landlords when entering into new leases for
comparable size space for a comparable term in Class A buildings in the Xxxxxxx
Xxxxxxxx Xxxxxxxx xx Xxxxxxxx, Xxxxxxxxxxx. "Fair market annual minimum rent" as
used in this Article 44 shall not mean "net effective rent to Landlord". In
determining fair market annual minimum rent, adjustment shall be made in
consideration of factors then customarily taken into account in determining fair
market annual minimum rent, including, without limitation, the improvements
which Tenant agrees to make to the Penthouse Space at Tenant's expense.
(d) This Right of First Offer is offered exclusively to Clarus Corp.
and Kanders & Company, Inc. and shall not be transferable by operation of law or
otherwise except to a permitted assignee of this Lease.
ARTICLE 45
PENTHOUSE SPACE
45.01 (a) In the event that Tenant desires to lease the entire Penthouse Space
(as such term is defined in Article 44 hereof) and Tenant desires to take all
actions necessary to make the Penthouse Space legally rentable at Tenant's sole
cost and expense (including, without limitation, all costs of permits,
approvals, construction, legal expenses, etc.), then, provided Tenant is not
then in default under this Lease beyond the expiration of the applicable notice
and cure period provided herein for the cure thereof (if any), Tenant may notify
Landlord that Tenant will take such actions and thereafter lease the Penthouse
Space pursuant to the terms of this Article 45. Landlord will cooperate with
Tenant at Tenant's expense (including Landlord's attorneys' fees and
disbursements) in order to facilitate Tenant's efforts pursuant to this Article
45. All provisions of Article 14 of this Lease shall be applicable to any
Alterations to be performed by Tenant with respect to the Penthouse Space.
(b) Upon exercise of its rights under Section 45.01, Landlord and
Tenant shall execute a lease modification agreement to confirm that Tenant will
lease the Penthouse Space from Landlord upon all of the same terms as this
Lease, except: (i) that the fixed rental rate for the Penthouse Space shall be
equal to the fair market annual minimum rent (as defined below), (ii) for other
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matters dependent upon the size of the Penthouse Space, such as Tenant's
Proportionate Share, which shall be adjusted accordingly, (iii) that Tenant will
accept the Penthouse Space in its "as is" condition and Landlord shall not be
required to perform any work in or to the Penthouse Space or incur any expense
in order to prepare such space for Tenant's occupancy, and (iv) for such other
terms and conditions as may be mutually agreed to by Landlord and Tenant.
"Fair market annual minimum rent" as used in this Article 45 shall mean
the rate then being received by landlords when entering into new leases for
comparable size space for a comparable term in Class A buildings in the Xxxxxxx
Xxxxxxxx Xxxxxxxx xx Xxxxxxxx, Xxxxxxxxxxx. "Fair market annual minimum rent" as
used in this Article 45 shall not mean "net effective rent to Landlord". In
determining fair market annual minimum rent, adjustment shall be made in
consideration of factors then customarily taken into account in determining fair
market annual minimum rent, including, without limitation, the improvements
which Tenant agrees to make to the Penthouse Space at Tenant's expense.
(c) This Article 45 is applicable only to Clarus Corp. and Kanders &
Company, Inc. and shall not be transferable by operation of law or otherwise
except to a permitted assignee of this Lease.
ARTICLE 46
BUILDING RENOVATIONS
46.01 Landlord will use commercially reasonable efforts to complete the
following renovations at the Building within the time periods provided: (a) by
December 31, 2004, paint the lobby, remove the original Building directory from
the lobby, install a security card access system for the Building, install
lighting in the elevator portion of the lobby and renovate the two (2) cubby
spaces behind each set of elevator cabs; and (b) by June 30, 2004, repair the
peeling paint on the northeast portion of the facade of the curtain wall of the
Building.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers hereunder affixed the date and year
first above written.
SIGNED AND DELIVERED
IN THE PRESENCE OF: RECKSON OPERATING PARTNERSHIP, L.P.
BY: RECKSON ASSOCIATES REALTY CORP.,
GENERAL PARTNER
BY: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
_______________________________ Its: Senior Vice President and Managing Director
CLARUS CORPORATION
BY: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
______________________________ Its: Chief Administrative Officer
KANDERS & COMPANY, INC.
BY: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Its:President
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EXHIBIT A
RENTAL PLAN
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EXHIBIT B
CLEANING SCHEDULE
Subject to Section 18.02, Landlord covenants and agrees to provide the following
basic cleaning services to the Demised Premises:
Daily (5 days per week Monday to Friday, legal holidays excepted):
* Sweep hard surface floors with treated dust mop
* Empty and wipe all ash trays.
* Empty waste paper baskets
* Low dusting
* Vacuum all carpeted areas
Weekly:
* Damp mop all hard surface floors.
Every six (6) months:
Clean windows inside and out
RECYCLING
Tenant is advised that the Building is subject to a mandatory recycling program
for disposables and waste materials. Tenant shall abide by all rules and
regulations as may be promulgated for compliance with the program.
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EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, lobby, elevators, vestibules, stairways,
corridors or halls outside the Demised Premises shall not be obstructed or
encumbered by any tenant or used for any purpose other than ingress and egress
to and from the Demised Premises and Tenant shall not permit any of its
employees, agents or invitees to congregate in any said areas. No door mat of
any kind whatsoever shall be placed or left in any public hall or outside and
entry door of the Demised Premises.
2. No awnings or other projections shall be attached to the outside walls of the
Building. No curtains, blinds, shades or screens shall be attached to or hung
in, or used in connection with any window or door of the Demised Premises
without the prior written consent of Landlord. Such curtains, blinds, shades or
screens must be of a quality type, design and color, and attached in the manner,
approved by Landlord.
3. No sign, insignia, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted, or affixed by any tenant on any part of the
outside of the Demised Premises or the Building without the prior written
consent of Landlord. In the event of the violation of the foregoing by any
tenant, Landlord may remove the same without any liability, and may charge
expense incurred in such removal to the tenant or tenants violating this rule.
Interior signs and lettering on doors and directory tablet outside of the
Demised Premises shall, if and when approved by Landlord, be inscribed, painted
or affixed for each tenant by Landlord at the expense of such tenant, and shall
be of a size, color and style acceptable to Landlord.
4. The sashes, sash doors, skylights, windows and doors that reflect or admit
light and air into the halls, passageways or other public places in the Building
shall not be covered or obstructed by Tenant, nor shall any bottles, parcels, or
other articles be placed on the window xxxxx.
5. No showcases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the halls, corridors or
vestibules outside the Demised Premises.
6. The water and wash closets and other plumbing fixtures shall not be used for
any purpose other than those for which they were designed or constructed, and no
sweepings, rubbish, rags, acids or other substances shall be thrown or deposited
therein. All damages resulting from any misuse of the fixtures shall be borne by
the tenant who, or whose servants, employees, agents, visitors or licenses shall
have caused the same.
7. No boring, cutting or stringing of wires in violation of applicable laws,
codes or regulations shall be permitted, except with the prior written consent
of Landlord, and as Landlord may reasonably direct. No tenant shall lay
linoleum, or other similar floor covering, so that the same shall come in direct
contact with the floor of the Demised Premises.
8. No bicycles, vehicles, animals, fish or birds of any kind shall be brought
into or kept in or about the premises.
9. No noise, including, but not limited to, music or the playing of musical
instruments, recordings, radio, or television which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any Tenant. Nothing shall be done or permitted in the Demised
Premises by Tenant which would unreasonably impair or interfere with the use or
enjoyment by any other tenant of any other space in the Building. No tenant
shall throw anything out of the doors, windows or skylights or down the
passageways.
10. Tenant, its servants, employees, agents, visitors or licensees, shall not at
any time bring or keep upon the Demised Premises any explosive fluid, chemical
or substance, nor any inflammable or combustible objects or materials, in
violation of any applicable law, ordinance or governmental regulation.
11. Additional locks or bolts of any kind which shall not be operable by the
Grand Master Key for the Building shall not be placed upon any of the doors or
window by any tenant, nor shall any changes be made in locks or the mechanism
thereof which shall make such locks inoperable by said Grand Master Key. Each
tenant shall, upon the termination of its tenancy, turn over to the Landlord all
keys of stores, offices and toilet rooms, either furnished to, or otherwise
provided by, such tenant and in the event of the loss of any keys furnished by
Landlord, such tenant shall pay to Landlord the cost thereof. Tenant shall have
the right to install additional security systems for the Demised Premises, which
systems will be coordinated with those operated by Landlord and its managing
agent. Keys
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or cards used in connection with such systems shall be furnished to Landlord or
its managing agent.
12. All removals, or the carrying in or out of any safes, freight, furniture,
packages, boxes, crates or any other object or matter of any description must
take place during such hours and in such elevators as Landlord or its agent may
reasonably determine from time to time. Landlord reserves the right to inspect
all objects and matter to be brought into the Building and to exclude from the
Building all objects and matter which violate any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part. Landlord may
require any person leaving the Building with any package or other object or
matter to submit a pass, listing such package or object or matter, from the
tenant from whose premises the package or object or matter is being removed, but
the establishment and enforcement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of such tenant. Landlord shall, in no way, be
liable to Tenant for damages or loss arising from the admission, exclusion or
ejection of any person to or from the Demised Premises or the Building under the
provisions of this Rule 12 or of Rule 16 hereof.
13. Tenant shall not occupy or permit any portion of the Demised Premises to be
occupied as an office for a public stenographer or public typist, or for the
warehousing, manufacture or sale to the general public of beer, wine, liquor,
narcotics, or as a xxxxxx, beauty or manicure shop, or as an employment bureau.
Tenant shall not engage or pay any employees on the Demised Premises, except
those actually working for Tenant or its affiliates. Tenant shall not use the
Demised Premises or any part thereof, or permit the Demised Premises or any part
thereof to be used, for manufacturing, or sale at auction of merchandise, goods
or property of any kind, except for promotional purposes.
14. Tenant shall not obtain, purchase or accept for use in the Demised Premises
cleaning, floor polishing or other similar services from any persons not
authorized by Landlord in writing to furnish such services, provided always that
the charges for such services by persons authorized by Landlord are not
excessive. Such services shall be furnished only at such hours, in such places,
within the Demised Premises, and under such regulations as may be fixed by
Landlord. Tenants shall not purchase or contract for waxing, rug shampooing,
Venetian blind washing, furniture polishing, lamp servicing, cleaning of
electric fixtures, removal of garbage or towel service in the Demised Premises
except from companies or persons approved by the Landlord. Landlord will be
reasonable in its decision.
15. Landlord shall have the right to prohibit any advertising, or identifying
sign by any tenant which in Landlord's reasonable judgment tends to impair the
reputation of the Building or its desirability as a building for offices, and
upon written notice from Landlord, such tenant shall refrain from or discontinue
such advertising or identifying sign.
16. Landlord reserves the right to exclude from the Building during hours other
than Business Hours (as defined in the foregoing Lease) all persons who do not
present a pass to the Building signed by Landlord. All persons entering and/or
leaving the Building during hours other than Business Hours may be required to
sign a register. Landlord will furnish passes to persons for whom any tenant
requests same in writing. Tenant, provided Tenant has such pass, will be
permitted access to the Building and the Demised Premises 24 hours a day, seven
days a week.
17. All entrance doors in the Demised Premises shall be left locked by Tenant
when the Demised Premises are not in use. Entrance doors shall not be left open
at any time. Landlord or its agents or contractors will turn off lights upon
completion of cleaning services.
18. Unless Landlord shall furnish electrical energy hereunder as a service
included in the rent, Tenant shall, at Tenant's expense, provide artificial
light and electrical energy for the employees of Landlord and/or Landlord s
contractors while doing janitor service or other cleaning in the Demised
Premises and while making repairs or alterations in the Demised Premises.
19. The Demised Premises shall not be used for lodging or for any illegal
purpose.
20. The requirements of tenants will be attended to only upon application at the
office of the Building. Employees of Landlord shall not perform any work or do
anything outside of their regular duties, unless under special instructions from
Landlord.
21. Canvassing, soliciting and peddling in the Building are prohibited and each
tenant shall cooperate to prevent the same.
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22. There shall not be used in any space or in the public halls of the Building,
either by any tenant or by jobbers or any others, in the moving or delivery or
receipt of safes, freight, furniture, packages, boxes, crates, paper, office
material, or any other matter or thing, any hand trucks except those equipped
with rubber tires, side guards and such other safeguards as Landlord shall
reasonably require. No hand trucks shall be used in passenger elevators, and no
such passenger elevators shall be used for the moving, delivery or receipt of
the aforementioned articles.
23. Tenant shall not cause or permit any odors of cooking or other processes or
any unusual or objectionable odors to emanate from the Demised Premises which
would annoy other tenants or create a public or private nuisance. No cooking
shall be done in the Demised Premised except as is expressly permitted in the
foregoing Lease.
24. Tenant shall cooperate with Landlord in obtaining maximum effectiveness of
the cooling system and if requested by Landlord shall lower and close blinds,
drapes and curtains when the sun's rays fall directly on the windows of the
Demised Premises.
25. Subject to the provisions of Section 13.01, Landlord in its reasonable
judgment, reserves the right to rescind, alter or waive any rule or regulation
at any time prescribed for the Building when, in its reasonable judgment, it
deems it necessary or desirable for the reputation, safety, care or appearance
of the Building, or the preservation of good order therein, or the operation or
maintenance of the Building or the equipment thereof, or the comfort of tenants
or others in the Building.
26. Cigarette, pipe and cigar smoking is allowed only in tenant's demised
premises. Smoking is prohibited in all interior public areas including but not
limited to: public corridors, elevators, elevator lobbies and toilet rooms.
27. Tenant shall provide and maintain, at its expense, the hand-held fire
extinguishers that are required to be maintained in the Demised Premises by the
governmental agency having jurisdiction over this matter.
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EXHIBIT D
WORK LETTER
Tenant has examined the Demised Premises and, except for Landlord's Initial
Work, Tenant agrees to accept possession of the Demised Premises in its "as is"
condition which shall exist on the date of this Lease, and further agrees that,
except as otherwise expressly set forth herein, Landlord shall have no
obligation to perform any work, supply any materials, incur any expenses or make
any installations, in order to prepare the Demised Premises for Tenant's
occupancy.
Tenant shall perform Tenant's Initial Work, at Tenant's cost and expense
(subject to the Tenant Improvement Allowance described herein).
1. (A) Tenant shall submit final and complete dimensioned and
detailed plans and drawings of partition layouts, including openings, ceiling
and lighting layouts, finishes and colors, engineering drawings, and any and all
other information as may be necessary to complete Tenant's Initial Construction,
which plans shall be at Tenant's sole cost and expense (all herein called the
"Plans"). The Plans shall be 1' 0" = 1/8" scale.
(B) All Plans shall be submitted to Landlord for review and
Landlord shall approve the Plans, or approve same as noted, within fifteen (15)
business days after submission thereof to Landlord.
(C) Any architect, engineer, designer or consultant acting for or
on behalf of Tenant shall be deemed an agent of, and authorized to bind, Tenant
in all respects. Tenant or Tenant's contractor shall submit all Plans which
require any approval or permit, to the governmental authority having
jurisdiction thereover and Tenant shall pay any and all costs for obtaining
permits or filing Plans.
(D) All plans (including the Plans) with respect to the Demised
Premises and required to be submitted by Tenant, shall comply and conform with
the Building plans filed with the Building Department of the City of Stamford,
and with all the rules, regulations and other requirements of any governmental
department having jurisdiction over the construction of the Demised Premises.
Any changes required by any governmental department affecting the construction
of the Demised Premises, at the sole cost and expense of Tenant, shall be
complied with by Tenant in completing the Demised Premises.
2. (A) Intentionally Omitted.
(B) The term "tenant's delay" shall have the meaning ascribed
thereto in Section 4.02 of this Lease.
(C) Tenant does herewith agree that in the event substantial
completion of Tenant's Initial Construction in the Demised Premises pursuant to
this Exhibit and/or any further agreements pertaining thereto, entered into
between Landlord and Tenant, is delayed by any tenant's delay, Tenant shall, in
addition to the provisions of Section 4.02 of this Lease, pay the reasonable
costs and damages Landlord may sustain by reason of such tenant's delay.
3. Intentionally Omitted.
4. (A) Tenant shall be responsible, at Tenant's sole cost and
expense, for the installation and removal of all computer and telephone
equipment and related wiring, as well as interior decorative treatments
("Tenant's Installations"). All Tenant Installations shall be in conformity with
the regulations promulgated by the State of Connecticut and City of Stamford
Fire Xxxxxxxx'x Offices.
(B) Without limiting the generality of any other provisions of
this Lease, any entry by Tenant in or on the Demised Premises shall be at
Tenant's sole risk and, upon request of Landlord, Tenant shall pay for and
deliver to Landlord, policies and certificates of insurance in amounts and with
such companies as shall be reasonably satisfactory to Landlord, such as, but not
limited to General Comprehensive Commercial Liability, Property Damage and
Workers' Compensation to protect Landlord and Tenant during the period of making
such Tenant's Installations. Landlord shall be named as an additional insured in
such policies and the same shall be continued in effect, by Tenant at its cost
and expense, during the period of the performance of
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Tenant's Installations.
(C) All Tenant's Installations shall be in accordance with the
rules and regulations of any governmental department or bureau having
jurisdiction thereover, and shall not conflict with or be in violation of, or
cause any violation of Landlord's basic building plans and/or the construction
of the Building, and all Tenant's Installations shall be completed free of all
liens and encumbrances. All permits which may be required by Tenant for Tenant's
Installations shall be procured and paid for by Tenant only after having
obtained Landlord's written approval of such work, or, if Landlord shall deem
the same advisable, Landlord may procure such permit and Tenant shall pay for
the same. No plans and/or specifications required to be filed by Tenant pursuant
to any work contemplated to be performed by it within the Demised Premises shall
be filed or submitted to any governmental authority having jurisdiction
thereover without first having obtained Landlord's approval of the same.
(D) Intentionally Omitted.
(E) Tenant agrees that should Tenant enter upon the Demised
Premises for the purposes of performing any work, the labor employed by Tenant
or anyone performing such work for or on behalf of Tenant shall always be
harmonious and compatible with the labor employed by Landlord or any contractors
or subcontractors of Landlord. Should a labor dispute or disruption occur,
Landlord may require Tenant to withdraw from such premises until the completion
of any work being performed by Landlord in the Demised Premises.
(F) In the event Tenant or Tenant's contractor shall enter upon
the Demised Premises or any other part of the Building, as may be above
permitted by Landlord, Tenant agrees to indemnify and save Landlord free and
harmless from and against any and all damages, claims costs and expenses,
arising from or claimed to arise from any act, or for any other reason
whatsoever arising out of said entry or such work.
(G) Any costs for services incurred or repairs required due to
Tenant's contractors or Tenant's Installations shall be paid for by Tenant.
5. Intentionally Omitted.
6. Landlord shall contribute up to a maximum of $460,000.00, plus
additional sums equal to the actual out-of-pocket cost of the installation of a
building standard sprinkler system in the Demised Premises and the actual,
out-of-pocket cost of the installation of sixty (60) tons of base building HVAC
to service the Demised Premises (specifically limited to providing (i) the HVAC
units and the main trunk line into the Demised Premises with respect to the HVAC
units to be installed within the core of the Demised Premises, and (ii) the HVAC
units only (i.e. without the distribution system therefor) with respect to the
HVAC units to be installed above the drop ceiling), towards the cost of Tenant's
Initial Work (the "Tenant Improvement Allowance"). Tenant shall, as Tenant's
Initial Work progresses, submit statements to Landlord from time to time, but
not more often than once per month, setting forth the cost of those aspects of
the Tenant's Initial Work which have been completed through the date of such
statement (such statement to be prepared in accordance with standard progress
payment application forms issued by the American Institute of Architects). Each
such statement shall be accompanied by a certificate from an authorized officer
of Tenant requesting reimbursement for sums paid or to be paid (such requested
amount, the "Requested Allowance Payment") and certifying that: (i) the
Requested Allowance Payment is then due and payable by Tenant or has theretofore
been paid by Tenant; and (ii) the intended use thereof is for satisfaction of
amounts paid or amounts due and owing Tenant's contractor in connection with
Tenant's Initial Work. Following receipt of any such statement and accompanying
certificate, Landlord shall pay to Tenant (or to Tenant's contractor, if so
directed by Tenant) a portion of the Tenant Improvement Allowance in an amount
equal to ninety (90%) percent of the subject Requested Allowance Payment (but in
no event shall the aggregate amount of such payments by Landlord exceed the
Tenant Improvement Allowance). The ten (10%) percent of each Requested Allowance
Payment not so paid to Tenant shall be retained by Landlord (subject to the
following provisions of this Section), and the total amount so retained is
hereinafter collectively referred to as the "Retained Allowance". Provided that
no event of default shall have occurred and be continuing
54
hereunder beyond the expiration of the applicable notice and cure period
provided herein for the cure thereof (if any), Landlord shall pay the entire
Retained Allowance to Tenant, following Tenant's written request therefor and
Landlord's receipt of the following materials: (A) a certification from Tenant's
architect or engineer that Tenant's Initial Work has been substantially
completed in strict accordance with the final construction documents approved by
Landlord and that Tenant's Initial Work has been performed and completed in
strict accordance with the requirements and provisions of this Lease and all
governmental permits, licenses and authorizations required for Tenant's Initial
Work; (B) a certificate from an authorized officer of Tenant certifying: (i) the
total cost of Tenant's Initial Work (which certification shall substantiate such
total cost to the reasonable satisfaction of Landlord); and (ii) that Tenant's
Initial Work has been fully paid for or will be fully paid for upon receipt of
the Retained Allowance; (C) lien waivers from all contractors and subcontractors
which performed all or any portion of Tenant's Initial Work, stating that they
have been fully paid for the work completed by such contractors or
subcontractors; and (D) a certificate of occupancy for the Demised Premises.
Upon delivery of such certificate, evidence and other documentation, Tenant
shall have the reasonable right to control the release and payment of the
Retained Allowance to its contractors, subcontractors and materialmen. Prior to
paying the Retained Allowance, Landlord shall have the right, provided Landlord
exercises such right within ten (10) days after Tenant's request for the
Retained Allowance, to (a) inspect all of Tenant's Initial Work to determine if
it has been completed substantially in accordance with the final construction
documents, and (b) review all invoices and evidence of payment thereof for
Tenant's Initial Work, to the extent such payments have been made. To the extent
such payments have not been made, Landlord shall have the right (but not the
obligation) to make such payments directly to such contractors, subcontractors
or materialmen. The right to receive reimbursement for the cost of Tenant's
Initial Work as set forth herein shall be the exclusive benefit of Tenant, it
being the express intent of the parties hereto that in no event shall such right
be conferred upon or for the benefit of any third party, including without
limitation, any contractor, subcontractor, materialman, laborer, architect,
engineer, attorney or any other person, firm or entity. If the total charges for
Tenant's Initial Work are less than the maximum amount of the Tenant Improvement
Allowance set forth above, Tenant shall not be entitled to receive the remainder
of such Tenant Improvement Allowance in any form. Tenant hereby acknowledges
that, except as hereinafter provided, in no event shall any portion of the
Tenant Improvement Allowance be paid or applied against any "soft costs". The
term "soft costs", as used herein, shall generally include, without limitation,
the fees and charges of any architects, engineers and other consultants engaged
by Tenant in connection with Tenant's Initial Work; the fees and charges
incurred in connection with obtaining governmental and quasi-governmental
permits, authorizations and approvals; the costs and charges incurred in
connection with the installation of Tenant's data and telecommunication wiring
and cabling in and about the Demised Premises (or any portion thereof); and the
costs and expenses incurred by Tenant in connection with the acquisition,
transport and/or installation of Tenant's personnel, furniture, fixtures,
equipment or decorations in the Demised Premises (or any portion thereof).
Notwithstanding the foregoing, Tenant shall be permitted to apply up to
$46,000.00 of the Tenant Improvement Allowance in the aggregate towards
architectural and engineering costs.
7. Telephone and computer installation and all costs therefor shall be
the sole responsibility of Tenant, and Tenant shall make all necessary
arrangements. Such telephone installations are subject to approval by Landlord
and must be performed in strict compliance with all government codes, including
a low voltage permit from the City of Stamford. At the expiration or earlier
termination of the Lease, Tenant shall be responsible for the removal of all
telecommunications and data wiring and any affiliated equipment.
8. Tenant shall, within thirty (30) days after the Rent Commencement
Date, install vertical blinds as approved by Landlord, at Tenant's sole cost and
expense on all exterior windows; such blinds shall be G71 vertical blinds in
fabric kinetics, #0112, alabaster, and no other type of window covering will be
used.
INSTRUCTIONS TO MOVING CONTRACTORS
1. The directions of the Landlord and/or his managing agent will be
followed at all times.
2. No furniture and/or building materials will be moved in or out of
the building from 7:00 a.m. to 6:00 p.m., Monday through Friday, unless approved
by the Landlord and/or his managing agent.
3. The moving contractor must submit, not later than two weeks prior to
the move, a written schedule which indicates the date and time the move will
commence and also the same for the completion of the move.
55
4. All routes over finished floors will be protected with masonite,
plywood or similar material runway, which is to be picked up at the close of
work each day.
5. Appropriate warning signs are to be posted in all public corridors
and lobbies used.
6. Temporary staging of furniture and equipment in public areas is not
permitted.
7. All areas traveled are to be broom cleaned at the close of each day.
Elevators are to be swept and debris carried from the car, NOT swept across the
door opening.
8. Workmen should use the toilet facilities provided by the Landlord or
Managing Agent.
9. The load limit of 3,000 pounds in the passenger elevator is NOT to
be exceeded.
10. Generally only two (2) trailers will be allowed at the Loading
Dock. Arrangements to accommodate more than two (2) must be made in advance with
the Property Management Office.
11. Only rubber wheeled dollies and carts, in good operating condition,
may be used. Excess oil and grease must be removed from wheels to prevent
staining flooring.
12. Reasonable care must be taken at all times to avoid any personal
injury or property damage.
13. All packing and crating materials must be removed at the end of
each day, and NOT be left to accumulate over night (fire hazard).
14. The moving contractor must utilize labor that will work in harmony
with other labor in the building. In addition, Landlord's office should receive
not later than two weeks prior to move, insurance certificates evidencing the
following minimum coverages:
(i) Insurance carrier must have a Best's rating of A VIII or
better.
(ii) Certificates of insurance must be provided prior to the
commencement of any work performed.
(iii) Type of insurance:
A. Commercial General Liability:
----------------------------
General Aggregate $2,000,000
Products/Completed Operations Aggregate $1,000,000
Personal & Advertising Injury, per occurrence $1,000,000
Each Occurrence $1,000,000
Fire Damage Liability $ 50,000
Medical Expense $ 5,000
Broad Form Property Damage Included
Explosion, Collapse & Underground Hazard Included
B. Automobile Liability:
--------------------
Bodily Injury/Property Damage Liability
Each Occurrence (Combined Single Limit) $1,000,000
C. Excess or Umbrella Liability:
----------------------------
Each Occurrence $5,000,000 (Coverage to be at
least on a "follow form" basis)
56
D. Worker's Compensation & Employer's Liability:
--------------------------------------------
Per statutory requirements of the state in which work is to be
provided or performed.
E. Connecticut State Short Term Disability:
---------------------------------------
Per statutory requirements of the state in which work is to be
provided or performed.
All certificates are to stipulate that ten (10) days prior notice of
cancellation will be given to the Tenant and to:
RECKSON ASSOCIATES REALTY CORP.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
57
INSTRUCTIONS TO TENANT'S CONTRACTORS
1. It shall be Tenant's contractor's responsibility to schedule the
performance of his work and notify the Landlord's Property Manager of his
proposed schedule, so that the contractor's elevator usage for material
deliveries and rubbish removal may be coordinated with the over-all project
(reserved) hoisting usage.
Elevator use for construction and moves may only occur during the
hours of 6:00 P.M. through 7:00 A.M. on business days and only with prior notice
and approval of the Landlord. Elevator use on non-business days may occur at any
time and again only with prior notice and approval of the Landlord. Tenant is
responsible for all building standard charge normally associated with such use.
2. The Tenant's contractor shall notify Landlord's Property Manager at
least four (4) weeks prior to his proposed starting date to perform Tenant's
Work (two (2) weeks prior to the proposed starting date for Tenant's Initial
Work) and at that time will discuss the arrangements and requirements of his
schedule. The following items will be discussed to determine the scheduled
reservation time:
a. Material delivery, schedule - dates - times
b. Number of vehicles
c. Elevator Service and hoist reservation time
d. Docking arrangements and reservation time
e. Insurance requirements
f. Names and telephone numbers of contact and coordinator
g. General instructions - rules and regulations
3. The Tenant's contractor shall confirm his schedule with the
Landlord's Property Manager, not less than 48 hours in advance of his
pre-scheduled material deliveries. It shall be Tenant's contractor's sole
responsibility to confirm his reservation times, and in the event that the
confirmation is not verified and re-executed it shall be deemed that his
reservations are to be voided (cancelled) and allocated to others. He shall then
be required to re-schedule both his deliveries and his reservations through the
Landlord's Property Manager. In all fairness to the other Tenants going into the
building, if Tenant's contractor fails to meet or confirm the date, his
contractor will have to wait until there is free time in the material delivery
and hoisting schedule before they will be allowed to perform Tenant's Work.
Landlord's Property Manager will make every effort to accommodate the Tenant's
contractor as early as possible, but it is very likely that to re-schedule would
effect a serious time delay; you can clearly see, then, that it is extremely
important to confirm the schedule not less than 48 hours in advance, and if
possible, preferably three to five days ahead of time.
4. Tenant and its contractors shall remain responsible for the
scheduling and transportation of material and equipment used in the performance
of Tenant's Work and for the removal from the Building of waste and debris
resulting from the performance of Tenant's Work, and Landlord shall not be
responsible for coordination of the work of Tenant's contractors with the work
of Landlord's contractors. However, Landlord and Tenant shall cooperate in their
respective performances of Landlord's and Tenant's Work in order to enable the
same to be properly coordinated. Tenant shall not be under any obligation to
employ any of Landlord's contractors or to pay any charge to any of them by
reason of Tenant's having other contractors or purchasing any materials or labor
or employing any labor from other sources. Tenant and its contractors shall not
be under any obligation to pay for water, electricity, heat, ventilation or
cooling provided in the Premises during the performance of any of Tenant's Work
during normal working hours of the Building construction project.
5. Temporary staging of materials and equipment in public areas is not
permitted.
6. Should large equipment or materials need to be transported via
dollies and/or carts, then the contractor transporting such equipment or
materials shall protect all routes over finished floors with a minimum of 3/8"
plywood runway, which will be picked up at the close of work each day.
7. All areas traveled are to be broom cleaned at the close of each day.
Elevators are to be swept and debris carried from the car, NOT swept across the
door opening.
8. Workmen should use the toilet facilities provided by the general
contractor.
58
9. The hoisting load limit of 3,000 pounds in passenger elevator is NOT
to be exceeded.
10. All packing and crating materials must be removed at the end of
each day, and not be left to accumulate over night (fire hazard).
11. The Tenant's contractor must utilize labor that will work in
harmony with other labor in the Building. In addition, Landlord's Property
Manager should receive not later than two weeks prior to contractor's
performance of Tenant's Work, insurance certificates evidencing the following
minimum coverages:
(i) Insurance carrier must have a Best's rating of A VIII or better.
(ii) Certificates of insurance must be provided prior to the
commencement of any work performed.
(iii) Type of insurance:
A. Commercial General Liability:
----------------------------
General Aggregate $2,000,000
Products/Completed Operations Aggregate $1,000,000
Personal & Advertising Injury, per occurrence $1,000,000
Each Occurrence $1,000,000
Fire Damage Liability $ 50,000
Medical Expense $ 5,000
Broad Form Property Damage Included
Explosion, Collapse & Underground Hazard Included
B. Automobile Liability:
--------------------
Bodily Injury/Property Damage Liability
Each Occurrence (Combined Single Limit) $1,000,000
C. Excess or Umbrella Liability:
----------------------------
Each Occurrence $5,000,000 (Coverage to be at
least on a "follow form" basis)
D. Worker's Compensation & Employer's Liability:
--------------------------------------------
Per statutory requirements of the state in which work is
to be provided or performed.
E. Connecticut State Short Term Disability:
---------------------------------------
Per statutory requirements of the state in which work is
to be provided or performed.
All certificates are to stipulate that ten (10) days prior notice of
cancellation will be given to the Tenant and to:
RECKSON ASSOCIATES REALTY CORP.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
59
EXHIBIT E
ELECTRICITY SCHEDULE
1. Landlord and Tenant have agreed that Landlord will furnish
electrical energy (the "Landlord's Standard Electrical Service") to Tenant for
use in the Demised Premises.
2. It is agreed that the Tenant will pay for the installation of a
demand watt-hour check meter(s) and related wiring and equipment (collectively,
the "Check Meter"), (the location(s) of which is to be approved by Landlord), to
monitor Tenant's consumption of electricity in the Demised Premises. Maintenance
(including zeroing in of the meter in conjunction with the Landlord), repair and
recalibration of the Check Meter shall be Tenant's responsibility at Tenant's
sole cost and expense. Tenant shall pay to Landlord on a monthly basis, as
additional rent, the cost of such electrical consumption at the average rate
Landlord is paying the utility therefor (including without limitation sales
taxes and surcharges thereon, plus $25.00 per month as compensation for
Landlord's administrative expenses.)
3. Landlord shall furnish to the Demised Premises Landlord's Standard
Electrical Service through the transmission through Landlord's facilities
initially installed by Landlord in the Building, in the form of alternating
electrical energy, to be used by Tenant, for which Tenant shall pay Landlord as
provided in Paragraph 2 above.
4. It is specifically understood that:
(a) All installations of electrical fixtures, appliances and
non-standard office equipment within the Demised Premises shall be subject to
Landlord's prior written approval which will not be unreasonably withheld.
(b) In the event that Tenant shall require additional electrical
energy for use in the Demised Premises and if Landlord's facilities are
inadequate for such additional requirements, and if electrical energy for such
additional requirements is available to Landlord, Landlord, upon written request
from Tenant and at the sole cost and expense of Tenant, will furnish and install
such additional wires, risers, conduits, feeders, panels and switch boards as
reasonably may be required to supply such additional requirements of the Tenant
provided that: (1) same shall be permitted by applicable laws and not in
violation of any insurance regulations or recommendations, (2) in Landlord's
reasonable judgment, the same are necessary and will not cause permanent damage
or injury to the Building or the Demised Premises or cause or create a dangerous
or hazardous condition or entail excessive or unreasonable alterations or
repairs or interfere with or disturb other tenants or occupants of the Building,
and (3) such installation does not preclude expansion of electrical service for
other tenants. Tenant covenants and agrees that at all times its use of
electrical current shall never exceed the capacity of the feeders of the
Building or the risers or wiring installation. It is further covenanted and
agreed by Tenant that all of the aforesaid costs and expenses are chargeable and
collectable as additional rent and shall be paid by Tenant to Landlord within
ten (10) days after rendition of any xxxx or statement to Tenant therefor.
60
EXHIBIT F
COMMON AREAS
61
EXHIBIT G
LETTER OF CREDIT
[LETTERHEAD OF ISSUER OF LETTER OF CREDIT]
_________________, 2003
Reckson Operating Partnership, L.P.
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx, Corporate Controller
REF: IRREVOCABLE LETTER OF CREDIT NO. _______
GENTLEMEN:
WE HEREBY OPEN OUR UNCONDITIONAL IRREVOCABLE CLEAN LETTER OF CREDIT NO.
_________ IN YOUR FAVOR AVAILABLE BY YOUR DRAFT(S) AT SIGHT FOR AN AMOUNT NOT TO
EXCEED IN THE AGGREGATE $____________ EFFECTIVE IMMEDIATELY.
ALL DRAFTS SO DRAWN MUST BE MARKED "DRAWN UNDER IRREVOCABLE LETTER OF CREDIT OR
[ISSUING BANK], NO. _______, DATED _______, 200_."
THIS LETTER OF CREDIT IS ISSUED, PRESENTABLE AND PAYABLE AT OUR OFFICE AT
_______________, NEW YORK [MUST BE IN NEW YORK CITY OR STAMFORD, CONNECTICUT] OR
SUCH OTHER OFFICE IN _____________, NEW YORK [NEW YORK CITY OR STAMFORD,
CONNECTICUT] AS WE MAY DESIGNATE BY WRITTEN NOTICE TO YOU, AND EXPIRES WITH OUR
CLOSE OF BUSINESS ON ________. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT
IT SHALL BE AUTOMATICALLY EXTENDED FOR ADDITIONAL TWELVE (12) MONTH PERIODS
THROUGH ____________ [SIXTY (60) DAYS AFTER LEASE EXPIRATION DATE], UNLESS WE
INFORM YOU IN WRITING BY CERTIFIED OR REGISTERED MAIL DISPATCHED BY US AT LEAST
SIXTY (60) DAYS PRIOR TO THE THEN EXPIRATION DATE OF THIS LETTER OF CREDIT THAT
THIS LETTER OF CREDIT SHALL NOT BE EXTENDED. IN THE EVENT THIS LETTER OF CREDIT
IS NOT EXTENDED FOR AN ADDITIONAL PERIOD AS PROVIDED ABOVE, YOU MAY DRAW
HEREUNDER. SUCH DRAWING IS TO BE MADE BY MEANS OF A DRAFT ON US AT SIGHT WHICH
MUST BE PRESENTED TO US BEFORE THE THEN EXPIRATION DATE OF THIS LETTER OF
CREDIT. THIS LETTER OF CREDIT CANNOT BE MODIFIED OR REVOKED WITHOUT YOUR
CONSENT. THIS LETTER OF CREDIT IS PAYABLE IN MULTIPLE DRAFTS AND SHALL BE
TRANSFERABLE BY YOU WITHOUT ADDITIONAL CHARGE.
WE HEREBY DO UNDERTAKE TO PROMPTLY HONOR YOUR SIGHT DRAFT OR DRAFTS DRAWN ON US,
INDICATING OUR LETTER OF CREDIT NO. ________, FOR THE AMOUNT AVAILABLE TO BE
DRAWN ON THIS LETTER OF CREDIT UPON PRESENTATION OF YOUR SIGHT DRAFT IN THE FORM
OF SCHEDULE A ATTACHED HERETO DRAWN ON US AT OUR OFFICES SPECIFIED ABOVE DURING
OUR USUAL BUSINESS HOURS ON OR BEFORE THE EXPIRATION DATE HEREOF.
EXCEPT AS EXPRESSLY STATED HEREIN, THIS UNDERTAKING IS NOT SUBJECT TO ANY
AGREEMENTS, REQUIREMENTS OR QUALIFICATION, OUR OBLIGATION UNDER THIS LETTER OF
CREDIT IS OUR INDIVIDUAL OBLIGATION AND IS IN NO WAY CONTINGENT UPON
REIMBURSEMENT WITH RESPECT THERETO OR UPON OUR ABILITY TO PERFECT ANY LIEN,
SECURITY INTEREST OR ANY OTHER REIMBURSEMENT.
IN THE EVENT THE APPLICANT BECOMES A DEBTOR IN A CASE UNDER TITLE 11 OF THE
UNITED STATES CODE (THE "BANKRUPTCY CODE"), OR IN ANY OTHER INSOLVENCY OR
SIMILAR PROCEEDING, OUR OBLIGATIONS TO THE BENEFICIARY HEREUNDER SHALL NOT BE
REDUCED,
62
LIMITED, IMPAIRED, DISCHARGED, DEFERRED, SUSPENDED, STAYED, TERMINATED
OR OTHERWISE AFFECTED BY REASON THEREOF OR BY REASON OF ANY PROVISIONS OF THE
BANKRUPTCY CODE (INCLUDING BUT NOT LIMITED TO, SECTIONS 362 AND 502(B) OF THE
BANKRUPTCY CODE), OR THE PROVISIONS OF ANY OTHER INSOLVENCY OR SIMILAR LAW.
THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1998,
INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590, AND SHALL BE DEEMED TO BE
A CONTRACT MADE THEREUNDER, AND AS TO MATTERS NOT GOVERNED BY THE INTERNATIONAL
STANDBY PRACTICES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF _______ AND APPLICABLE U.S. LAW.
ALL FEES AND EXPENSES ARE FOR THE ACCOUNT OF THE APPLICANT.
[ISSUER OF LETTER OF CREDIT]
-----------------------
63
SCHEDULE A TO LETTER OF CREDIT
------------------------------
FOR VALUE RECEIVED
PAY AT SIGHT BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS TO _____________
THE SUM OF U.S. __________ DRAWN UNDER IRREVOCABLE LETTER OF CREDIT NO.
______________ DATED ______________, 2001 ISSUED BY ________________.
TO: [ISSUER OF LETTER OF CREDIT]
_______________, NEW YORK [LOCATION OF ISSUER IN NEW YORK
CITY OR STAMFORD, CONNECTICUT]
64
