LEASE
THIS INSTRUMENT IS A LEASE, dated as of August 17 , 2000, in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
certain land with a Building and other improvements to be constructed thereon
and located at 000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000. The Landlord and
the Tenant, being the parties to this instrument, hereby agree as follows:
ARTICLE I
DEFINITIONS AND EXHIBITS
1.1 DEFINITION OF BASIC LEASE TERMS. The following constitute
definitions of the basic terms used in this Lease.
Landlord: 000 Xxxxxx Xxxxxx, LLC,
a Connecticut limited liability company
Landlord's Original Address:
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Tenant: Southern Connecticut Bancorp
a Connecticut banking corporation
Tenant's Original Address:
Bank of Southern Connecticut
000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Base Rent: Annual and monthly Base Rent for the Initial Term shall
be as set forth on Exhibit B.
Base Rent during the Initial Term shall commence with the
first payment due and owing on the Rent Commencement Date, as
more fully set forth in Section 3.1.
If Tenant shall elect to add an Extended Term to the Term of
this Lease, the Annual and monthly Base Rent for each Extended
Term shall be as set forth on Exhibit B.
Brokers: Xxxxxx Xxxx of Xxxxxx Xxxx Realty (Landlord's Broker) and Xxx
Xxxxx of The Proto Group (Tenant's Broker)
Building: The building and other improvements located on that certain
piece or parcel of land known as 000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx, all
as more particularly described on Exhibit A annexed hereto, and shown on the
site plan attached hereto as Exhibit A-1.
Building, Gross Area: 11,306 square feet.
Commencement Date: As defined in Article IV.
Default of Tenant: As defined in Section 11.1.
Expiration Date: Five (5) years, three (3) months following the
Commencement Date, as the same may be extended to the expiration of each
Extended Term elected by the Tenant pursuant to Article XIII.
Extended Term: Each of three (3) extended terms of five (5) years each,
elected at Tenant's option, as more fully set forth in Article XIII.
Initial Public Liability insurance: Two Million Dollars ($2,000,000) per
occurrence (combined single limit) for property damage, bodily injury or death.
Initial Term: The Term prior to any Extended Term. The Initial Term of
this Lease is for five (5) years three (3) months commencing on the Commencement
Date.
Landlord's Mortgagee: The holder of a mortgage lien on the Premises
which has given to Tenant written notice of its identity and its current mailing
address.
Lease Year: "Lease Year" shall mean the period from the Commencement
Date to the expiration of the first fifteen (15) calendar month period of the
Term of this Lease and each succeeding twelve (12) month period for the Term of
this Lease and any Extended Term. If the Commencement Date is not the first day
of a calendar month, the first Lease Year shall be fifteen (15) months plus the
remaining portion of the partial month of the Commencement Date.
Leasehold Improvements: The work specified in Exhibit C to be completed
by the Landlord at its sole cost and expense, prior to the Commencement Date.
See Section 5.2 hereof.
Operating and Tax Expenses: The aggregate of the Operating Expenses and
Taxes, which shall constitute additional rent payable by the Tenant pursuant to
this Lease.
Operating Expenses: The aggregate costs or expenses incurred by the
Tenant with respect to the operation, cleaning, repair, replacement, maintenance
and management of the Premises for which Tenant is responsible as more
particularly set forth in Article VII hereof.
Permitted Uses: Tenant may use the Premises only for banking purposes
and support offices, and for professional and general offices subject to the
terms and conditions of such approvals of the governmental authorities having
jurisdiction as have been or may hereafter be obtained by the Tenant.
Premises: The Building and the land parcel on which it is located
(including all parking areas and sidewalks) as further described in Exhibit A
annexed hereto.
Security Deposit: Eight Thousand Nine Hundred Fifty Dollars ($8,950.00).
Taxes: The real estate taxes and personal property tax assessments
assessed with respect to the Premises and/or any other tax or assessment if the
same replaces or supplements the current method of assessment of real estate
taxes and assessments in whole or in part or is additionally imposed on the
Premises or upon Landlord relating to the Premises and is generally applicable
to owners of similar properties, specifically excepting therefrom any tax
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associated with income from said property imposed on Landlord; and further
excepting any excise, inheritance, estate, succession, transfer, gift,
franchise, corporation, income or profit tax or capital levy imposed on
Landlord; and further excepting any increases in such taxes as a result of a
sale, an assignment or a refinancing of the Property, or a transfer of any type
which could result in a reassessment of the base year property taxes. Tenant
shall be obligated to pay any and all increases in real property taxes and
personal property taxes and assessments resulting from Tenant's alterations,
additions or other improvements in or about the Premises.
Tenant's Initial Leasehold Improvements: Those improvements to the
Premises which Tenant may undertake at its sole cost and expense and which are
set forth on Exhibit D.
Tenant's Operating and Tax Expenses: Tenant's amount of the Operating
and Tax Expenses, which shall be payable by Tenant as Additional Rent.
Tenant's Removable Property: Tenant's personal property, machinery,
furniture and equipment which Tenant may install, maintain and remove from the
Premises.
Term: The period commencing on the Commencement Date and expiring at
11:59 p.m. on the Expiration Date. The Term shall include any Extended Term if
Tenant exercises its extension options as provided in Article XIII.
1.2 EXHIBITS. The following drawings and special provisions are
attached to this Lease as exhibits and by this reference are made a part of this
Lease:
EXHIBIT A Premises Legal Description and Title Matters
EXHIBIT A-l Site Plan of Premises
EXHIBIT B Base Rent for Initial Term and Extended Terms
EXHIBIT C Leasehold Improvements by Landlord
EXHIBIT D Tenant's Initial Leasehold Improvements
EXHIBIT E Notice of Lease
EXHIBIT F Subordination, Non-Disturbance and Attornment
Agreement
EXHIBIT G Real Estate tax xxxx for 1999 Grand List
ARTICLE II
PREMISES
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for
the Term of this Lease and upon the terms and conditions hereinafter set forth,
and, subject to fulfillment by Landlord of its obligations set forth in this
Lease, Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS.
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(a) Tenant will have the right, at its sole cost and expense,
to maintain signage on the fascia of the Building and upon Premises, provided
only the same are in accordance with the City of New Haven sign criteria.
(b) Subject to such reasonable security measures, requirements
and limitations as Tenant may impose upon restricted portions of the Building,
including vault areas, Landlord shall have the right to enter the
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Premises with reasonable advance notice (except in the case of a bona fide
emergency, when no notice shall be required) for the purpose of making any
repairs for which Landlord is expressly responsible under this Lease, and
Landlord shall also have the right to enter the public areas and utility rooms
of the Premises during normal business hours and with reasonable advance notice
for the purpose of inspecting the same and to make access available to
prospective or existing mortgagees, purchasers, partners, investors or insurers,
and with respect to tenants, Landlord shall have the right to show the
unrestricted portions of the Premises during the last nine (9) months of the
Term, including any extension thereof. Landlord agrees to use reasonable efforts
to minimize any inconvenience, annoyance or interruption to Tenant's business
operations, and to recognize and adhere to any reasonable security requirements
of Tenant in exercising such rights of entry. Landlord shall have the right to
use any and all means which Landlord may deem proper in an emergency to obtain
entry to the unrestricted portions of the Premises without liability to Tenant,
and any entry to the Premises obtained by Landlord by any of said means, or
otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises or an eviction
of Tenant from the Premises or any portion thereof.
(c) Tenant shall have the right, at its sole cost and expense,
to install and maintain its own security systems at the Premises, which systems
may prohibit access to portions of the Premises by the Landlord, its agents,
contractors or employees.
2.3 AUTHORITY OF LANDLORD.
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(a) Landlord represents and covenants that Landlord is a
Connecticut limited liability company in good standing and legal existence, has
full authority to enter into this Lease with Tenant, all action required to have
been taken by Landlord to be vested with such authority having been taken, and
the party signing the herein Lease on behalf of Landlord is a duly authorized
member of Landlord authorized to execute and deliver the herein Lease, upon the
doing of which Landlord shall be fully bound hereby.
2.4 AUTHORITY OF TENANT. Tenant represents and covenants that Tenant is
a Connecticut corporation qualified to do business within the State of
Connecticut, Tenant has full authority to enter into the herein Lease with
Landlord, all action required to have been taken by Tenant to be vested with
such authority having been taken, and the party signing the herein Lease on
behalf of the Tenant is a duly authorized officer of the Tenant authorized to
execute and deliver the herein Lease, upon the doing of which Tenant shall be
fully bound hereby.
ARTICLE III
BASE RENT
3.1 PAYMENT.
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(a) Tenant agrees to pay the Base Rent to Landlord, or as
otherwise directed by Landlord with appropriate notice, commencing three (3)
months following the Commencement Date (the "Rent Commencement Date"), without
offset, abatement, deduction or demand. Following the Rent Commencement Date,
such Base Rent shall be payable in equal monthly installments, in advance, on
the first day of each and every calendar month
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during the Term of this Lease, at Landlord's Original Address, or at such other
place as Landlord shall from time to time designate by notice.
(b) Base Rent for any partial month shall be pro-rated on a
daily basis, and if Base Rent commences on a day other than the first day of a
calendar month, the first payment which Tenant shall make to Landlord shall be
payable on the date Base Rent commences and shall be equal to a proportionate
part of the monthly installment of Base Rent for the partial month in which Base
Rent commences.
3.2 SECURITY DEPOSIT. The Tenant has deposited with the Landlord the
sum stipulated in the Definition of Basic Lease Terms as the Security Deposit
for the full and faithful performance and observance of every provision, term
and condition of this Lease to be performed by the Tenant. If Tenant defaults
with respect to any provisions, terms or conditions of this Lease, including,
but not limited to, the payment of Base Monthly Rent and additional rent, or any
other charge due hereunder, Landlord may use, apply or retain all or any part of
this Security Deposit for the payment of any sum in default, or for the payment
of any other amount which Landlord may spend or become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default, including,
without limitation, any damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. If any portion of said Security
Deposit is so used or applied, Tenant shall within five (5) days after written
demand therefor deposit cash with Landlord in an amount sufficient to restore
the Security Deposit to its original amount and Tenant's failure to do so shall
be an event of default under this Lease. Landlord shall be required to keep this
Security Deposit in a segregated account in Tenant's bank and may not commingle
such Security Deposit with its own funds. Tenant shall not be entitled to
interest on such Security Deposit. If Tenant shall fully and faithfully perform
every provision, term and condition of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Tenant (or, at
Landlord's option, to the last assignee of Tenant's interest hereunder) at the
expiration of the Lease Term and after delivery of the entire possession of the
Premises to Landlord.
In the event of the insolvency of Tenant or in the event of the entry
of a judgment in bankruptcy in any court against Tenant which is not discharged
within sixty (60) days after entry, or in the event a petition is filed by or
against Tenant under any chapter of the bankruptcy laws of the State of
Connecticut or the United States of America, then and in such event Landlord may
require the Tenant to deposit additional security in an amount which in
Landlord's sole judgment would be sufficient to adequately assure Tenant's
performance of all of its obligations under this Lease, including all payments
subsequently accruing. Failure of Tenant to deposit the security required by
this Section within ten (10) days after Landlord's written demand shall
constitute a material breach of this Lease by Tenant.
3.3 TRANSFERS.
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(a) In the event of a sale or other transfer of the Premises,
Landlord shall have the right to transfer the Security Deposit to the vendee,
and the Landlord shall thereupon be released by Tenant from all liability for
the return of such Security Deposit. Tenant agrees to look to the new landlord
solely for the return of said Security Deposit. It is agreed that
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the provisions hereof shall apply to every transfer or assignment made of the
security to a new landlord.
(b) In the event of any assignment of this Lease by Tenant, at
Landlord's option the Security Deposit shall be deemed to be held by Landlord as
a security deposit made by the assignee and Landlord shall have no further
liability in respect to the return of the Security Deposit to the assignor.
Any party succeeding to Landlord's interest in the Building or Premises by
reason of the enforcement (or proceeding in lieu thereof) of any encumbrance
shall be relieved and released from any obligation to return the Security
Deposit, except to the extent that such Security Deposit was actually
transferred to such entity as a separate fund identified as the Security
Deposit.
3.4 RENT DUE UPON TERMINATION OF LEASE. If upon termination of this
Lease any amount due pursuant to this Article III has not yet been determined,
an appropriate payment from Tenant to Landlord, or refund from Landlord to
Tenant, shall be made promptly after such determination.
ARTICLE IV
COMMENCEMENT DATE
4.1 COMMENCEMENT DATE. The Commencement Date of this Lease shall be the
date which is the later of (i) January 1, 2001, or (ii) the date on which the
satisfaction or waiver by Tenant of its Banking Approval Contingency as set
forth in Article XVII hereof is obtained, which Commencement Date may be further
extended as expressly provided for hereinafter. The Landlord and Tenant agree to
set forth in a writing the actual Commencement Date once it has been
established.
If Landlord shall fail to vacate the premises and deliver possession to
Tenant on the Commencement Date, such date shall be delayed until possession
shall be delivered. However, if Landlord fails to deliver possession of the
Premises within thirty (30) days of the Commencement Date, and such delay is not
attributable to any Tenant delay or any causes beyond Landlord's reasonable
control, the Tenant shall receive a per diem credit against its Base Rent for
the Premises (to be applied when such Base Rent commences) for each day of such
delayed delivery beyond said thirty (30) day period and if Landlord shall fail
to deliver possession of the Premises within sixty (60) days of the Commencement
Date, Tenant may elect to terminate this Lease by so notifying Landlord of such
election within ten (10) days of the expiration of such 60 day period. Said
credit and termination right shall be Tenant's sole and exclusive remedies for
such delayed delivery.
ARTICLE V
USE AND DEVELOPMENT OF PREMISES
5.1 PERMITTED USE.
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(a) Tenant may use the Premises only for Permitted Uses.
(b) Tenant and Landlord agree to conform to the following
provisions during the Term of this Lease:
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(i) Tenant shall not introduce any Hazardous Material onto
the Premises without complying with all applicable Federal, State and
local laws or ordinances pertaining to the storage, use or disposal
of such materials including, but not limited to, obtaining proper
permits;
(ii) If Tenant's storage, use or disposal of any Hazardous
Material in, on or adjacent to the Premises results in any
contamination of the Premises, the soil or surface or groundwater
requiring remedial, removal or cleanup action under Environmental
Laws (as defined hereinafter), Tenant agrees, at Tenant's sole cost
and expense, to undertake such action with regard to contamination
caused by Tenant in accordance with State of Connecticut Remediation
Standard Regulations, 22a-133K.
(iii) For purposes of this Section 5.1, "Environmental
Laws" shall mean any Federal, State or local statute, law,
regulation, ordinance, code, policy, standard or rule of common law
in effect and in each case as amended as of the Commencement Date,
and any judicial or administrative interpretation thereof as of the
Commencement Date, including any judicial or administrative order,
consent decree or judgment, relating to the environment, health,
safety or hazardous materials, including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq.; the Resource Conservation
and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq.; the
Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251, et seq.; the Toxic Substances Control Act, 15 U.S.C. Section
2601, et seq.; the Clean Air Act, 42 U.S.C. Section 7401, et seq.;
the Safe Drinking Water Act, 42 U.S.C. Section 300f, et seq.; the Oil
Pollution Act of 1990, 33 U.S.C. Section 12701, et seq.; the
Occupational Safety and Health Act, 29 U.S.C. Section 651, et seq.;
and their state and local counterparts and equivalents, and
"Hazardous Material" means any hazardous substance, hazardous waste,
petroleum or petroleum-derived substance or waste, asbestos or any
constituent of any such substance or waste, hazardous substance,
material or waste which is or becomes regulated under any
Environmental Law.
(iv) Tenant shall at all times and in all respects comply
with all Environmental Laws relating to the Premises. Tenant shall
not take any remedial action in response to the presence of any
Hazardous Materials in or about the Premises, nor enter into any
settlement agreement, consent decree or other compromise with respect
to any claims relating to any hazardous materials in any way
connected with the Premises, without first notifying Landlord of
Tenant's intent to do so and affording Landlord opportunity to
appear, intervene or otherwise appropriately assert and protect
Landlord's interest with respect thereto.
(v) Tenant shall immediately notify Landlord in writing
of: (a) any enforcement, cleanup, removal or other governmental or
regulatory action instituted, completed or threatened against Tenant
pursuant to any Environmental Laws; (b) any claim made or threatened
by any person against Tenant or the Premises relating to damage,
contribution, cost recovery compensation, loss or injury resulting
from or claimed to result from any hazardous materials; and (c) any
reports made by Tenant to any environmental agency arising out of or
in
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connection with any Hazardous Materials in or removed from the
Premises, including any complaints, notices, warnings or asserted
violations in connection therewith. Tenant shall also supply to
Landlord as promptly as possible, and in any event within five (5)
business days after Tenant first receives or sends the same, with
copies of all claims, reports, complaints, notices, warnings or
asserted violations, relating in any way to Hazardous Materials in, on
or about the Premises.
(vi) Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord), protect and hold Landlord, its
successors and assigns, free and harmless from and against any and all
claims, liabilities, penalties, forfeitures, losses or expenses
(including attorneys' fees), or death of or injury to any person or
damage to any property whatsoever, arising from, out of or in
connection with, or caused in whole or in part, by (a) the presence in,
on, under or about the Premises, or the discharge in, on, under or from
the Premises, of any Hazardous Materials brought or caused to be
brought into or onto the Premises by or on behalf of Tenant, except for
any discharge on, under or from the Premises of any Hazardous Materials
caused by Landlord; or (b) Tenant's use, analysis, storage,
transportation, disposal, release, threatened release, discharge or
generation of Hazardous Materials to, in, on, under, about or from the
Premises; or (c) Tenant's failure to comply with any Environmental Law.
Tenant's obligations under this Section 5.1 shall include, without
limitation, and whether foreseeable or unforeseeable, all costs of any
required or necessary repair, cleanup or detoxification or
decontamination of the Premises, or the preparation and implementation
of any closure, remedial action or other required plans in connection
therewith, and shall survive the expiration of the Term or earlier
termination of this Lease. For the purpose of this Section 5.1, any
acts or omissions of Tenant, or by employees, agents, assignees,
subtenants, contractors or subcontractors of Tenant or others acting
for or on behalf of Tenant (whether or not they are negligent,
intentional, willful or unlawful) shall be strictly attributable to
Tenant.
(vii) Within thirty (30) days following execution of
the Lease, Landlord will provide Tenant with a Phase I environmental
report for the Premises. If such report shall disclose that the
Premises are not in compliance with all applicable environmental laws
and regulations, unless Landlord shall agree to remediate any such
violations, Tenant may thereupon elect, as its sole and exclusive
remedy, to terminate the Lease, whereupon all rights and obligations of
the parties hereto shall be at an end.
5.2 LEASEHOLD IMPROVEMENTS BY LANDLORD. Landlord, at its sole cost and
expense, shall, on or before the Commencement Date of this Lease complete those
Leasehold Improvements set forth on Exhibit C. Tenant agrees that if has fully
inspected the Premises in its "as is," "where is" condition to its full
satisfaction and Tenant agrees to accept possession of the Premises upon
completion of Landlord's Improvements as provided for herein. Tenant agrees that
it has not relied upon any representations or statements of the Landlord or its
agents regarding the Premises.
5.3 INSTALLATIONS AND ALTERATIONS BY TENANT.
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(a) Tenant shall make no alterations, additions or
improvements in or to the Premises during the Term of this Lease without the
prior written
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consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed, provided that Tenant fully complies with the provisions
of this Section 5.3, and provided further that such consent shall expressly
indicate the extent to which such alterations, additions or improvements must be
removed by Tenant at the expiration of this Lease or, if applicable, must then
remain on the Premises. Tenant agrees to pay for Landlord's reasonable expenses
for professional services it requires to review Tenant's plans and
specifications. Landlord shall not, however, require any such removal if the
alterations, additions or improvements could be reasonably expected to be
reusable by the succeeding tenant in the Premises. Any such alterations,
additions or improvements shall (i) be made in accordance with complete
construction plans and specifications approved by Landlord, which approval shall
not be unreasonably withheld, delayed or conditioned; (ii) be constructed in a
good and workmanlike manner and in compliance with all applicable laws, codes,
regulations, permits and approvals required by any governmental entities having
jurisdiction therefor; and (iii) be made at Tenant's sole expense. Upon any
termination or earlier expiration of this Lease, Tenant shall surrender the
Premises in the same condition as existed at the Commencement Date, except for
normal wear and tear and damage caused by the elements, casualty or any other
cause for which Tenant might be liable.
(b) Landlord hereby consents to those initial improvements to
the Premises as set forth on Exhibit D hereto ("Tenant's Initial Leasehold
Improvements").
(c) All articles of personal property and all business
fixtures, communications equipment, machinery and equipment and furniture owned
or installed by Tenant solely at its expense in the Premises ("Tenant's
Removable Property") shall remain the property of Tenant and shall be removed by
Tenant at the expiration or earlier termination of this Lease, and Tenant, at
its expense, shall repair any damage to the Building caused by such removal.
(d) Notice is hereby given that Landlord shall not be liable
for any labor or materials furnished or to be furnished by contractors,
mechanics or suppliers to Tenant upon credit, and that no mechanic's or other
lien for any such labor or materials shall attach to or affect the reversion or
other estate or interest of Landlord in and to the Premises. Whenever and as
often as any mechanic's lien shall have been filed against the Property based
upon any act or interest of Tenant or of anyone claiming through Tenant, Tenant
shall forthwith take such action by bonding, deposit or payment as will remove
or satisfy the lien within sixty (60) days after the lien is recorded.
5.4 OPERATION OF BUSINESS.
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(a) Tenant shall, subject to Section 12.20, during the entire
Term not use or suffer or permit to be used the Premises or any part thereof in
any manner which constitutes a nuisance, or in any manner that will adversely
affect the structural strength of the Building in which the Premises are
located.
(b) Tenant shall have no covenant to operate its business in
the Premises or remain open for business in the Premises. Tenant's closing for
business shall not alter, affect, change or modify Tenant's obligation to pay
Rent or to perform any of Tenant's other obligations under this Lease. Tenant's
closing for business pursuant to, and in accordance with, this Section shall not
constitute a default under this Lease. Provided, however, that if the Building
is unoccupied, the Tenant agrees that the utilities shall
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remain operating and the Building shall be kept in a secure and well-maintained
state.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 NOTICE REQUIRED.
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(a) Except as provided in this Article VI, Tenant covenants
and agrees that neither this Lease nor the term and estate hereby granted, nor
any interest herein or therein, will be assigned and that neither the Premises
nor any part thereof will be sublet in each case without first obtaining the
written approval of Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed.
(b) Notwithstanding the foregoing, the provisions of paragraph
(a) of this section shall not apply to any transactions by Tenant with an entity
into or with which Tenant is merged or consolidated or with an entity to which
substantially all of Tenant's assets are transferred or with any entity which
controls or is controlled by Tenant or any member of its board of directors or
is under common control with Tenant or with which Tenant or any member of its
board of directors, directly or indirectly, has a fifty percent (50%) or greater
ownership interest, or which directly or indirectly, has a fifty percent (50%)
or greater interest in Tenant (any such foregoing entity being a "Permitted
Assignee"). As used in this Section, "control" and its conjugations and
declensions means the possession, whether direct or indirect, of the power to
direct or cause the direction of the management and policies of the business
entity.
(c) Upon any assignment or sublease, Tenant shall be not be
released from any past or continuing liability on this Lease or from performing
any of the terms, covenants and conditions of this Lease. Any attempted
assignment, sublease or other transfer by Tenant without the prior written
approval of Landlord, except to a Permitted Assignee, shall be void and confer
no right or interest on the purported transferee.
ARTICLE VII
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
7.1 REPAIRS.
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(a) Landlord shall be responsible at its sole cost and expense
for any replacement as it deems necessary or advisable of the roof and
structural components (i.e., exterior walls and foundation) of the Building in
which the Premises are located and for the replacement as it deems necessary or
advisable of the heating, ventilating and air conditioning systems of the
Premises ("HVAC System"). Landlord shall perform such work after reasonable
notice to Tenant and at a time and in a manner so as to minimize the disruption
of or interference with Tenant's normal conduct of business or access to the
Premises and in conformance with all security requirements reasonably imposed
upon the Premises by the Tenant, but nothing contained herein shall require
Landlord to incur overtime expenses for any such work.
Except as set forth in the preceding paragraph, Tenant shall,
commencing on the Commencement Date and thereafter at all times, be solely
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responsible at its sole cost and expense for keeping each and every element of
every kind and nature of the Premises and the Building thereon repaired,
maintained, replaced or added to so as to maintain the same in good order, in
sanitary and safe condition and repair, and in compliance with all governmental
laws, ordinances, codes and other requirements and all insurance requirements.
Those elements of the Premises for which Tenant shall be responsible include, by
way of example and not limitation, the following, except as otherwise provided
in paragraph (a) above: all repairs and replacements to and maintenance of the
Building, its mechanical, electrical and plumbing systems, fixtures and other
improvements and the HVAC system and elevators (each of which shall be
maintained and repaired by a service company reasonably acceptable to Tenant,
pursuant to a contract reasonably acceptable to Tenant) and all grounds,
sidewalks and parking areas, including snow and ice removal. All such costs
incurred by Tenant in connection with this paragraph shall be deemed Operating
Expenses. Except for Landlord's replacement obligations as expressly set out in
the paragraph above, this Lease shall be absolute net to Landlord, with no right
whatsoever by Tenant of setoff, deduction or recoupment. Landlord shall not
assess Tenant any management or administrative fees in connection with this
Lease.
(b) Tenant shall promptly perform any maintenance and make any
repair or replacement which Tenant is required to make pursuant to Section
7.1(a) in a good and workmanlike manner and in conformance with all applicable
laws, ordinances and codes and insurance requirements. If Landlord has given
notice to Tenant of the need to perform such maintenance and to make such
repairs or replacements, and Tenant has failed to commence to take appropriate
actions and/or complete such work (as the case may be) within a reasonable time
after receipt of such notice based upon the nature of the work, but, in no
event, exceeding thirty (30) days after notice, or thereafter fails to proceed
with reasonable diligence to complete such work, Landlord may, but shall not be
obligated to, complete such work after prior written notice to Tenant of
Landlord's intention to do so. Landlord shall provide Tenant with reasonable
documentation evidencing the reasonable costs and expenses incurred by Landlord
in exercising this right of self-help. Tenant shall reimburse Landlord for
reasonable costs and expenses incurred by Landlord within ten (10) days after
receiving Landlord's documentation. Notwithstanding the foregoing, in the event
that any occurrence upon the Premises shall result in a condition imminently
threatening to the Premises in the reasonable and good faith judgment of the
Landlord (such occurrence being referred to herein as an "Emergency"), and such
Emergency is of such a nature that Tenant is be required to remedy same under
the terms of this Lease, and if Tenant shall not immediately take such steps as
are necessary to cause an abatement of the condition or conditions giving rise
to such Emergency after receiving notice thereof from Landlord, then in such
event Landlord may thereafter take such steps and engage in such curative
actions as are reasonably required to xxxxx the Emergency without further notice
to Tenant, upon the doing of which Landlord shall be entitled to reimbursement
from Tenant for the costs to Landlord of all such curative actions, and Tenant
shall be obligated to pay same within thirty (30) days after receipt of such
invoice and supporting documentation from Landlord.
(c) Tenant agrees that it will not commit or permit waste at
the Premises and will surrender the Premises in a broom-clean condition at the
expiration of the Lease, normal wear and tear and loss by casualty excepted.
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7.2 COMPLIANCE WITH LAW.
-------------------
Landlord represents to Tenant that Landlord has received no
notices of any violations of any laws (including ADA), ordinances, rules,
regulations or orders from any governmental authority with respect to the
Premises. 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 with respect to the Premises or to the
Tenant's use thereof, including, without limitation, the Americans with
Disabilities Act ("ADA"), all environmental laws and the Federal Occupational
Safety and Health Act of 1970, and will obtain and maintain any and all licenses
and permits necessary for any such use, and shall further comply with all
insurance requirements imposed by any insurers of the Premises.
7.3 BUILDING SERVICES.
-----------------
(a) Commencing on the Commencement Date and thereafter at all
times, Tenant shall provide or cause to be provided at its sole cost and expense
all building services, including, by way of example and not limitation, the
following:
(i) All utilities serving the Premises.
(ii) Building janitorial and trash removal services shall be
provided by Tenant.
(iii) Adequate lighting of the parking lot of the Premises.
(iv) Mowing of all grass areas and maintenance of all
landscaping.
(v) Timely plowing and removal of snow and ice from all
walkways and parking areas.
(vi) Adequate lighting, heating, ventilation and cooling of
the Building.
7.4 UTILITIES. Tenant shall have no responsibility for any charges
accruing prior to the Commencement Date. Commencing on the Commencement Date and
thereafter at all times, Tenant shall, at its own expense, pay before
delinquency directly to the utility company or other provider thereof for all
water, sewer, gas, electricity, telephone and all other utilities consumed on
the Premises and for all other charges for said utilities for the Premises. In
no event shall Landlord be responsible for damages to Tenant caused by the
temporary interruption of utility services to Tenant or the Premises, nor shall
Rent be offset as a result of any such interruption.
ARTICLE VIII
OPERATING AND TAX EXPENSES
8.1 TENANT'S PAYMENTS.
-----------------
(a) Commencing on the Commencement Date and continuing
thereafter at all times, Tenant shall be liable for the payment of Tenant's
Operating and Tax Expenses as additional rent, which amount shall be apportioned
for any
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period in which the Commencement Date falls or the Term of this Lease expires or
otherwise terminates.
(b) Prior to their payment date, Landlord shall submit to
Tenant the Tax bills and Tenant shall pay such amounts directly to the City of
New Haven prior to their due date. Attached hereto as Exhibit G is the Real
Property tax xxxx for the 1999 Grand List.
8.2 PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all
license fees, public charges, property taxes and assessments on the furniture,
fixtures, equipment and other property of the Tenant or being used by Tenant at
any time situated on or installed in the Premises.
ARTICLE IX
INDEMNITY AND INSURANCE
9.1 INDEMNITY. Tenant agrees to indemnify, defend, protect and save
harmless Landlord from and against all claims and liabilities of whatever nature
arising from, out of or in connection with any accident, injury, death or damage
whatsoever to any person, or to the property of any person, occurring on or
about the Premises after the Commencement Date of this Lease until the end of
the Term of this Lease, including, without limitation, the negligence or willful
misconduct of Tenant or its employees, agents or contractors, any breach or
default on the part of Tenant in the performance of any covenant or agreement on
the part of Tenant to be performed pursuant to the terms of this Lease, or any
acts or omissions of any person upon the Premises by license of Tenant or of any
person or entity deriving his, her or its right to occupy the Premises or any
part thereof from, by or through Tenant, except to the extent (if any) any of
the foregoing is caused by the negligence or willful misconduct of Landlord or
its employees, agents or contractors, or the breach or default on the part of
the Landlord in the performance of any covenant or agreement on the part of the
Landlord to be performed pursuant to the terms of this Lease, in which event,
Landlord agrees to indemnify, defend, protect and save harmless Tenant from and
against claims and liabilities of whatever nature arising from such breach or
from such negligence or willful misconduct of Landlord, or its employees, agents
or contractors. This indemnity and hold harmless agreement shall include
indemnity against all costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon and the defense
thereof including, without limitation, reasonable attorneys' fees and costs at
both the trial and appellate levels. When the claim is caused by the joint
negligence or willful misconduct of Landlord and Tenant or Landlord and a third
party unrelated to Landlord (except Landlord's agents, contractors, employees or
invitees), Landlord's duty to defend, indemnify and hold Tenant harmless shall
be in proportion to Landlord's allocable share of the joint negligence or
willful misconduct. The indemnities under this subsection are given subject to
the provisions of Section 9.4 hereof.
9.2 PUBLIC LIABILITY AND LOSS OF RENT INSURANCE. Tenant agrees as to
the Premises to maintain in full force at Tenant's sole cost and expense from
the Commencement Date, throughout the Term of this Lease, and thereafter so long
as Tenant is in possession of any part of the Premises, a policy of public
liability insurance, workers' compensation insurance as required by law and
rental income insurance equal to the Base Rent payable by Tenant for up to one
year (collectively "Tenant's Policy"). Tenant's Policy shall name Tenant as an
insured and Landlord shall be named as an additional insured. Tenant's Policy
shall be non-cancellable and non-amendable with respect to
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Landlord without thirty (30) days' prior notice and Tenant's Policy of public
liability insurance shall be in at least the amount of the Initial Public
Liability Insurance specified in Section 1.1, and a duplicate original or
Evidence of Insurance certificate of Tenant's Policy shall be delivered to
Landlord. Tenant shall maintain at its sole cost and expense such insurance on
its personal property as Tenant deems appropriate.
9.3 PROPERTY AND CASUALTY INSURANCE. Landlord shall pay for and shall
maintain in full force and effect at all times a standard policy or policies
insuring against "all risk" perils (also known as "special perils") covering the
Building and other improvements owned by Landlord at the Premises in an amount
at least sufficient to avoid the effect of coinsurance provisions of the policy
or policies (i.e., not less than eighty percent (80%) of the actual replacement
cost of the Premises and other improvements, without deduction for depreciation
and excluding foundations, excavation costs and the cost of underground flues,
pipes and drains, if such costs are properly excludable under co-insurance
requirements). Such insurance may include a standard form of lender's loss
payable endorsement, issued to the holder or holders of a mortgage or deed of
trust secured in whole or in part by the Parcel and the other parcels on which
the insured improvements are located. The premiums for such insurance shall not
be included in Operating Expenses. Landlord agrees that it shall cause such
policy or policies of insurance to be issued and shall provide to Tenant upon
its request made from time to time an Evidence of Insurance certificate
evidencing that such insurance has been procured and is in full force and
effect. Landlord may elect to maintain flood coverage, but the costs thereof
shall be borne solely by Landlord and shall not be included in Operating
Expenses. All proceeds of such policies shall belong to Landlord and Tenant
shall have no claim thereto.
9.4 WAIVER OF SUBROGATION. Landlord and Tenant mutually agree that any
property damage insurance carried by either shall provide for the waiver by the
insurance carrier of any right of subrogation against the other, and they
further mutually agree that, with respect to any damage to property, the loss
from which is covered by insurance then being carried by them, respectively, the
one carrying such insurance and suffering such loss releases the other of and
from any and all claims with respect to such loss.
ARTICLE X
FIRE, EMINENT DOMAIN, ETC.
10.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or
other casualty, Base Rent payable by Tenant shall be justly and equitably abated
and reduced according to the nature and extent of the loss of the use thereof
suffered by the Tenant for the period in which, by reason of such damage, there
is material interference with Tenant's use of the Premises, having regard to the
extent to which Tenant is required to discontinue Tenant's use of all or a
portion of the Premises, but such abatement or reduction shall end if and when
Landlord shall have restored the Premises to the condition in which they were
prior to such damage. If the Premises shall be affected by any exercise of the
power of eminent domain, Base Rent payable by Tenant shall be justly and
equitably abated and reduced according to the nature and extent of the loss of
use thereof suffered by Tenant. In no event shall Landlord have any liability
for damages to Tenant for inconvenience, annoyance or interruption of business
arising from such fire, casualty or eminent domain.
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10.2 RIGHTS OF TERMINATION. Within thirty (30) days from the date of
damage by fire or other casualty, Landlord shall notify Tenant whether or not
the Premises can be restored to its original condition within one hundred eighty
(180) days from the date of such damage. For purposes hereof, the Building or
Premises shall be deemed "restored" if they are in substantially the same
condition as they were in prior to such damage. If the Premises cannot be so
restored within one hundred eighty (180) days, Tenant shall have the option by
giving written notice, within ten (10) days after delivery of Landlord's notice,
of terminating this Lease as of the date of such damage. In the event of the
giving of such notice, this Lease shall terminate and all interest of the Tenant
in the Premises shall terminate as of the date of such damage as if such date
had been originally fixed in this Lease for the expiration of the Term.
10.3 RESTORATION. In the event that Tenant does not exercise its above
set forth option to terminate this Lease in the event of damage by fire or other
casualty, then Landlord shall repair or restore such damage, this Lease
continuing in full force and effect, with the Base Rent hereunder to be
equitably abated as herein above provided. In the event that Landlord notifies
Tenant that the Premises can be materially restored within one hundred eighty
(180) days from the date of damage by fire or other casualty pursuant to Section
10.2 and Landlord fails to materially restore the Premises within such one
hundred eighty (180) day period, then Tenant as its sole and exclusive remedy
shall be entitled to terminate this Lease by giving Landlord notice of such
termination within ten (10) days after the expiration of such period and this
Lease shall terminate as of the date of such damage as if such date had been
originally fixed in this Lease for the expiration of the Term; provided,
however, that if Landlord shall be delayed in, hindered in, or prevented from,
completing the restoration within said period by reason of Force Majeure
(defined in Section 12.20), or if the delay shall be due to delay in receipt of
custom ordered items, then the time for completion of the restoration shall be
extended for the period of the delay (but in no event more than thirty (30)
days). Landlord shall not be required to repair any damage by fire or other
cause, or to make any repairs or replacements of any alterations, additions or
improvements installed in the Premises by Tenant or to any of Tenant's personal
property or equipment; and if Landlord shall restore the Premises, Tenant shall
be required to repair and restore such damage at Tenant's cost and expense.
10.4 EMINENT DOMAIN. If possession of all or more than twenty-five
percent (25%) of the floor area of the Building shall be taken by any public or
quasi-public authority under the power of eminent domain, or conveyance in lieu
thereof, either party hereto shall have the right, at its option, of giving the
other, at any time within thirty (30) days after such taking, notice terminating
this Lease. If neither party hereto shall so elect to terminate this Lease, Rent
shall be adjusted equitably.
10.5 CONDEMNATION AWARD. Landlord shall have and hereby reserves and
excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover
for damages to the Property and to compensation accrued or hereafter to accrue
by reason of such taking by a condemning authority, and by way of confirming the
foregoing, Tenant hereby grants and assigns, and covenants with Landlord to
grant and assign to Landlord, all rights to such damages or compensation from
the condemning authority; provided, however, if any such damages or compensation
award expressly includes an amount for Tenant's Removable Property or Tenant's
moving expenses, Landlord shall pay such amount to Tenant promptly after
Landlord's receipt thereof. Nothing contained herein
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shall be construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the value of any of Tenant's Removable Property
installed in the Premises by Tenant at Tenant's expense and for relocation
expenses, provided such Tenant award shall not diminish the amount of award
attributable to Landlord.
ARTICLE XI
DEFAULT
11.1 TENANT'S DEFAULT.
----------------
(a) If at any time subsequent to the date of this Lease any
one or more of the following events (herein referred to as a "Default of
Tenant") shall happen:
(i) Tenant shall fail to pay the Base Rent when due and
such failure shall continue for fifteen (15) days after such due
date;
(ii) Tenant shall fail to pay Tenant's Operating and Tax
Expenses or other charges hereunder when due and such failure shall
continue for fifteen (15) days after the same shall be due and
payable; or
(iii) Tenant shall neglect or fail to perform or observe
any other covenant herein contained on Tenant's part to be performed
or observed and Tenant shall fail to remedy the same as soon as
practicable and in any event within thirty (30) days after written
notice to Tenant specifying such neglect or failure, or if such
failure is of such a nature that Tenant cannot reasonably remedy the
same within such thirty (30) day period, Tenant shall fail to
commence promptly (and in any event within such thirty (30) day
period) to remedy the same and to prosecute such remedy to completion
with diligence and continuity; or
(iv) Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law directed against
Tenant; or
(v) Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in bankruptcy or shall
be adjudicated bankrupt or insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself
under any present or future Federal, State or other statute, law or
regulation for the relief of debtors, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator
of Tenant or of all or substantially all of its properties, or shall
admit in writing its inability to pay its debts generally as they
become due; or
(vi) A petition shall be filed against Tenant in
bankruptcy or under any other law seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under any present or future Federal, State or other
statute, law or regulation and shall remain undismissed or unstayed
for an aggregate of sixty (60) days (whether or not consecutive), or
if any debtor in possession (whether or not Tenant) trustee, receiver
or liquidator of Tenant or of all or any substantial part of its
properties or of the Premises shall be appointed without the consent
or acquiescence
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of Tenant and such appointment shall remain unvacated or unstayed for
an aggregate of ninety (90) days (whether or not consecutive);
then, in any such case, Landlord may terminate this Lease, and this
Lease shall come to an end on the date specified in such notice as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Term of this Lease, and Tenant will then quit and surrender
the Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
(b) If this Lease shall have been terminated as provided in
this Article, or if any execution or attachment shall be issued I against Tenant
or any of Tenant's property whereupon the Premises shall be taken or occupied by
someone other than Tenant, then Landlord may re-enter the Premises in
conformance with any final judgment order in a summary process action and remove
and dispossess Tenant and all other persons and any and all property from the
same, as if this Lease had not been made, and
Landlord shall use commercially reasonable efforts to relet
the whole or any portion or portions of the Premises from time to time, either
in the name of Landlord or otherwise, to such tenant or tenants, for such term
or terms ending before, on or after the expiration date of this Lease, at such
rental or rentals and upon such other conditions, which may include concessions
and free rent periods, as Landlord, in its sole discretion, may determine;
provided, however, that Landlord shall in no event be liable for failure to
relet the Premises or any part thereof, or, in the event of any such reletting,
for failure to collect any rent due upon any such reletting, and no such failure
shall operate to relieve Tenant of any liability under this Lease or otherwise
affect any such liability, and Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any such liability.
Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does further hereby
waive any and all rights which Tenant and all such persons might otherwise have
under any present or future law to redeem the Premises, or to reenter or
repossess the Premises, or to restore the operation of this Lease, after (a)
Tenant has been dispossessed by a judgment or by warrant of any court or judge,
or (b) any reentry by Landlord, or (c) any expiration or termination of this
Lease and the Term, whether such dispossess, reentry, expiration or termination
shall be by operation of law or pursuant to the provisions of this Lease. The
words "reenter," "reentry" and "reentered" as used in this Lease shall not be
deemed to be restricted to their technical legal meanings. In the event of a
breach or threatened breach by Tenant, or any persons claiming through or under
Tenant, of any term, covenant or condition of this Lease, Landlord shall have
the right to enjoin such breach and the right to invoke any other remedy allowed
by law or in equity as if reentry, summary proceedings and other special
remedies were not provided in this Lease for such breach. The right to invoke
the remedies hereinbefore set forth are cumulative and shall not preclude
Landlord from invoking any other remedy allowed at law or in equity.
- 17 -
If this Lease shall be terminated and come to an end as
provided in (a) hereof, or by or under any summary proceeding or any other
action or proceeding, then, in any of said events:
(i) Tenant shall pay to Landlord all Rent payable under
this Lease by Tenant to Landlord to the date upon which this Lease
and the Term shall have expired and come to an end or to the date of
reentry upon the Premises by Landlord, as the case may be;
(ii) Tenant also shall pay to Landlord, as damages, the
excess if any, of (A) the Rent for the period which otherwise would
have constituted the unexpired portion of the Term, over (B) the net
amount, if any, of rents collected under any reletting effected
pursuant to the provisions of this Article XI for any part of such
period (first deducting from the rents collected under any such
reletting all of Landlord's expenses in connection with the
termination of this Lease, Landlord's reentry upon the Premises and
with such reletting, including, but not limited to, all repossession
costs, brokerage commissions, legal expenses, attorneys' fees and
disbursements, alteration costs, contribution to work and other
expenses of preparing the Premises for such reletting) (such excess
being referred to herein as a "Deficiency"); any such Deficiency
shall be paid in monthly installments by Tenant on the days specified
in this Lease for payment of installments of Base Rent, Landlord
shall be entitled to recover from Tenant each monthly Deficiency as
the same shall arise, and no suit to collect the amount of the
Deficiency for any month shall prejudice Landlord's right to collect
the amount of the Deficiency for any month shall prejudice Landlord's
right to collect the Deficiency for any subsequent month by a similar
proceeding;
(iii) whether or not Landlord shall have collected any
monthly Deficiency as aforesaid, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, in
lieu of any further Deficiency as and for liquidated and agreed final
damages, a sum equal to the amount by which the Rental for the period
which otherwise would have constituted the unexpired portion of the
Term (commencing on the date immediately succeeding the last date
with respect to which a Deficiency, if any, was collected) exceeds
the then fair and reasonable rental value of the Premises for the
same period, both discounted to present worth at the Base Rent; if,
before presentation of proof of such liquidated damages to any court,
commission or tribunal, the Premises, or any part thereof, shall have
been relet by Landlord for the period which otherwise would have
constituted the unexpired portion of the Term, or any part thereof,
the amount of rent reserved upon such reletting shall be deemed,
prima facie, to be the fair and reasonable rental value for the part
or the whole of the Premises so relet during the term of the
reletting; and
(iv) Tenant shall in no event be entitled to any rents
collected or payable under any reletting, regardless of whether such
rents exceed the Rental reserved to this Lease. Nothing contained in
this Article XI shall limit or preclude the recovery by Landlord from
Tenant of the maximum amount allowed to be obtained as damages by any
statute or rule of law, or any sums or damages to which landlord may
be entitled in addition to the damages set forth in this Article XI.
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(c) Landlord may elect not to terminate Tenant's right to
possession because of Tenant's default or breach, but continue this Lease in
full force and effect; and in that event Landlord may enforce all rights and
remedies under this Lease to recover the Rent and all other amounts due under
this Lease as such Rent and other amounts become due under this Lease.
11.2 NOTICE TO LENDER. Whenever Tenant serves notice on Landlord of
Landlord's default, written notice shall also be served at the same time upon
the mortgagee under any first or second mortgage or beneficiary under any first
or second deed of trust. Such mortgagee or beneficiary shall have the same
periods of time within which to cure Landlord's defaults as are provided in
Section 11.2. In this connection any representative of the mortgagee or
beneficiary shall have the right to enter upon the Premises for the purpose of
curing Landlord's default. Such mortgagee or beneficiary shall notify Landlord
and Tenant in writing of the address of such mortgagee or beneficiary to which
such notice shall be sent, and the agreements of Tenant under this Section 11.3
are subject to prior receipt of such notice. If the nature of the default is
such that the mortgagee's or beneficiary's possession is required to cure the
default, then Tenant will not terminate the Lease so long as such mortgagee or
beneficiary commences proceedings to obtain possession of the Premises, and once
the mortgagee or beneficiary has obtained possession, diligently proceeds to
cure the default. Nothing contained in this Lease shall be construed to impose
any obligation on any mortgagee or beneficiary to cure any default by Landlord
under the Lease.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 WAIVER. Failure on the part of Landlord or Tenant to complain of
any action or non-action on the part of Tenant or Landlord, no matter how long
the same may continue, shall never be a waiver by Landlord or by Tenant of any
rights hereunder. Further, no waiver at any time of any of the provisions hereof
by Landlord or by Tenant shall be construed as a waiver of any of the other
provisions hereof, and a waiver at any time of any of the provisions hereof
shall not be construed as a waiver at any subsequent time of the same
provisions. To be effective, any waiver must be in writing, signed by the
waiving party and delivered to the other party. The consent or approval of
Landlord or Tenant to or of any action requiring such consent or approval shall
not be construed to waive or render unnecessary Landlord's or Tenant's consent
or approval to or of any subsequent similar act by the other.
12.2 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the Base Rent and Tenant's Operating and
Tax Expenses and observing, keeping and performing all of the other terms and
provisions of this Lease on Tenant's part to be observed, kept and performed,
all within any applicable grace period allowed in this Lease, shall lawfully,
peaceably and quietly have, hold, occupy and enjoy the Premises during the term
hereof without hindrance or ejection by Landlord or persons lawfully claiming
by, through or under Landlord.
12.3 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of
this Lease, or the application thereof to any person or circumstance shall, to
any extent, be held by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and
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each term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
12.4 PROVISIONS BINDING, ETC. The terms hereof shall be binding upon
and shall inure to the benefit of Landlord and Tenant and the successors and
assigns, respectively, of Landlord and Tenant; however, this Section shall not
affect Article VI. Each term and each provision of this Lease to be performed by
Landlord or by Tenant shall be construed to be both a covenant and a condition.
12.5 RECORDING. Landlord and Tenant agree not to record this Lease,
however, and each party hereto agrees, on the request of the other, to execute a
so-called notice of lease in recordable form, the form of which is attached
hereto as Exhibit E, which notice may be recorded on the New Haven Land Records.
Tenant agrees to promptly execute and deliver to Landlord a termination of said
notice of lease upon termination of this Lease for any reason and hereby
appoints Landlord as its attorney in fact to execute and record such notice in
the event Tenant shall fail to do so following demand.
12.6 NOTICES. Whenever, by the terms of this Lease, notices shall or
may be given either to Landlord or to Tenant, such notice shall be in writing.
All such notices shall be delivered in hand, sent by certified mail, postage
prepaid, return receipt requested, or sent by an overnight express courier
service which provides evidence of delivery or attempted delivery. Copies of any
notices to Tenant shall be delivered or sent as aforesaid to Xxxxx Xxxxxxxxxx,
Esq., Kantrovitz & Xxxxxxxxxx, P.C., 0000 Xxxxxxxxxx Xxxxxxxx, Xxx Xxxxx,
Xxxxxxxxxxx 00000 and copies of any notices to Landlord shall be delivered or
sent as aforesaid to Xxxxxx Xxxxxxxx, Esq., Xxxxxx & Xxxx, Xxx Xxxxxxx Xxxxx,
Xxx Xxxxx, Xxxxxxxxxxx 00000.
12.7 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall become
effective and binding only upon the execution and delivery hereof by both
Landlord and Tenant. All prior negotiations, considerations, representations and
understandings between Landlord and Tenant are of no force or effect, and this
Lease expressly supersedes any proposals or other written documents relating
hereto. This Lease may be modified or altered only by written agreement between
Landlord and Tenant, and no act or omission of any employee or agent of Landlord
or Tenant shall alter, change or modify any of the provisions hereof.
12.8 PARAGRAPH HEADINGS. The paragraph headings throughout this
instrument are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
12.9 RIGHTS OF MORTGAGEE. Landlord shall provide to Tenant upon the
execution of this Lease a non-disturbance agreement substantially in form
attached as Exhibit F hereto from each and every mortgagee and other lien holder
having an interest in the Property. Subject to the conditions hereinafter set
forth, this Lease, and all rights of Tenant hereunder, shall be subject and
subordinate to all mortgages which may hereafter affect the Property whether or
not such mortgages shall also cover other lands and/or buildings, to each and
every advance made or hereafter to be made under such mortgages, and to all
renewals, modifications, replacements and extensions of
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such mortgages and all consolidations of such mortgages, on the express
condition that, with respect to any such mortgage hereafter placed on the
Property, Tenant receives a so-called "non-disturbance" agreement by such
holder, in form reasonably acceptable to Tenant or Tenant's counsel,
substantially in the form attached hereto as Exhibit F, to the effect that all
of Tenant's rights hereunder shall be recognized by such holder. Provided that
such non-disturbance agreement has been delivered to Tenant, such subordination
shall be automatic and without need for any additional action or documentation.
Without derogating from the foregoing, in confirmation of such subordination,
and subject to the foregoing condition, Tenant shall promptly execute,
acknowledge and deliver any instrument that Landlord, the holder of any such
mortgage or any of their successors in interest may reasonably request to
evidence such subordination (including an agreement substantially in the form
attached hereto as Exhibit F).
12.10 ESTOPPEL CERTIFICATES. Within fifteen (15) days following any
written request which Landlord or Tenant ("Requesting Party") may make from time
to time to the other party hereto ("Responding Party"), the Responding Party
shall execute and deliver to the Requesting Party, any prospective purchaser,
mortgagee or prospective mortgagee, a sworn statement certifying as to: (a) the
Commencement Date of this Lease, (b) the fact that this Lease is unmodified and
is in full force and effect, or if there have been modifications hereto, that
this Lease is in full force and effect, as modified (and attaching a copy of
such modifications), (c) the date to which the Base Rent has been paid, the
amount of such Base Rent and Tenant's Operating and Tax Expenses, (d) the fact
that there are no current defaults under this Lease nor any events or conditions
which, with the giving of notice or the lapse of time or both, would constitute
a default, by the Responding Party or, to the best of the Responding Party's
knowledge, the Requesting Party, except as specified in the Responding Party' s
statement, (e) the extent to which any options to extend the Term or expand the
Premises have been exercised by Tenant, (f) the amount of any Security Deposit
held by Landlord, (g) the fact that Tenant has not assigned, pledged or
transferred any interest in the Lease or sublet any portion of the Premises or,
if Tenant has so assigned, pledged, transferred or sublet, the extent of such
assignment, pledge, transfer or subletting, (h) to the best of the Responding
Party's knowledge, all of Landlord's obligations with respect to the
installation of improvements to the Premises to prepare them for Tenant's use
have been satisfied (or the extent to which they have not been satisfied), (i)
that (if the Responding Party is Tenant) no actions, whether voluntary or
otherwise, are pending against Tenant under any bankruptcy laws of the United
States or any state thereof, and (j) such other matters reasonably requested by
the Requesting Party. Tenant and Landlord acknowledge that any statement
delivered pursuant to this Article may be relied upon by any such party, and the
Responding Party shall be liable for all loss, cost or expense resulting from or
caused by any material misstatement contained in such estoppel certificate, or
the failure to deliver the estoppel certificate.
12.11 HOLDING OVER. Any holding over by Tenant after the Term of this
Lease shall be treated as a month-to-month tenancy, terminable on thirty (30)
days' written notice by either party to the other, at one hundred fifty percent
(150%) of the Base Rent in effect for the last month of the Term, plus Tenant's
Operating and Tax Expenses and other charges herein provided and shall otherwise
be on the terms and conditions set forth in this Lease as far as applicable, and
Tenant shall not be liable to the Landlord for actual or consequential damages
which Landlord may suffer as a result of such holding over.
- 21 -
12.12 SURRENDER OF PREMISES. Upon the expiration or earlier termination
of the Term of this Lease, Tenant shall peaceably quit and surrender to Landlord
the Premises in neat and clean condition and in good order, condition and
repair, together with all alterations, additions and improvements which may have
been made or installed in, on or to the Premises prior to or during the Term of
this Lease (subject to requirements set forth in or established pursuant to
Section 5.3(a)), excepting only ordinary wear and use and damage by fire or
other casualty for which, under other provisions of this Lease, Tenant has no
responsibility for repair or restoration. Tenant shall remove all of Tenant's
Removable Property pursuant to Section 5.3(b) and shall repair any damages to
the Premises caused by such removal.
12.13 BROKERAGE. Landlord represents and warrants to Tenant that no
broker or finder, other than Landlord's Broker, has been engaged by it in
connection with this Lease, and that Landlord has no knowledge of any other
broker except Tenant's Broker in any way connected with this Lease. Tenant
represents and warrants to Landlord that no broker or finder, other than
Tenant's Broker, has been engaged by it in connection with this Lease, and that
Tenant knows of no other brokers other than Landlord's Broker in any way
connected with this Lease. In the event of any claim or liability for any
broker's or finder's fees or commission in connection with the negotiation,
execution or consummation of this Lease, other than the commission payable by
Landlord to Landlord's Broker, then Landlord shall indemnify, protect, save
harmless and defend Tenant from and against any such claims or liabilities if
they are based upon any statement or representation or agreement by Landlord,
and Tenant shall indemnify, protect, save harmless and defend Landlord from and
against any such claims or liabilities if they are based upon any statement,
representation or agreement made by Tenant. Landlord and Tenant agree that
nothing in this Section 12.13 (or in any other provision of this Lease) is
intended to create in Landlord's Broker or Tenant's Broker (or in any other
person or entity) any right as a third party beneficiary of this Lease;
specifically, Landlord's Broker or Tenant's Broker (nor any other person or
entity) has any right (a) to cause or compel either Landlord or Tenant to
perform any obligation, exercise any right or forebear from exercising any right
either may have pursuant to this Lease; or (b) to preclude Landlord and Tenant
from entering into any amendment of this Lease.
12.14 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the State of Connecticut, as the same may
from time to time exist.
12.15 MODIFICATION OF LEASE. The terms, covenants and conditions of
this Lease may not be changed orally but only by an instrument in writing signed
by the party against whom enforcement of the change is sought. The failure of
either party hereto to insist in any one or more cases upon the strict
performance of any term, covenant or condition of this Lease to be performed or
observed by the other party hereto shall not constitute a waiver or
relinquishment of any such term, covenant or condition.
12.16 ENTIRE AGREEMENT. This Lease represents the entire agreement
between Landlord and Tenant and supersedes all prior agreements both written and
oral. The terms, covenants and conditions of this Lease shall be binding upon
and shall inure to the benefit of Landlord and Tenant and their respective
successors and assigns.
- 22 -
12.17 LANDLORD'S CONSENT OR APPROVAL. Anything in this Lease to the
contrary notwithstanding, wherever Landlord's consent or approval is required
hereunder, such consent or approval shall not be unreasonably withheld,
conditioned or delayed.
12.18 REMEDIES CUMULATIVE. All rights, powers, privileges, options and
remedies herein given to or conferred upon either the Landlord or the Tenant
shall be cumulative and no one or more of them shall be exclusive of the other
or others, or of any right or remedy now or hereafter given or allowed by law,
unless otherwise specifically provided herein. No delay or failure of either the
Landlord or the Tenant to exercise any right, power, privilege or option herein
given to or conferred upon such party shall constitute a waiver of or estop said
party from afterwards exercising the same or any other right, power, privilege
or option herein granted at any time.
12.19 INDEPENDENT CONTRACTOR RELATIONSHIP. None of the provisions of
this Lease is intended to create, or shall be deemed or construed to create any
relationship between Landlord and Tenant other than that of independent entities
contracting solely for the purpose of effectuating the provisions of this Lease.
Neither of the parties nor any of their respective agents or employees shall be
construed to be the agent, partner, co-venturer, employee, or representative of
the other party.
12.20 FORCE MAJEURE. Except as otherwise specifically provided herein,
if either party shall be delayed in, hindered in, or prevented from completing
any performance hereunder by reason of Force Majeure, which shall mean strikes,
lock-outs, failure of power, riots, insurrection, war or other reason of a like
nature not the fault or beyond the reasonable control of the party in question
and despite its good faith efforts to avoid such Force Majeure, financial
inability excepted, then the time for completion of the performance shall be
extended for the period of the delay; provided, however, that the party in
question shall, to the extent reasonable, make continuing and diligent efforts
to cure the events of such Force Majeure.
12.21 ATTORNEY'S FEES. If either party files any action or brings any
proceeding against the other party arising out of this Lease or for the
declaration of any rights under this Lease (including, but not limited to, any
action to enforce any indemnity provision set forth in this Lease), the
prevailing party therein shall be entitled to recover from the other party, all
costs and expenses, including reasonable attorney's fees, incurred by the
prevailing party as determined by the court. If either party ("secondary party")
without its fault is made a party to litigation instituted by or against the
other party ("primary party"), the primary party shall pay to the secondary
party all costs and expenses, including reasonable attorney's fees, incurred by
the secondary party in connection therewith.
12.22 SUBTENANCIES. The voluntary or other surrender of this Lease by
Tenant or a mutual cancellation of this Lease shall not effect a merger and
shall, at Landlord's option, terminate all existing subtenancies or operate as
an assignment to Landlord of any or all of such subtenancies.
12.23 EASEMENTS. This Lease is made expressly subject to any
conditions, covenants, conditions and restrictions or easements of record on the
Premises, which are set forth on Exhibit A hereto. The Landlord will not
voluntarily subject the Premises to any further conditions, covenants,
restrictions or easements without the consent of the Tenant, which consent shall
not be unreasonably withheld, delayed or conditioned.
- 23 -
12.24 NO OFFER. The preparation and submission of a draft of this Lease
by either party to the other shall not constitute an offer, nor shall either
party be bound to any terms of this Lease or the entirety of the Lease itself
until both parties have signed a final document and an original document signed
by both parties has been received by each party. Until such time as the parties
are bound as described in the previous sentence, either party is free to
terminate negotiations with no obligation to the other.
12.25 LATE CHARGE. If Tenant shall fail to pay the Base Rent to
Landlord within fifteen (15) days after the same is due and owing, Tenant shall
pay to Landlord a Late Charge equal to five percent (5%) of such amount past
due.
ARTICLE XIII
TENANT'S OPTIONS
13.1 OPTION TO EXTEND.
----------------
(a) Provided that Tenant is not in default of its obligations
under this Lease, Tenant shall have the right and option (the "Extension
Option") to extend the Initial Term of this Lease for three (3) extended terms
of five (5) consecutive years each (each being an "Extended Term"). Each
Extended Term shall be on all the terms and conditions of this Lease except that
the Base Rent for the Extended Term shall be established and fixed as set forth
in Exhibit B.
(b) Tenant shall exercise its Extension Option for an Extended
Term by giving written notice to Landlord of its desire to do so not later than
twelve (12) months prior to the Expiration Date of the Term then in effect. The
giving of such notice by Tenant shall automatically extend the Term of this
Lease for an Extended Term, and no instrument of renewal need be executed. In
the event that Tenant fails to give such notice to Landlord in a timely manner
as aforesaid, time being of the essence thereof, this Lease shall automatically
terminate at the end of the Term then in effect and Tenant shall have no further
option to extend the Term of this Lease.
ARTICLE XIV
BUILDING NAME
14.1 BUILDING NAME. During the Term, Tenant may designate as the name
of the Building and allow the Building to become known by the name descriptive
of its bank.
ARTICLE XV
LIMITED LIABILITY OF LANDLORD
15.1 LIMITED LIABILITY OF LANDLORD. The Landlord shall not have any
individual or personal liability for the fulfillment of the covenants,
agreements and obligations of the Landlord hereunder, the Tenant's recourse and
the Landlord's liability being limited to the Landlord's equity in the Premises.
- 24 -
ARTICLE XVI
RIGHT OF FIRST REFUSAL
16.1 RIGHT OF FIRST REFUSAL. If during the Term of this Lease the
Landlord receives a bona fide arms-length third party offer (the "Offer") to
purchase all or any part of the Premises on terms that are acceptable to the
Landlord, within five (5) business days after the Landlord's acceptance of the
Offer the Landlord agrees to notify Tenant in writing (the "Notice") of the
terms of the Offer. Tenant will have thirty (30) days after the date of receipt
of the Notice within which to notify the Landlord in writing that Tenant elects
to purchase the Premises (or the portion thereof which is the subject of the
Offer) on the terms of the Offer as described in the Notice. If Tenant so
elects, the closing of such sale will take place within sixty (60) days of
Tenant's election to purchase at the offices of Tenant pursuant to the terms of
the Offer. If Tenant does not elect to purchase the Premises (or the portion
thereof which is the subject of the Offer) within thirty (30) days after the
date of Tenant's receipt of the Notice, the Landlord may sell or transfer the
Premises (or the portion thereof which is the subject of the Offer) to the said
bona fide third party purchaser who made the Offer at the same price and on
substantially the same terms stated in the Offer. If for any reason said sale or
transfer does not occur in accordance with the Offer, this Right of First
Refusal shall remain in full force and effect. As used herein, the word
"purchase" will not be deemed to include any transaction whereby the Landlord
contributes all or any portion of the Premises, or all or a portion of the
Landlord's beneficial interest therein, to a partnership, corporation, limited
liability company, trust or other entity, in exchange for an interest in such
entity or to a gift or devise of the Premises or a portion thereof. If only a
portion of the Premises is sold, this Right of First Refusal shall remain in
full force and effect as to the balance of the Premises.
ARTICLE XVII
CONTINGENCY FOR BANKING APPROVAL
17.1 CONTINGENCY FOR BANKING APPROVAL. Tenant shall have a period
ending on April 1, 2001 to obtain from the State of Connecticut Banking
Commissioner and any other governmental agencies required, all appropriate final
certificates of authority to permit the use of the property as a Connecticut
bank and to allow the bank presently in formation to complete its formation
process and to obtain all necessary building permits and approvals, including,
but not limited to, all city, state, local, building, ADA and governmental
permits to construct the intended improvements. If, despite his best efforts,
Tenant shall not obtain the aforesaid within said time period, he shall so
notify Landlord by said date and the Lease shall become void and all rights and
obligations thereunder shall be at an end. Tenant has deposited with the
Landlord the sum of Two Thousand Five Hundred Dollars ($2,500.00) upon execution
of this Lease, which sum will be credited toward the first month's Base Rent
owing under the Lease following the Commencement Date of the Lease or returned
to the Tenant if this contingency is not satisfied.
- 25 -
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, in multiple
copies, each to be considered an original hereof, as of the date first set forth
above.
Signed, Sealed and Delivered
in the Presence of:
LANDLORD
--------
000 XXXXXX XXXXXX, LLC
/s/ Xxxxxx Xxxxxxxx
---------------------------
Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxx Its Managing Member
---------------------------
Xxxxx X. Xxxxxx
TENANT
------
SOUTHERN CONNECTICUT BANCORP
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Its Chairman & Chief
/s/ Xxxxx X. Xxxxxxxxxx Executive Officer
---------------------------
Xxxxx X. Xxxxxxxxxx
STATE OF CONNECTICUT )
) ss.: New Haven
COUNTY OF NEW HAVEN )
On this the 17th day of August, 2000 before me, personally appeared
Xxxxxx X. Xxxxxxx , who acknowledged that he is the Managing Member of 000
Xxxxxx Xxxxxx, LLC, and that he, as such Managing Member and being authorized to
do so, executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Commissioner of the Superior Court
- 26 -
STATE OF CONNECTICUT )
) ss.: Woodbridge
COUNTY OF NEW HAVEN )
On this the 16th day of August, 2000 before me, personally appeared
Xxxxxx X. Xxxxxxxx , who acknowledged that he is the Chairman & CEO of Southern
Connecticut Bancorp, and that he, as such Chairman & CEO and being authorized to
do so, executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxxx
Commissioner of the Superior Court
- 27 -
EXHIBIT A
---------
LEGAL DESCRIPTION
PARCEL A - CHURCH STREET
------------------------
All that certain piece or parcel of land, together with the buildings and all
other improvements thereon, situated in the Town of New Haven, County of New
Haven and State of Connecticut, shown as Parcel A on a certain map entitled "Map
Showing Parcel "A" To Be Conveyed To Xxxxxx Xxxxxxx and Parcel "B" To Be
Conveyed to Xxxxxx X. Xxxxxxxx #000 Xxxxxx Xxxxxx & #276 Orange Street New
Haven, Connecticut Scale: 1" = 20' Date: Oct. 20, 1994," made by Xxxxxxx Xxxxx,
Xx. L.L.S. #13368, which map is or will be filed with the office of the New
Haven Town Clerk, reference to which is hereby made, and which piece or parcel
of land is bounded and described:
Beginning at a point on the easterly line of Church Street, which point is
186.35 feet northerly of a point at the northeasterly intersection of Xxx Xxxxxx
xxx Xxxxxx Xxxxxx marked by the State Grid System coordinates N.173,059.39 and
E.552,070.26;
Thence running N 29(degree)-19'-17" E along the easterly line of Church Street,
a distance of 66.12 feet, as shown on said map;
Thence running S 61(degree)-36'43" E along land now or formerly of Quinnipiac
Club, a distance of 192.94 feet, as shown on said map;
Thence running S 28(degree)-23'17" W along Parcel B on said map, a distance of
55.74 feet, as shown on said map;
Thence running N 61(degree)-19'-49" W along land now or formerly of Cheshire
Management Co., Inc., a distance of 28.59 feet, as shown on said map; and
Thence running the following courses and distances along land now or formerly of
The Bank of New Haven to the point and place of beginning on the easterly line
of Church Street, as shown on said map: N 65(degree)-20'-40" W, a distance of
55.26 feet; N 89(degree)-01'-50" W, a distance of 15.60 feet; N
60(degree)-57'-40" W, a distance of 87.50 feet; and N 66(degree)-16'-00" W, a
distance of 8.98 feet.
TOGETHER WITH an easement upon and under Parcel B on said map to use, maintain,
repair and replace existing drainage and other utility facilities, if any,
serving Parcel A and to drain storm water upon and under said Parcel B.
SUBJECT TO an easement in favor of Parcel B over the traveled portions of the
existing parking area on Parcel A for ingress and egress to Church Street for
valet parking purposes, provided however that this easement may be terminated on
ninety (90) days prior written notice to the then owner of Parcel B is any of
said traveled portions shall be needed for building purposes by the then owner
of Parcel A.
SUBJECT TO an Open-End Mortgage and Security Agreement dated October 28, 1994 to
Bank of New Haven (now Citizens Bank) and recorded on said date in the New Haven
Land Records.
EXHIBIT A-1
-----------
SITE PLAN OF PREMISES
EXHIBIT B
---------
BASE RENT FOR INITIAL TERM AND EXTENDED TERMS
Initial Term: The Annual Base Rent shall be payable in advance in equal monthly
installments and shall be in the annual amounts as follows:
Annual Base Rent Per
Square Foot of Gross
Lease Year Building Area
1* $ 9.50
2 $ 9.90
3 $10.30
4 $10.70
5 $11.10
* Lease Year 1 shall be a period of fifteen (15) months
following the Commencement Date and there shall be no Base
Rent for the first three (3) months of the Term.
NOTE: The above Annual Base Rental Rates are based upon the leasing of the
Premises subject to a license agreement between Landlord and the owner of the
adjoining 000 Xxxxxx Xxxxxx property, which permits its employees and customers
to utilize the driveway located on the south side of the Premises for egress
from 000 Xxxxxx Xxxxxx. This license is terminable on at least sixty (60) days'
notice and Landlord agrees to terminate it upon written request of Tenant given
on or after the Commencement Date, provided that if Tenant so requests the
Annual Base Rent Rates shown above shall be increased by the annual license rate
in effect at the time of the license termination divided by the gross square
building area of the building on the Premises.
Extension Terms: Annual Base Rent for each and every Extension Term shall be as
follows:
Annual Base Rent Per
Square Foot of Gross
Lease Year Building Area
First Extension Term 6 $ 11.50
7 $ 11.90
8 $ 12.30
9 $ 12.70
10 $ 13.10
Second Extension Term 11 $ 15.00
12 $ 15.00
13 $ 15.00
14 $ 15.00
15 $ 15.00
Third Extension Term 16 $ 17.25
17 $ 17.25
18 $ 17.25
19 $ 17.25
20 $ 17.25
EXHIBIT C
---------
LEASEHOLD IMPROVEMENTS BY LANDLORD
Tenant agrees that it has inspected the premises to its full satisfaction and
accepts the premises in its "as is, where is" condition, except that the
Landlord will complete the following work prior to the Commencement Date:
- all mechanical systems, including the elevator, to be fully
operational
- exterior of building to be power washed and all exterior
woodwork to be painted, with any rotted woodwork repaired
- landscaping to be upgraded per agreement of parties as to
scope
- parking lot to be sealed and striped
EXHIBIT D
---------
TENANT'S INITIAL LEASEHOLD IMPROVEMENTS
[To be Provided by Tenant and
Inserted herein upon Approval by Landlord]
EXHIBIT E
---------
NOTICE OF LEASE
Notice is hereby given of a lease executed on the day of
-----
, 2000, by and between 000 XXXXXX XXXXXX, LLC, as Landlord,
---------------
and SOUTHERN CONNECTICUT BANCORP, as Tenant, under the terms of which the
Landlord leased to the Tenant premises located at and known as 000 Xxxxxx Xxxxxx
in the City of New Haven, County of New Haven and State of Connecticut, situated
on Property described on Exhibit A hereto.
Said lease provides for the initial term of five (5) years, three (3)
months to commence on to expire on the last day of
-------------------
, all dates inclusive.
--------------
Tenant has a right to extend the term of said Lease for three (3)
consecutive periods of five (5) years each.
The Lease contains a right of first refusal in favor of the Tenant to
purchase all or part of the premises during the term of the Lease and any
extensions thereof.
In the event of any conflict between the provisions of the Lease and
this Notice of Lease, the Lease shall be determinative and controlling.
A copy of said Lease shall be on file at the offices of Landlord at 00
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx and of Tenant at 000 Xxxxxx Xxxxxx, Xxx
Xxxxx, Xxxxxxxxxxx.
IN WITNESS WHEREOF, on this day of , 2000 the
------- ----------------
below-named persons representing the Landlord and Tenant, respectively, have
caused this Notice of Lease to be executed and delivered.
Signed, Sealed and Delivered
in the Presence of:
LANDLORD
--------
000 XXXXXX XXXXXX, LLC
---------------------------
By:
-----------------------------
--------------------------- Its
TENANT
------
SOUTHERN CONNECTICUT BANCORP
---------------------------
By:
-----------------------------
--------------------------- Its
STATE OF CONNECTICUT )
) ss.:
COUNTY OF NEW HAVEN )
On this the day of , 2000 before me,
------ --------------------
personally appeared , who acknowledged
---------------------------------------
that he is the of 000 Xxxxxx Xxxxxx, XXX, and that he,
-----------------------
as such and being authorized to do so, executed the
--------------------
foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
---------------------------
Notary Public
My Commission Expires:
STATE OF CONNECTICUT )
) ss.:
COUNTY OF NEW HAVEN )
On this the day of , 2000 before me,
------ --------------------
personally appeared , who acknowledged that
-----------------------------------
he is the of Southern Connecticut Bancorp, and that
-------------------------
he, as such and being authorized to do so, executed the
--------------------
foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
---------------------------
Notary Public
My Commission Expires:
- 2 -
EXHIBIT F
---------
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
("Agreement") is made and entered into to be effective as of this day
--------
of August, 2000, by and among CITIZENS BANK ("Lender"), 000 XXXXXX XXXXXX, LLC
("Landlord"), and SOUTHERN CONNECTICUT BANCORP d/b/a Bank of Southern
Connecticut ("Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant have entered into a certain lease dated as
of August , 2000 (the "Lease") covering the premises described therein
--------
(the "Demised Premises") known as 000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx; and
WHEREAS, Lender is the holder of a certain Promissory Note made by
Landlord in the original principal amount of Four Hundred Thousand Dollars
($400,000.00) dated October 28, 1994 (as the same may be amended or modified,
the "Note"); and
WHEREAS, the Note is secured by, inter alia, that certain Open End
Mortgage Deed and Security Agreement dated October 28, 1994 and recorded on said
date in the New Haven Land Records (as the same may be amended or modified, the
"Mortgage"); and
WHEREAS, Tenant acknowledges that the Mortgage constitutes a lien or
charge upon the Demised Premises which is unconditionally prior and superior to
the Lease and the leasehold interest of Tenant thereunder.
NOW, THEREFORE, in consideration of the foregoing recitals, the leasing
of the Demised Premises, and of the sum of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. The Lease is and shall be subject and subordinate to the Mortgage
insofar as it affects the real property of which the Demised Premises form a
part, and to all renewals, modifications, consolidations, replacements and
extensions thereof, to the full extent of amounts secured thereby and interest
thereon.
2. Lender consents to the Lease and, in the event Lender comes into
possession of or acquires title to the Demised Premises as a result of the
foreclosure or other enforcement of the Mortgage or the Note, or as a result of
any other means, Lender agrees that, so long as Tenant is not then in default
under the Lease beyond any applicable cure period, Lender will recognize Tenant
and will not disturb Tenant in its possession of the Demised Premises for any
reason other than one which would entitle Landlord to terminate the Lease under
its terms or would cause, without any further action by Landlord, the
termination of the Lease or would entitle Landlord to dispossess Tenant from the
Demised Premises. Lender further agrees that if the interests of Landlord under
the Lease are acquired by Lender, so long as
Tenant is not then in default under the Lease beyond any applicable cure period,
the Lease and all rights of Tenant under the Lease, including but not limited to
the right to use and occupy the Demised Premises at the rental and upon the
terms and conditions set forth in the Lease, and the right to exercise and enjoy
any renewal options contained therein, shall continue in full force and effect
and shall not be terminated. Notwithstanding any other provisions of this
Agreement, if Lender succeeds to the interest of Landlord under the Lease,
Lender shall be liable to Tenant only for the obligations of the Landlord under
the Lease which accrue on or after the date that Lender takes title to the
Demised Premises. Lender agrees and covenants, provided Tenant is not in default
under the Lease beyond any applicable cure period, that:
a. Tenant shall not be joined as an adverse party or defendant in
any action or proceedings which may be instituted or commenced by Lender to
foreclose or enforce the Mortgage, unless required by law to effectuate any such
foreclosure or implement any such remedy; and
b. Tenant shall not be evicted from the Demised Premises nor shall
Tenant's rights under the Lease be affected or disturbed in any way by reason of
this Agreement or any modifications of or default under the Mortgage.
3. Tenant agrees that it will attorn to and recognize any purchaser at
a foreclosure sale under the Mortgage, any transferee who acquires the Demised
Premises by deed in lieu of foreclosure, and the successors and assigns of such
purchaser or transferee, as its landlord for the unexpired balance (and any
extensions, if exercised) of the term of the Lease upon the same terms and
conditions as are set forth in the Lease.
4. If Lender succeeds to the interest of Landlord under the Lease,
Lender shall not be:
a. liable for any act or omission of any prior landlord (including
Landlord); or
b. liable for the return of any security deposit unless the same
shall be in Lender's possession; or
c. subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord); or
d. bound by any rent or additional rent which Tenant might have
paid for more than the current month to any prior landlord (including Landlord).
5. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns. As used herein, the term
"Tenant" shall include Tenant, its successors and assigns; the words
"foreclosure" and "foreclosure sale" as used herein shall be deemed to include
the acquisition of Landlord's estate in the Demised Premises by Lender by any
means, including, without limitation, voluntary deed or assignment in lieu of
foreclosure; and the word "Lender" shall include the Lender herein specifically
named and any of its successors, participants and assigns, including anyone who
shall have succeeded to Landlord's interest in the Demised Premises by, through
or under foreclosure of the Mortgage.
- 2 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CITIZENS BANK
By:
--------------------------------
Name:
Title:
000 XXXXXX XXXXXX, LLC
By:
--------------------------------
Its
SOUTHERN CONNECTICUT BANCORP
d/b/a Bank of Southern Connecticut
By:
--------------------------------
Its
STATE OF )
) ss.:
COUNTY OF )
On this the day of , 2000 before me,
------ --------------------
personally appeared , who acknowledged that he is
-------------------------------
the of Citizens Bank and that he, as such
--------------------------------
and being authorized to do so, executed the foregoing
-------------------
instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
---------------------------
Notary Public
- 3 -
STATE OF CONNECTICUT )
) ss.:
COUNTY OF NEW HAVEN )
On this the day of , 2000 before me,
------ --------------------
personally appeared , who acknowledged that he
-------------------------------
is the of 000 Xxxxxx Xxxxxx, LLC, and that he, as
----------------------------
such and being authorized to do so, executed the
----------------------
foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
---------------------------
Notary Public
STATE OF CONNECTICUT )
) ss.:
COUNTY OF NEW HAVEN )
On this the day of , 2000 before me,
------ --------------------
personally appeared , who acknowledged
------------------------------------
that he is the of Southern Connecticut Bancorp, and
--------------------------
that he, as such and being authorized to do so, executed
----------------------
the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
---------------------------
Notary Public
- 4 -
EXHIBIT G
---------
REAL ESTATE TAX XXXX FOR 1999 GRAND LIST
CITY OF NEW HAVEN - OFFICE OF THE CONTROLLER PROPERTY TAX ON OCTOBER 1, 1999
TAX DIVISION 000 Xxxxxx Xxxxxx, Tel. 000-0000 XXX XXXX 0/14/00
Assessed Net Tax Computed Elderly
Value Exempts Assmnts Rate Total tax Benefits
489,970 489,970 34.95 17,859.42
TOTAL
Amount Due Amount Due CURRENT DUE
Backtax July 1, 2000 Jan. 1, 2001
267.89 8,929.71 267.89
As of 8/14/00 this account
is Paid in Full
Xxxxx Xxxxxxxx
Acting Tax Collector
000-0000-00000
215 CHURCH
XXXXXXX, XXXXXX J
C/O THE POLARIS GROUP INC
000 XXXXXX XX. ACCOUNT NUMBER PAY THIS AMOUNT
XXX XXXXX, XX 00000 RE 13931 $267.89
