OAKWOOD AVENUE PARTNERS,
Landlord
To
MEDLALINK PR DATA CORPORATION,
Tenant
LEASE
Portion of 00 Xxxxxxx Xxxxxx
Xxxxxxx, XX
Dated as of July 18, 1996
TABLE OF CONTENTS
ARTICLE 1. THE PARTIES, THE PREMISES AND
DEMISE OF THE PREMISES ....................................... 1
Section 1.1 The Parties .............................................. 1
Section 1.2 The Premises ............................................. 1
Section 1.3 Demise ................................................... 1
ARTICLE 2. PREPARATION OF THE PREMISES .................................... 2
Section 2.1 "As Is" Condition ........................................ 2
Section 2.2 Fixtures and Improvements ................................ 2
ARTICLE 3. TERM ........................................................... 2
Section 3.1 The Term Defined; Extensions of the Term ................. 3
Section 3.2 Holdover ................................................. 3
ARTICLE 4. RENT ........................................................... 3
Section 4.1 General Clauses Relating to Rent ......................... 3
Section 4.2 Basic Rent ............................................... 4
Section 4.3 Additional Rent .......................................... 5
ARTICLE 5. THE PREMISES ................................................... 8
Section 5.1 Use of the Premises ...................................... 8
Section 5.2 Indemnification .......................................... 8
Section 5.3 Liens .................................................... 8
Section 5.4 Repairs, Compliance, Surrender ........................... 8
Section 5.5 Alterations .............................................. 9
Section 5.6 Tenant's Equipment ....................................... 9
Section 5.7 Insurance ................................................ 10
Section 5.8 Damage ................................................... 11
Section 5.9 Taking of the Premises ................................... 13
Section 5.10 Disposition of Insurance Proceeds and Awards ............. 13
Section 5.11 Reentry and Reserved Easements ........................... 15
Section 5.12 Signs on the Premises .................................... 16
ARTICLE 6. COMMON AREA .................................................... 17
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Section 6.1 The Common Area Defined .................................. 17
Section 6.2 Tenants Easement to Use the Common Area .................. 17
Section 6.3 Common Area Maintenance .................................. 17
Section 6.4 Indemnification .......................................... 18
Section 6.5 Insurance of Common Area ................................. 18
ARTICLE 7 INTEREST IN PREMISES TRANSFERS OF INTEREST ...................... 18
Section 7.1 Assignment of Tenant's Interest .......................... 19
Section 7.2 Covenants of Title and Use ............................... 20
Section 7.3 Estoppel Certificates .................................... 20
Section 7.4 Subordination and Nondisturbance ......................... 21
Section 7.5 Transfer of Landlord's Interest .......................... 21
ARTICLE 8. DEFAULTS, RIGHTS AND REMEDIES .................................. 21
Section 8.1 Events of Default of Tenant .............................. 21
Section 8.2 Rights and Remedies Upon Default ......................... 22
Section 8.3 Landlord's Right to Cure Potential Defaults .............. 23
Section 8.4 Limitations on Landlord's Liability ...................... 24
Section 8.5 Waivers .................................................. 25
ARTICLE 9. NOTICES, INTERPRETATION AND GOVERNING LAW ...................... 25
Section 9.1 Notices .................................................. 25
Section 9.2 Interpretations .......................................... 25
Section 9.3 Binding Effect ........................................... 26
Section 9.4 Governing Law ............................................ 26
ii
LEASE
LEASE dated as of July 18, 1996 between OAKWOOD AVENUE PARTNERS, as landlord,
and MEDIALINK PR DATA CORPORATION, as tenant, covering the premises located at
00 Xxxxxxx Xxxxxx, Xxxxxxx, XX, and defined as the "Premises" in Section 1.2
hereof.
ARTICLE 1. THE PARTIES OF THE PREMISES AND
DEMISE OF THE PREMISES
Section 1.1 The Parties
(a) OAKWOOD AVENUE PARTNERS ("Landlord") is a Connecticut partnership with
offices at 00 Xxxxxxx Xxxxxx, Xxxxxxx, XX.
(b) MEDIALINK PR DATA CORPORATION ("Tenant"), is a Delaware corporation
with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
Section 1.2 The Premises
The premises hereby leased to Tenant are a portion of the building situated
at 00 Xxxxxxx Xxxxxx, Xxxxxxx, XX (the "Building") as follows:
(a) 6,500 square feet on the first floor, as shown on the floor plan
annexed hereto as Exhibit A-1;
(b) 2,680 square feet on the second floor, as shown on the floor plan
annexed hereto as Exhibit A-2; and
(c) 2,100 square feet in the basement of the Building, as shown on the
floor plan annexed hereto as Exhibit A-3.
Said premises, together with all fixtures or equipment now on hereafter attached
(except items not deemed to be included herein and removable by the Tenant in
accordance with this lease) are hereinafter referred to as the "Premises". The
Building, together with adjacent sidewalks, grounds, parking areas and the real
property upon which all of them are situated are hereinafter referred to as the
"Property".
Section 1.3 Demise
Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord the
Premises, for the term, at the rental and subject to the terms and conditions
hereinafter provided in this
lease.
ARTICLE 2. PREPARATION OF THE PREMISES
Section 2.1 "As Is" Condition
(a) Tenant has examined the Premises and agrees to accept the same in their
condition and state of repair existing on the date hereof, subject to normal
wear and tear and to the removal therefrom of the property of the existing
tenant or occupant, and understands and agrees that the Landlord shall not be
required to perform any work, supply any materials or incur any expense to
prepare the Premises for Tenant's occupancy except as provided in section
2.1(c). The Premises shall be deemed ready for occupancy on the date hereof.
(b) Notwithstanding the foregoing, Landlord represents and warrants that,
on the date hereof,
(i) the heating, ventilating, air conditioning and plumbing systems
serving the Premises are in working order and the roof of the Building is free
of leaks, and
(ii) to the best of Landlord's knowledge, the Building is in material
compliance with the requirements of the Americans With Disabilities Act, as now
in effect, and Landlord agrees to indemnify Tenant for any costs which Tenant
may be obligated to incur to remedy any noncompliance existing on the date
hereof.
(c) Landlord agrees that it shall be, within 60 days after the Tenant
occupies the Premises, have the hallways within the Premises painted (in a color
selected by Tenant and reasonably acceptable to Landlord) and re-carpeted (using
a carpeting of equivalent quality to that presently in the hallways, in a color
selected by Tenant and reasonably acceptable to Landlord). The cost of materials
and labor for performance of such work by Landlord shall not be included in
Building Expenses for the Base Year (as such terms are defined below).
Section 2.2 Fixtures and Improvements
(a) All fixtures, equipment, improvements and appurtenances attached to or
build into the Premises shall be deemed a part of the Premises and shall be
deemed the property of the Landlord.
(b) All movable partitions, other business and trade fixtures, furnishings,
furniture, machinery and equipment located in the Premises and acquired by the
Tenant without expense to the Landlord ("Tenant's Property"), which can be
removed without damage to the Building, shall
2
remain the property of the Tenant and, except as otherwise prohibited by this
lease and so long as Tenant is not in default hereunder, may be removed by
Tenant at any time during the term of this lease, provided, however, that if any
Tenant's Property is removed, Tenant shall promptly upon demand of Landlord pay
the cost of repairing any damage to the Premises or to the Building resulting
from such removal.
ARTICLE 3. TERM
Section 3.1 The Term Defined; Extensions of the Term
(a) The Term shall begin on the date of this Lease (the "Commencement
Date") and shall end on the third anniversary of the Commencement Date (the
"Expiration Date").
(b) Tenant shall have the option to extend the Term for a period of 2 years
by giving notice of the exercise of the option at any time prior to the 180th
day before the originally fixed Expiration date. Except as otherwise provided,
all provisions of this Lease shall prevail during each extension period.
Notwithstanding anything to the contrary, after the expiration of the extension
period, Tenant shall have no further option to extend the Term. If this Lease is
validly cancelled, Tenant's option to extend the Term shall be cancelled also.
(c) If the Term is extended, "Expiration Date" shall mean the date to which
it is extended. If this Lease is cancelled before the Expiration Date either as
originally fixed or as extended, "Expiration Date" shall mean the effective
date of the cancellation.
Section 3.2 Holdover
If Tenant shall continue its occupancy of the Premises after the Expiration
Date, the occupancy shall not be deemed to extend or renew the Term, and the
tenancy shall constitute a tenancy from month to month on all of the terms of
this Lease, except that Basic Rent shall be charged at the rate equal to 150% of
the Basic Rent herein for each month, or portion thereof, of continued
occupancy.
ARTICLE 4. RENT
Section 4.1 General Clauses Relating to Rent
(a) "Rent" means Basic Rent and Additional Rent.
(b) Rent shall be paid without notice, demand, counterclaim, offset,
deduction, defense, or abatement.
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(c) Rent shall be payable at Landlord's address set forth in Section 1.1 or
at any other address Landlord designates by written notice to Tenant.
(d) "Lease Year" shall mean each of the following periods. The first Lease
Year shall begin on the Commencement Date and end on the last day of the month
in which the first anniversary of the Commencement Date occurs. Each subsequent
Lease Year shall begin on the day after the expiration of the previous Lease
Year and, except for the last Lease Year, shall end on the first anniversary of
the day on which the previous Lease Year expires. The last Lease Year shall end
on the Expiration Date.
Section 4.2 Basic Rent
Tenant shall pay Basic Rent to Landlord in accordance with the following:
(a) Basic Rent shall be payable during each Lease Year of the Term at the
following annual rates:
Applicable Lease Year Amount Monthly
--------------------- ------ -------
First, second and third $174,000 $14,500
Fourth and fifth 174,000 14,500
(extension term if elected)
(b)(i) Basic Rent shall be payable in equal monthly installments as set
forth above except for installments prorated for partial months.
(ii) If the Commencement Date is the first day of a month, each
installment shall be due in advance on the first day of each month during the
Term.
(iii) If the Commencement Date is not the first day of a month, the
following shall apply:
(x) The installment of Basic Rent for the period that begins on
the Commencement Date and ends on the last day of the month in which the
Commencement Date occurs shall be paid on the Commencement Date. That
installment shall be the portion of a full month's installment that the
number of days of that month which occur during the Term bear to the number
of days of that month.
(y) Each subsequent installment shall be due in advance on the
first day of each month during the Term.
(iv) If the Expiration Date is not the last day of a month, the
following shall apply:
4
The installment of Basic Rent for the period that begins on the first day
of the last month of the Term and ends on the Expiration Date shall be the
portion of a full month's installment that the number of days of that month
which occur during the Term bear to the number of days of that month.
Section 4.3 Additional Rent
Tenant shall pay Additional Rent to Landlord during the Term in accordance
with the following:
(a) (i) "Additional Rent" means Tenant's Pro Rata Share of Impositions and
Building Expenses (as such terms are defined below) in excess of Impositions and
Building Expenses paid or incurred by the Landlord during the Base Year.
(ii) "Base Year" means the fiscal year from July 1, 1996, to June 30,
1997.
(iii) "Pro Rata Share" is a fraction, the numerator of which is the
floor area of the Premises and the denominator of which is the floor area of all
rentable space within the Building. Landlord and Tenant acknowledge and agree
that, as of the Commencement Date, Tenant's Pro Rata Share is 86%.
(b) (i) "Impositions" means real estate taxes, assessments and governmental
charges assessed, levied or imposed against the Property. Impositions include
real estate taxes, assessments, and other governmental charges which are
special, extraordinary, and unforeseen.
(ii) Assessments shall be included in, or excluded from, Impositions
in accordance with the following principles:
(x) "Impositions" shall exclude assessments with respect to
public improvements made before the date of this lease and any assessment
which is a lien against the Property as of the date of this Lease. Landlord
represents that it is not aware of any assessments pending on the date
hereof, and that there are no tax abatements or concessions affecting the
Building which are scheduled to expire during the term of this Lease (or
any extension thereof).
(y) If an assessment that is not excluded from Impositions by
clause (x) is payable in installments and Landlord elects the installment
method of payment, Impositions shall include only the installments that
come due during the Term and interest payable with respect to these
installments. If an assessment that is not excluded from Impositions by
clause (x) is payable in installments and Landlord does not elect the
installment method of payment, Impositions shall include only an amount
equal to the installments that would have come due during the Term had
Landlord elected the installment method of payment and interest that would
have been payable with respect to
5
these installments.
(iii) (x) "Impositions" shall exclude income, excess profits, excise,
gift, franchise, estate, transfer, recording, mortgage or inheritance taxes
other than "substitute taxes" as defined in clause (y). Impositions shall
include substitute taxes.
(y) A "substitute tax" is a tax or governmental charge imposed on
property owners as a class as a complete or partial substitute for real
estate taxes or betterment assessments.
(iv) Tenant's Pro Rata Share of Impositions payable with respect to
any period during which the term of this Lease begins or ends shall be
apportioned equitably between Landlord and Tenant.
(c) (i) "Building Expenses" means one hundred (100%) percent of bona fide
expenses incurred in connection with the operation of the Building and the
maintenance of the Common Area. These expenses include the cost of repairs,
liability and property insurance, illumination, cleaning of the Common Area,
landscape maintenance, snow removal and sanding; the cost of all charges for
heat, ventilation and air conditioning, including any gas or fuel oil; the cost
of water, sewer and electrical charges for the Building that are not allocable
to the consumption or use of an occupant of the Building; painting of
non-tenanted areas; paving and repair of parking lot, steps and walks; cost of
compliance with any Federal, state, local or municipal laws or ordinances
affecting the Property; and the cost of performing any other services
customarily performed by landlords with respect to common areas of similar
buildings that Landlord performs with respect to the Common Area; except that
Building Expenses shall not include the cost of a managing agent.
(ii) (x) Landlord shall furnish copies of invoices with respect to
Building Expenses to Tenant within a reasonable time after Tenant requests
them.
(y) Landlord shall maintain accurate records of Building
Expenses. The records may be kept in the form of books of account, cash
register tapes or computer memory. The records shall be kept at Landlord's
principal office. Landlord shall advise Tenant of the location of
Landlord's principal office promptly after Tenant requests the information.
Records shall be maintained until the first anniversary of the date on
which Landlord sends its statement with respect to the annual charges for
Building Expenses pursuant to part (iii).
(iii) Within ninety days after each Lease Year, Landlord shall send a
statement to Tenant setting forth the amount of Building Expenses and
Impositions, the amount of the increase, if any, over Building Expenses and
Impositions during the Base Year and Tenant's Pro Rata Share of such increased
amount. The statement shall be certified as complete and correct by an officer
of a corporate landlord or a partner of a partnership landlord.
6
(iv) Until the first anniversary of the date on which each statement
is rendered, Tenant shall have the right to inspect and audit all records of
Landlord with respect to Building Expenses and Impositions for the period as to
which the statement is rendered. If Tenant's representatives request printouts
of any such records maintained in computer memory during any inspection or
audit, Landlord shall deliver the printouts to Tenant's representatives.
Tenant's representatives may make copies of extracts from Landlord's records
during the course of any inspection or audit. Tenant shall reimburse Landlord
for the reasonable cost of the printouts and copies.
(v) If Tenant shall fail to inspect or audit the records for any Lease
Year before the first anniversary of the date on which Landlord renders the
statement for the Lease Year, the statement shall be deemed to be accurate
conclusively. If Tenant shall inspect or audit the records for any Lease Year
before the first anniversary of the date on which Landlord renders the statement
for the Lease year, the statement for the Lease Year shall be deemed to be
accurate conclusively on the first anniversary date except with respect to any
issues arising from the inspection or audit as to which Tenant shall have given
notice to Landlord before the first anniversary date.
(vi) If the amount of Impositions and/or Building Expenses indicated
on any statement is overstated by more than five (5%) percent, Landlord shall
promptly reimburse Tenant for the reasonable cost of the audit and inspection.
Landlord shall promptly reimburse Tenant for any amount paid by Tenant and which
should not have been paid with interest at the "Applicable Rate" (as defined in
Section 8.3).
(d) Installments of Additional Rent shall be paid to Landlord as follows:
(i) Tenant shall pay monthly installments to Landlord on account of
Additional Rent. The installments shall be paid on the first day of each month
during the Term, beginning with the first month of the second Lease Year. During
the portion of the second and subsequent Lease Years prior to the furnishing by
the Landlord of the statement of increases in Building Expenses and Impositions
pursuant to section 4.3(c)(iii), installments shall be determined by Landlord in
Landlord's reasonable discretion based upon Landlord's estimate of the increase
in Impositions and Building Expenses over the amount of such costs during the
Base Year. Upon furnishing of said statement, the amount of installments of
Additional Rent for the remainder of the Second Lease Year shall be adjusted to
reflect overpayments or underpayments.
(ii) If the installments payable with respect to any Lease Year shall
exceed Additional Rent for the Lease Year, Landlord shall refund the excess to
Tenant promptly after Additional Rent for the Lease Year is determined. If
Additional Rent for any Lease Year shall exceed the installments payable with
respect to the Lease Year, Tenant shall reimburse Landlord for the excess
promptly after Landlord renders a xxxx for the excess.
7
ARTICLE 5. THE PREMISES
Section 5.1 Use of the Premises
(a) Tenant shall use and occupy the Premises for executive and general
offices for the transaction of Tenant's business, and for no other purpose.
(b) If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business in the Premises, and of failure to
secure such license or permit would in any way affect Landlord or the Property,
then Tenant, at its sole cost and expense, shall duly procure and thereafter
maintain such license or permit and submit the same for inspection by the
Landlord. Tenant shall at all times comply with the terms and conditions of such
license or permit.
(c) Tenant shall not at any time use or occupy, or permit anyone to use or
occupy, the Premises, or do or permit anything to be done in the Premises, in
violation of the certificate of occupancy of the Building. Landlord represents
and warrants that the use of the Premises for executive and general office
purposes is not in violation of the certificate of occupancy of the Building.
Section 5.2 Indemnification
(a) Tenant indemnifies Landlord, each partner of Landlord, and each
employee of Landlord against any loss, liability, or damages to third parties as
a result of any personal injury or property damage that occurs in the Premises
except to the extent that the same is a result of Landlord's negligence.
(b) Tenant shall defend any lawsuits with respect to claims for loss,
liability or damages against which the indemnity provided in subsection (a)
applies and shall pay any judgments which result from the lawsuits. "Lawsuits"
includes arbitration proceedings and administrative proceedings and all other
governmental and quasi-governmental proceedings. "Liabilities" includes the fees
and disbursements of attorneys and witnesses.
Section 5.3 Liens
If a lien shall encumber the Premises or the Property as a result of work
done or authorized by Tenant, Tenant shall discharge the lien within thirty days
after Tenant becomes aware of the existence of the lien by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit or
bonding proceedings.
Section 5.4 Repairs, Compliance, Surrender
8
(a) Except as provided in subsection (b) and in Sections 5.8 and 5.9,
Tenant shall make all nonstructural repairs and comply with all legal
requirements and Insurance Requirements applicable to the Premises. "Insurance
Requirements" is defined in Section 5.7. Landlord shall be responsible for all
structural repairs.
(b) On the Expiration Date, Tenant shall surrender the Premises in the same
state of repair as Tenant is required to maintain them in accordance with this
Section except for ordinary wear and tear and damage by fire or catastrophe.
Upon surrender, Tenant shall comply with subsections 5.6(c) and 5.6(d).
(d) "Repair" means repair and replace or repair and replacement as context
may require.
Section 5.5 Alterations
(a) Except as provided in subsection (b), Tenant shall be entitled to make
nonstructural alterations to the Premises. Tenant shall not make structural
alterations to the Premises.
(b) (i) Tenant shall not make any alteration to the Premises which impairs
the safety of the Premises, which violates any legal requirement or Insurance
Requirement, or which materially changes the character or materially lessens the
value of the Building.
(ii) Tenant shall not make any alteration to the Premises unless it
gives Landlord at least thirty days' prior notice. The notice shall be
accompanied by detailed specifications and working drawings describing and
illustrating the proposed alteration.
(c) All alterations performed by Tenant shall be performed in a good and
workmanlike manner.
(d) Within thirty days after the substantial completion of any alteration,
Tenant shall prepare a set of "as built" plans and specifications describing and
illustrating the effect of the alteration on the Premises in reasonable detail.
The "as built" plans and specifications shall be delivered to Landlord within
sixty days after substantial completion of the alteration.
(e) Alterations shall be considered to be part of the Premises but shall be
the property of Tenant until the Expiration Date. Upon the Expiration Date,
alterations shall become the property of Landlord.
Section 5.6 Tenant's Equipment
(a) "Tenant's Equipment" means all fixtures, machinery, equipment,
furniture and furnishings (whether or not affixed to the Premises) installed and
maintained by Tenant for use in
9
connection with the operation of its business as distinguished from the
operation of the Premises as a real estate unit. Heating, ventilating, air
conditioning, plumbing, electrical, detection, and illumination equipment shall
not be considered to be Tenant's Equipment.
(b) Tenant shall be entitled to affix Tenant's Equipment to, install
Tenant's Equipment in, and remove Tenant's Equipment from, the Premises.
Tenant's Equipment shall be the property of Tenant and shall not be part of the
Premises or subject to this Lease.
(c) Tenant shall remove Tenant's Equipment from the Premises on or before
the Expiration Date.
(d) Upon removal of Tenant's Equipment, Tenant shall repair any damage to
the Premises which shall have resulted from affixing, installing, or removing
Tenant's Equipment.
Section 5.7 Insurance
(a) Landlord shall carry an "All Risk" insurance policy or a fire insurance
policy with respect to the Premises. If Landlord elects to carry a fire
insurance policy Landlord shall also carry the following types of coverage
pursuant to endorsements or separate policies: "Extended Coverage," "Vandalism
and Malicious Mischief," and "Difference in Conditions."
(b) Tenant shall maintain public liability and property damage insurance
with respect to the Premises. The insurance policy that provides this coverage
shall include a contractual liability endorsement. The coverage limits shall be
at least One Million ($1,000,000.00) Dollars for each occurrence with respect to
bodily injury and wrongful death coverage and at least Five Hundred Thousand
($500,000.00) Dollars for each occurrence with respect to property damage
coverage.
(c) (i) Each insurance policy obtained by Landlord or Tenant hereunder or
under any other provision of this lease shall be issued by an insurance company
reasonably satisfactory to Landlord and Tenant. An insurance company shall be
deemed to be satisfactory to Landlord and Tenant if A.M. Best Company of
Oldwick, New Jersey rates it as having a policyholder's rating of B+ or better.
Each insurance policy shall be reasonably satisfactory to Landlord and Tenant in
form and substance. Insurance carried pursuant to subsection (a) shall be
carried in favor of Landlord, any Mortgagee, and Tenant as their interests may
appear. Landlord shall be named as an additional insured with respect to
insurance carried under subsection (b). The insurance required by this Section
may be included in general coverage under policies which also include the
coverage of other property in which Landlord or Tenant has, or Landlord's or
Tenant's affiliates have, an insurable interest.
(ii) Each insurance policy may contain customary "deductible"
provisions that are reasonably satisfactory to Landlord and Tenant.
10
(d) Each insurance policy carried under subsection (a) or a certificate
with respect to the policy shall be delivered to Tenant. Each insurance policy
carried under subsection (b) or a certificate with respect to the policy shall
be delivered to Landlord.
(e) (i) Each insurance policy and certificate shall provide, in effect,
that the policy may not be cancelled, reduced in amount, or modified by the
insurer until at least thirty days after the insurer shall have notified
Landlord, Tenant, and any Mortgagee in writing by certified mail, return receipt
requested.
(ii) Each insurance policy and certificate shall provide, in effect,
that the policy will be renewed and further renewed on substantially the same
terms and conditions unless the insurer shall give Landlord, Tenant, and any
Mortgagee at least thirty days notice in writing, by certified mail, return
receipt requested, of the insurer's unwillingness to renew.
(f) Each Insurance policy shall contain provisions to the following effect:
(i) Losses shall be payable despite the negligence of any person
having an insurable interest in the Premises.
(ii) Losses shall be adjusted by Landlord subject to the approval of
Tenant and any Mortgagee, and "Insured Proceeds" shall be payable as provided in
Section 5.10.
(g) (i) "Insurance Requirements" means the requirements of an insurance
company that issues the fire insurance policy or All Risk policy required by
subsection (a).
(ii) "Insurance Proceeds" means the proceeds received on insurance
required by subsection (a) with respect to any damage to the Premises and any
amount excluded from the proceeds pursuant to any "deductible" provision of the
applicable policy less all expenses incurred in connection with collecting the
proceeds including the reasonable fees and disbursements of attorneys,
adjusters, appraisers, and expert witnesses. Landlord represents that on the
date hereof its insurance policy provides for a $1,000 deductible.
Section 5.8 Damage
If the Premises are damaged by fire or other catastrophe, the following
shall apply:
(a) Tenant shall notify Landlord of the damage promptly after the
occurrence.
(b) (i) If the damage occurs when the unexpired portion of the Term as then
constituted is more than twelve but less than twenty-four months and a
reasonable estimate of the cost of replacing the damage exceeds fifty (50%)
percent of a reasonable estimate of the cost of replacing all of the Premises,
each party shall have the option to cancel this Lease. If the damage occurs when
less than twelve months remain in the unexpired portion of the Term as then
11
constituted and a reasonable estimate of the cost of replacing the damage
exceeds twenty-five (25%) percent of a reasonable estimate of the cost of
replacing all of the Premises, each party shall have the option to cancel this
Lease; provided, however, that if Tenant shall have exercised its option to
extend the term hereof prior to the date when such damage occurs, then the
provisions of the first sentence of this section 5.8(a)(i) shall apply.
(ii) A party may exercise an option granted pursuant to clause (x)
only by giving notice to the other on or before the sixtieth day after the
occurrence.
(c) (i) If this Lease is not cancelled Landlord shall repair the damage.
The repair shall be commenced promptly after the damage occurs and shall be
prosecuted diligently. However, if a party shall have the option to cancel with
respect to the occurrence, Landlord may delay the commencement of the repair
until the option is waived or until the time within which the option may be
exercised expires.
(ii) Landlord's liability pursuant to part (i) shall be limited to the
Insurance Proceeds with respect to the damage.
(d) Rent shall not xxxxx even if the Premises are damaged.
(e) Insurance Proceeds shall be paid over to the Landlord in accordance
with Section 5.10.
(f) (i) (x) Landlord releases Tenant and Tenant's officers, directors,
employees, and agents from liability or responsibility for any loss or
damage to the Property which may arise as a result of a fire or any
other event with respect to which insurance is required to be carried
pursuant to subsection 5.7(a).
(y) Tenant releases Landlord, Landlord's partners and Landlord's
employees from liability or responsibility for any loss or damage to the
Premises. Tenant's Equipment and any of Tenant's merchandise or other
property which may arise as a result of a fire or any other event with
respect to which insurance is required to be carried pursuant to subsection
5.7(b).
(ii) (x) The releases shall apply not only to the liability and
responsibility of the parties to each other; they shall also extent to the
liability and responsibility of anyone claiming through or under a party as
a result of a right of subrogation.
(y) The releases shall not apply to loss or damage except loss or
damage with respect to which Insurance Proceeds are actually recovered.
(iii) (x) A release shall apply to an insurance policy only if the
policy contains a clause or endorsement to the effect that the release
shall not adversely affect or
12
impair the policy. This clause or endorsement is referred to below as a
"waiver of subrogation."
(y) As long as the insurer of a party is willing to include a waiver
of subrogation in the policies insuring against the loss or damage referred
to in part (i) of this subsection without an extra charge, the party shall
cause the waiver of subrogation to be included in the policy. If an insurer
of a party is willing to include a waiver of subrogation in an insurance
policy only if an extra charge is paid, the party carrying the insurance
shall be required to cause the waiver of subrogation to be included in the
policy only if the other party pays the extra charge.
Section 5.9 Taking of the Premises
(a) (i) "Taking" means the taking or, or damage to, property as a result
of the exercise of a power of eminent domain or purchase under threat of the
exercise.
(ii) "Taking Date" means the date on which a condemning authority
shall have the right of possession of property pursuant to a Taking.
(iii) "Award" means the award for, or proceeds of, a Taking less all
fees and expenses incurred in connection with collecting the award or proceeds
including the reasonable fees and disbursements of attorneys, appraisers, and
expert witnesses.
(b) The following shall apply if all or part of the Premises are Taken:
(i) Landlord shall be entitled to the entire Award for any Taking of
the Premises.
(ii) Tenant waives any right to the value of its estate in the
Premises under this Lease.
(iii) Tenant shall be entitled to, and does not waive, its interest in
any Award with respect to moving and relocation expenses.
(iv) Tenant shall be entitled to, and does not waive its interest in
any Award for the value of its trade fixtures.
(v) Tenant shall be entitled to make a separate claim in any
condemnation proceeding with respect to the items referred to in section
5.9(b)(iii) and (iv).
(c) (i) If all of the Premises are Taken, this Lease shall be cancelled as
of the Taking Date.
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(ii) If any part of the Premises is Taken, Tenant shall have the
option to cancel this Lease by giving Landlord notice of cancellation within
ninety days after Landlord gives Tenant notice of the Taking.
(iii) (x) If part of the Premises is Taken when the unexpired portion
of the Term as then constituted is more than twelve but less than
twenty-four months and a reasonable estimate of the "cost of restoration"
exceeds fifty (50%) percent of a reasonable estimate of the "cost of
replacement" of all of the Premises, Landlord shall have the option to
cancel this Lease. If part of the Premises is Taken when the unexpired
portion of the Term as then constituted is less than twelve months and a
reasonable estimate of the "cost of restoration" exceeds twenty-five (25%)
percent of a reasonable estimate of the "cost of replacement" of all of the
Premises, Landlord shall have the option to cancel this Lease.
(y) Landlord may exercise an option to cancel pursuant to clause
(x) only by giving notice of exercise to Tenant on or before the ninetieth
day next following the Taking Date.
(z) The "cost of restoration" means the cost of restoring the
Premises in the portion of the Building that will not have been Taken to an
architectural unit that serves the same function as the Premises as
constituted immediately prior to the Taking with materials of like kind and
quality. The "cost of replacement" means the cost of replacing the Premises
with materials of like kind and quality. The cost of restoration and the
cost of replacement shall be determined as of the Taking Date. The cost of
restoration and replacement shall be determined by a professional cost
estimator selected by Landlord.
(d) The following shall apply if all or part of the Premises are Taken and
this lease is not cancelled.
(i) (x) Landlord shall restore the Premises to an architectural unit
as near as possible to its function and condition immediately prior to the
Taking. The restoration shall begin promptly after the Taking Date and
shall be prosecuted diligently. But if a party shall have an option to
cancel with respect to the Taking, Landlord may delay the beginning of the
restoration until the option is waived or until the time within which the
option may be exercised expires.
(y) Landlord's liability under clause (x) shall be limited to the
Award.
(ii) The Award shall be paid to the Landlord in accordance with
Section 5.10.
(iii) The annual rate of Basic Rent shall be reduced by a fraction,
the numerator of which shall be the difference between the floor area of the
Premises immediately prior to the Taking and the floor area of the Premises
after giving effect to the Taking and the denominator of
14
which shall be the floor area of the Premises immediately prior to the Taking.
(iv) (x) If Tenant is deprived of the use of a part of the Premises
during the course of restoration, Basic Rent shall xxxxx in accordance with
the following. A fraction of Basic Rent shall xxxxx, the numerator of which
shall be the floor area of the part of the Premises which shall not have
been Taken but, which Tenant shall be prevented from using as a result of
the restoration, and the denominator of which shall be the floor area of
the Premises immediately after the Taking. The Rent abatement shall begin
on the first day on which Tenant is prevented from using that part of the
Premises and shall end on the earlier to occur of the sixtieth day next
following substantial completion of the restoration or the date on which
Tenant resumes the use of that part of the Premises for any purpose.
(y) If Tenant is not reasonably able to conduct business from the
Premises at all during the course of the restoration and if Tenant
completely discontinues the conduct of business from the Premises during
the course of the restoration, all Rent shall xxxxx. The abatement shall
begin when the conduct of business is completely discontinued and shall end
on the earlier to occur of the sixtieth day next following substantial
completion of the restoration or the date on which Tenant resumes doing
business from any portion of the Premises.
Section 5.10 Disposition of Insurance Proceeds and Awards
(a) A "Mortgage" is a mortgage on the Property, the Building or the
Premises granted to a bank, insurance company, trust company, savings and loan
association, real estate investment trust, pension trust, governmental entity,
or similar institution or a private real estate lender. A "Mortgagee" is the
holder of Mortgage of the Property or Premises.
(b) Unless this lease is cancelled all Insurance Proceeds and Awards shall
be paid to the Landlord and shall be applied solely in accordance with this
Section.
(c) Unless this lease is cancelled, Landlord shall apply all Insurance
Proceeds and Awards first to the payment of the costs of repairs and/or the
costs of restoration which Landlord is obligated to make pursuant to this lease.
(d) Any balance of Insurance Proceeds or Awards after the cost of any
repair or restoration shall have been paid in full to Landlord and shall be
the sole property of Landlord.
Section 5.11 Reentry and Reserved Easements
(a) (i) Landlord may inspect the Premises during normal business hours
after giving reasonable notice to Tenant.
15
(ii) Landlord may inspect the Premises at will if an Event of Default
shall have occurred and not have been cured.
(b) Landlord and any Mortgagee shall each be entitled to access to the
Premises for the purpose of carrying out Landlord's obligations under this Lease
and Landlord's obligation to comply with the provisions of any Mortgage.
(c) Landlord reserves an easement to use, replace, repair, alter and
maintain existing pipes, lines and conduits that are situated in the Premises
and that extend to other parts of the Building. Landlord reserves an easement to
determine that these existing pipes, lines and conduits shall remain in the
parts of the Premises in which they are now situated. Landlord reserves an
easement to install, use, replace, repair, alter, and maintain new pipes, lines
and conduits for utility services for the Building in the parts of the Premises
above the ceiling and behind sheetrock walls.
(d) Landlord and any Mortgagee may enter the Premises after Delivery of
Possession for the purposes specified in subsections (a), (b) and (c). Any entry
after Delivery of Possession shall be conducted with due regard for the business
being conducted in the Premises by Tenant. No entry after Delivery of Possession
shall unreasonably interfere with the conduct of Tenant's business. Except in an
emergency, a right of entry may be exercised after Delivery of Possession only
during business hours and only after five days notice to Tenant. References to
"Landlord" and to a "Mortgagee" in this section also embrace their employees,
contractors, and sub-contractors and employees of their contractors and
subcontractors.
Section 5.12 Signs on the Premises
(a) (i) Tenant may not display signs on the exterior of the Premises
without Landlord's consent, which consent shall not be unreasonably withheld or
delayed.
(ii) Tenant may provide interior signage, at Tenant's sole cost and
expense, of a size and character consistent with interior signage presently in
use in the Building.
(iii) If Landlord maintains a building directory inside or outside of
the Building, Landlord shall cause Tenant and its affiliates to be listed
thereon.
(b) Tenant shall not permit any sign situated in the interior or on the
exterior of the Premises to have blinking or flashing illumination that is
visible from the exterior of the Premises.
(c) Tenant shall obtain all permits and licenses required in connection
with any signs attached to the Premises. Landlord appoints Tenant as its
attorney-in-fact to execute any applications for the permits and licenses to the
extent Landlord's execution of the applications is required by law.
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ARTICLE 6. COMMON AREA
Section 6.1 The Common Area Defined
(a) "Common Area" means all interior and exterior common areas including,
without limitation, parking areas, driveways, building signs, landscaped areas,
paving, sidewalks, hallways, stairways, escalators, elevators, lobbies,
restrooms and other similar public areas and access ways, that are designated by
Landlord for the non-exclusive use of the tenants of the Building.
Section 6.2 Tenant's Easement to Use the Common Area
(a) (i) Landlord grants Tenant a nonexclusive easement to use the Common
Area and to permit Tenant's customers, employees and invitees to use the Common
Area. The easement may be exercised only in common with the other occupants of
the Building and their respective customers, employees and invitees. The
easement shall be subject to rights that are reserved by Landlord in accordance
with this section, to rights that have been granted to others in accordance with
this Lease, and to rights that may be granted in the future in accordance with
this Section. Landlord may not permit any other person to use the Common Area
except as provided in part (ii).
(ii) Landlord reserves the right to use, and to permit the holder of
any Mortgage to use, the Common Area in common with Tenant and other persons
authorized to use the Common Area. Landlord may permit employees, contractors
and invitees of Landlord and the holder of any Mortgage to use the Common Area
in common. Landlord may also grant utility easements over and under portions of
the Common Area to utility companies and governmental entities and to their
employees and contractors.
(b) Any use of the Common Area pursuant to this Section shall be conducted
with due regard for the business being conducted in the Premises and the other
premises situated in the Building.
Section 6.3 Common Area Maintenance
(a) (i) Landlord shall maintain the Common Area including its lighting
system, drainage system and pavement in good order and repair. Landlord shall
comply with all legal requirements and Insurance Requirements applicable to the
Common Area. Landlord shall keep the parts of the sanitary sewage and water
service systems of the Property that are situated in the Common Area in good
order and repair and in compliance with applicable legal requirements and
Insurance Requirements. Landlord shall provide customary janitorial, cleaning
and rubbish
17
removal services for the Common Area.
(ii) Landlord shall remove snow and ice from the Common Area as
required for the business operations of the Tenant and other tenants in the
Building but only to the extent practicable under the circumstances. Landlord
may deposit accumulated ice and snow on portions of the Common Area as may be
appropriate under the circumstances. If ice removal is not practicable under the
circumstances, it will be sufficient for Landlord to spread sand, another
abrasive substance, or saline solution over the ice.
(b) Landlord shall keep the Common Area illuminated every day during which
Tenant is open for business from one-half hour before dusk until the earlier to
occur of 10:00 p.m. or one-half hour after all of Tenant's employees have
departed from the Premises.
Section 6.4 Indemnification
(a) (i) Except as provided in part (ii), Landlord shall indemnify Tenant
and its affiliates, officers, directors, stockholders and employees against any
loss, liability, or damages to third parties as a result of any personal injury
or property damage that occurs in the Common Area.
(ii) The indemnity shall not apply to loss, liability or damages with
respect to vehicles except for vehicles owned or operated by Landlord,
Landlord's employees, or Landlord's agents; to loss, liability or damages with
respect to arrests or apprehensions in the Common Area; or to loss, liability or
damages with respect to products.
(b) Landlord shall defend any lawsuits with respect to claims for loss,
liability or damages against which the indemnity provided in subsection (a)
applies and pay any judgments which result from the lawsuits. "Lawsuits"
includes arbitration proceedings and administrative proceedings and all other
governmental and quasi-governmental proceedings. "Liabilities" includes the fees
and disbursements of attorneys and witnesses.
Section 6.5 Insurance for Common Area
Landlord shall maintain public liability and property damage insurance with
respect to the Common Area. The insurance policy that provides this coverage
shall include a contractual liability endorsement. The coverage limits shall be
at least Two Million ($2,000,000.00) Dollars for each occurrence with respect to
bodily injury coverage and at least Five Hundred Thousand ($500,000.00) Dollars
for each occurrence with respect to property damage coverage.
ARTICLE 7. INTEREST IN THE PREMISES
TRANSFERS OF INTEREST
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Section 7.1 Assignment of Tenant's Interest
(a) (i) Tenant may not assign its leasehold estate under this Lease or
sublet all or any part of the Premises without Landlord's consent, which shall
not be unreasonably withheld or delayed. No assignment or subletting shall
relieve Tenant of any obligation under this Lease.
(ii) A sublease of all or more than fifty (50%) percent of the
Premises shall be regarded as an assignment of Tenant's leasehold estate in the
context of this Section.
(iii) (x) Except as provided in clause (y), the sale of any of the
stock of Tenant shall constitute an assignment of the leasehold estate in
the context of this Section if, after giving effect to all previous
transfers of the stock after the date of this Lease, more than fifty (50%)
percent of the stock of Tenant shall have been transferred.
(y) Clause (x) shall not apply to the sale of stock or to a
merger or consolidation of a public corporation; to the sale of a
subsidiary of a public corporation to its parent or another subsidiary of
the public corporation; to a merger or consolidation of a public
corporation with one or more of its subsidiaries; to a merger or
consolidation of one or more subsidiaries of a public corporation with each
other; to a transfer of shares among the then shareholders of Tenant or any
partnership, corporation or other entity controlled by, controlling or
under common control with Tenant; to any member of a shareholder's family
or any trust or partnership organized primarily for the benefit of such
shareholder's family; or pursuant to a public offering of the capital stock
of Tenant or Tenant's parent corporation.
(b) (i) If Tenant wishes to assign its interest hereunder or sublet all or
any part of the Premises, Tenant shall give notice to Landlord. The notice shall
specify the name and address of the proposed assignee/subtenant, any
consideration for the assignment, the period during which the consideration is
to be paid, any work or allowances to which the assignee may be entitled, and
true copies of all documents relating to the proposed transaction. In the case
of a sublease that constitutes an assignment under subsection (a), the notice
shall also specify the rent and other charges payable and the term of the
sublease.
(ii) Landlord shall have the option to cancel this Lease during the
sixty day period after the date on which it receives notice of the proposed
assignment. The option may be exercised only by giving notice to Tenant.
(c) Notwithstanding anything to the contrary, no assignment of the Tenant's
leasehold estate under this Lease to a subsidiary or affiliate of a public
corporation shall be valid unless the parent corporation guarantees full
compliance by the assignee of all of the obligations of the Tenant under this
Lease, and no assignment to any person shall be valid unless the assignee
assumes all of the obligations of the Tenant under this Lease.
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Section 7.2 Covenants of Title and Use
Landlord represents and warrants to Tenant as follows:
(a) Landlord owns a fee simple estate in the Property subject to no liens
other than the exceptions set forth in Exhibit B.
(b) Landlord has the right to execute this Lease.
(c) The execution of this Lease by Landlord does not require the approval
or joinder of any other person.
(d) Unless an Event of Default shall occur, Tenant may peaceably and
quietly occupy the Premises in accordance with the terms of this Lease without
hindrance or molestation. Landlord shall defend Tenant's right to occupy and use
the Premises.
Section 7.3 Estoppel Certificates
(a) A party shall deliver an Estoppel Certificate to the other party within
twenty days after the other party requests it.
(b) An Estoppel Certificate shall set forth the following statements to the
best of the knowledge of the person certifying.
(c) (i) An Estoppel Certificate shall state whether this Lease shall have
been supplemented or amended. If this Lease shall have been supplemented or
amended, the certificate shall specify the manner in which it shall have been
supplemented or amended.
(ii) An Estoppel Certificate shall state whether this Lease is in full
force and effect. If the certificate shall state that this Lease is not in full
force and effect, it shall also state why it is not.
(iii) An Estoppel Certificate shall specify the date to which Rent and
other charges have been paid.
(iv) An Estoppel Certificate shall state whether the party contends
that an Event of Default shall have occurred and continues to exist with respect
to the other party. If the certificate states that an Event of Default shall
have occurred and continues to exist with respect to the other party, the
certificate shall also specify the nature and extent of the Event of Default.
(d) An Estoppel Certificate may be relied upon by the party requesting it
or by any other person to which it may be exhibited or delivered. The contents
of an Estoppel Certificate shall be binding on the party on behalf of which it
shall have been executed.
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Section 7.4 Subordination and Nondisturbance
(a) Tenant shall subordinate the lien of this Lease to the lien of each
Mortgage which may encumber the Premises from time to time, and agree to attorn
to the first Mortgagee as long as the Mortgagee executes a subordination and
attornment agreement that contains the nondisturbance agreement provided for in
subsection (b).
(b) The nondisturbance agreement provisions required by subsection (a)
shall contain the following provision: "As long as an Event of Default shall not
have occurred under the Lease, the following shall apply:
(i) Mortgagee recognizes the Lease and shall not disaffirm the Lease
even if Mortgagee shall foreclose the Mortgage or the Premises shall be
sold pursuant to a foreclosure sale.
(ii) Tenant shall be entitled to use and occupy the Premises and use
the Common Area in accordance with the terms of the Lease.
(iii) Tenant shall be entitled to all of its rights under the Lease.
(iv) Insurance Proceeds and Awards shall be disbursed as provided in
the Lease.
(v) Tenant's possession of the Premises shall not be disturbed by
Mortgagee or by any person whose rights are acquired as a result of
foreclosure proceedings."
Section 7.5 Transfer of Landlord's Interest
Each person who owns the Property and sells the Property to a purchaser
that assumes all of the liabilities of Landlord under this Lease from and after
the date of the transfer other than accrued liabilities shall be relieved of all
liabilities under this Lease from and after the date of the transfer other than
accrued liabilities.
ARTICLE 8. DEFAULTS, RIGHTS AND REMEDIES
Section 8.1 Events of Default of Tenant
(a) Each of the following events shall constitute an "Event of Default" by
Tenant under this Lease:
(i) If Tenant fails to pay any Rent when due and the failure continues
for five
21
days after Landlord gives notice of the failure to Tenant.
(ii) If Tenant fails to comply with any of its other obligations under
this Lease and the failure continues for a "Cure Period" after Landlord gives
notice of the failure to Tenant.
(b) (i) Except as provided below, the "Cure Period" of part (ii) of
subsection (a) shall be thirty days.
(ii) If Tenant is unable to begin to cure the failure within thirty
days by the exercise of reasonable diligence, the Cure Period shall begin on the
date the notice of failure is given, and the Cure Period shall continue as long
as Tenant takes all steps that are practical under the circumstances to begin
the cure and thereafter diligently prosecutes the cure to completion.
(iii) The following shall apply if Tenant is able to begin to cure the
failure but is unable to complete the cure within thirty days by the exercise of
reasonable diligence. The Cure Period shall begin on the earlier to occur of the
date on which Tenant begins to cure the failure or the thirtieth day after the
notice of failure is given. If Tenant begins to cure the failure within thirty
days after the date on which the notice of failure is given, the Cure Period
shall continue as long as Tenant diligently prosecutes the cure; otherwise, the
Cure Period shall end on the thirtieth day after the notice of failure is given.
Section 8.2 Rights and Remedies Upon Default
If an Event of Default occurs with respect to Tenant, Landlord shall be
entitled to take any action it deems advisable under one or more of the
provisions of this Section 8.2.
(a) Landlord may proceed as it deems advisable to enforce the provisions of
this Lease at law or in equity.
(b) Landlord may give notice to Tenant that the term of this Lease shall
end on a date specified in the notice. If Landlord gives the notice, the term of
this Lease including Tenant's rights under subsection 3.1(b) shall end on the
date specified, and this Lease shall terminate on the date specified.
Notwithstanding the expiration of the term and the termination of the Lease,
Tenant's liability for its failure to comply with all provisions of this Lease
shall continue.
(c) Landlord may reenter the Premises and may repossess the Premises. The
reentry and/or repossession may be effected by summary proceedings, ejectment or
otherwise. Landlord may dispossess Tenant and may remove Tenant from the
Premises without further notice to Tenant. Tenant waives any right to notice of
Landlord's intention to reenter provided for by any present or future law.
Tenant waives any right to reenter the Premises or restore the operation of this
Lease.
(d) Landlord may relet all or part of the Premises. The term of the
reletting may be as
22
long as Landlord may determine. A lease executed by Landlord in accordance with
this subsection may provide for extensions or renewals of the term. The term of
any reletting and the period by which the term may be extended may be longer or
shorter than the period which would have constituted the balance of the Term of
this Lease if this Lease had not been terminated. Landlord shall not be required
to relet the Premises or to collect any rent in connection with a reletting.
(e) (i) Tenant shall pay liquidated and agreed "Current Damages" to
Landlord. "Current Damages" shall be paid on the first day of each month during
the period beginning on the effective date of the termination and ending on the
first day of the month next following the date that would have been the
Expiration Date if this Lease had not been terminated.
(ii) (x) "Current Damages" for each month shall be the difference
between "Current Debits" and Current Credits."
(y) "Current Debits" means the sum of (1) the installment of
Basic Rent which would have been payable on the first day of any month; (2)
any Rent payable with respect to any period before the effective date of
termination that shall have been still unpaid; (3) any unpaid Additional
Rent or charges which would have been payable by Tenant on or before that
date if this Lease had not been terminated; and (4) Landlord's unreimbursed
expenses of reentering, repossessing and reletting the Premises. Expenses
of reentering, repossessing and reletting include attorneys' reasonable
fees and disbursements; brokerage commissions; and the cost of painting,
altering and dividing.
(z) "Current Credits" means any rent received by Landlord during
the previous month with respect to reletting the Premises.
Section 8.3 Landlord's Right to Cure Potential Defaults
(a) (i) If Tenant shall fail to perform any of its obligations under this
Lease, and the failure shall continue after the expiration of a "Self Help
Period," Landlord shall have the right to perform the obligation for the account
and at the expense of Tenant.
(ii) (x) Except as provided below, a "Self-Help Period" shall be
thirty days after Landlord gives notice of the failure to Tenant.
(y) The following shall apply in the case of an emergency:
(1) Except as provided in subdivision (3), the Self-Help
Period shall begin when Landlord gives notice of the failure to Tenant
and shall end when appropriate under the circumstances.
(2) Notices need not be given in accordance with Section
9.1,
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and telephone or oral notice to Tenant's office manager shall be
sufficient.
(3) If there is a reasonable danger of irreparable harm
unless prompt action is taken and it is impractical to give any notice
under the circumstances, no notice shall be necessary, and the
Self-Help Period shall be waived.
(z) The following shall apply if the failure cannot be cured in
thirty days by the exercise of reasonable diligence except in the case of
an emergency:
(1) If Tenant is unable to begin the cure within thirty days
by the exercise of reasonable diligence, the Self-Help Period shall
begin when Landlord gives notice of the failure to Tenant and shall
continue as long as Tenant takes all practical steps to begin the cure
and thereafter diligently prosecutes the cure to completion.
(2) The following shall apply if Tenant is able to begin the
cure within thirty days by the exercise of reasonable diligence. The
Self-Help Period shall begin when Landlord gives notice of the failure
to Tenant. If Tenant begins the cure within thirty days, the Self-Help
Period shall continue as long as Tenant diligently prosecutes the
cure. If Tenant does not begin the cure within thirty days, the
Self-Help Period shall end on the thirtieth day after Landlord gives
notice of the failure to Tenant.
(b) The following shall apply if Landlord performs any of Tenant's
obligations in accordance with subsection (a): Tenant shall reimburse Landlord
for the expenses of performing the obligation. Landlord shall be entitled to
interest at the "Applicable Rate" on the expenses of performing the obligation.
Interest shall be payable from the dates on which Landlord shall have incurred
the applicable expenses to the date of reimbursement.
(c) If Tenant fails or refuses to reimburse Landlord for the expenses with
interest at the Applicable Rate, the reasonable expenses and interest shall be
added to the next installment of Basic Rent.
(d) "Applicable Rent" means the lower of (i) a fluctuating rate equal to
four (4%) percent per annum plus the published prime rate of Chase Manhattan
Bank, N.A. or (ii) the highest rate legally permissible under the circumstances.
Section 8.4 Limitation on Landlord's Liability
(a) Landlord shall have no personal liability with respect to any of the
provisions of this Lease or any obligation arising from, or in connection with,
this Lease. If Landlord or any successor in interest shall be a joint venture,
tenancy-in-common, firm, or partnership, the mem-
24
bers of the joint venture, tenancy-in-common, firm or partnership shall have no
personal liability with respect to any of the provisions of this Lease or any
obligation arising from or in connection with this Lease.
(b) If Tenant shall assert a claim against Landlord and Landlord is the
owner of the Property at the time the claim is asserted, Tenant shall look
solely to the Landlord's ownership estate in the Property for the satisfaction
of all remedies of Tenant. If Tenant shall assert a claim against Landlord and
Landlord is the owner of a leasehold estate in the Property at the time the
claim is asserted, Tenant shall look solely to Landlord's leasehold estate in
the Property for the satisfaction of all remedies of Tenant.
Section 8.5 Waivers
Tenant waives any right of redemption on reentry. Landlord and Tenant waive
any right to trial by jury.
ARTICLE 9. NOTICES; INTERPRETATION AND GOVERNING LAW
Section 9.1 Notices
(a) Notices given under this instrument shall be valid only if they are in
writing and properly mailed. A notice shall be properly mailed only if it is
mailed by certified or registered mail, if postage is prepaid, and if the notice
is properly addressed. A notice to a party shall be properly addressed only if
it is addressed to the address of the party set forth in Section 1.1 or to any
other address the party may designate by giving notice to the other party.
(b) Properly mailed notices that are delivered to the place to which they
are properly addressed shall be effective when received. If a properly mailed
notice is delivered to the place to which it is properly addressed and is
refused, the notice shall be effective when delivered nevertheless.
Section 9.2 Interpretation
Captions and headings used in this instrument are for reference only. A
male or female person may be referred to in this instrument by a neuter pronoun.
A provision of this instrument which requires a party to perform an action shall
be construed so as to require the party to perform the action or to cause the
action to be performed. A provision of this instrument which prohibits a party
from performing an action shall be construed so as to prohibit the party from
performing the action or permitting others to perform the action. "Including"
means "including but not limited to". The singular includes the plural, and the
plural includes the singular. "Any" means "any and all". This instrument may not
be changed or cancelled orally. All exhibits to this instrument shall be deemed
to be a part of this instrument.
25
Section 9.3 Binding Effect
This instrument shall be binding upon the parties and their respective
successors and assigns. The submission of an unexecuted copy of this instrument
shall not constitute an offer to be legally bound by the provisions of the
document submitted, and no party shall be bound by this instrument until it is
executed by both parties. This instrument has been executed in counterparts, and
each counterpart constitutes an original document.
Section 9.4 Governing Law
This instrument shall be governed by, and construed in accordance with, the
laws of the State of Connecticut.
IN WITNESS WHEREOF, each Landlord and Tenant has caused this Lease to be
executed, ensealed, and attested to by its respective duly authorized officers.
Landlord: OAKWOOD AVENUE PARTNERS
By: /s/ Xxxxxxx Xxxxxxxxxxx
--------------------------------
Witness: General Partner
Attest:
Tenant: MEDIALINK PR DATA CORPORATION
By: /s/ J. Xxxxxx XxXxxxxxx
--------------------------------
Witness:
Attest:
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Diagram of First Floor Plan
Diagram of Second Floor Plan
Diagram of Basement Plan
