LEASE
between
WILTON CAMPUS PROPERTIES, LLC, as Landlord
and
GREENFIELD ONLINE, INC., as Tenant
00 XXXXX XXXX
XXXXXX, XX
October 20, 1999
1
LEASE
TABLE OF CONTENTS
ARTICLE 1. GRANT..............................................................1
ARTICLE 2. TERM...............................................................1
ARTICLE 3. COMPLETION AND OCCUPANCY OF THE PREMISES...........................2
ARTICLE 4. RENT AND SECURITY..................................................3
ARTICLE 5. ADDITIONAL RENT FOR ESCALATIONS IN REAL ESTATE TAXES...............5
ARTICLE 6. SERVICES AND UTILITIES.............................................9
ARTICLE 7. CONDUCT OF BUSINESS BY TENANT.....................................10
ARTICLE 8. ALTERATIONS, IMPROVEMENTS AND SIGNAGE.............................12
ARTICLE 9. INSURANCE.........................................................13
ARTICLE 10. CASUALTY..........................................................15
ARTICLE 11. CONDEMNATION......................................................16
ARTICLE 12. ASSIGNMENT AND SUBLETTING.........................................17
ARTICLE 13. DEFAULTS AND REMEDIES.............................................19
ARTICLE 14. NONDISTURBANCE AND RIGHTS OF MORTGAGE HOLDERS.....................22
ARTICLE 15. NOTICES...........................................................23
ARTICLE 16. MISCELLANEOUS.....................................................23
ARTICLE 17. OPTION TO RENEW...................................................25
ARTICLE 18. RIGHT TO CANCEL...................................................25
ARTICLE 19. GROUND LEASE......................................................26
LIST OF EXHIBITS
Exhibit A Premises
Exhibit B Site Description
Exhibit C Base Building Improvements
Exhibit D Rules and Regulations Attached to and Made a Part of this Lease
Exhibit E Ground Lease
LEASE
This Lease is made and entered into as of this 20th day of October,
1999, by and between WILTON CAMPUS PROPERTIES, LLC, a Connecticut Limited
Liability Company, with its principal place of business at 0000 Xxxx Xxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx (the "Landlord") and GREENFIELD ONLINE, INC., a
Connecticut Corporation with its principal place of business at 000 Xxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx (the "Tenant").
ARTICLE 1. GRANT
1.01 Premises. Landlord, for and in consideration of the rents herein
reserved and of the covenants and agreements herein contained on the part of
Tenant to be performed, hereby leases to Tenant and Tenant accepts from
Landlord, certain space shown on Exhibit A attached hereto and made a part
hereof, containing approximately 30,500 rentable square feet of second floor
offices (hereinafter referred to as the "Premises"), situated in a building to
be constructed on the property located at 00-00 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx,
(the "Building"). The Premises, Building, the "Common Areas" (defined below) and
the land upon which the same are located, which is legally described in Exhibit
B (the "Site"), together with all other improvements thereon and thereunder are
collectively referred to as the "Project". The actual rentable square footage of
the Premises will be determined by a measurement conducted by a third party
architect selected by Landlord and Tenant using the Building Owners and Managers
Association ("BOMA") standards and methodology. Such measurement shall be in
connection with the Premises on the second floor of the Building only. Any
adjustment to the 30,500 rentable square feet demised by this Lease, greater or
lesser, shall be based on the assumption that the second floor rentable square
footage is 29,732. The rentable square footage for the Premises (30,500) shall
be increased or decreased based on the difference between 29,732 and the
measurement undertaken pursuant to this Section. The results of such measurement
shall be set forth in the recordable certificate of the Commencement Date
executed by the parties pursuant to this Lease upon completion of construction.
1.02 Common Areas. Landlord hereby grants to Tenant during the term of
this Lease, a license to use, in common with the others entitled to such use,
the Common Areas as they from time to time exist, subject to the rights, powers
and privileges herein reserved to Landlord. The term "Common Areas" as used
herein will include the first floor lobby as shown on Exhibit A-1 which shall be
available only to the second floor tenants in the Building and for emergency
ingress and egress in favor of the adjacent first floor tenant together with all
areas and facilities outside the Premises that are provided and designated by
Landlord for general use and convenience of Tenant and other tenants including,
but not limited to the hallways, lobbies, stairways, elevators, pedestrian
sidewalks, landscaped areas, loading areas, roadways, parking areas, rights of
way, walking and jogging paths, if any.
1.03 Parking. Tenant shall be entitled to use the parking facilities at
the Building in common with other tenants, but such right shall be limited to
approximately four (4) non-exclusive tenant parking spaces for each 1,000
rentable square feet of Premises, rounded to the nearest whole digit. Tenant
agrees not to overburden the parking facilities and agrees to cooperate with
Landlord and other tenants in the use of parking facilities. Landlord reserves
the right, at any time, to designate parking spaces in the Common Areas for the
handicapped and visitors to the Building and all tenants. For the term of this
Lease, Landlord agrees to reserve six (6) parking spaces in a reasonable
location of which two (2) spaces shall be as close to the entrance of the
Premises as possible, to be determined by Landlord.
ARTICLE 2. TERM
2.01 Lease Term.
(a) The Premises are leased for a term to commence on the
"Commencement Date" (as defined in Section 3.01(b)) and shall end on the date
(the "Expiration Date") that is nine (9) "Lease Years" (defined below) after the
Commencement Date unless sooner terminated as herein provided (including any
option terms, the "Term"). If Landlord gives and Tenant accepts possession prior
to the Commencement Date, such occupancy shall be subject to all the terms and
conditions of this Lease and rent and other charges shall be prorated to the
date that Tenant takes possession of the Premises.
(b) The first "Lease Year" shall begin on the date hereof and
shall end on the last day of the twelfth (12th) full calendar month following
the Commencement Date. Each Lease Year thereafter shall consist of twelve (12)
consecutive calendar months following the end of the immediately preceding Lease
Year except that the final Lease Year shall end on the Expiration Date.
2.02 Holdover Tenancy. Tenant acknowledges that if it fails to deliver
possession of the Premises to Landlord upon the expiration or sooner termination
of this Lease, Landlord shall incur substantial economic loss. In the event that
Tenant shall hold the Premises, or any part thereof, after the expiration of the
Lease Term without the prior written consent of the Landlord, such holding shall
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constitute and be construed as a tenancy at will only and for the first six (6)
months of such holding over carry a daily rental equal to 125% of the daily
Annual Base Rent payable during the last month, and for all periods after said
six (6) months a daily rental equal to 150% of the daily Annual Base Rent
payable during the last month of the Lease Term, plus 100% of the daily rate of
Additional Rent and other sums due under this Lease during the last month of the
Lease Term. In addition to such increased rental payment and any other
liabilities to Landlord accruing therefrom, Tenant shall indemnify and hold
Landlord harmless from loss or liability resulting from such failure, including,
without limiting the generality of the foregoing, both direct and consequential
liabilities and damages of Landlord arising from claims made by any succeeding
tenant arising due to such failure. Nothing contained herein shall be construed
as Landlord's consent for Tenant's holdover.
ARTICLE 3. COMPLETION AND OCCUPANCY OF THE PREMISES
Delivery of the Premises. (a)Landlord shall construct the base building
improvements ("Base Building Improvements") described on Exhibit C attached
hereto. Landlord shall complete the Base Building Improvements no later than
August 15, 2000 .Landlord's obligation to deliver the Premises to Tenant with
the Base Building Improvements substantially completed on or before August 15,
2000 shall be extended by the number of days of delay resulting from any "Force
Majeure Delay" as defined in Section 16.12 hereof. Landlord represents and
warrants to Tenant (i) that as of the date of this Lease it has obtained all
required permits and approvals from all relevant municipal, state and federal
agencies and departments with jurisdiction over the Project, authorizing and
permitting the Landlord to begin construction of the Base Building Improvements;
and, (ii) that during the construction of the Base Building Improvements
Landlord will comply with all terms and conditions of all permits and approvals
issued in connection with the Project and the construction of the Base Building
Improvements. For the purposes of this Section 3.01, the term "substantially
complete" shall mean Landlord has sufficiently completed the Base Building
Improvements in accordance with this Lease ( except minor punchlist items which
Landlord shall thereafter promptly complete) so that Tenant can proceed to
construct the Leasehold Improvements continuously and without interruption.
(a) As soon as reasonably possible after the execution of this
Lease, the parties and their respective architects shall work cooperatively and
diligently to prepare and approve the space plan for the Premises which shows
Tenant's leasehold improvements and installations (the "Leasehold Improvements")
and thereafter, architectural and construction plans and drawings prepared for
the Leasehold Improvements (the "Final Plans"). Tenant's architect, VanSummern
Group Architects, will cooperate with Landlord's architect to arrive at mutually
agreed upon space plans and building features. Tenant shall be responsible for
the selection of a general contractor to complete the Leasehold Improvements,
subject to the reasonable approval of Landlord. Landlord shall contribute an
allowance ("Landlord's Allowance") of not greater than $25 per rentable square
feet to be fully applied toward the cost of Leasehold Improvements. Landlord
shall pay the Landlord's Allowance to the Tenant as billed by Tenant commencing
with the first expenditures for the Leasehold Improvements. Tenant shall provide
Landlord with reasonable documentation as to expenditures.
(b) Tenant shall substantially complete the Leasehold
Improvements in accordance with the Final Plans and obtain the issuance of a
final certificate of occupancy no later than November 15, 2000..However, this
period to obtain a final certificate of occupancy shall be extended by twice the
number of days past August 15, 2000 that the Landlord completes the Base
Building Improvements and delivers the Base Building to the Tenant. The term of
this Lease and the obligations of the parties hereto shall commence on a date
which shall be the sooner of (a) the date Tenant commences operation of its
business in all or any portion of the Premises; or (b) A date which is
determined by counting past November 15, 2000 a number of days equal to twice
the number of days from August 15, 2000 that the Landlord completes the Base
building Improvements and delivers the Base Building to Tenant. For every day
beyond September 1, 2000 that the Landlord fails to complete the Base Building
Improvements the Landlord shall grant Tenant a rent credit equal to two days of
the Daily Annual Base Rent for the first Lease Year, such credit to be used by
the Tenant starting with the Commencement Date. In the event that the Landlord
fails to complete the Base Building Improvements on or before September 1, 2000,
and Tenant receives the rent credits provided for in this section, the Term of
this Lease shall not be extended by the number of free rent days to which Tenant
is entitled, but shall terminate on a date calculated according to the terms of
this Lease under the assumption that the Landlord had completed the Base
Building Improvements on September 1, 2000.
(c) The term "Commencement Date" shall mean and refer to the
date the later of November 15, 2000 or the extended date determined in
accordance with Section 3.01(b) above, whichever is applicable.
3.02 Tenant's Communications Systems. Tenant shall be responsible for
the design, installation and construction of Tenant's data, telephone and video
systems and wiring and payment of all cost and expense related thereto.
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3.03 Confirmatory Amendments. When the Commencement Date and Expiration
Date hereof have been determined in accordance with the provisions set forth in
this Lease, the parties hereto shall execute a document, setting forth said
dates and said document shall be deemed a supplement to and part of this Lease.
The parties hereto agree to execute such confirmatory document not later than
thirty (30) days following the Commencement Date.
ARTICLE 4. RENT AND SECURITY
4.01 Annual Base Rent. Beginning with the Commencement Date and
continuing throughout the Term, Tenant shall pay to or upon the order of
Landlord an annual rental (the "Annual Base Rent") as set forth below which
shall be payable in consecutive monthly installments on or before the first day
of each calendar month in advance in the monthly amount set forth below, as
adjusted by the measurement required by Section 1.01:
Annual Base Rent per
Period Annual Base Rent Rentable Square Foot Monthly Base Rent
------ ---------------- -------------------- -----------------
Lease Years 1-3 $823,500.00 $27.00 $68,625.00
Lease Years 4-6 $884,500.00 $29.00 $73,708.33
Lease Years 7-9 $945,500.00 $31.00 $78,791.67
All payments of rent shall be made without demand, deduction,
counterclaim, set-off, discount or abatement in lawful money of the United
States of America. If the Commencement Date should occur on a day other than the
first day of a calendar month, or the Expiration Date should occur on a day
other than the last day of a calendar month, then the monthly installment of
Annual Base Rent for such fractional month shall be prorated upon a daily basis
based upon a thirty (30) day month.
4.02 Additional Rent. Tenant shall pay to Landlord all charges and
other amounts required under this Lease and the same shall constitute additional
rent hereunder (herein called "Additional Rent"), including, without limitation,
any sums due resulting from the provisions of Article 5 hereof. All such amounts
and charges shall be payable to Landlord at the place where the Annual Base Rent
is payable. Landlord shall have the same remedies for a default in the payment
of Additional Rent as for a default in the payment of Annual Base Rent. The term
"Rent" as used in this Lease shall mean the Annual Base Rent and the Additional
Rent.
4.03 Place of Payment. The Annual Base Rent and all other sums payable
to Landlord under this Lease shall be paid to Landlord at X.X. Xxx 000,
Xxxxxxxx, Xxxxxxxxxxx 00000, or at such other place as Landlord shall designate
in writing to Tenant from time to time.
4.04 Terms of Payment. Tenant shall pay to Landlord all Annual Base
Rent as provided in Section 4.01 above and Tenant shall pay all Additional Rent
payable under Articles 5 and 6 on the terms provided therein. Except as provided
in this Article 4 and as may otherwise be expressly provided by the terms of
this Lease, Tenant shall pay to Landlord, within fifteen (15) days after
delivery by Landlord to Tenant of bills or statements therefor: (a) sums equal
to all expenditures made and monetary obligations incurred by Landlord under
this Lease for Tenant's account including, without limitation, expenditures made
and obligations incurred in connection with the remedying by Landlord any of
Tenant's defaults pursuant to the provisions of this Lease; (b) sums equal to
all expenditures made and monetary obligations incurred by Landlord for
reasonable counsel fees, in collecting or attempting to collect the Rent or any
other sum of money accruing under this Lease or in enforcing or attempting to
enforce any rights of Landlord under this Lease or pursuant to law; and (c) all
other sums of money accruing from Tenant to Landlord under the provisions of
this Lease.
4.05 Late Charges. If Tenant shall fail to pay any Annual Base Rent or
Additional Rent within ten (10) days after the date same is due and payable,
Tenant shall pay to Landlord (a) an administrative fee equal to five percent
(5%) of the amount due to cover Landlord's additional administrative costs and
cost of funds resulting from Tenant's failure, and (b) interest on the amount
due from its due date until paid at the lesser of 12% per annum or the maximum
legal rate that Landlord may charge Tenant; provided that, no such charges or
interest shall be payable with respect to any delinquent payment if such payment
is received by Landlord within five (5) days following written notice of such
failure. Such charges shall be paid to Landlord together with such unpaid
amounts. Such late payment charge shall not diminish or impair any other
remedies available to Landlord.
4.06 Security Deposit.
(a) For the faithful performance of all terms, covenants and
conditions of this Lease, Tenant shall pay to and deposit with
Landlord, a security deposit in the amount of Five Hundred
Thousand Dollars and 00/100 ($500,000.00) as follows (the
"Security Deposit"): the sum of Two Hundred Thousand Dollars
and 00/100 ($200,000.00) payable
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upon the execution of this Lease; One Hundred Thousand Dollars
and 00/100 ($100,000.00) payable on March 1, 2000 and, upon
Landlord's completion of the Base Building Improvements, an
unconditional, clean, letter of credit (the "L-C") in the
initial amount of Two Hundred Thousand Dollars ($200,000.00),
which L-C shall be issued by a money-center bank (a bank which
accepts deposits, maintains accounts, has a local Fairfield
County office which will negotiate a letter of credit, and
whose deposits are insured by the FDIC) reasonably acceptable
to Landlord, and which L-C shall be in a form and content
reasonably acceptable to Landlord. Tenant shall pay all
expenses, points and/or fees incurred by Tenant in obtaining
the L-C.
(b) The L-C shall not be mortgaged, assigned or encumbered in
any manner whatsoever by Tenant without the prior written consent of Landlord.
If Tenant defaults with respect to any provisions of this Lease, including, but
not limited to, the provisions relating to the payment of Rent, or if Tenant
fails to renew the L-C at least thirty (30) days before its expiration, Landlord
may, but shall not be required to, draw upon all or any portion of the L-C for
payment of any Rent or any other sum in default, or for the payment of any
amount that Landlord may reasonably spend or may become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any other loss or
damage that Landlord may suffer by reason of Tenant's default. The use,
application or retention of the L-C, or any portion thereof, by Landlord shall
not prevent Landlord from exercising any other right or remedy provided by this
Lease or by law, it being intended that Landlord shall not first be required to
proceed against the L-C and shall not operate as a limitation on any recovery to
which Landlord may otherwise be entitled. Any amount of the L-C which is drawn
upon by Landlord, but is not used or applied by Landlord, shall be held by
Landlord and deemed a security deposit (the "L-C Security Deposit"). If any
portion of the L-C is drawn upon, Tenant shall, within five (5) days after
written demand therefor, either (i) deposit cash with Landlord (which cash shall
be applied by Landlord to the L-C Security Deposit) in an amount sufficient to
cause the sum of the L-C Security Deposit and the amount of the remaining L-C to
be equivalent to the amount of the L-C then required under this Lease or (ii)
reinstate the L-C to the amount then required under this Lease, and if any
portion of the L-C Security Deposit is used or applied, Tenant shall, within
five (5) days after written demand therefor, deposit cash with Landlord (which
cash shall be applied by Landlord to the L-C Security Deposit) in an amount
sufficient to restore the L-C Security Deposit to the amount then required under
this Lease, and Tenant's failure to do so shall be a default under this Lease.
Tenant acknowledges that Landlord has the right to transfer or mortgage its
interest in the Project and the Building and in this Lease and Tenant agrees
that in the event of any such transfer or mortgage, Landlord shall have the
right to transfer or assign the L-C Security Deposit and/or the L-C to the
transferee or mortgagee, and in the event of such transfer and the assumption by
the transferee of all of the Landlord's obligations under this Lease, Tenant
shall look solely to such transferee or mortgagee for the return of the L-C
Security Deposit and/or the L-C.
(c) Provided Tenant is not in default of any of the terms,
provisions and/or conditions of this Lease, Landlord shall return a portion of
the Security Deposit to Tenant as follows: One Hundred Thousand Dollars
($100,000.00) within sixty (60) days following the end of the first Lease Year
and, One Hundred Thousand Dollars ($100,000.00) within sixty (60) days following
the end of the second Lease Year.
(d) Tenant agrees that Landlord may, without waiving any of
Landlord's other rights and remedies under this Lease upon the occurrence of any
of the Events of Default described in Article 13 hereof, apply the Security
Deposit (i) to remedy any failure by Tenant to repair or maintain the Premises
or to perform any other terms, covenants or conditions contained herein, or (ii)
to compensate Landlord for damages incurred, or to reimburse Landlord as
provided herein, in connection with any such Event of Default. Should Landlord
use any portion of the Security Deposit to cure any Event of Default by Tenant
hereunder, Tenant shall forthwith replenish the Security Deposit to the original
amount. Landlord shall not be required to keep the Security Deposit separate
from its general funds, and Tenant shall not be entitled to interest on any such
deposit.
(e) In the event of a sale or leasing of the Building,
Landlord shall have the right to transfer the balance of the Security Deposit to
the new owner or to tenant. Landlord shall thereupon be released by Tenant from
all liability for the return of the Security Deposit; and Tenant agrees to look
to the new landlord. If any mortgagee, including Landlord's Mortgagee (defined
in Section 14.01(a) below) should succeed to Landlord's interests hereunder,
such mortgagee should only be liable to Tenant for any security deposited by
Tenant hereunder to the extent such security was actually transferred to such
mortgagee.
(f) If Tenant performs all of Tenant's obligations hereunder,
Landlord will, within 30 days after the expiration or earlier termination of the
Lease, return the remainder of the Security Deposit, or so much as has not been
applied by Landlord, to Tenant or the last permitted assignee of Tenant's
interest hereunder
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ARTICLE 5. ADDITIONAL RENT FOR ESCALATIONS IN REAL ESTATE TAXES
AND OPERATING EXPENSES
5.01 Definitions. Annual Base Rent does not anticipate any increase in
the amount of taxes on the Building, or in the cost of the operation and
maintenance thereof. In order that the rent payable hereunder shall reflect any
such increases, Tenant agrees to pay as Additional Rent, an amount calculated as
hereinafter set forth. For purposes of this Article 5, the following definitions
shall apply:
"Tax Year": means the fiscal year of the Town of Wilton (July
1 - June 30) or other applicable governmental authority for real estate tax
purposes or such other twelve (12) month period as may be duly adopted in place
thereof.
"Base Taxes": shall mean the amount of Building Taxes as
assessed by the Town of Wilton during the Grand List Year of the issuance of a
Certificate of Occupancy for the Building, and the amount of LandTaxes assessed
against the land constituting the Site on the Grand List of October 1, 2000.
"Building Taxes": shall mean all Taxes assessed against the
Building.
"Land Taxes" : shall mean all Taxes assessed against the land
constituting the Site, against those improvements to the land which are part of
the Common Areas of the Site, and against the signs, if any on the Site, but the
Land Tax shall not include any Taxes assessed against any buildings at the
Project.
"Taxes": All taxes, assessments and charges of every kind and
nature levied, assessed or imposed at any time by any governmental authority
upon or against the Project or any improvements, fixtures and equipment of
Landlord or the owner of the Project used in the operation thereof whether such
taxes and assessments are general or special, ordinary or extraordinary,
foreseen or unforeseen in respect of each Tax Year following wholly or partially
within the Term. Taxes shall include, without limitation, all general real
property taxes and general and special assessments, charges, fees or assessments
for all governmental services or purported benefits to the Project, service
payments in lieu of taxes, all business privilege taxes, and any tax, fee or
excise on the act of entering into this Lease or any other lease of space in the
Building, or on the use or occupancy of the Building or any part thereof, or on
the rent payable under any lease or in connection with the business of renting
space under any lease or in connection with the business of renting space in the
Building, that are now or hereafter levied or assessed against Landlord by the
United States of America, the State of Connecticut, or any political
subdivision, public corporation, district or other political or public entity,
including legal fees, experts' and other witnesses' fees, costs and
disbursements incurred in connection with proceedings to contest, determine or
reduce Taxes. In the event that the Town of Wilton levies real property taxes on
the Project based on an assessment of the Project's value in a manner that
differentiates between rentable square footage at the Project used for retail
purposes as opposed to rentable square footage used for office purposes, Tenant
shall be responsible only for Additional Rent payments based on the increases in
real estate taxes levied on the rentable square footage devoted to office uses
multiplied by the Tenant's proportionate share of the rentable square footage at
the Project devoted to office use. Taxes shall also include any other tax, fee
or other excise, however described, that may be levied or assessed as a
substitute for, or as an addition to, in whole or in part, any other Taxes
(including, without limitation, any municipal income tax) and any license fees,
tax measured or imposed upon rents, or other tax or charge upon Landlord's
business of leasing the Building, whether or not now customary or in the
contemplation of the parties on the date of this Lease.
Taxes shall not include: (i) franchise, transfer, gift excise,
capital stock, estate, succession and inheritance taxes, and federal and state
income taxes measured by the net income of Landlord from all sources, unless due
to a change in the method of taxation such tax is levied or assessed against
Landlord as a substitute for, or as an addition to, in whole or in part, any
other Tax that would constitute a Tax; or (ii) penalties or interest for late
payment of Taxes.
"Base Expense Year": shall mean the calendar year 2001.
"Expense Year": shall mean the first and full calendar year
following the Base Expense Year and each calendar year thereafter.
"Base Expenses": shall mean the Operating Expenses for the
Base Expense Year equitably adjusted to the amount such Operating Expenses would
have been if ninety-five percent (95%) of the rentable area in the Building had
been occupied during the Base Expense Year if there is less than ninety-five
percent (95%) occupancy in the Base Expense Year. Only those component expenses
that are affected by variation in occupancy levels shall be "grossed-up". For
purposes of determining Tenant's Proportionate Share of increases in the
Operating Expenses, the Base Expenses shall be deemed to have been incurred by
Landlord during the Base Expense Year.
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"Expense Increases": attributable to an Expense Year, shall
mean the excess, if any, of the Operating Expenses incurred during such Expense
Year equitably adjusted, if less than ninety-five percent (95%) occupancy, to
the amount such Operating Expenses would have been if ninety-five percent (95%)
of the rentable area in the Building had been occupied during the Expense Year
over the Base Expenses. Only those component expenses that are affected by
variation in occupancy levels shall be "grossed-up".
"Operating Expenses": all costs and expenses (and taxes, if
any, thereon) paid or incurred on behalf of Landlord (whether directly through
the Ground Lease or through independent contractors) in connection with the
ownership, management, operation, maintenance and repair of the Building and
Common Areas and the Building's equitable share of any facilities or amenities
benefiting the Building or Site (including any sales or other taxes thereon)
during the Term as a first-class building, including, without limitation:
(a) Charges of independent contractors for expenses otherwise
includable in Operating Expenses, including, without limitation, charges for
window washing and other cleaning and janitorial services, snow and ice removal
services, exterior and interior landscaping, pest extermination services and
services for the maintenance and repair of the parking facilities, roadways and
light poles;
(b) All heating, ventilating, air conditioning, plumbing,
electrical, mechanical, sewer, fire detection, life safety and security systems,
telecommunications facilities, elevators and escalators, tenant directories,
emergency generator, sprinkler systems, and other equipment used in common by,
or for the benefit of, the Common Areas, occupants of the Building; and Utility
Expenses (excluding electricity supplied to the Premises and billed to Tenant
pursuant to Section 5.04 and electricity used by other tenants of the Building
within their leased space and billed directly to such tenants);
(c) The premiums for fire, extended coverage, loss of rents,
boiler, machinery, sprinkler, public liability, property damage, earthquake,
flood, and all other insurance relative to the Project and the operation and
maintenance thereof plus the cost of the deductible payments made by Landlord in
connection therewith;
(d) All supplies, tools, materials, equipment and maintenance
and service contracts in connection therewith; telephone, stationery, office
supplies and other office costs of administration; consulting fees, legal fees
and accounting fees and other expenses of maintaining and auditing Project
accounting records and preparing Landlord's Statements;
(e) Replacing, repairing, and/or adding any equipment, device,
improvement in order to reduce (or avoid an increase in) operation or
maintenance expenses with respect to the Project, or to comply with laws or
governmental orders or the requirements of Landlord's insurers, and any repairs
or removals necessitated thereby, amortized over their useful life as determined
in the reasonable judgment of Landlord's accountant (including interest at the
rate of 12% per annum or such higher rate as may have been paid by Landlord on
funds borrowed for the purpose of constructing such improvements);
(f) Salaries, wages, compensation, out-of-pocket expenses,
union benefits and labor costs (including the amount of any taxes, social
security taxes, unemployment insurance contributions, insurance, retirement,
medical, workers' compensation and other employee benefits) of janitors,
janitresses, engineers and other employees of Landlord, and any on-site
employees (below the executive level) of Landlord's property management agent;
(g) Fees for management services whether rendered by Landlord
(or affiliate) or a third-party property manager which shall be limited to an
amount no greater than 4% of the gross rents of the Building ;
Operating Expenses shall not include: (a) utility expenses
that are separately metered for any individual tenant in the Building; (b) any
expense for which Landlord is reimbursed by a specific tenant by reason of a
special agreement or requirement of the occupancy of the Building by such
tenant; (c) expenses for services provided by Landlord for the exclusive benefit
of a given tenant or tenants for which Landlord is directly reimbursed by such
tenant or tenants; (d) all costs, fees and disbursements relating to activities
for the solicitation, negotiation and execution of leases for space in the
Building (including but not limited to attorneys' fees therefor); (e) the costs
of alterations to, or the decorating or the redecorating of, space in the
Building leased to other tenants; (f) except as stated in subparagraph (g) of
the definition of Operating Expenses, the costs associated with the operation of
the business of the ownership or entity which constitutes "Landlord", including
costs of selling, syndicating, financing or mortgaging any of Landlord's
interest in the Project; (g) depreciation, interest and principal payments on
mortgages and other debt costs, if any; (h) repairs or other work required due
to fire or other casualty to the extent of insurance proceeds received by
Landlord; (i) capital expenses for items that are not included
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in the definition of "Operating Expenses; (j) all payments of Base Rent made by
Landlord pursuant to the Ground Lease.
"Tenant's Proportionate Share": On the Commencement Date,
Tenant's Proportionate Share shall be (i) 41.89%) percent for Building Taxes and
Operating Expenses which are solely related to the Building , (ii) 16.08%
percent for Land Taxes and Operating Expenses incurred for the benefit of all of
the rentable square footage at the Project .
"Landlord's Statement": Shall mean an instrument containing a
computation of any Additional Rent due pursuant to the provisions of this
Article 5.
"Utility Expenses": All expenses paid or incurred on behalf of
Landlord for utility or utility services for the Common Areas of the Project,
including, but not limited to, water, sewer, electric, gas, steam, fuel oil and
chilled water, together with any taxes on said costs.
5.02 Payment of Taxes. Tenant shall pay, as Additional Rent, Tenant's
Proportionate Share of all Land Taxes and all Building Taxes in respect of any
Tax Year falling wholly or partially within the Term, to the extent that Taxes
for any such period shall exceed the Base Taxes (which payment shall be adjusted
by proration with respect to any partial Tax Year. Landlord shall submit to
Tenant a copy of the xxxx for Taxes payable by Landlord under the Ground Lease
and a copy of the xxxx for Building Taxes together with Landlord's Statement and
Tenant shall pay the Additional Rent set forth on such Landlord's Statement
(less the amount of estimated payments paid by Tenant on account thereof) as set
forth herein. Landlord, at its option, may require Tenant to make monthly
payments on account of Tenant's Proportionate Share of Taxes in excess of the
Base Taxes. The monthly payments shall be one-twelfth (1/12th) of the amount of
Tenant's Proportionate Share of Taxes in excess of the Base Taxes and shall be
payable on or before the first day of each month during the Term, in advance, in
an amount estimated by Landlord and billed by Landlord to Tenant; provided that
Landlord shall have the right initially to determine such monthly estimates and
to revise such estimates from time to time. With reasonable promptness after
Landlord has received the tax bills for any Tax Year, Landlord shall furnish
Tenant with Landlord's Statement with respect thereto. If the actual amount of
Tenant's Proportionate Share of Taxes exceeds the estimated amount of Tenant's
Proportionate Share of Taxes paid by Tenant for any Tax Year, then Tenant shall
pay to Landlord as Additional Rent the difference between the amount of
estimated Tenant's Proportionate Share of Taxes paid by Tenant and the actual
amount of Tenant's Proportionate Share of Taxes. This Additional Rent payment
shall be due and payable within thirty (30) days after delivery of Landlord's
Statement. If the total amount of estimated payments made by Tenant in respect
of Tenant's Proportionate Share of Taxes paid by Tenant for any Tax Year shall
exceed the actual amount of Tenant's Proportionate Share of Taxes for such Tax
Year, then such excess amount shall be credited against the monthly installments
of Additional Rent due and payable from Tenant to Landlord hereunder with
respect to Taxes, until such amount shall have been refunded in full to Tenant.
5.03 Payment of Operating Expenses. Tenant shall pay to Landlord on
account of Tenant's Proportionate Share of Expense Increase and as Additional
Rent, a sum equal to one-twelfth (1/12) of the amount of Tenant's Proportionate
Share of Expense Increases for each Expense Year on or before the first day of
each month of such Expense Year, in advance, in an amount estimated by Landlord
and billed by Landlord to Tenant; provided that Landlord shall have the right
initially to determine such monthly estimates and to revise such estimates from
time to time. After the expiration of the Base Expense Year and each Expense
Year, Landlord shall prepare and furnish Tenant with Landlord's Statement
showing the Base Expenses or the Operating Expenses incurred during such Expense
Year. Within thirty (30) days after receipt of Landlord's Statement for any
Expense Year setting forth Tenant's Proportionate Share of any Expense Increase
attributable to such Expense Year, Tenant shall pay Tenant's Proportionate Share
of such Expense Increase (less the amount of estimated payments paid by Tenant
on account thereof) to Landlord as Additional Rent. If the actual amount of
Tenant's Proportionate Share of the Expense Increase for such Expense Year
exceeds the estimated amount of Tenant's Proportionate Share of Expense
Increases paid by Tenant for such Expense Year, then Tenant shall pay to
Landlord the difference between the estimated amount of Tenant's Proportionate
Share of Expense Increases paid by Tenant and the actual amount of Tenant's
Proportionate Share of Expense Increases. This Additional Rent payment shall be
due and payable within thirty (30) days following delivery of Landlord's
Statement. If the total amount of estimated payments made by Tenant in respect
of Tenant's Proportionate Share of Expense Increases for such Expense Year shall
exceed the actual amount of Tenant's Proportionate Share of Expense Increases
for such Expense Year, then such excess amount shall be credited against the
monthly installments of Additional Rent due and payable from Tenant to Landlord
hereunder with respect to Expense Increases until such amount shall have been
refunded in full to Tenant. Notwithstanding anything to the contrary herein, in
no event shall the aggregate credits allowable to Tenant, in any Expense Year
pursuant to this Article 5 exceed the aggregate of the Additional Rent payments
payable by Tenant pursuant to this Article 5; provided, however, any excess
payments made by Tenant during the Term that have not been so applied and are
outstanding at the end of the Term shall be paid to Tenant promptly following
Landlord's final accounting for the final Expense Year.
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5.04 Payment of Electric Expense. Tenant shall pay for a portion of the
electric energy consumed within the Premises (the "Electric Expense") subject to
the provisions of this Section 5.04. During the first Lease Year Tenant shall
pay to Landlord, monthly in advance, an Electric Expense at the per annum rate
of $2.25 per rentable square foot of the Premises. During the remainder of the
term of this Lease, Tenant shall pay to Landlord an annual Electric Expense
equal to the sum of (x) $2.25 per rentable square feet plus a portion of the
increase of the actual per rentable square foot electric expense calculated as
follows: The actual per rentable square foot electrical expense for the first
Lease Year shall be subtracted from the actual per rentable square foot
electrical expense for the second Lease Year. The resulting number shall be
multiplied by a fraction, the numerator of which is the said result and the
denominator is the actual per rentable square foot electrical expense for the
first Lease Year. This same calculation shall be made from year to year.
For example, if the actual per rentable square foot electrical expense for the
first Lease Year is $3.00, and the actual per rentable square foot electrical
expense for the second Lease Year is $3.10, the Tenant would owe a per rentable
square foot electric expense for the second Lease Year of $2.25 plus an amount
equal to $3.10 - 3.00 = .10, with the resulting figure of .10 being multiplied
by the quotient of .10/3.00 or 0.033, which equals 3.3 cents, for a total per
rentable square footage electrical payment in the second year of $2.25 plus
3.3cents or $2.28.3. This same calculation would be applied in subsequent years
by substituting Lease Year two for Year one and Lease Year three for Lease Year
two and so on.
The Electric Expense payable in respect of the Premises shall constitute
Additional Rent under this Lease (but shall not be included as an Operating
Expense), and shall be due and payable quarterly in arrears beginning on the
Commencement Date and continuing on the first day of each calendar month during
the Term.
5.05 Landlord's Statements and Tenant's Inspection Rights.
(a) Landlord's Statements shall be rendered to Tenant, but
Landlord's failure to render Landlord's Statement with respect to the Base
Expense Year, any Expense Year or any Tax Year or Landlord's delay in rendering
said Statement beyond a date specified herein shall not prejudice Landlord's
right to render a Landlord's Statement with respect to that or any subsequent
Expense Year or Tax Year. The obligations of Landlord and Tenant under the
provisions of this Article with respect to any Additional Rent incurred during
the Term shall survive the expiration or any sooner termination of the Term. If
Landlord fails to give Tenant a statement of projected Operating Expenses prior
to the commencement of any Expense Year, Tenant shall continue to pay Operating
Expenses in accordance with the previous statement, until Tenant receives a new
statement from Landlord.
(b) During the thirty (30) day period after receipt of any
Landlord's Statement (the "Review Period"), Tenant may inspect and audit
Landlord's records relevant to the cost and expense items reflected in such
Landlord's Statement at a reasonable time mutually agreeable to Landlord and
Tenant during Landlord's usual business hours. In the absence of recklessness or
fraud, each Landlord's Statement shall be conclusive and binding upon Tenant
unless within thirty (30) days after receipt of such Landlord's Statement Tenant
shall notify Landlord that it disputes the correctness of Landlord's Statement,
specifying the respects in which Landlord's Statement is claimed to be
incorrect. If, after such inspection, Tenant disputes the amount of its
Proportionate Share of Operating Expenses or Taxes, Tenant shall be entitled to
retain an independent company or certified public accountant reasonably
acceptable to Landlord to review Landlord's records to determine the proper
amount of such Additional Rent. If such audit or review reveals that Landlord
has overcharged Tenant, then within thirty (30) days after the results of such
audit are made available to Landlord, Landlord shall reimburse Tenant the amount
of such overcharge. If the audit reveals that Tenant was undercharged, then
within thirty (30) days after the results of the audit are made available to
Tenant, Tenant shall reimburse Landlord the amount of such undercharge. If
Landlord desires to contest such audit results, Landlord may do so by submitting
the results of the audit to arbitration pursuant to Section 13.06 of the Lease
within thirty (30) days of receipt of the results of the audit, and the
arbitration shall be final and binding upon Landlord and Tenant. Tenant agrees
to pay the cost of such audit, however, should the audit determine that the
applicable Landlord's statement overcharged the Tenant by 15% or more, Landlord
shall pay all of Tenant's reasonable expenses, including accountant's and
attorney's fees, incurred in connection with the audit. Pending the
determination of such dispute as hereinafter provided, Tenant shall pay
Additional Rent in accordance with the applicable Landlord's Statement, and such
payment shall be without prejudice to Tenant's position. All inspections and
audits of Landlord's books and records and any arbitration shall be subject to a
confidentiality agreement reasonably acceptable to Landlord.
5.06 Additional Rent Adjustments. If the Term shall expire on a date
other than December 31st, any Additional Rent for the Lease Year in which the
expiration date shall occur shall be apportioned (based upon the immediately
preceding 12 month period) in that percentage which the number of days in the
period from January 1st of such Lease Year to such date of expiration, both
inclusive, shall bear to the total number of days in the calendar year in which
such expiration occurs.
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ARTICLE 6. SERVICES AND UTILITIES
6.01 Services. Landlord shall provide the following services to the
Building and Premises (subject to Tenant's reimbursement and payment obligations
therefor in accordance with the operation of Article 5 hereof):
(a) Janitor services for the Common Areas, including garbage
removal, excluding Saturdays, Sundays and union and state and federal government
holidays (the "Holidays").
(b) Heat and air-conditioning as required to maintain
comfortable temperature throughout the Premises (excluding specialized
temperature and humidity control for computers, printers and other equipment)
daily from 8:00 a.m. to 7:00 p.m. Monday through Friday and Saturdays from 8:00
a.m. to 12:00 noon ("Normal Business Hours").
(c) Hot and cold running water for cleaning, landscaping,
grounds maintenance, fire protection, drinking, lavatory and toilet purposes
drawn through fixtures installed by Landlord or by Tenant with Landlord's
written consent. If Tenant's water use increases beyond customary office user
levels, Landlord shall have the right to install a water meter at Tenant's
expense and to charge Tenant as Additional Rent for its water consumption in the
Premises in accordance with readings from such meter.
(d) Electric current only, in amounts required for normal
lighting by building standard lighting overhead fixtures and for Tenant's normal
business operations, including without limitation, personal computers, copiers,
facsimiles and other ordinary business, subject, however, to Landlord's approval
of Tenant's final electrical plan for the Premises (but specifically excluding
electric current surge protection).
(e) Window washing of all windows in the Premises both inside
and out, weather permitting at intervals established by Landlord.
(f) Maintenance of the Common Areas so that they are clean and
free from accumulations of snow, debris, filth, rubbish and garbage.
(g) Access by Tenant to the Premises and use of designated
elevator service 24 hours per day, seven (7) days per week, 52 weeks per year,
subject to the operation of Landlord's computerized access system at the
Building's entrances and to Landlord's Rules and Regulations. Overtime HVAC and
other services shall be available as provided in Section 6.02 hereof, if
applicable.
6.02 Additional Services. Landlord shall impose reasonable charges and
may establish reasonable rules and regulations for the following: (a) the use of
any heating, air-conditioning, ventilation, electric current or other utility
services or equipment by Tenant at any time other than during the hours set
forth in Section 6.01(b) above ("Overtime HVAC"); (b) the usage of any
additional or unusual janitorial services required because of any non-building
standard improvements in the Premises, the carelessness of Tenant, the nature of
Tenant's business (including the operation of Tenant's business other than
during the hours set forth in Section 6.01(b); and (c) the removal of any refuse
and rubbish left outside the Building or in the Common Areas. The expense
charged by Landlord to Tenant for any Overtime HVAC shall be based on Landlord's
actual cost for such utility services as charged to Landlord by the utility
companies providing such services over and above the cost to Landlord for the
usual Building temperature maintained by Landlord after Normal Business Hours
This amount shall constitute Additional Rent and shall be payable in accordance
with Section 4.04.
6.03 Excessive Current. Tenant shall comply with the conditions of
occupancy and connected electrical load reasonably established by Landlord for
the Building and Tenant shall not use utilities or other services in excess of
the services described above in Section 6.01 or in a manner which exceeds or
interferes with any Building systems or Landlord's ability to provide services
to other tenants in the Building. To avoid possible adverse effects upon the
Building's electrical and mechanical systems, Tenant shall not, without
Landlord's prior consent in each instance (which shall not be unreasonably
withheld), connect air conditioning equipment, computers, (excluding personal
computers and printers and office copiers and facsimile machines), major
appliances (excluding coffee makers, microwave ovens and other similar food
preparation appliances) or heavy duty equipment ("High Usage Equipment") to the
Building's electrical system. Landlord may survey Tenant's use of services from
time to time. Tenant shall pay Landlord all costs arising out of any excess use
or other connection of High Usage Equipment, including the cost of all repairs
and alterations to the Building's mechanical and electrical systems (including
the installation of meters) and the cost of additional electricity made
available to Tenant, if any. Such costs shall constitute Additional Rent and
Tenant shall pay such costs pursuant to Section 4.04.
6.04 Maintenance of Common Areas. The manner in which the Common Areas
are maintained and operated and the expenditures therefor shall be at the sole
discretion of Landlord and in accordance with the standards of comparable first
class buildings in Fairfield County. Landlord reserves
9
the right from time to time to (a) make changes in the shape, size, location and
appearance of the land and improvements which constitute the Common Areas,
provided that Landlord shall not materially impair the Tenant's ability to
operate its business or reduce the parking allotted to Tenant below the parking
available as of the Commencement Date, except temporary impairments required by
said changes; (b) make such improvements, alterations and repairs to the Common
Areas as may be required by governmental authorities or by utility companies
servicing the Building; (c) construct, maintain and operate lighting and other
facilities on all said areas and improvements; and (d) to add or remove
improvements and facilities to or from the Common Areas. The use of the Common
Areas shall be subject to such reasonable regulations and changes therein as
Landlord shall make from time to time, including (but not by way of limitation)
the right to close from time to time, if necessary, all or any portion of the
Common Areas to such extent as may be legally sufficient, in the opinion of
Landlord's counsel, to prevent a dedication thereof or the accrual of rights of
any person or of the public therein; provided, however, Landlord shall do so at
such times and in such manner as shall minimize any disruption to Tenant to the
extent reasonably possible.
6.05 Access to Premises. Landlord shall have the right to enter the
Premises without abatement of Rent at all reasonable times upon twenty-four (24)
hours prior notice to Tenant (except in emergencies when no notice shall be
required), (i) to supply any service to be provided by Landlord to Tenant
hereunder, (ii) to show the Premises to Landlord's Mortgagee and to prospective
purchasers, mortgagees and tenants, and (iii) to inspect, alter, improve or
repair the Premises and any portion of the Building. For each of the purposes
stated above in this Section 6.05, Landlord shall at all times have and retain a
key with which to unlock all of the doors in, upon and about the Premises,
excluding Tenant's vaults and safes, or special security areas (designated in
advance), and Landlord shall have the right to use any and all means that
Landlord may deem necessary or proper to open said doors in an emergency, in
order to obtain entry to any portion of the Premises. Landlord and its agents
and representatives shall have the right to enter upon the Premises for any and
all of the purposes set forth in this Article and may exercise any and all of
the foregoing rights without being deemed guilty of a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction, actual or constructive of
Tenant from the Premises, or any portion thereof, if reasonably necessary to
comply with any governmental statute, ordinance or building, fire or other code.
6.06 Interruption of Services. There shall be no abatement of Rent and
Landlord shall not be liable in any respect whatsoever for the inadequacy,
stoppage, interruption, or discontinuance of any utility or service due to riot,
strike, labor dispute, government request or direction, breakdown, accident,
repair, or other cause. The foregoing notwithstanding, in the event of any
interruption or stoppage of any essential utility service which Landlord is
required to provide, if such interruption or stoppage is for more than five (5)
consecutive days or more than ten (10) total days in any calendar year, and is
of a nature which materially interferes with the Tenant's use of the Premises
for the conduct of its business, is not rendered necessary by the negligence or
misconduct of Tenant or any Tenant Parties, and is within Landlord's reasonable
control, then the Rent shall be abated at the rate of one (1) day for each day
of interruption and stoppage after said fifth (5th) consecutive day or tenth
(10th)after notice by Tenant to Landlord of such interruption or stoppage until
such service is restored.
ARTICLE 7. CONDUCT OF BUSINESS BY TENANT
7.01 Permitted Use. The Premises shall be used and occupied for general
office purposes and ancillary uses related thereto including the conduct of
"focus groups". Tenant shall not use or occupy, or permit the use or occupancy
of, the Premises or any part thereof for any use other than the sole use
specifically set forth above or in any illegal manner, or in any manner that, in
Landlord's judgment, would adversely affect or interfere with any services
required to be furnished by Landlord to Tenant or to any other tenant or
occupant of the Building, or with the proper and economical rendition of any
such service, or with the use and enjoyment of any part of the Building by any
other tenant or occupant. Tenant agrees that it will not exceed the maximum
floor bearing capacity for the Premises.
7.02 Compliance with Laws.
(a) Tenant, at Tenant's expense, shall comply promptly with
the laws, ordinances, rules, regulations and orders of all governmental
authorities in effect from time to time during the Term that shall impose any
duty on Tenant with respect to the Premises or the use, occupancy and operation
thereof, including, without limitation, the Americans with Disabilities Act
("ADA"), and all applicable zoning, fire and health codes. Tenant will obtain
and maintain in full force and effect any and all licenses and permits necessary
for its use. Tenant shall make any Alterations in or to the Premises in order to
comply with the foregoing, which are necessitated or occasioned, in whole or in
part by the use or occupancy or manner of use, occupancy or operation of the
Premises by Tenant or any of its officers, employees, agents, contractors,
invitees, licensees or subtenants (the "Tenant Parties").
10
(b) Landlord shall comply with all laws, ordinances, rules,
regulations and orders of all governmental authorities in effect from time to
time during the Term that shall impose any duty on Landlord with respect to the
Common Areas of the Building, and excluding any matters that arise from the acts
or omissions of Tenant or other tenants of the Building or that are Tenant's
responsibility under this Lease or the responsibility of other tenants of the
Building. The Leasehold Improvements designed and constructed by Landlord will
conform upon completion to all applicable legal requirements, including, without
limitation, the requirements of Title III of the ADA. Notwithstanding anything
to the contrary contained herein, Tenant shall be responsible for legal
compliance, including the requirements of the ADA, with respect to (i) any and
all requirements on account of Tenant's use of or operations in the Premises,
and (ii) all Alterations designed or constructed by Tenant or its contractors or
agents.
7.03 Landlord's Rules and Regulations. Tenant shall faithfully observe
and comply with the rules and regulations attached to this Lease as Exhibit C,
and all reasonable modifications thereof and additions thereto from time to time
put into effect by Landlord (the "Rules and Regulations"). Tenant shall not use
or permit the use of the Premises in any manner that will tend to create waste
or a nuisance, or which shall tend to unreasonably disturb other tenants of the
Building. Landlord shall not be responsible to Tenant for the nonperformance of
any of the Rules and Regulations by any other tenants or occupants on the
Building. Landlord shall use reasonable efforts to enforce the Rules and
Regulations in a fair and non-discriminatory manner. In the event of an express
and direct conflict between the terms, covenants, agreements and conditions of
this Lease and the terms, covenants, agreements and conditions of such rules and
regulations, as modified and amended from time to time by Landlord, this Lease
shall control.
7.04 No Liens. Tenant shall keep the Premises and Project free from any
liens or encumbrances arising out of any work performed, material furnished or
obligations incurred by or for Tenant or any person or entity claiming through
or under Tenant. Prior to Tenant performing any construction or other work on or
about the Premises for which a lien could be filed against the Premises or the
Project, Tenant shall obtain satisfactory lien waiver agreements with each
contractor who is to perform such work or furnish any material. Any claim to, or
lien upon, the Premises or the Building arising from any act or omission of
Tenant shall accrue only against the leasehold estate of Tenant and shall be
subject and subordinate to the paramount title and rights of Landlord in and to
the Premises and the Project. If any mechanics' or other lien shall be filed
against the Premises or the Project purporting to be for labor or material
furnished or to be furnished at the request of the Tenant, then Tenant shall at
its expense cause such lien to be discharged of record by payment, bond or
otherwise, within thirty (30) days after the filing thereof, or shall within
thirty (30) days after filing commence an action in the Superior Court to have
the Lien discharged and diligently prosecute said action.
7.05 Hazardous Substances.
(a) Tenant shall not generate, store (except for small
quantities of substances ordinarily stored and used in connection with general
office use if stored, used and disposed of, in accordance with all laws relating
thereto), dispose of or release, or permit the storage, use, disposal or release
of, any "Hazardous Substances" (as hereinafter defined), in, above, on or under
the Premises or the Project. Tenant shall remove, clean-up and remedy any
Hazardous Substance on the Premises or in accordance with applicable law,
provided that the presence of such Hazardous Substance resulted from the action
or inaction of Tenant, or any Tenant Parties and Tenant shall be obligated to
continue to pay Rent hereunder until such removal, clean-up or remedy is
completed in accordance with applicable laws, whether or not the Term shall
terminate or expire.
(b) Tenant shall not take or permit any action that would
cause the Premises or Project to become an "establishment" (as defined in the
Connecticut Transfer Act, C.G.S. ss. 22a-134). Tenant hereby grants Landlord the
right to inspect the Premises on not less than twenty-four (24) hours notice to
Tenant (except in the event of an emergency in which case Landlord will use
reasonable efforts commensurate with the nature of the emergency condition to
give Tenant prior notice) throughout the Term, to determine that Tenant is in
compliance with applicable laws and Tenant agrees to provide Landlord with all
information necessary to ascertain that Tenant is in compliance with applicable
laws. Tenant shall cooperate with Landlord in satisfying any legal requirements
imposed upon Landlord relating to Tenant's operations, and, upon Landlord's
written request, shall furnish complete information to Landlord with regard to
its operations. In connection with any transfer of the Premises or Project,
Tenant shall comply with the Connecticut Transfer Act and any other applicable
laws relative to its operations.
(c) "Hazardous Substances" shall mean any petroleum, petroleum
products, fuel oil, waste oil, explosives, reactive materials, ignitable
materials, corrosive materials, hazardous chemicals, hazardous wastes, hazardous
substances, extremely hazardous substances, toxic substances, toxic chemicals,
radioactive materials, medical waste, pollutants, herbicides, fungicides,
rodenticides, insecticides, contaminant, or pesticides and including, but not
limited to any other element, compound,
11
mixture, solution or substance which may pose a present or potential hazard to
human health or the environment. Tenant shall comply with all laws applicable to
the generation, storage, use, disposal or release of Hazardous Substances,
including but not limited to, obtaining and maintaining any permits from, or
making any filings or registrations with, by any governmental authority as
required under any applicable law.
(d) Tenant shall indemnify, defend with counsel reasonably
acceptable to Landlord, and hold Landlord fully harmless and any mortgagee of
the Project, from and against any and all liability, loss, suits, claims,
actions, causes of action, remediation orders, proceedings, demands, costs,
penalties, damages, fines and expenses, including, without limitation,
attorneys' fees, consultants' fees, laboratory fees and clean-up costs, and the
costs and expenses of investigating and defending any claims or proceedings,
resulting from, or attributable to, (i) the presence of any Hazardous Substance
on the Premises or the Project arising from the action, inaction or negligence
of Tenant, its officers, employees, contractors, agents, subtenants or invitees,
or arising out the generation, storage, treatment, handling, transportation,
disposal or release by Tenant of any Hazardous Substance at or near the Premises
or the Project, and (ii) any violation(s) by Tenant of any applicable law
regarding Hazardous Substances, and (iii) default of any of its agreements under
Section 7.05 of this Lease.
7.06 Tenant's Failure to Maintain. If Landlord gives Tenant written
notice of the necessity of any repairs or replacements required to be made under
Section 8.02 and Tenant fails to commence diligently to cure the same within
thirty (30) days thereafter (except that no notice will be required in case of
any emergency repair or replacement necessary to prevent substantial damage or
deterioration), Landlord, at its option and in addition to any other remedies,
may proceed to make such repairs or replacements and the expenses incurred by
Landlord in connection therewith plus 10% thereof for Landlord's supervision,
shall be due and payable from Tenant in accordance with Section 4.04 hereof, as
Additional Rent; provided, that Landlord's making any such repairs or
replacements shall not be deemed a waiver of Tenant's default in failing to make
the same.
7.07 Surrender. Upon the expiration or sooner termination of the Term,
Tenant will quietly and peacefully surrender to Landlord the Premises in as good
condition as when Tenant took possession, ordinary wear and tear excepted, and
otherwise as is required in Article 8. In addition, at such time Tenant shall
remove all Hazardous Substances stored, or disposed of, or generated by Tenant
in its use or operation of the Premises and all equipment and materials
contaminated or affected by such Hazardous Substances in conformity with the
Hazardous Substance laws. Tenant shall surrender the Premises to Landlord at the
end of the Term hereof, without notice of any kind, and Tenant waives all right
to any such notice as may be provided under any laws now or hereafter in effect
in Connecticut.
ARTICLE 8. ALTERATIONS, IMPROVEMENTS AND SIGNAGE
8.01 Landlord's Obligations. Landlord will maintain all structural
components of the Building, including, without limitation, the roof, foundation,
exterior and load-bearing walls (including exterior windows and doors), the
structural floor slabs and all other structural elements of the Premises, as
well as the Common Areas of the Building, in good repair, reasonable wear and
use, casualty and condemnation excepted. Maintenance and repair expenses caused
by Tenant's willful misconduct or negligent acts or omissions shall be paid
directly to Landlord by Tenant in accordance with Section 4.04, and shall not
constitute an Operating Expense. Landlord shall not be liable for and there
shall be no abatement of Rent with respect to any injury to or interference with
Tenant's business arising from any repairs, maintenance, alteration or
improvement in or to any portion of the Project, including the Premises, or in
or to the fixtures, appurtenances and equipment therein unless caused by the
negligent or intentional acts or omissions of the Landlord, the Landlord Parties
or their respective contractors, agents, servants and employees.
(a) Tenant's Obligations. Tenant shall take good care of the
Premises, and at Tenant's cost and expense, shall make all repairs and
replacements necessary to preserve the Premises in good working order and in a
clean, safe and sanitary condition, and will suffer no waste. Interior cleaning
of the Premises shall be contracted and paid for by Tenant. Tenant shall
maintain, at its own expense, in good order, condition and repair to Landlord's
reasonable satisfaction, all plumbing facilities and electrical fixtures and
devices (including replacement of all lamps, starters and ballasts) located
within the Premises. Tenant shall repair, at its cost, all deteriorations or
damages to the Project occasioned by its negligent acts or omissions or willful
misconduct. If Tenant does not make such repairs to the Building within thirty
(30) days following notice from Landlord, Landlord may, but need not, make such
repairs, and Tenant shall pay the cost thereof as provided in Section 7.06
hereof. All repairs and replacements made by or on behalf of Tenant shall be
made and performed in accordance with the "Construction Standards" (as defined
in Section 8.03).
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8.02 Tenant's Alterations.
(a) Tenant shall not make or permit any improvements,
installations, alterations or additions ("Alterations") in or to the Premises,
the Building or the Project; provided, however, Tenant may, with Landlord's
advance written consent, which consent shall not be unreasonably withheld, make
Alterations to the Premises that do not involve or affect either structural
portions of the Premises or the Building or any of the Building's HVAC,
mechanical, electrical, plumbing or other systems or equipment (the "Building
Systems"). At the expiration of the Term, Landlord may require the removal of
any or all of said Alterations and the restoration of the Premises and the
Project to their prior condition, at Tenant's expense in accordance with Section
8.05.
(b) All Alterations permitted by Landlord and made by or on
behalf of Tenant shall be made and performed: (a) at Tenant's cost and expense
and at such time and in such manner as Landlord may reasonably designate, (b) by
contractors or mechanics approved by Landlord, who shall carry liability
insurance of a type and in such amounts as Landlord shall reasonably require,
naming Landlord and Tenant as additional insureds, (c) in a good and workmanlike
manner, (d) so that same shall be at least equal in quality, value, and utility
to the original work or installation, (e) in accordance with the Rules and
Regulations for the Building adopted by Landlord from time to time and in
accordance with all applicable Laws, and (f) pursuant to plans, drawings and
specifications ("Tenant's Plans") which have been reviewed and approved by
Landlord prior to the commencement of the repairs or replacements and approved
by, and filed with, all applicable governmental authorities, and subject to all
other terms and conditions of this Lease, including, but not limited to, Section
7.05 (collectively the "Construction Standards"). All Alterations made by Tenant
shall become, upon installation, the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the Lease term, unless
Landlord requires their removal pursuant to Section 8.03(a). Landlord agrees not
to unreasonably withhold any approvals requested under this Section 8.03(b).
Landlord agrees to review all Tenant's Plans and provide written notice of its
approval within 10 business days of receipt, or such Plans will be deemed
approved.
8.03 Tenant's Property. Any trade fixtures, furnishings, equipment and
personal property placed in the Premises that are removable without damage to
the Building or the Premises, whether the property of Tenant or leased by
Tenant, are herein sometimes called "Tenant's Property". Any of Tenant's
Property remaining on the Premises at the expiration of the Term shall be
removed by Tenant at Tenant's cost and expense, and Tenant shall, at its cost
and expense, repair any damage to the Premises or the Building caused by such
removal. Any of Tenant's Property not removed from the Premises prior to the
Expiration Date shall, at Landlord's option, become the property of Landlord or
Landlord may remove such Tenant's Property, and Tenant shall pay to Landlord,
Landlord's cost of removal and of any repairs in connection therewith in
accordance with Section 4.04(b) hereof.
8.04 Ownership and Removal. All appurtenances, additions, fixtures and
improvements attached to or installed in or upon the Premises, whether placed
there by Tenant or by Landlord, shall be Landlord's property and shall remain
upon the Premises at the termination of this Lease by lapse of time or otherwise
without compensation or allowance or credit to Tenant. Landlord may require, in
its discretion, the removal by Tenant of any Tenant's Property or Alterations
which have been attached to or installed in the Premises (excluding the initial
Leasehold Improvements) unless Landlord consents to a written request from
Tenant at the time of its approval of the Tenant's Plans that an installation
need not be so removed. On or before the Expiration Date, or the sooner date of
termination of this Lease, Tenant shall pay to Landlord the cost of repairs of
any damage to the Premises or Building and losses caused by the removal of such
property.
8.05 Signage. Landlord shall provide building standard signage
identifying Tenant by name on the Building multi-tenant signage in the main
Building lobby directory and will also provide building standard entry signage
at the main entry to the Premises Subject to local zoning regulations, Tenant
shall have the right to Tenant specific signage on the exterior Building subject
to Landlord's prior written approval (which shall not be unreasonably withheld
or delayed). Except as set forth above, Tenant has no right to any Tenant
signage, monuments, graphics or advertising on the exterior of the Premises or
any other location in or at the Project. Landlord shall have the absolute and
exclusive right to approve or disapprove the content, design, size and location
of any and all proposed Tenant signage and monuments proposed to be erected
and/or maintained at the Premises or Project.
ARTICLE 9. INSURANCE
9.01 Tenant's Insurance. Tenant, at its own expense, shall provide and
keep in force with companies acceptable to Landlord during the Term: (a)
comprehensive general liability insurance insuring against liability for bodily
injury and property damage, including contractual liability, in the amount of
$6,000,000 maximum combined single limit; (b) "Special Form" property insurance,
including standard fire and extended coverage insurance, in amounts necessary to
provide replacement cost coverage, for Tenant's Property, trade fixtures,
machinery, equipment, furniture, furnishings and any Alterations in which Tenant
has an insurable property interest, including, without limitation, vandalism and
malicious mischief and sprinkler leakage coverage, and "all risk" Builder's Risk
insurance, completed value, non-
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reporting form at any time that Tenant has commenced construction of any
leasehold improvements or any Alterations, and at any time any other
construction activities are underway at the Premises; (c) plate glass insurance
for the Premises; (d) Workers' Compensation Insurance in statutory limits as
required by applicable law; and (e) any other insurance reasonably required by
Landlord.
9.02 Delivery of Policies. The aforesaid insurance shall be provided by
companies and in form, substance and amounts (where not above stated)
satisfactory to Landlord and to Landlord's Mortgagee by companies rated A-/VII
or better by A.M. Best Company. Such insurance shall name Landlord as an
additional insured, shall specifically include the liability assumed hereunder
by Tenant (provided that the amount of such insurance shall not be construed to
limit the liability of Tenant hereunder), and shall provide that it is primary
insurance, and not excess over or contributory with any other valid, existing
and applicable insurance in force for or on behalf of Landlord, and shall
provide that Landlord shall receive thirty (30) days' written notice from the
insurer prior to any cancellation or change of coverage. With respect to
Tenant's comprehensive general liability insurance, Landlord shall be named as
an additional insured with respect to its liability relative to this Lease and
the Building. Tenant shall deliver policies of such insurance or certificates
thereof to Landlord on or before the Commencement Date, and thereafter at least
thirty (30) days before the expiration dates of expiring policies; and, in the
event Tenant shall fail to procure such insurance, or to deliver such policies
or certificates, Landlord may, at its option, procure same for the account of
Tenant, and the cost thereof shall be paid to Landlord as Additional Rent within
five (5) days after delivery to Tenant of bills therefor. Tenant's compliance
with the provisions of this Article 9 shall in no way limit Tenant's liability
under any of the other provisions of this Lease.
9.03 Increased Insurance Risk. Tenant shall not do or permit anything
to be done, or keep or permit anything to be kept in the Premises, which would:
(a) be in violation of any governmental law, regulation or requirement, (b)
invalidate or be in conflict with the provision of any fire or other insurance
policies covering the Building or any property located therein, (c) result in a
refusal by fire insurance companies of good standing to insure the Building or
any such property in amounts required by Landlord's Mortgagee (as hereinafter
defined) or reasonably satisfactory to Landlord, (d) subject Landlord to any
liability or responsibility for injury to any person or property by reason of
any business operation being conducted in the Premises, or (e) cause any
increase in the fire insurance rates applicable to the Project or property
located therein at the beginning of the Term or at any time thereafter. Tenant,
at Tenant's expense, shall comply with all rules, orders, regulations or
requirements of the American Insurance Association (formerly the National Board
of Fire Underwriters) and with any similar body that shall hereafter perform the
function of such Association. In the event that any use of the Premises by
Tenant increases such cost of insurance, Landlord shall give Tenant written
notice of such increase and a reasonable opportunity to cure its use to prevent
such increase; provided, however, if Tenant fails to do so, Tenant shall pay
such increased cost to Landlord in accordance with Section 4.04 hereof.
Acceptance of such payment shall not be construed as consent by Landlord to
Tenant's such use or limit Landlord's remedies under this Lease.
9.04 Cross-Indemnification.
(a) Tenant agrees to protect, indemnify and save harmless
Landlord, from and against any and all loss, cost, liability, damage and expense
including, without limitation, claims, demands, penalties, causes of action,
costs and expenses and attorneys' fees imposed upon and incurred by or asserted
against Landlord from any cause in, on, or about the Premises, including,
without limitation, those relating to the following: (i) Tenant's default in its
observance or performance of any of the terms, covenants or conditions of this
Lease, (ii) the use or occupancy or manner of use or occupancy of the Premises
by Tenant or of any Tenant Parties, (iii) any acts, omissions or negligence of
Tenant or any Tenant Parties, in, on or about the Premises or the Project,
either prior to, during, or after the expiration of, the Term including, without
limitation, any acts, omissions or negligence in the making or performing of any
Alterations in or to the Premises, or (iv) for personal injury, including
without limitation, bodily injury, death or property damage, occasioned by any
use, occupancy, condition, occurrence, omission or negligence referred to in the
preceding clauses. In case any action, suit or proceeding is brought against
Landlord by reason of any such occurrence, Tenant will, at Tenant's expense,
resist and defend such action, suit or proceeding or cause the same to be
resisted or defended by counsel reasonably approved by Landlord.
(b) Landlord agrees to protect, indemnify and save harmless
Tenant from and against any and all loss, cost, liability, damage and expense
including, without limitation, claims, demands, penalties, causes of action,
costs and expenses and attorneys' fees imposed upon and incurred by or asserted
against Tenant that result from the conduct of Landlord or its employees, agents
or contractors (the "Landlord Parties") at, on or about the Project, including,
without limitation, those relating to the following: (a) for personal injury,
death or property damage arising from the negligence or willful misconduct of
Landlord or any Landlord Parties, (b) Landlord's default in its observance or
performance of any of the terms, covenants or conditions of this Lease or (c)
any acts, omissions or negligence of Landlord or any Landlord Parties, in, on or
about the Premises or the Project, either prior to, during, or
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after the expiration of, the Term including, without limitation, any acts,
omissions or negligence in the construction of the Base Building Improvements,
the Leasehold Improvement or the making or performing of any repairs or capital
improvements in or to the Premises or the Project. In case any action, suit or
proceeding is brought against Tenant by reason of any such occurrence, Landlord
will, at Landlord's expense, resist and defend such action, suit or proceeding
or cause the same to be resisted or defended by counsel reasonably approved by
Tenant.
9.05 Limitation on Landlord's Liability. Landlord shall not be
responsible or liable to Tenant for any loss or damage to Tenant, or its
business (including any loss of income therefrom) or its property occasioned by
or through the acts or omissions of persons occupying adjoining premises or any
part of the premises adjacent to or connected with the Premises or any part of
the Project, or for any loss or damage resulting to Tenant, or its business
(including any loss of income therefrom), or its property from smoke, fire,
electricity, steam, gas, vapor, water or rain, or other airborne contaminants,
or from the breakage, leakage, obstruction or other defects of pipes, wires,
appliances, plumbing, heating, air-conditioning or lighting fixtures, or from
any other cause, whether the said damage or injury results from conditions
arising from or upon Premises or upon other portions of the Project, or from
other sources or places, including theft, except to the extent that any such
damage or loss is occasioned by the intentional or negligent act or omission of
the Landlord or any Landlord Parties.
9.06 Waiver of Claims.
(a) Landlord and Tenant hereby agree and hereby waive any and
all rights of recovery against each other for loss or damage occurring to the
Premises or the Project or any of Landlord's or Tenant's Property contained
therein regardless of the cause of such loss or damage to the extent that the
loss or damage is covered by the injured party's insurance or the insurance the
injured party is required to carry under this Lease, whichever is greater
(without regard to any deductible provision in any policy). This waiver does not
apply to claims caused by a party's willful misconduct. This waiver also applies
to each party's directors, officers, employees, shareholders, and agents.
(b) Each party will assure that its insurance permits waiver
of liability and contains a waiver of subrogation. Each party shall secure an
appropriate clause in, or an endorsement to, each insurance policy obtained by
or required to be obtained by Landlord or Tenant, as the case may be, under this
Lease, pursuant to which the insurance company: (i) waives any right of
subrogation against Landlord or Tenant as the same may be applicable, or (ii)
permits Landlord or Tenant, prior to any loss to agree to waive any claim it
might have against the other without invalidating the coverage under the
insurance policy. If, at any time, the insurance carrier of either party refuses
to write (and no other insurance carrier licensed in Connecticut will write)
insurance policies which consent to or permit such release of liability, then
such party shall notify the other party and upon the giving of such notice, this
Section shall be void and of no effect.
9.07 Landlord's Insurance. Landlord shall maintain and keep in effect
during the entire Term the following insurance coverage (together with such
other coverages as Landlord may reasonably elect to carry for the benefit of the
Project):
(a) Standard Commercial General Liability Insurance with a
Broad Form Comprehensive General Liability endorsement. The limits of liability
of such insurance shall be an amount not less than $6,000,000 per occurrence,
bodily injury including death, and $3,000,000 per occurrence, property damage
liability or $6,000,000 combined single limit for bodily injury and property
damage liability;
(b) "Special Form" fire and extended coverage insurance on the
Project insuring the guaranteed replacement value thereof, excluding Tenant's
Property and Tenant's Alterations. The insurance shall include, but not be
limited to, fire and extended coverage perils and shall be placed with companies
licensed to sell insurance in Connecticut.
ARTICLE 10. CASUALTY
10.01 Damage or Destruction. Tenant shall give prompt notice to
Landlord of any damage by fire or other casualty to the Premises or any portion
thereof. In the event that the Premises, or any part thereof, or access thereto,
shall be so damaged or destroyed by fire or other insured casualty (a
"Casualty") that the Tenant shall not have reasonably convenient access to the
Premises or any portion of the Premises shall thereby be otherwise rendered
unfit for use and occupancy by the Tenant for the purposes set forth in Section
7.01, and if in the judgment of the Landlord the damage or destruction may be
repaired within one hundred and eighty (180) days with available insurance
proceeds, then the Landlord shall so notify the Tenant within sixty (60) days
after the occurrence of the damage or destruction (the "Notice Period") and
shall repair such damage or destruction (except damage or destruction to
Tenant's Property or Tenant's Alterations) with reasonable diligence. In the
event that the Landlord shall not complete such repairs within one hundred and
eighty (180) days after the elapse of the
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Notice Period, then the Tenant shall have the right to terminate the term of
this lease by giving written notice of such termination to the Landlord within
twenty (20) days after the end of such one hundred and eighty (180) day period;
provided, however, that in the event that the completion of repairs shall be
delayed by causes beyond the Landlord's control, including those events
described in Section 16.11 hereof, the time for completion shall be extended by
the period of such delay. If in the judgment of the Landlord the Premises, or
means of access thereto, cannot be repaired within one hundred and eighty twenty
(180) days after the elapse of the Notice Period with available insurance
proceeds and the Landlord does not deliver the Tenant notice of its decision to
repair such damage within sixty (60) days after the occurrence of the Casualty,
then either party shall have the right to terminate the term of this Lease by
giving written notice of such termination to the other party within the period
of sixty (60) to seventy-five (75) days after the occurrence of the Casualty.
10.02 Abatement of Rent. Annual Base Rent and Additional Rent shall not
be abated or suspended if, following any Casualty, Tenant shall continue to have
reasonably convenient access to the entire Premises and no portion of the
Premises are rendered unfit for use and occupancy. If Tenant shall not have
reasonably convenient access to the entire Premises or any portion of the
Premises shall be otherwise rendered unfit for use and occupancy by the Tenant
for the purposes set forth in Section 7.01 by reason of such Casualty, then Rent
shall be equitably suspended or abated relative to the portion of the Premises
that cannot be used by Tenant for any of its business operations, effective as
of the date of the Casualty until Landlord has (i) substantially completed the
repair of the Premises and the means of access thereto, and (ii) has delivered
notice thereof to Tenant. If such damage or destruction was caused by the
negligence or willful act or omission of the Tenant or any of its officers,
employees, contractors, agents or invitees, then there shall be no abatement of
Rent; an election by Landlord to carry rental loss insurance shall not affect
the provisions of this Article 10.
10.03 Events of Termination. In addition to the foregoing termination
rights provided in Section 10.01 hereof, in the event of a Casualty, the
following termination rights shall apply:
(a) If more than 25% of the gross rentable area of the
Premises shall be wholly or substantially damaged or destroyed by Casualty at
any time during the last six (6) months of the Term, either Landlord or Tenant
may terminate this Lease by delivery of written notice of such termination to
the other party within thirty (30) days after the occurrence of such damage.
(b) Notwithstanding the provisions of this Article 10, if,
prior to or during the Term the Building shall be so damaged by Casualty that,
in Landlord's reasonable estimate, the cost to repair the damage will be more
than 25% of the replacement value of the Building immediately prior to the
occurrence of the Casualty (whether or not the Premises shall have been damaged
or rendered untenantable), then, in any of such events, Landlord, at Landlord's
option, and with the written consent of Landlord's Mortgagee, may give to
Tenant, within ninety (90) days after such Casualty, a thirty (30) days' notice
of the termination of this Lease and, in the event such notice is given, this
Lease and the term shall terminate upon the expiration of such thirty (30) days
with the same effect as if such date were the Expiration Date; and the Rent
shall be apportioned as of such date and any prepaid portion of Rent for any
period after such date shall be refunded by Landlord to Tenant within thirty
(30) days following the Expiration Date. In the event that Landlord chooses to
terminate the Lease pursuant to this Section 10.03 it shall pay to Tenant an
amount equal to the Unamortized Cost of the Tenant's Leasehold Improvements,
less any amounts received by Tenant on account of insurance covering the same
and less the amount of payments made by Landlord in accordance with Section
3.10(b). For the purposes of this Section the term Unamortized Cost shall mean
Costs incurred by the Tenant, amortized on a nine year schedule beginning on the
Commencement Date and assuming equal monthly payments of principal and interest,
with interest at a rate equal to one percent (1%) over the prime rate of
Citibank, N.A. on the Commencement Date. The Term "Costs" shall mean and refer
to all actual expenditures of the Tenant, for its Leasehold Improvements.
10.04 Insurance Proceeds Upon Termination. If this Lease is terminated
pursuant to any right granted or reserved to Landlord under this Section, all
insurance proceeds payable with respect to the damage giving rise to such right
of termination shall be paid to Landlord, and Tenant shall have no claim
therefor. No damages, compensation or claim shall be payable by the Landlord to
Tenant, or any other person, by reason of inconvenience, loss of business or
annoyance arising from any damage or destruction, or any repair thereof, as is
referred to in this Article 10.
10.05 Scope of Landlord's Repairs. In the event Landlord elects or
shall be obligated to repair or restore any damage or destruction as aforesaid,
the scope of work shall be limited to the original Leasehold Improvements that
were constructed by Landlord at its expense, and Landlord shall have no
obligation to restore or replace Tenant's Property or Tenant's Alterations.
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ARTICLE 11. CONDEMNATION
11.01 Entire Condemnation. In the event that the whole of the Premises
shall be taken under the power of eminent domain, this Lease and the term and
estate hereby granted shall automatically terminate as of the earlier of the
date of the vesting of title or the date of dispossession of Tenant as a result
of such taking.
11.02 Partial Condemnation.
(a) In the event that only a part of the Premises shall be
taken by Condemnation and Tenant shall have reasonable, convenient access to and
from the Premises, the Term shall expire as to that portion of the Premises
condemned effective as of the date of the vesting of title in the condemning
authority, and this Lease shall continue in full force and effect as to the part
of the Premises not so taken.
(b) In the event that a part of the Project shall be subject
to Condemnation (whether or not the Premises are affected), Landlord may, at its
option, terminate this Lease as of the date of such vesting of title, by
notifying Tenant in writing of such termination within ninety (90) days
following the date on which Landlord shall have received notice of the vesting
of title in the condemning authority if in Landlord's reasonable opinion: (i) a
substantial alteration or reconstruction of the Project (or any portion thereof)
shall be necessary or appropriate, or (ii) the portion of the Project so
condemned has the effect of rendering the remainder of the Project uneconomic to
maintain.
(c) In the event that this Lease is not terminated in
accordance with subsection (b) hereof, Landlord shall, upon receipt of the award
in condemnation, make all necessary repairs or alterations to the Building in
which the Premises are located so as to constitute the remaining Premises a
complete architectural unit to the extent feasible, but Landlord shall not be
required to spend for such work an amount in excess of the amount received by
Landlord as damages for the part of the Premises so taken. "Amount received by
Landlord" shall mean that part of the award in condemnation which is free and
clear to Landlord of any collection by mortgagees and after payment of all costs
involved in collection, including but not limited to attorney's fees. Tenant, at
is own cost and expense shall, restore all exterior signs, trade fixtures,
equipment, furniture, furnishings and other installations of personalty of
Tenant which are not taken to as near its former condition as the circumstances
will permit. In the event of a partial taking, all provisions of this Lease
shall remain in full force and effect.
11.03 Temporary Taking. If there is a taking of the Premises for
temporary use arising out of a temporary emergency or other temporary situation,
this Lease shall continue in full force and effect, and Tenant shall continue to
comply with Tenant's obligations under this Lease, except to the extent
compliance shall be rendered impossible or impracticable by reason of the
taking, and Tenant shall be entitled to the award for its interest.
11.04 Condemnation Awards. Except as provided in the preceding Section
11.03, Landlord shall be entitled to the entire award in any condemnation
proceeding or other proceeding for taking for public or quasi-public use,
including, without limitation, any award made for the value of the leasehold
estate created by this Lease. No award for any partial or entire taking shall be
apportioned, and Tenant hereby assigns to Landlord any award that may be made in
such condemnation or other taking, together with any and all rights of Tenant
now or hereafter arising in or to same or any part thereof; provided, however,
that nothing contained herein shall be deemed to give Landlord any interest in
or to require Tenant to assign to Landlord any award made to Tenant specifically
for its relocation expenses or the taking of Tenant's Property or the loss of
Tenant's Leasehold Improvements, provided that such award does not diminish or
reduce the amount of the award payable to Landlord.
11.05 Proration. In the event of a partial condemnation or other taking
that does not result in a termination of this Lease as to the entire Premises,
then the Annual Base Rent and Tenant's Proportionate Share shall be adjusted in
proportion to that portion of the Premises taken by such condemnation or other
taking and Tenant's Proportionate Share.
ARTICLE 12. ASSIGNMENT AND SUBLETTING
12.01 Assignment and Subletting. Tenant shall not, without the prior
written consent of the Landlord, which consent shall not be unreasonably
withheld, assign, mortgage, encumber or otherwise transfer this Lease or any
interest herein directly or indirectly, by operation of law or otherwise, or
sublet the Premises or any part thereof, or permit the use or occupancy of the
Premises by any party other than Tenant (any such action, a "Transfer"). If at
any time or from time to time during the Term, when no Event of Default has
occurred and is continuing, Tenant desires to effect a Transfer, Tenant shall
deliver to Landlord written notice ("Transfer Notice") setting forth the terms
of the proposed Transfer and the identity of the proposed assignee, sublessee or
other transferee (each a "Transferee"). Tenant shall also deliver to Landlord
with the Transfer Notice an acceptable assumption agreement for Tenant's
obligations under this Lease together with all relevant information requested by
Landlord concerning the proposed Transferee to assist Landlord in making an
informed judgment regarding the financial responsibility,
17
creditworthiness, reputation, and business experience of the Transferee. Tenant
shall reimburse Landlord promptly for all reasonable out-of-pocket expenses
incurred by Landlord including reasonable attorneys' fees in connection with the
review of Tenant's request for Landlord's approval of any Transfer. The
provisions of this Section 12.01 shall apply to a transfer (by one or more
Transfers) of fifty percent (50%) or more of the interest in the stock or
partnership or membership interests or other evidences of equity interests of
Tenant as if such Transfer were an assignment of this Lease; provided that if
equity interests in Tenant at any time are or become traded on a public stock
exchange, the transfer of equity interests in Tenant on a public stock exchange
shall not be deemed an assignment within the meaning of this Section.
12.02 Landlord's Options. Landlord shall have the option, exercisable
by written notice delivered to Tenant within thirty (30) days after Landlord's
receipt of a Transfer Notice accompanied by the other information described in
Section 12.01, to: (a) permit Tenant to Transfer the Premises; or (b) disapprove
the Tenant's Transfer of the Premises and to continue the Lease in full force
and effect as to the entire Premises. (c) if the Tenant proposes to sublease
more than fifty (50%) percent of the rentable square footage, terminate the
Lease as to the portion of the Premises affected by the Transfer as of the date
set forth in Landlord's notice of exercise of such option, which date shall not
be less than thirty (30) days nor more than ninety (90) days following the
giving of such notice. If Landlord exercises its option to terminate this Lease
(or in the case of a partial sublet to release Tenant with respect to a portion
of the Premises), Tenant shall surrender possession of such Premises on the date
set forth in Landlord's notice, and thereafter neither Landlord nor Tenant shall
have any further liability with respect thereto. If this Lease shall be
terminated as to a portion of the Premises only, Rent and Tenant's parking
allocation shall be readjusted proportionately according to the ratio that the
number of square feet and the portion of the space surrendered compares to the
floor area of Tenant's Premises during the Term of the proposed sublet. The
provisions of this section shall not apply to a sublease or assignment of all or
any portion of the Premises to an entity affiliated with and under the common
control of Tenant ("Affiliated Entity").
12.03 Additional Conditions.
(a) Tenant shall not offer to make, or enter into negotiations
with respect to any Transfer to: (i) any tenant of the Building or Project or
any entity owned by, or under the common control of, whether directly or
indirectly, a tenant in the Building or Project unless there is no competing
space then available for leases therein; or (ii) any party with whom Landlord
(or its affiliate) is then negotiating with respect to other space in the
Building or Project unless there is no competing space then available for leases
therein; or (iii) any party which would be of such type, character, or condition
as to be inappropriate as a tenant for the Building. It shall not be
unreasonable for Landlord to disapprove any proposed assignment, sublet or
transfer to any of the foregoing entities.
(b) If Landlord approves of the proposed Transfer pursuant to
Section 12.01 above, Tenant may enter into the proposed Transfer with such
proposed Transferee subject to the following further conditions: (i) the
Transfer shall be on the same terms set forth in the Transfer Notice, and (ii)
no Transfer shall be valid and no Transferee shall take possession of the
Premises until an executed counterpart of the assignment, sublease or other
instrument effecting the Transfer (in the form approved by Landlord) has been
delivered to Landlord pursuant to which the Transferee shall expressly assume
all of Tenant's obligations under this Lease; and (iii) Tenant shall provide
Landlord with a written ratification agreement from each guarantor of this Lease
in form and substance satisfactory to Landlord.
12.04 No Release. No Transfer shall be effective unless approved in
writing by Landlord. Landlord's consent to a Transfer shall not release Tenant
of Tenant's obligations under this Lease and this Lease and all of the
obligations of Tenant under this Lease shall continue in full force and effect
as the obligations of a principal (and not as the obligations of a guarantor or
surety). From and after any Transfer, the Lease obligations of the Transferee
and of the original Tenant named in this Lease shall be joint and several. No
acceptance of Rent by Landlord from or recognition in any way of the occupancy
of the Premises by a Transferee shall be deemed a consent to such Transfer, or a
release of Tenant from direct and primary liability for the further performance
of Tenant's covenants hereunder. The consent by Landlord to a particular
Transfer shall not relieve Tenant from the requirement of obtaining the consent
of Landlord to any further Transfer. Each violation of any of the covenants,
agreements, terms or conditions of this Lease, whether by act or omission, by
any of Tenant's permitted Transferees, shall constitute a violation thereof by
Tenant. In the event of default by any Transferee of Tenant or any successor of
Tenant in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies against
such Transferee or successor.
12.05 Transfer Profit. Fifty percent (50%) of any rent and other
economic consideration received by Tenant as a result of such Transfer to an
entity other than an Affiliated Entity in which case the Tenant shall keep all
excess rent, which exceeds, in the aggregate, (a) the total of the remaining
rent which Tenant is obligated to pay Landlord under this Lease (prorated to
reflect obligations allocable to any portion of the Premises subleased) plus (b)
any reasonable tenant fit-up costs, brokerage commissions and attorneys' fees
actually paid by Tenant in connection with such Transfer (specifically excluding
moving or relocation costs paid to the Transferee), shall be paid to Landlord on
a monthly basis within ten
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(10) days after receipt thereof as Additional Rent under this Lease, without
affecting or reducing any other obligations of Tenant hereunder. Each such
payment shall be sent with a detailed statement. Landlord shall have the right
to audit Tenant's books and records to verify the accuracy of the detailed
statement.
ARTICLE 13. DEFAULTS AND REMEDIES
13.01 Events of Default. The occurrence of any one or more of the
following events shall constitute an event of default (each an "Event of
Default") hereunder:
(a) Nonpayment of Annual Base Rent or Additional Rent. Failure
by Tenant to pay any installment of Annual Base Rent or Additional Rent due and
payable hereunder, upon the date when said payment is due; provided, however, on
two(2) occasions only during any Lease Year, Landlord shall permit Tenant a
5-day grace period from the date when said payment is due to cure such failure.
(b) Certain Obligations. Failure by Tenant to perform, observe
or comply with any obligation, agreement or covenant contained in Sections 7.05
("Hazardous Substances"), 8.02 ("Alterations"), Section 9.01 ("Tenant's
Insurance") and Article 12 ("Assignment and Subletting") of this Lease or
failure by Tenant to perform observe or comply with any obligation, agreement or
covenant, after the expiration of all applicable notice and cure periods,
contained in a certain Lease dated October 20, 1999 for approximately 3083
rentable square feet at the Project ____________by and between Wilton Executive
Campus Associates, as Landlord__________and Tenant ( the "Data Center Lease") or
a certain Lease dated_October 20, 1999 for approximately 20,058 rentable square
feet at the Project by and between Landlordand Tenant.
(c) Other Obligations. Failure by Tenant to perform any
obligation, agreement or covenant under this Lease other than those matters
specified in subparagraph (a) or (b) of this Section 13.01, such failure
continuing for thirty (30) days after written notice by Landlord to Tenant of
such failure; provided, however, that if the nature of Tenant's obligation is
such that more than thirty (30) days are required for performance, then Tenant
shall not be in default if Tenant commences performance within such thirty (30)
day period and thereafter diligently and continuously prosecutes the same to
completion within sixty (60) days following the date of Landlord's written
notice with respect to such failure.
(d) Abandonment. Abandonment of the Premises by Tenant for a
continuous period in excess of twenty (20) business days.
(e) Assignment; Receivership; Attachment. (i) The making by
Tenant of any arrangement or assignment for the benefit of creditors; (ii) the
appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; or (iii) the
attachment, execution, or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where such seizure is not discharged within thirty (30) days.
(f) Bankruptcy. The admission by Tenant or Tenant's guarantor
(if any) in writing of its inability to pay its debts as they become due, the
filing by Tenant or Tenant's guarantor (if any) of a petition in bankruptcy
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, the filing by Tenant or Tenant's guarantor (if any) of an answer
admitting or failing timely to contest a material allegation of a petition filed
against Tenant or Tenant's guarantor (if any) in any such proceeding or, if
within forty-five (45) days after the commencement of any proceeding against
Tenant or Tenant's guarantor (if any) seeking any involuntary reorganization, or
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation by any of Tenant's
creditors or such guarantor's creditors, such proceeding shall not have been
dismissed.
13.02 Remedies. Upon the occurrence of any Events of Default by Tenant
which is not cured by Tenant within the grace periods specified in Section 13.01
hereof, if any, Landlord shall have the following rights and remedies, in
addition to all other rights or remedies available to Landlord in law or equity:
(a) Landlord may give written notice to Tenant specifying such
Event of Default or Events of Default and stating that this Lease and the Term
hereby demised shall expire and terminate on the date specified in such notice,
and upon the date specified in such notice, this Lease and the Term hereby
demised, and all rights of Tenant under this Lease shall expire and terminate.
Upon any termination of this Lease, Tenant shall quit and peaceably surrender
the Premises, and all portions thereof, to Landlord. Following any such
termination, Landlord may, without further notice, enter the Premises, and any
portions thereof, and take possession thereof by summary proceeding, ejectment
or otherwise,
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and may dispossess Tenant and remove Tenant and all other persons and property
from the Premises and Landlord shall have the right to receive all rental and
other income of and from the same.
(b) At Landlord's election, without terminating this Lease,
Landlord may, without re-entry, recover possession of the Premises in the manner
prescribed by any statute relating to summary process, and any demand for the
Rent, re-entry for condition broken, and any and all notices to quit, or other
formalities of any nature, to which Tenant may be entitled, are hereby
specifically waived. Landlord may relet the Premises for the account of Tenant.
No such termination of Tenant's right to possess the Premises under this Section
13.02(b) shall relieve Tenant of its liabilities and obligations under this
Lease (as if such right of possession had not been so terminated or expired),
and such liabilities and obligations shall survive any such termination of
Tenant's possessory interest. In the event of any such termination of this Lease
or Tenant's right of possession, whether or not the Premises, or any portion
thereof, shall have been relet, Tenant shall pay the Landlord a sum equal to the
Rent and any other charges required to be paid by Tenant up to the time of such
termination of such right of possession and thereafter Tenant, until the end of
the Term, shall be liable to Landlord for and shall pay to Landlord: (i) the
equivalent of the amount of the Rent payable under this Lease, less (ii) the net
proceeds of any reletting effected pursuant to the provisions hereof after
deducting all of Landlord's "Reletting Expenses" (as defined in Section 13.02).
Tenant shall pay such amounts in accordance with the terms of this Section
13.02(b) as set forth in a written statement thereof from Landlord to Tenant
(hereinafter, the "Deficiency") to Landlord in monthly installments on the days
on which the Annual Base Rent is payable under this Lease, and Landlord shall be
entitled to recover from Tenant each monthly installment of the Deficiency as
the same shall arise. Tenant shall also pay to Landlord upon demand the costs
incurred by Landlord in curing Tenant's defaults existing at or prior to the
date of such termination and the cost of recovering possession of the Premises.
Tenant agrees that Landlord may file suit to recover any sums that become due
under the terms of this Section from time to time, and all reasonable costs and
expenses of Landlord, including attorneys' fees and costs incurred in connection
with such suits shall be payable by Tenant on demand.
(c) At any time after an Event of Default and termination of
the Lease by Landlord, whether or not Landlord shall have collected any monthly
Deficiency as set forth in Section 13.02(b), Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, as and for
final damages for Tenant's default and in lieu of any subsequent Deficiency (but
without limitation of the provisions of subsection (f) hereof):
(i) all Rent and other sums due and payable by Tenant on the
date of termination; plus
(ii) the costs of curing Tenant's defaults existing at or
prior to the date of termination; plus
(iii) the cost of recovering possession of the Premises and
the Reletting Expenses; plus
(iv) an amount equal to the difference between the then
present worth of the aggregate of the Rent and any other charges to be
paid by Tenant hereunder for the then unexpired term of this Lease
(assuming this Lease had not been so terminated), and the then present
worth of the then aggregate fair market rent of the Premises for the
same period (taking into account rentals received by Landlord under a
replacement Lease of the Premises). In the computation of present
worth, a discount at the then market discount rate as reasonably
determined by Landlord shall be employed.
(d) In connection with any reletting of the Premises following
an Event of Default, Landlord shall be entitled to grant such rental and
economic concessions and other incentives as may be customary for similar space
in eastern Fairfield County.
(e) Any and all property belonging to Tenant or to which
Tenant is or may be entitled which may be removed from the Premises by Landlord
pursuant to the authority of this Lease or applicable law, may be handled,
removed or stored in a commercial warehouse or otherwise by Landlord at Tenant's
risk and expense and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay to Landlord, upon demand,
any and all expenses incurred in such removal and all storage charges for such
property so long as the same shall be in Landlord's possession or under
Landlord's control.
(f) Landlord shall have the right of injunction, in the event
of a breach or threatened breach by Tenant of any of the agreements, conditions,
covenants or terms hereof, to restrain the same and the right to invoke any
remedy allowed by law or in equity, whether or not other remedies, indemnity or
reimbursements are herein provided. The rights and remedies given to Landlord in
this Lease are
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distinct, separate and cumulative remedies; and no one of them, whether or not
exercised by Landlord, shall be deemed exclusive of any of the others.
(g) For purposes of this Section 13.02, "Reletting
Alterations" shall mean all repairs, made by Landlord in or to the Premises to
the extent deemed reasonably necessary by Landlord to prepare the Premises for
the re-leasing following an Event of Default; and "Reletting Expenses" shall
mean the reasonable expenses paid or incurred by Landlord in connection with any
re-leasing of the Premises following an Event of Default, including, without
limitation, marketing expenses, brokerage commissions, management fees,
attorneys' fees, the costs of Reletting Alterations, operating expenses and rent
and other economic concessions reasonable and customary in Fairfield County at
the time, provided to the new tenant.
13.03 Landlord's Right to Cure Defaults. If the Tenant shall default in
the observance or performance of any condition or covenant on Tenant's part to
be observed or performed under or by virtue of any of the provisions of this
Lease, and such default continues beyond any applicable notice and cure period
or Landlord reasonably determines that an emergency exists, the Landlord,
without being under any obligation to do so and without thereby waiving such
default, may remedy such default for the account and at the expense of the
Tenant. If the Landlord makes any expenditures or incurs any obligations for the
payment of money in connection therewith, including but not limited to
reasonable attorney's fees in instituting, prosecuting or defending any action
or proceeding, such sums paid or obligation incurred and costs, shall be paid
upon demand to the Landlord by the Tenant as Additional Rent pursuant to Section
4.04 hereof and if not so paid with interest from its due date until paid at the
lesser of eighteen (18%) percent per annum or the maximum legal rate that
Landlord may charge Tenant.
13.04 No Accord and Satisfaction. Landlord may collect and receive any
rent due from Tenant, and the payment thereof shall not constitute a waiver of
or affect any notice or demand given, suit instituted or judgment obtained by
Landlord, or be held to waive, affect, change, modify or alter the rights or
remedies that Landlord has against Tenant in equity, at law, or by virtue of
this Lease. No receipt or acceptance by Landlord from Tenant of less than the
monthly rent herein stipulated shall be deemed to be other than a partial
payment on account for any due and unpaid stipulated rent; no endorsement or
statement on any check or any letter or other writing accompanying any check or
payment of rent to Landlord shall be deemed an accord and satisfaction, and
Landlord may accept and negotiate such check or payment without prejudice to
Landlord's rights to (i) recover the remaining balance of such unpaid rent, or
(ii) pursue any other remedy provided in this Lease.
13.05 Arbitration. Any dispute arising out of or relating to Article 5
of this Lease (with respect to the issues expressly stated therein) shall be
submitted to and determined in binding arbitration under the Commercial
Arbitration Rules of the American Arbitration Association. The arbitration shall
be conducted before and by a single arbitrator selected by the parties. If the
parties have not selected an arbitrator within 30 days of written demand for
arbitration, the arbitrator shall be selected by the American Arbitration
Association pursuant to the then current rules of that Association on
application by either party. The arbitrator shall have authority to fashion such
just, equitable and legal relief as he, in his sole discretion, may determine.
The parties agree that the arbitration hearing shall be held within thirty (30)
business days following notification to the parties of the appointment of such
arbitration, and that the arbitration proceedings shall be concluded within
thirty (30) business days following the first scheduled arbitration hearing.
Each party shall bear all its own expenses of arbitration and shall bear equally
the costs and expenses of the arbitrator. All arbitration proceedings shall be
conducted in the City of Stamford, State of Connecticut. Landlord and Tenant
further agree that they will faithfully observe this agreement and rules, and
that they will abide by and perform any award rendered by the arbitrator and
that a judgment of the court having jurisdiction may be entered upon the award.
The duty to arbitrate shall survive the cancellation or termination of this
Lease. Landlord and Tenant further agree that in addition to the discovery
rights available to them under the Commercial Arbitration Rules they shall have
all rights of discovery available to litigants pursuant to the Connecticut Rules
of Court then appertaining.
13.06 Indirect Damages. Notwithstanding any provision of this Lease to
the contrary (except Section 2.02), none of the provisions of this Lease shall
cause either party to be liable to the other party, or anyone claiming through
or on behalf of such other party, for any special, indirect or consequential
damages, including, without limitation, lost profits or revenues.
13.07 Waivers. TENANT HEREBY REPRESENTS, COVENANTS AND AGREES THAT IT
IS ENGAGED PRIMARILY IN COMMERCIAL PURSUITS, AND THAT THE LEASE IS A "COMMERCIAL
TRANSACTION" WITHIN THE MEANING OF SECTION 52-278a(a) OF THE CONNECTICUT GENERAL
STATUTES (REV. 1958), AS AMENDED. TENANT HEREBY WAIVES ALL RIGHTS TO NOTICE,
PRIOR JUDICIAL HEARING OR COURT ORDER UNDER SECTION 52-278a ET SEQ. OF THE
CONNECTICUT GENERAL STATUTES (REV. 1958) AS AMENDED OR UNDER ANY OTHER STATE OR
FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDIES THE LANDLORD MAY EMPLOY TO
ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER.
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13.08 Claims in Bankruptcy. Nothing herein shall limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of any such termination, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, the damages are to be proved, whether or not the
amount be greater, equal to or less than the amount of the loss or damage
referred to above. Without limiting any of the provisions of this Article 13, if
pursuant to the Bankruptcy Code, as the same may be amended, Tenant is permitted
to assign this Lease in disregard of the restrictions contained in Article 12,
Tenant agrees that adequate assurance of future performance by the assignee
permitted under the Bankruptcy Code shall mean the deposit of cash security with
Landlord in any amount equal to all Rent payable under this Lease for the
calendar year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord, without interest, for the
balance of the term as security for the full and faithful performance of all of
the obligations under this Lease on the part of Tenant yet to be performed. If
Tenant receives or is to receive any valuable consideration for such an
assignment of this Lease, such consideration, after deducting therefrom (a) the
brokerage commissions, if any, and other expenses reasonably designated by the
assignee as paid for the purchase of Tenant's property in the Premises, shall be
and become the sole exclusive property of Landlord and shall be paid over to
Landlord directly by such assignee. In addition, adequate assurance shall mean
that any such assignee of this Lease shall have a net worth indicating said
assignee's reasonable ability to pay the Rent, and abide by the terms of this
Lease for the remaining portion thereof applying commercially reasonable
standards.
ARTICLE 14. NONDISTURBANCE AND RIGHTS OF MORTGAGE HOLDERS
14.01 Subordination.
(a) Subject to the provisions of this Section 14.01, without
the necessity of any additional document being executed by Tenant for the
purpose of effecting a subordination, Tenant agrees that this Lease and Tenant's
tenancy hereunder are and shall be automatically subject and subordinate at all
times to (a) the lien (and the terms and conditions) of any mortgage that may
now exist or hereafter be executed in any amount for which the Site, the
Building, or Landlord's interest or estate in any of said items is specified as
security; and (b) renewals, modifications, consolidations, replacements, and
extensions of any of the foregoing. Landlord agrees to obtain from the holders
of any mortgage lien on the Site and the Building or Site (collectively,
"Landlord's Mortgagee") a recordable instrument by which Landlord's Mortgagee
shall agree not to disturb Tenant's possession and occupancy of the Premises or
join Tenant in any such action as a party defendant so long as Tenant is not in
default in the performance or observance of any of the terms, covenants or
conditions contained in the Lease.
(b) In the event that any such first mortgage is foreclosed or
a conveyance in lieu of foreclosure is made for any reason, Tenant shall, at the
option of Landlord's Mortgagee or the grantee or purchaser in foreclosure,
notwithstanding any subordination of any such lien to this Lease, attorn to and
become the Tenant of the successor in interest to Landlord at the option of such
successor in interest. Tenant covenants and agrees to execute and deliver,
within ten (10) days following delivery of request by Landlord, Landlord's
Mortgagee, or by Landlord's successor in interest and in the form requested by
Landlord, Landlord's Mortgagee, or by Landlord's successor in interest, any
additional documents evidencing the priority or subordination of this Lease with
respect to the lien of any such first mortgage, which additional documents shall
be satisfactory to Landlord, Landlord's Mortgagee, and Landlord's successors in
interest.
(c) If Landlord's Mortgagee shall succeed to the interest of
Landlord under this Lease, Landlord's Mortgagee shall assume and perform
Landlord's obligations under this Lease only while it is the fee owner of the
Building and shall not be (i) liable for any breach, act or omission of any
prior landlord, including Landlord; (ii) subject to offsets, claims or defenses
which Tenant might have against prior landlords; (iii) bound by the payment of
Annual Base Rent or Additional Rent or other payment in lieu of rent which
Tenant may have paid to any prior landlord for more than thirty (30) days in
advance of its due date; (iv) bound by any assignment, surrender, termination,
waiver, lease amendment or modification of or affecting this Lease made without
its consent; or (v) bound by any of the construction obligations of Landlord
under this Lease.
14.02 Notices. If Tenant is given written notice of the identity and
address of Landlord's Mortgagee, then Tenant shall give to such Landlord's
Mortgagee written notice of any default by Landlord under the terms of this
Lease by registered or certified mail, and such Landlord's Mortgagee shall be
given the opportunity to cure Landlord's default within the thirty (30) days
following such written notice; provided, however, that said thirty (30) day
period shall be extended so long as within said thirty (30) day period such
party has commenced to cure the default and such party is proceeding with due
diligence (including the exercise of its remedies against Landlord if necessary
to obtain possession of the Premises) to effect such cure.
14.03 Estoppel Certificates. Tenant shall at any time, and from time to
time, upon not less than five (5) days prior written notice from Landlord
execute, acknowledge and deliver to Landlord, to
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any prospective purchaser, or Landlord's Mortgagee, a written certificate of
Tenant in form and substance reasonably satisfactory to Landlord , or Landlord's
Mortgagee stating, in part: (a) whether Tenant has accepted the Premises and the
commencement date and termination date of this Lease; (b) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), and has not been assigned; (c) that there are not, to Tenant's
best knowledge, any uncured defaults on the part of the Landlord or Tenant
hereunder, or specifying any defaults that may exist; (d) whether or not there
are then existing any defenses against the enforcement of any of the obligations
of Tenant under this Lease (and, if so, specifying same); (e) whether Tenant has
received all required contributions from Landlord on account of Tenant's
improvements; (f) the dates, if any, to which the Annual Base Rent and
Additional Rent and other charges under this Lease have been paid and the
amounts of said Annual Base Rent and Additional Rent, and that no Annual Base
Rent, Additional Rent, or security deposit has been paid in advance of its due
date, and (g) any other information that may reasonably be required by any of
such persons. It is intended that any such certificate of Tenant delivered
pursuant to this Section 14.03 may be relied upon by Landlord and any
prospective purchaser or Landlord's Mortgagee of any part of the Building.
14.04 Quiet Enjoyment. Upon Tenant paying the Annual Base Rent and
Additional Rent and performing all of Tenant's obligations under this Lease,
Tenant may peacefully and quietly enjoy the Premises during the Term as against
all persons or entities lawfully claiming by or through Landlord; subject,
however, to the provisions of this Lease and to the rights of Landlord's
Mortgagee.
ARTICLE 15. NOTICES
15.01 Manner of Notice.
(a) All notices, demands and other communications ("notices")
permitted or required to be given under this Lease shall be in writing and sent
by personal service, telecopy transmission (if a copy thereof is also sent on
the same day by a nationally recognized overnight courier service), certified
mail (postage prepaid) return receipt requested or by a nationally recognized
overnight courier service, (a) to Tenant (i) at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, if sent prior to Tenant's taking possession of the Premises,
or (ii) at the Building if sent subsequent to Tenant's taking possession of the
Premises, or (iii) at any place where Tenant or any agent or employee of Tenant
may be found if sent subsequent to Tenant's vacating, abandoning or surrendering
the Premises, with a copy of all notices to be sent to Xxxxxxxx X. Xxxxxx, Esq.,
Wake, See, Dimes & Bryniczka, 00 Xxxxxxxx Xxx., Xxxxxxxx, XX 00000 and (b) to
Landlord at X.X. Xxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000 or (c) to such other
address as either Landlord or Tenant may designate as its new address for such
purpose by notice given to the other in accordance with the provisions of this
Section 15.01.
(b) Notices shall be deemed to have been given (i) when hand
delivered (provided that delivery shall be evidenced by a receipt executed by or
on behalf of the addressee if delivered by personal service) if personal service
is used, (ii) on the date of transmission if sent before 4:00 p.m. (Hartford
time) on a business day when telecopy transmission is used, (iii) the sooner of
the date of receipt or the date that is three (3) days after the date of mailing
thereof if sent by postage pre-paid registered or certified mail, return receipt
requested, and (iv) one (1) day after being sent by Federal Express or other
reputable overnight courier service (with delivery evidenced by written receipt)
if overnight courier service is used.
ARTICLE 16. MISCELLANEOUS
16.01 Brokers. Landlord and Tenant warrant to each other that they have
had no dealings with any broker, agent or finder in connection with this Lease
except Reliance Property Group and Xxxxxxx & Xxxxxxxxx of CT. Landlord agrees to
pay the commissions due to such brokerage companies pursuant to separate
agreements. Both parties hereto agree to protect, indemnify and hold harmless
the other from and against any final judgment relating to compensation,
commissions and charges claimed by any other broker, agent or finder not
identified above with respect to this Lease or the negotiation thereof that is
made by reason of any action or agreement by such party.
16.02 Attorney's Fees. If on account of any default by Tenant in
Tenant's obligations under the terms of this Lease, it becomes necessary or
appropriate for Landlord to employ attorneys to enforce any of Landlord's rights
or remedies hereunder, Tenant shall pay as Additional Rent hereunder all
reasonable fees of such attorneys incurred in connection with any action to
enforce such rights and remedies in which the landlord prevails and all
reasonable costs so incurred. If on account of any default by Landlord of
Landlord's obligations under this Lease, it becomes necessary or appropriate for
Tenant to employ attorneys to enforce Tenant's rights and remedies hereunder,
Landlord shall pay Tenant all reasonable attorney's fees incurred in connection
with any action to enforce such rights and remedies in which the Tenants
prevails and all reasonable costs so incurred.
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16.03 Site Development. Landlord reserves the right to design, develop
and operate an additional building and related improvements adjacent to the
Building. Landlord reserves the right to enter into agreements necessary for
shared parking and other shared amenities. Landlord shall use all reasonable
efforts to avoid disturbing or impairing Tenant's right to quite possession by
virtue of any site development reserved hereunder
16.04 No Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the Premises or any part
thereof by reason of the fact that the same person may acquire or hold, directly
or indirectly, this Lease or the leasehold estate hereby created or any interest
in this Lease or in such leasehold estate as well as the fee estate in the
leasehold Premises or any interest in such fee estate.
16.05 Easements. Landlord reserves the right, from time to time, to
grant easements and rights, make dedications, agree to restrictions and record
maps affecting the Project as Landlord may deem necessary or desirable, so long
as such easements, rights, dedications, restrictions, and maps do not
unreasonably interfere with the use of the Premises by Tenant; and this Lease
shall be subordinate to such instruments.
16.06 Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and enforceable to the full extent permitted by law. No remedy or
election hereunder shall be deemed exclusive, but shall wherever possible, be
cumulative with all other remedies at law or in equity. Neither this Lease nor
any term or provision hereof may be changed, waived, discharged or terminated
orally, and no breach thereof shall be waived, altered or modified, except by a
written instrument signed by the party against which the enforcement of the
change, waiver, discharge or termination is sought. Any right to change, waive,
discharge, alter or modify, or terminate this Lease shall be subject to the
prior express written consent of Landlord's Mortgagee.
16.07 No Waiver. No waiver of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach of the same or
any other provision. No waiver of any breach shall affect or alter this Lease,
but each and every term, covenant and condition of this Lease shall continue in
full force and effect with respect to any other then existing or subsequent
breach thereof. No reference to any specific right or remedy shall preclude the
exercise of any other right or remedy permitted hereunder or that may be
available at law or in equity. No failure by Landlord to insist upon the strict
performance of any agreement, term, covenant or condition hereof, or to exercise
any right or remedy consequent upon a breach thereof, and no acceptance of full
or partial rent during the continuance of any such breach, shall constitute a
waiver of any such breach, agreement, term, covenant or condition.
16.08 Bind and Inure. The terms, provisions, covenants and conditions
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant, and, except as otherwise provided herein, their respective heirs, legal
representatives, successors and assigns.
16.09 Landlord's Liability.
(a) The term "Landlord" as used herein and throughout the
Lease shall mean only the owner or owners at the time in question of Landlord's
interest in this Lease. Upon any transfer of such interest, from and after the
date of such transfer, Landlord herein named (and in case of any subsequent
transfers the then transferor) and each of its partners, principals,
shareholders, beneficiaries or co-tenants, as the case may be, ("Landlord's
Constituent Parties") shall be relieved of all liability for the performance of
any obligations on the part of the Landlord contained in this Lease, provided
that any monies in the hands of Landlord or the then transferor at the time of
such transfer, in which Tenant has an interest, shall be delivered to the
transferee.
(b) The obligations contained in this Lease to be performed by
Landlord shall be binding on Landlord's successors and assigns, only during
their respective periods of ownership, provided, however, that Landlord and each
of Landlord's Constituent Parties shall be under no personal liability with
respect to any of the provisions, covenants or agreements of this Lease. If
Landlord becomes obligated to pay Tenant a money judgment arising out of any
failure by Landlord to perform any of its obligations under this Lease, Tenant
shall be limited for the satisfaction of the money judgment solely to Landlord's
interest in the Building and no other property or assets of Landlord or
Landlord's Constituent Parties shall be subject to levy, execution or other
enforcement procedure whatsoever for the satisfaction of the money judgment.
16.10 Interpretation. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The words used in neuter
gender include the masculine and feminine. If there is more than one Tenant, the
obligations under this Lease imposed on Tenant shall be joint and
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several. The captions preceding the articles of this Lease have been inserted
solely as a matter of convenience and such captions in no way define or limit
the scope or intent of any provision of this Lease.
16.11 Force Majeure. Landlord shall be excused for the period of any
delay in the performance of any obligations hereunder, when prevented from so
doing by cause or causes beyond Landlord's control including, without
limitation, civil commotion, war, labor disputes or strikes, governmental
regulations or controls, inspection delays by governmental authorities, delays
in obtaining governmental permits not occasioned by Landlord's delays, mistakes,
errors or omissions, inability to obtain any material or services, casualty,
acts of God, or the elements. Tenant shall similarly be excused for delay in the
performance of obligations hereunder provided: (a) nothing contained in this
Section or elsewhere in this Lease shall be deemed to excuse or permit any delay
in the payment of any sums of money required hereunder, or any delay in the cure
of any default which may be cured by the payment of money; (b) no reliance by
Tenant upon this Section shall limit or restrict in any way Landlord's right of
self-help as provided in this Lease; and (c) Tenant shall not be entitled to
rely upon this Section unless it shall advise Landlord in writing, of the
existence of any force majeure preventing the performance of an obligation of
Tenant promptly after the commencement of the force majeure.
16.12 Joint and Several. If two or more individuals, corporations,
partnerships or other business associations (or any combination of two or more
thereof) shall sign this Lease as Tenant, the liability of each such individual,
corporation, partnership or other business association to pay Rent and perform
all other obligations hereunder shall be deemed to be joint and several.
16.13 Entire Agreement. This Lease, including the Exhibits hereto,
which are made part of this Lease, contain the entire agreement of the parties
and all prior negotiations and agreements are merged herein. Neither Landlord
nor Landlord's agents have made any representations or warranties with respect
to the Premises, the Building or this Lease except as expressly set forth
herein, and no rights, easements or licenses are or shall be acquired by Tenant
by implication or otherwise unless expressly set forth herein. Tenant covenants
and agrees that no diminution of light, air or view by any structure that may
hereafter be erected (whether or not by Landlord) shall entitle Tenant to any
reduction of Annual Base Rent or Additional Rent under this Lease, result in any
liability of Landlord or Tenant, or in any other way affect this Lease or
Tenant's obligations hereunder.
16.14 Authority. If Tenant signs as a corporation or a partnership,
each person executing this Lease on behalf of Tenant hereby covenants and
warrants that Tenant is a duly authorized and existing entity, that Tenant is
duly qualified to do business in Connecticut, that Tenant has full right and
authority to enter into this Lease, and that each person signing on behalf of
Tenant is duly authorized to do so and that no other signatures are necessary.
Upon Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord confirming the foregoing covenants and warranties.
16.15 Governing Law. This Lease and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with the laws of
the State of Connecticut.
16.16 Survival. All agreements, covenants and indemnifications
contained herein or made in writing pursuant to the terms of this Lease by or on
behalf of Tenant shall be deemed material and shall survive expiration or sooner
termination of this Lease.
16.17 Building Name. The Building and the Project may be known by such
name as Landlord, in its sole discretion, may elect, and Landlord shall have the
right from time to time to change such designation or name without Tenant's
consent upon thirty (30) days prior written notice to Tenant.
16.18 Submission. Submission of this instrument for examination does
not constitute a reservation of or option for lease of the Premises, and it is
not effective as a lease or otherwise until this Lease has been executed by both
Landlord and Tenant and a fully executed copy has been delivered to each.
ARTICLE 17. OPTION TO RENEW
17.01 Option (a) In the event, but only in the event, that a) Tenant
complies with all provisions of this entire Article as and when required, and b)
at the time of the expiration of the then current term ("current term"), 1)
Tenant, has not been in material default of the terms and provisions of this
Lease during the last 18 months of the Current Term, and 2) this Lease shall
then be in full force and effect, Tenant shall have the option to extend the
term of this Lease for two (2) successive five (5) year terms (each an "option
term") commencing at midnight on the date on which the then current term
terminates. In the event Tenant elects to exercise its option, Tenant shall so
notify Landlord by giving Landlord written notice ("Notice to Landlord")
received by Landlord no later than nine (9) months prior to the expiration of
the then current term. Each option term shall be on the same terms, covenants
and conditions as the initial term except for the amount of the Annual Base Rent
and further except that there shall be absolutely no option whatsoever to extend
the term of this Lease beyond such option terms.
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(b) The Annual Base Rent payable during each Lease Year of each option
term shall be equal to the prevailing market rental rate for office space
located within Landlord's buildings at the Project or within the local market at
the time of commencement of each option term, as determined by agreement between
Landlord and Tenant. If Tenant exercises its option as provided above, it shall
specify in such notice its evaluation of the fair rental value of the Demised
Premises ("Tenant's Rent") for the option term . Within one (1) month
thereafter, Landlord shall send to Tenant a notice stating either (i) Landlord's
agreement with Tenant's Rent, in which event such amount shall be fixed as the
rent payable by Tenant for the option term or (ii) Landlord's evaluation of such
fair rental value ("Landlord's Rent"). If Landlord and Tenant are unable to
agree upon such fair rental value within three months from the date of sending
the notice described in (ii)) above, the matter shall be determined by
arbitration under this Lease. The arbitrator's determination of the fair rental
value of the Demised Premises for the option term may not, in any event, be less
than Tenant's Rent nor more the Landlord's Rent. In no event, however, shall the
Annual Base Rent due and payable during each option term be less than the Annual
Base Rent payable for the immediately preceding Lease Year. Tenant shall
continue to pay Landlord the Annual Base Rent (and any Additional Rent) due
under this Lease at the rate being paid during the immediately preceding Lease
Year until such time as the Annual Base Rent for the option term has been
determined pursuant to this Section. All adjustments to said Annual Base Rent
shall be due and payable in full on the first day of the month following such
determination.
ARTICLE 18. CANCELLATION
18.01 Cancellation. In the event, but only in the event that (a) Tenant
complies with all provisions of this entire Article, as and when required, and
at the time of Tenant's exercise of its right to cancel Tenant is not in default
of all terms and/or provisions of this Lease, Tenant is hereby granted the right
to cancel this Lease at any time and for any reason after the end of the 84th
month after the Commencement Date of this Lease provided that:
(a) Tenant shall have notified Landlord by giving Landlord
written notice ("Termination Notice") received by Landlord no later than nine
(9) months prior to the date Tenant proposes to surrender the Premises to the
Landlord (the "Termination Date");
(b) Tenant actually surrenders the Premises on the Termination
Date; and
(c) Tenant pays to Landlord at the time Tenant delivers the
Termination Notice to Landlord a Termination Fee equal to one hundred percent
(100%) of the Landlord's unamortized costs defined herein. The term "unamortized
costs" shall mean Costs incurred by the Landlord, amortized on a nine year
schedule beginning on the Commencement Date and assuming equal monthly payments
of principal and interest, with interest at a rate equal to one percent (1%)
over the prime rate of Citibank, N.A. on the Commencement Date. The Term "Costs"
shall mean and refer to all actual expenditures of the Landlord, for alterations
and improvements in connection with this Lease , all leasing commissions paid by
Landlord, legal fees actually paid by Landlord in connection with the
preparation, execution and delivery of the Leases and any documents or
instruments delivered to Landlord or Tenant in connection with the Leases,
architectural fees, and all other fees and expenses of whatever kind or nature
related to the entering into, the execution and delivery of these Leases and the
performance of Landlord's obligations pursuant to the Leases which do not and
did not constitute Additional Rent and which were not otherwise paid by Tenant
or others.
ARTICLE 19. GROUND LEASE
19.01 Tenant acknowledges that Landlord has entered into a certain
ground lease (the "Ground Lease") (a copy of which (with basic rent provisions
deleted) is attached hereto as Exhibit "E") wherein Landlord has agreed to lease
a portion of the site upon which the Building is located from Wilton Executive
Campus Associates for an initial term of seventy-five (75) years. Landlord
warrants and represents to Tenant that the Ground Lease is in full force and
effect and that Landlord is not in default thereof and knows of no facts or
circumstances that would give rise to a default if such facts or circumstances
came to the attention on the Ground Lease Landlord. Landlord further warrants
and represents to Tenant that it will, for the entire Term and any extensions
and renewals thereof fully perform all of the covenants and agreements contained
in the Ground Lease and will provide Tenant prompt written notice of any
Landlord default thereunder, including but not limited to copying Tenant with
any notice of default received by Landlord from the Ground Lease Landlord. In
the event that Landlord is in default of the Ground Lease and fails to cure such
default within the cure periods provided in the Ground Lease, Tenant may, at its
option, and after ten (10) days written notice to Landlord of its intention to
do so, cure Landlord's default and deduct the total cost of such cure from the
Base Rent next coming due until the cost of cure is recovered.
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19.02 Tenant agrees that this Lease and its interest hereunder shall be
subordinate to the Ground Lease, any first mortgage, deed of trust and/or other
security instrument hereafter placed upon the Ground Lease, the Building or the
Demised Premises and/or on any portion of the Executive Campus by Wilton
Executive Campus Associates or the Landlord, and to any and all advances made or
to be made thereunder, to the interest thereof, and all renewals, replacements
and extensions thereof. Landlord shall provide Tenant with a non-disturbance
agreement from the Ground Lease Landlord and non-disturbance agreements from all
mortgagees holding a mortgage covering the ground subject to the Ground
LeaseTenant shall have the right to file a Notice of Lease on the Wilton Land
Records in accordance with X.X.X.X.xx. 47-19.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
day and year first above written.
WITNESSESS LANDLORD:
WILTON CAMPUS PROPERTIES, LLC
/s/
--------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ By /s/
-------------------------------- ---------------------------------
Xxxxxxxx X. Xxxxxx Name:
Title: Manager
TENANT:
GREENFIELD ONLINE, INC.
/s/
--------------------------------
Xxxxxxxx X. Xxxxxx
/s/ By: /s/
-------------------------------- ---------------------------------
Xxxxx Xxxxxxxx Name: Xxxx Xxxxxx
Title: Pres + CEO
27
STATE OF CONNECTICUT )
) ss. Fairfield
COUNTY OF FAIRFIELD )
On this the 20th day of October, 1999, before me, Xxxxxxx X. Xxxxxxxxx,
the undersigned officer, personally appeared Xxxxxxx X. Xxxx, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged himself/herself to be a manager of Wilton Campus
Properties, LLC, a limited liability company, and that he/she, as such manager,
being authorized so to do, executed the foregoing instrument as the free act and
deed of the company for the purposes contained therein by signing the name of
the company by himself/herself as such manager.
IN WITNESS WHEREOF, I hereunto set my hand.
/s/
------------------------------------
Commissioner of the Superior Court/
Notary Public
[Affix Notarial Seal] My Commission Expires:
STATE OFCONNECTICUT )
) ss. Westport
COUNTY OF FAIRFIELD )
On this the 20 day of October, 1999, before me, Xxxxxxxx X. Xxxxxx, the
undersigned officer, personally appeared Xxxx Xxxxxx, who acknowledged himself
to be the President of Greenfield Online, Inc., a corporation, and that he, as
such President, being authorized so to do, executed the foregoing instrument as
his free act and deed and the free act and deed of the corporation for the
purposes contained therein by signing the name of the corporation by himself as
such officer.
IN WITNESS WHEREOF, I hereunto set my hand.
/s/
------------------------------------
Commissioner of the Superior Court
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EXHIBIT A
Premises
EXHIBIT B
Legal Description
EXHIBIT C
Base Building Improvements
EXHIBIT C
Base Building Improvements
1. Exterior Walls -- gyp-board, taped, no paint;
2. Common area walls -- gyp-board, taped, no paint;
3. HVAC -- heat pump system, roof-top compressor with individual air
handling units in the closets, located in tenant space.
4. Plumbing -- central men and women's bathroom location, per ADA
requirements;
5. Elevator, lobby (upper and lower) and stairways (3) -- fully enclosed
and equipped;
6. Floor -- concrete, smooth finish; and
7. Conduit connecting Demised Premises to Data Center
EXHIBIT D
Rules and Regulations Attached to
and Made a Part of this Lease
1. Tenant shall not display, inscribe, print, paint, maintain or affix
on any place or in or about the Building any sign, notice, legend, direction,
figure or advertisement, except on the doors of the Premises and on the
Directory Boards, and then only such name or names and matter, and in such
color, size, style, place and materials, as shall first have been approved in
writing by Landlord.
2. Tenant shall not advertise the business, profession or activities of
Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities or, which in
Landlord's reasonable judgment, tends to impair the reputation of the Building
or its desirability as a building for offices, and shall not use the name of the
Building for any purpose other than as the business address of Tenant, and
Tenant shall not use any picture or likeness of the Building in any circulars,
notices, advertisements or correspondence without Landlord's prior written
consent.
3. Tenant shall not use the Premises for housing accommodations or
lodging or sleeping purposes, or do any cooking therein (except any convenience
kitchen), or use any illumination other than electric light, or use or permit to
be brought into the Building any flammable oils or fluids such as gasoline,
kerosene, naptha, and benzine, or any explosives, radioactive materials or other
articles deemed hazardous to life, limb or property.
4. Tenant shall not contract for any work or service which might
involve the employment of labor incompatible with the Building employees or
employees of contractors doing work or performing services by or on behalf of
Landlord or with the terms and conditions of any collective bargaining agreement
to which Landlord or Landlord's agents or contractors may be a party.
5. Tenant shall not place anything or allow anything to be placed near
the glass of any window, door, partition or wall which may appear unsightly from
outside the Premises, and Tenant shall not cover or obstruct the sashes, sash
doors, skylights, windows and doors that reflect or admit light and air into the
public places in the Building.
6. No Tenant shall have any property stored outside, except with the
prior consent of Landlord.
7. All sidewalks, halls, passages, exits, entrances, elevators, lobbies
and stairways of the Building, if any, shall not be obstructed by any Tenant or
used by him for any purpose other than for ingress to and egress from his
respective Premises no shall any door be locked during normal business hours. No
Tenant and no employees or invitees of Tenant shall go upon the roof of the
Building.
8. Tenant shall not alter any lock nor install any new or additional
locks or any bolts on any door of the Premises, except with the prior consent of
Landlord, which consent shall not be unreasonably withheld.
9. Tenant shall not overload the floor of the Premises or xxxx, drive
nails, screw or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof.
10. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals, fish or birds, bicycles or other vehicles be brought in or
kept in or about the Premises or the Building. All bicycles shall be parked in
areas designated by Landlord at the Building.
11. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air-conditioning other than that supplied by Landlord.
12. Landlord will direct Tenant as to where and how telephone and
telegraph wire are to be introduced. No boring or cutting for wires will be
allowed without the consent of Landlord. The location of telephones, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
13. Each Tenant, upon the termination of his tenancy, shall deliver to
Landlord the keys of offices, rooms and toilet rooms which shall have been
furnished Tenant or which Tenant shall have had made, and in the event of loss
of any keys so furnished, shall pay the Landlord therefor.
14. Landlord reserves the right to exclude or expel from the Building
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of the Rules and Regulations of the Building.
15. No vending machine or machines of any description shall be
installed, maintained or operated outside the Premises without the written
consent of Landlord. Should tenants desire vending machines of any type within
their Premises, such vending machines shall be provided, maintained and serviced
by Landlord or Landlord's designee.
16. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
17. Any permitted corrosive, flammable or other special wastes shall be
handled for disposal as directed by Landlord and strictly in accordance with all
applicable law.
18. Tenant's use of the Common Areas shall be limited to access and
parking purposes and under no circumstances shall Tenant be permitted to store
any goods or equipment, conduct any operations or construct or place any
improvements, barriers or obstructions in the Common Areas, or otherwise
adversely affect the appearance thereof, without the prior consent of Landlord.
19. Tenant agrees to handle and dispose of all rubbish, garbage, and
waste from Tenant's operations in accordance with regulations established by
Landlord and not permit the accumulation or burning of any rubbish or garbage
in, or about any part of the Building.
20. Tenant shall not change (whether by alteration, replacement,
rebuilding or otherwise) the exterior color and/or architectural treatment of
the Premises or of the Building in which the same are located, or any part
thereof.
21. Tenant shall not use the plumbing facilities for any purpose other
than for which they were constructed, or dispose of any garbage or other foreign
substance therein, whether through the utilization of so-called "disposal" or
similar units, or otherwise.
22. Tenant shall not subject any fixtures, furnishings or equipment in
or on the Premises and affixed to the realty, to any mortgages, liens,
conditional sales agreements or encumbrances without the Landlord's prior
written consent, which shall not be unreasonably withheld.
23. Tenant shall not install any awnings or curtains, blinds, shades or
screens in, on or outside the Premises which are visible to public view outside
the Premises without the Landlord's prior written consent, which shall not be
unreasonably withheld.
24. Tenant shall not permit window cleaning or other exterior
maintenance and janitorial services in and for the Premises to be performed
except by such person(s) as shall be approved by Landlord and except during
reasonable hours designated for such purposes by Landlord.
25. Tenant shall not install, operate or maintain in the Premises any
electrical equipment which will overload the electrical system therein, or any
part thereof, beyond its reasonable capacity for proper and safe operation as
determined by Landlord in light of the over-all system and requirements therefor
in the Building, or which does not bear underwriters' approval.
26. Landlord reserves the right to make such other and further
nondiscriminatory Rules and Regulations as in its judgment may be necessary or
desirable for the safety, care and cleanliness of the Premises and the Building
and for the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations hereinabove stated and any additional Rules and
Regulations which are adopted.
27. Heating, lighting and plumbing: The Landlord or his agent should be
notified at once of any trouble with heating, lighting or plumbing fixtures.
Tenants must not leave doors of the Premises unlocked at night.
28. All freight, furniture, etc. must be received and delivered through
entrances to the Building designated for such purpose unless otherwise
authorized by the Landlord, and only during such hours and in such elevators as
Landlord may reasonably determine from time to time.
29. Nothing shall be thrown from or taken in through the windows, nor
shall anything be left outside the building on the window xxxxx of the Premises.
30. No person shall loiter in the halls, corridors or lavatories.
31. The Landlord, its agents and employees shall have access at
reasonable times to perform their duties in the maintenance and operation of the
Premises.
32. No Tenant shall use any method of heating other than that provided
for in the Tenant's lease without the consent of the Landlord.
33. Any damage caused to the Building or the Premises or to any person
or party herein as a result of any breach of any of the rules and regulations by
the Tenant shall be borne by the Tenant.
34. 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. 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 Premises or the Building under the provisions of
this Rule or the following Rule.
35. Tenant shall not occupy or permit any portion of the 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, or
drugs; for rendition of medical, dental or other diagnostic or therapeutic
services; as a xxxxxx, beauty or manicure shop; as an employment bureau; or for
the preparation, dispensing or consumption of food and beverages in any manner
not consistent with office use, unless specifically approved and agreed to in
writing by Landlord and only for the exclusive use of Tenant, its employees and
visitors. Tenant shall not use the Premises or any part thereof, or permit the
Premises or any part thereof to be used, for sale at retail or auction of
merchandise, goods or property of any kind, except for promotional purposes, or
for manufacturing, printing, except for the operation of normal business office
reproducing or printing equipment and other business machines for Tenant's own
requirements at the Premises; provided that such use shall not exceed that
portion of the mechanical or electrical capabilities of the Building equipment
allocable to the Premises.
36. Tenant shall not take or permit any action which would 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 other tenants or occupants of the
Building. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system and if requested by Landlord shall lower and
close drapes and curtains when the sun's rays fall directly on the windows of
the Premises.
37. Tenant shall comply with such rules and regulations governing
parking as may be promulgated from time to time by Landlord, including, without
limitation, rules and regulations requiring the parking of vehicles in
designated spaces or areas or regarding the exclusion of other spaces or areas.
38. If any governmental license or permit shall be required for the
property and lawful conduct of Tenant's business in the Premises, or any part
thereof, and if failure to secure such license or permit would in any affect
Landlord, then Tenant, at its expense, shall duly procure and thereafter
maintain such license or permit and submit the same inspection by Landlord.
Tenant shall at all times comply with the terms and conditions of each such
license or permit, and failure to procure and maintain same by Tenant shall not
affect Tenant's obligations hereunder.
39. Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense, in such a manner as shall be
sufficient in Landlord's judgment to absorb and prevent vibration, noise and
annoyance.
40. In the moving, delivery of receipt of safes, freight, furniture,
packages, boxes, crates, paper, office material, or any other matter or thing,
Tenant shall use and shall cause its employees and contractors and any others
making deliveries to the Premises to use hand trucks 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 moving, delivery or receipt of the aforementioned
articles.
41. Landlord shall have the right to prohibit any advertising by any
Tenant which, in Landlord's opinion, tends to impair the reputation of the
building or its desirability as a building for offices, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising. Tenant
shall not use the name of the building or its owner in any advertising without
the express prior written consent of the Landlord.
Landlord's Initials: ______ Tenant's Initials: ______
