Exhibit (10)(k)
LEASE
between
CD STATION, LLC, as Landlord
and
STARTECH ENVIRONMENTAL CORP., as Tenant
00 Xxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx
September 16, 1999
TABLE OF CONTENTS
ARTICLE 1. GRANT......................................................1
ARTICLE 2. TERM.......................................................1
ARTICLE 3. COMPLETION AND OCCUPANCY OF THE PREMISES...................2
ARTICLE 4. RENT AND SECURITY..........................................6
ARTICLE 5. ADDITIONAL RENT FOR ESCALATIONS IN REAL ESTATE TAXES AND
OPERATING EXPENSES.........................................8
ARTICLE 6. SERVICES AND UTILITIES....................................13
ARTICLE 7. CONDUCT OF BUSINESS BY TENANT.............................16
ARTICLE 8. ALTERATIONS, IMPROVEMENTS AND SIGNAGE.....................18
ARTICLE 9. INSURANCE.................................................20
ARTICLE 10. CASUALTY..................................................23
ARTICLE 11. CONDEMNATION..............................................24
ARTICLE 12. ASSIGNMENT AND SUBLETTING.................................25
ARTICLE 13. DEFAULTS AND REMEDIES.....................................28
ARTICLE 14. NONDISTURBANCE AND RIGHTS OF MORTGAGE HOLDERS.............32
ARTICLE 15. NOTICES...................................................34
ARTICLE 16. MISCELLANEOUS.............................................34
ARTICLE 17. EXTENSION RIGHT...........................................37
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List of Exhibits
Exhibit A Premises
Exhibit B Legal Description
Exhibit C-1 Tenant Standards
Exhibit C-2 Tenant's Space Plan
Exhibit D Cleaning Specifications
Exhibit E Rules and Regulations
Exhibit F Subordination, Nondisturbance and Attornment Agreement
Exhibit G Form of Tenant Estoppel Certificate
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LEASE
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This Lease is made and entered into as of September 16, 1999, by and between CD
STATION, LLC, a Delaware limited liability company, with its principal place of
business at c/o The Xxxxx Companies, Xxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 (the "Landlord") and STARTECH ENVIRONMENTAL CORP., a Colorado corporation
with its principal place of business at 00 Xxx Xxxxxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxxxx 00000 (the "Tenant").
ARTICLE 1. GRANT
1.01 Premises. Landlord, for and in consideration of the rents herein
reserved and of the covenants and agreements herein contained on the part of
Tenant to be performed, hereby leases to Tenant and Tenant accepts from
Landlord, certain space shown on Exhibit A attached hereto and made a part
hereof, containing 5,800 rentable square feet in area (hereinafter referred to
as the "Premises"), situated on the second floor of the office building located
at 00 Xxx Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx (the "Building"). The Premises,
Building, the "Common Areas" (defined below) and the land upon which the same
are located, which is legally described in Exhibit B (the "Land"), together with
all other improvements thereon and thereunder are collectively referred to as
the "Project".
1.02 Common Areas. Landlord hereby grants to Tenant during the term of this
Lease, a license to use, in common with the others entitled to such use, the
Common Areas as they from time to time exist, subject to the rights, powers and
privileges herein reserved to Landlord. The term "Common Areas" as used herein
will include all areas and facilities outside the Premises that are provided and
designated by Landlord for general use and convenience of Tenant and other
tenants. Common Areas include but are not limited to the fitness center,
cafeteria, hallways, lobbies, stairways, elevators, pedestrian sidewalks,
landscaped areas, loading areas, roadways, parking areas, rights of way, walking
and jogging paths, if any.
1.03 Parking. Tenant shall be entitled to use the parking facilities at the
Building in common with other Building tenants, but such right shall be limited
to three (3) non-exclusive tenant parking spaces for each 1,000 rentable square
feet demised hereunder, and Landlord agrees that one (1) of such parking spaces
shall be an uncovered, reserved parking space located in the parking lot at the
front of the Building. Tenant agrees not to overburden the parking facilities
and agrees to cooperate with Landlord and other tenants in the use of parking
facilities. Landlord may designate parking spaces in the Common Areas for the
handicapped and visitors to the Building and other tenants.
ARTICLE 2. TERM
2.01 Lease Term.
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(a) The Premises are leased for a term to commence on the "Commencement
Date" (as defined in Section 3.02) and shall end on the date (the "Expiration
Date") that is five (5) Lease Years after the Commencement Date unless sooner
terminated as herein provided. If Tenant exercises its option to extend the term
pursuant to Section 17.01, the Expiration Date shall be extended in accordance
with Article 17 hereof (the initial term hereof, and as so extended, the
"Term"). If Landlord gives and Tenant accepts possession prior to the
Commencement Date, such occupancy shall be subject to all the terms and
conditions of this Lease and rent and other charges shall be prorated to the
date that Tenant takes possession of the Premises.
(b) The first "Lease Year" shall begin on the date hereof and shall end
on the last day of the twelfth (12th) full calendar month following the
Commencement Date. Each Lease Year thereafter shall consist of twelve (12)
consecutive calendar months following the end of the immediately preceding Lease
Year except that the final Lease Year shall end on the Expiration Date.
2.02 Holdover Tenancy. Tenant acknowledges that if it fails to deliver
possession of the Premises to Landlord upon the expiration or sooner termination
of this Lease, Landlord shall incur substantial economic loss. In the event that
Tenant shall hold the Premises, or any part thereof, after the expiration of the
Lease Term without the prior written consent of the Landlord, such holding shall
constitute and be construed as a tenancy at will only at a daily rental equal to
125% of the daily Annual Base Rent payable during the last month of the Lease
Term, plus 100% of the daily rate of Additional Rent and other sums due under
this Lease during the last month of the Lease Term; provided, however, if Tenant
does not surrender possession of the Premises within thirty (30) days following
written notice form Landlord that it requires surrender of the Premises, then
the daily rental rate for Annual Base Rent shall increase to 175% of the daily
Annual Base Rent payable during the last month of the Lease Term. In addition to
such increased rental payment and any other liabilities to Landlord accruing
therefrom, Tenant shall indemnify and hold Landlord harmless from loss or
liability resulting from such failure, including, without limiting the
generality of the foregoing, both direct and consequential liabilities and
damages of Landlord arising from claims made by any succeeding tenant arising
due to such failure. Nothing contained herein shall be construed as Landlord's
consent for Tenant's holdover.
ARTICLE 3.COMPLETION AND OCCUPANCY OF THE PREMISES
3.01 Tenant's Leasehold Improvements.
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(a) Condition of the Premises and the Building. Landlord will
"substantially complete" (as defined below) construction of leasehold
improvements to prepare the Premises for Tenant's initial occupancy (the
"Initial Leasehold Improvements") subject to the terms and conditions of this
Article 3. Construction of the Initial Leasehold Improvements (inclusive of the
cost of all architectural, engineering and space planning services and related
plans, drawings and permits) shall be at Tenant's sole cost and expense, but
subject to application of the "Planning Allowance" (as defined in subsection (b)
below) and the "Tenant Allowance" (as defined in subsection (e) below). The
Initial Leasehold Improvements shall be of the same or better quality as
Landlord's tenant improvement standards for the Building, a copy of which is
attached as Exhibit C-1.
(b) Preparation of Tenant's Plans. Landlord shall enter into a
contract with Xxxxxxxxx Associates or another architect reasonably satisfactory
to Tenant (the "Architect") for the Initial Leasehold Improvements; and Landlord
shall enter into a construction contract with Xxxx Xxxxxxxxx Associates, a
licensed contractor, chosen by Landlord for such work ("Landlord's Contractor").
The expense of the Architect and Landlord's Contractor shall be Tenant's
responsibility and a part of the "Work Cost" defined below. Tenant has submitted
and Landlord has approved Tenant's space plan for the Initial Leasehold
Improvements, a copy of which is attached hereto as Exhibit C-2 (the "Tenant's
Plans"). The Tenant's Plans shall comply with the requirements of all federal,
state and local codes and ordinances and the rules, regulations and requirements
of any governmental authority having jurisdiction over the Initial Leasehold
Improvements and the Building (the "Governmental Requirements"). Following
delivery and approval of Tenant's Plans, Landlord shall have the Architect
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prepare detailed architectural drawings and specifications (the "Final Plans")
for the Initial Leasehold Improvements consistent with Tenant's Plans, as
approved by Landlord. Landlord agrees that its Architect will prepare
architectural documents for Tenant at Landlord's expense, subject to a maximum
expense of $8,700.00 (i.e., $1.50 per rentable square foot of space in the
Premises) (the "Planning Allowance"). Landlord will have its subcontractors
provide the design for the HVAC, electrical and plumbing systems consistent with
Tenant's design requirements for the Initial Leasehold Improvements in
connection with Architect's preparation of the Final Plans, unless Tenant
decides to retain its own engineering consultant for such purpose. If the
Landlord's cost to prepare the architectural documents exceeds the Planning
Allowance, Tenant shall pay Landlord any excess costs incurred by Landlord
within ten (10) days following Landlord's delivery of its invoice for such
excess costs.
(c) Approval of Final Plans. Tenant shall review the Final Plans
within two (2) business days following submission by Landlord and notify
Landlord in writing within such 2-day period of Tenant's approval or
disapproval. If Tenant disapproves any portion of such Final Plans, such
disapproval notice shall state the reasons therefor in reasonable detail. If
Tenant disapproves any portion of such Final Plans, Landlord shall revise such
Final Plans to incorporate Tenant's comments and required revisions and resubmit
the same to Tenant, and Tenant shall review such revised Final Plans within two
(2) business days following submission thereof by Landlord and provide any
comments to Landlord in writing within such 2-day period. Tenant agrees to use
its best efforts to conclude its approval of the Final Plans upon Landlord's
delivery of the second set of Final Plans, if not sooner. Tenant acknowledges
that Landlord's Contractor cannot commence construction of the Initial Leasehold
Improvements until Tenant has finally approved the Final Plans (as the same may
have been revised in response to Tenant's review). The date such Final Plans are
approved by Tenant is the "Final Plan Approval Date" and such approved Final
Plans are the "Approved Plans". Tenant agrees that any review or approval by
Landlord of any plans and/or specifications with respect to Initial Leasehold
Improvements and any Alterations is solely for Landlord's benefit, and without
any representation or warranty whatsoever to Tenant with respect to the
adequacy, correctness or efficiency thereof or their compliance with
Governmental Requirements. Any changes in the Approved Plans shall require
resubmission of detailed plans and drawings describing such changes to Landlord
and shall require Landlord's prior approval.
(d) Tenant's Construction Allowance. The Initial Leasehold
Improvements shall be constructed by Landlord at Tenant's sole cost and expense
in accordance with the Approved Plans. Tenant shall receive from Landlord an
allowance (the "Tenant Allowance") of up to, but not exceeding, $116,000.00
(i.e., $20.00 per rentable square foot of the Premises leased hereby), which
Tenant Allowance shall be used solely to contribute toward payment of the cost
of the architectural and engineering services needed to prepare the Approved
Plans, the cost of the labor and materials to construct the Initial Leasehold
Improvements in accordance with the Approved Plans, and related permit and
license fees (the "Work Cost"). Landlord will provide Tenant with a written
estimate of the Work Cost based upon the Approved Plans (the "Work Cost
Statement"). Tenant agrees to review and approve the Work Cost Statement and the
subcontractors' bids within forty-eight (48) hours following Landlord's delivery
thereof. Landlord will notify Tenant in writing of the projected "Occupancy
Date" (as defined below) within five (5) business days following Tenant's
approval of the Work Cost Statement. If the Work Cost Statement exceeds the
maximum Tenant Allowance, Tenant agrees to pay Landlord within ten (10) days
following Landlord's delivery of its invoice for any Work Costs incurred in an
amount equal to "Tenant's Percentage" (defined below) of such invoice (such
costs, the "Excess Costs"). Tenant's Percentage, as used in this Article 3,
shall mean the fraction expressed as a percentage, the numerator of which is the
cost of the entire Work Cost in excess of the maximum Tenant Allowance, and the
denominator of which is the entire Work Cost (as the same may be amended with
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the consent of both Landlord and Tenant). If the Tenant Allowance exceeds the
Work Cost, Tenant shall not be entitled to any payment, rent reduction or other
credit therefor.
(e) Tenant's Authorized Representative. All Tenant finish selections,
requests for alterations in the Approved Plans and requests for additional
improvement work must be authorized by Tenant representatives previously
identified by Tenant to Landlord in writing.
3.02 Commencement Date.
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(a) Subject to Tenant's performance of its obligations hereunder,
including, without limitation, its payment of the sums payable to Landlord under
this Article 3, Landlord, on behalf of Tenant, shall cause the Initial Leasehold
Improvements to be "substantially completed" (as defined below) in accordance
with the Approved Plans and possession of the Premises to be delivered to Tenant
on or before the date reasonably established by Landlord and announced to Tenant
in writing as provided in Section 3.01(d) above (such date, the "Occupancy
Date", currently estimated to be during November 1999), subject, however, to the
effect of Section 3.03 hereof. The term of this Lease and the obligations of the
parties hereto shall commence on a date (hereinafter referred to as the
"Commencement Date") which shall be the sooner of (a) the date Tenant commences
operation of its business in all or any portion of the Premises; or (b) the date
that the Initial Leasehold Improvements have been "substantially completed".
(b) For purposes of this Article 3, the Initial Leasehold Improvements
shall be deemed substantially completed when the Architect certifies to Landlord
and Tenant in writing that: (i) the Initial Leasehold Improvements have been
completed in accordance with the Approved Plans, subject only to normal
punchlist items; and (ii) Landlord, on behalf of Tenant, has obtained a
temporary certificate of occupancy from the Town of Wilton permitting the lawful
use and occupancy of the Premises for the purposes specified in this Lease.
Landlord shall cause such general contractor or subcontractors to complete any
outstanding punchlist items reasonably promptly following the Commencement Date.
(c) Landlord's obligation to deliver the Premises to Tenant with the
Leasehold Improvements substantially completed on or before the Occupancy Date
shall be extended by the number of days of delay resulting from any "Force
Majeure Delay," "Tenant Delay" (as such terms are defined in Section 3.03) or
Landlord delay, subject to the operation of Section 3.03.
(d) Landlord agrees to provide Tenant with its estimate of the
projected date for the Commencement Date approximately thirty (30) days prior to
the Commencement Date (but such notice shall not be a condition for establishing
the Commencement Date).
3.03 Delayed Delivery.
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(a) If Landlord shall be unable to substantially complete and deliver
possession of the Premises on or before the Occupancy Date by reason of the fact
that work required to be done by Landlord hereunder has not been substantially
completed by that date, Landlord shall not be subject to any penalty, claim or
liability nor shall the validity of this Lease or the obligations of Tenant
hereunder be in any way affected except as provided in Section 3.03(c), and in
no event to the extent such delay results from any of the following reasons:
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(i) any events included in Section 16.13 hereof or for any cause
beyond the reasonable control of Landlord (a "Force Majeure Delay"), or
(ii) delay (a "Tenant Delay") resulting from (A) Tenant's failure to
comply with the delivery and other approval dates established in this
Article 3 relative to the planning and pricing of the Initial Leasehold
Improvements and the Final Plans, (B) Tenant's requests for changes in the
Approved Plans (whether pursuant to Section 3.01 or otherwise), that have
the effect of delaying the substantial completion of the Initial Leasehold
Improvements by Landlord's contractor beyond the Occupancy Date (the
"Specialty Work"), (C) Tenant's failure to provide response to the requests
of any general contractors or subcontractors for information or choice
regarding Initial Leasehold Improvements within two (2) business days
following such request, (D) Tenant's failure to execute both a written work
order and a written agreement to pay at the quoted prices of any such
contractor within two (2) business days following delivery thereof to
Tenant with respect to any labor or installations not identified on the
Approved Plans that are requested by Tenant and approved by Landlord; (E)
any acts, omissions, defaults or misconduct of Tenant with respect to the
construction of the Initial Leasehold Improvements or Tenant's payment
obligations relative thereto, or (F) Tenant's failure to pay when due for
any increased cost or expense caused by any change orders initiated by
Tenant or additional work requested by Tenant within five (5) days
following Landlord's delivery of its invoice therefor.
(b) If Landlord is unable to substantially complete the Leasehold
Improvements and deliver possession of the Premises to Tenant on or before the
Occupancy Date as a result of any Tenant Delay, Tenant shall be financially
responsible for "Rent", as defined in Section 4.02, (pro-rated on a per diem
basis) for the number of days of Tenant Delay experienced by Landlord in
attempting to substantially complete and deliver the Premises by the Occupancy
Date and such sum shall be due and payable by Tenant upon written demand by
Landlord.
(c) If Landlord is unable to substantially complete the Leasehold
Improvements and deliver possession of the Premises to Tenant within forty-five
(45) days following the Occupancy Date as a result of delays resulting from
causes within Landlord's control, Tenant shall receive a per diem credit of
Annual Base Rent for each day that the Commencement Date is delayed beyond the
such forty-five (45) day period solely as a result of such Landlord's delay.
3.04 Tenant's Communication Systems.
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Tenant shall be responsible for the design, installation and
construction of Tenant's data, telephone and video systems and wiring ("Tenant's
Communications Systems") and payment of all cost and expense related thereto.
Tenant's Communications Systems shall not be included in the Approved Plans, the
Work Cost Statement or Tenant's Allowance. In connection with any such work by
Tenant, Tenant and its agents, contractors and suppliers shall work in harmony
with the general contractor and the subcontractors constructing the Initial
Leasehold Improvements in connection with any such work and will not interfere
with: (A) the performance of Landlord's Work or the Initial Leasehold
Improvements, (B) the work, or use and enjoyment of any other tenants or
occupants in the remainder of the Building, (C) the business operations of such
other tenants or occupants, or (D) Landlord's Rules and Regulations. Any entry
by Tenant or its agents, architects, engineers, space planners, contractors,
subcontractors, materialmen and any other party given access to the Premises in
connection with such improvements ("Tenant's Agents and Consultants") shall be
at the sole risk of such party and without liability to Landlord, its agents,
employees, officers, directors, principals, partners, shareholders and
affiliates. Tenant acknowledges that the Building is presently occupied by other
tenants. Tenant agrees to keep the Common Areas clean and free at all times of
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any obstructions, supplies, equipment and materials brought into the building by
Tenant or Tenant's Agents or Consultants; comply with Landlord's Rules and
Regulations applicable to Tenant's construction activities and the activities of
Tenant's Agents and Consultants; and comply with Landlord's directions and
requirements concerning the use and the time of use of the means of ingress to,
and egress from, the Building (and the Building elevators) with respect to
Tenant's construction activities at the Building. Landlord hereby gives
permission for Tenant's contractors to install such equipment so long as
Tenant's contractors do not interfere with Landlord's efforts to complete
Initial Leasehold Improvements in accordance with Landlord's obligations under
the Lease.
3.05 Confirmatory Amendments.
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When the Commencement Date and Expiration Date hereof have been
determined in accordance with the provisions set forth in this Lease, the
parties hereto shall execute a document in recordable form, setting forth said
dates and said document shall be deemed a supplement to and part of this Lease.
ARTICLE 4. RENT AND SECURITY
4.01 Annual Base Rent.
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(a) Beginning with the Commencement Date and continuing throughout the
Term, Tenant shall pay to or upon the order of Landlord an annual rental (the
"Annual Base Rent") as set forth below which shall be payable in consecutive
monthly installments on or before the first day of each calendar month in
advance in the monthly amount set forth below:
Annual Base Rent per
Period Annual Base Rent Rentable Square Foot Monthly Base Rent
Lease Years 1-2 $168,200.00 $29.00 $14,016.67
Lease Year 3 $174,000.00 $30.00 $14,500.00
Lease Year 4 $185,600.00 $32.00 $15,466.67
Lease Year 5 $188,500.00 $32.50 $15,708.33
(b) All payments of rent shall be made without demand, deduction,
counterclaim, set-off, discount or abatement in lawful money of the United
States of America. If the Commencement Date should occur on a day other than the
first day of a calendar month, or the Expiration Date should occur on a day
other than the last day of a calendar month, then the monthly installment of
Annual Base Rent for such fractional month shall be prorated upon a daily basis
based upon a thirty (30) day month.
4.02 Additional Rent. Tenant shall pay to Landlord all charges and other
amounts required under this Lease and the same shall constitute additional rent
hereunder (herein called "Additional Rent"), including, without limitation, any
sums due resulting from the provisions of Article 5 hereof. All such amounts and
charges shall be payable to Landlord at the place where the Annual Base Rent is
payable. Landlord shall have the same remedies for a default in the payment of
Additional Rent as for a default in the payment of Annual Base Rent. The term
"Rent" as used in this Lease shall mean the Annual Base Rent and the Additional
Rent.
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4.03 Place of Payment. The Annual Base Rent and all other sums payable to
Landlord under this Lease shall be paid to Landlord at c/x Xxxxx Management
Corp., 000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000, or at such other place as
Landlord shall designate in writing to Tenant from time to time.
4.04 Terms of Payment. Tenant shall pay to Landlord all Annual Base Rent as
provided in Section 4.01 above and Tenant shall pay all Additional Rent payable
under Articles 5 and 6 on the terms provided therein. Except as provided in this
Article 4 and as may otherwise be expressly provided by the terms of this Lease,
Tenant shall pay to Landlord, within thirty (30) days after delivery by Landlord
to Tenant of bills or statements therefor: (a) sums equal to all expenditures
made and monetary obligations incurred by Landlord under this Lease for Tenant's
account including, without limitation, expenditures made and obligations
incurred in connection with the remedying by Landlord any of Tenant's defaults
pursuant to the provisions of this Lease; (b) sums equal to all expenditures
made and monetary obligations incurred by Landlord, including, without
limitation, expenditures and obligations incurred for reasonable counsel fees,
in collecting or attempting to collect the Rent or any other sum of money
accruing under this Lease or in enforcing or attempting to enforce any rights of
Landlord under this Lease or pursuant to law; and (c) all other sums of money
accruing from Tenant to Landlord under the provisions of this Lease.
4.05 Late Charges. If Tenant shall fail to pay any Annual Base Rent or
Additional Rent within five (5) days after the date same is due and payable,
Tenant shall pay to Landlord (a) an administrative fee equal to five percent
(5%) per month on the amount due to cover Landlord's additional administrative
costs and cost of funds resulting from Tenant's failure, and (b) interest on the
amount due from its due date until paid at the lesser of 18% per annum or the
maximum legal rate that Landlord may charge Tenant; provided that, on the first
(1st) two (2) occasions only during each Lease Year, no such charges or interest
shall be payable with respect to any delinquent payment if such payment is
received by Landlord within five (5) days following written notice of such
failure. Such charges shall be paid to Landlord together with such unpaid
amounts. Such late payment charge shall not diminish or impair any other
remedies available to Landlord.
4.06 Security Deposit.
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(a) By execution of this Lease, Landlord acknowledges receipt of
Tenant's security deposit in the amount of $47,125.00 (the "Security Deposit")
for the faithful performance of all terms, covenants and conditions of this
Lease. Tenant agrees that Landlord may, without waiving any of Landlord's other
rights and remedies under this Lease upon the occurrence of any of the Events of
Default described in Article 13 hereof, apply the Security Deposit (i) to remedy
any failure by Tenant to repair or maintain the Premises or to perform any other
terms, covenants or conditions contained herein, or (ii) to compensate Landlord
for damages incurred, or to reimburse Landlord as provided herein, in connection
with any such Event of Default. Should Landlord use any portion of the Security
Deposit to cure any Event of Default by Tenant hereunder, Tenant shall forthwith
replenish the Security Deposit to the original amount. Landlord shall not be
required to keep the Security Deposit separate from its general funds, and
Tenant shall not be entitled to interest on any such deposit.
(b) In the event of a sale or leasing of the Building, Landlord shall
have the right to transfer the balance of the Security Deposit to the new owner
or to tenant. Landlord shall thereupon be released by Tenant from all liability
for the return of the Security Deposit; and Tenant agrees to look to the new
landlord. If any mortgagee, including Landlord's Mortgagee (defined in Section
14.01(a) below) should succeed to Landlord's interests hereunder, such mortgagee
should only be liable to Tenant for any security deposited by Tenant hereunder
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to the extent such security was actually transferred to such mortgagee.
(c) If Tenant performs all of Tenant's obligations hereunder during
the Term, Landlord will, within 30 days after the expiration or earlier
termination of the Lease, return the Security Deposit, or so much as has not
been applied by Landlord, to Tenant or the last permitted assignee of Tenant's
interest hereunder at the expiration of the Term.
ARTICLE 5. ADDITIONAL RENT FOR ESCALATIONS IN REAL ESTATE TAXES AND OPERATING
EXPENSES
5.01 Definitions. Annual Base Rent does not anticipate any increase in the
amount of taxes on the Building, or in the cost of the operation and maintenance
thereof. In order that the rent payable hereunder shall reflect any such
increases, Tenant agrees to pay as Additional Rent, an amount calculated as
hereinafter set forth. For purposes of this Article 5, the following definitions
shall apply:
"Tax Year": means the fiscal year of the Town of Wilton (July 1 - June
30) or other applicable governmental authority for real estate tax purposes or
such other twelve (12) month period as may be duly adopted in place thereof.
"Base Taxes": shall mean $7,830.00, determined by multiplying the
rentable square foot area of the Premises by $1.35.
"Taxes": All taxes, assessments and charges of every kind and nature
levied, assessed or imposed at any time by any governmental authority upon or
against the Project or any improvements, fixtures and equipment of Landlord used
in the operation thereof whether such taxes and assessments are general or
special, ordinary or extraordinary, foreseen or unforeseen in respect of each
Tax Year following wholly or partially within the Term. Taxes shall include,
without limitation, all general real property taxes and general and special
assessments, charges, fees or assessments for all governmental services or
purported benefits to the Project, service payments in lieu of taxes, all
business privilege taxes, and any tax, fee or excise on the act of entering into
this Lease or any other lease of space in the Building, or on the use or
occupancy of the Building or any part thereof, or on the rent payable under any
lease or in connection with the business of renting space under any lease or in
connection with the business of renting space in the Building, that are now or
hereafter levied or assessed against Landlord by the United States of America,
the State of Connecticut, or any political subdivision, public corporation,
district or other political or public entity, including legal fees, experts' and
other witnesses' fees, costs and disbursements incurred in connection with
proceedings to contest, determine or reduce Taxes. Taxes shall also include any
other tax, fee or other excise, however described, that may be levied or
assessed as a substitute for, or as an addition to, in whole or in part, any
other Taxes (including, without limitation, any municipal income tax) and any
license fees, tax measured or imposed upon rents, or other tax or charge upon
Landlord's business of leasing the Building, whether or not now customary or in
the contemplation of the parties on the date of this Lease.
Taxes shall not include: (i) franchise, transfer, gift excise, capital
stock, estate, succession and inheritance taxes, and federal and state income
taxes measured by the net income of Landlord from all sources, unless due to a
change in the method of taxation such tax is levied or assessed against Landlord
as a substitute for, or as an addition to, in whole or in part, any other Tax
that would constitute a Tax; or (ii) penalties or interest for late payment of
Taxes.
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"Base Expense Year": shall mean the calendar year 2000.
"Expense Year": shall mean the first and full calendar year following
the Base Expense Year and each calendar year thereafter.
"Base Expenses": shall mean the Operating Expenses for the Base
Expense Year equitably adjusted to the amount such Operating Expenses would have
been if ninety-five percent (95%) of the rentable area in the Building had been
occupied during the Base Expense Year if there is less than ninety-five percent
(95%) occupancy in the Base Expense Year. Only those component expenses that are
affected by variation in occupancy levels shall be "grossed-up". For purposes of
determining Tenant's Proportionate Share of increases in the Operating Expenses,
the Base Expenses shall be deemed to have been incurred by Landlord during the
Base Expense Year.
"Expense Increases": attributable to an Expense Year, shall mean the
excess, if any, of the Operating Expenses incurred during such Expense Year
equitably adjusted, if less than ninety-five percent (95%) occupancy, to the
amount such Operating Expenses would have been if ninety-five percent (95%) of
the rentable area in the Building had been occupied during the Expense Year over
the Base Expenses. Only those component expenses that are affected by variation
in occupancy levels shall be "grossed-up".
"Operating Expenses": all costs and expenses (and taxes, if any,
thereon) paid or incurred on behalf of Landlord (whether directly or through
independent contractors) in connection with the ownership, management,
operation, maintenance and repair of the Building and Common Areas (including
any sales or other taxes thereon) during the Term as a first-class office
building, including, without limitation:
(a) Charges of independent contractors for expenses
otherwise includable in Operating Expenses, including, without
limitation, charges for scavenger services, window washing and other
cleaning and janitorial services, snow and ice removal services,
exterior and interior landscaping services, pest extermination
services and services for the maintenance and repair of the parking
facilities, roadways and light poles;
(b) All heating, ventilating, air conditioning, plumbing,
electrical, mechanical, sewer, fire detection, life safety and
security systems, telecommunications facilities, elevators and
escalators, tenant directories, emergency generator, sprinkler
systems, and other equipment used in common by, or for the benefit of,
occupants of the Building; and Utility Expenses (excluding electricity
supplied to the Premises and billed to Tenant pursuant to Section 5.04
and electricity used by other tenants of the Building within their
leased space and billed directly to such tenants);
(c) The premiums for fire, extended coverage, loss of rents,
boiler, machinery, sprinkler, public liability, property damage,
earthquake, flood, and all other insurance relative to the Building
and the operation and maintenance thereof (inclusive of the Building's
fitness center and cafeteria) plus the cost of the deductible payments
made by Landlord in connection therewith;
(d) All supplies, tools, materials, equipment and
maintenance and service contracts in connection therewith; telephone,
stationery, office supplies and other office costs of administration;
consulting fees, legal fees and accounting fees and other expenses of
maintaining and auditing Project accounting records and preparing
Landlord's Statements;
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(e) Replacing, repairing, and/or adding any equipment,
device, improvement in order to reduce (or avoid an increase in)
operation or maintenance expenses with respect to the Project, or to
comply with laws or governmental orders or the requirements of
Landlord's insurers, and any repairs or removals necessitated thereby,
amortized over their useful life as determined in the reasonable
judgment of Landlord's accountant (including interest at the rate of
12% per annum or such higher rate as may have been paid by Landlord on
funds borrowed for the purpose of constructing such improvements);
(f) Salaries, wages, compensation, out-of-pocket expenses,
union benefits and labor costs (including the amount of any taxes,
social security taxes, unemployment insurance contributions,
insurance, retirement, medical, workers' compensation and other
employee benefits) of janitors, janitresses, engineers and other
employees of Landlord, and any on-site employees (below the executive
level) of Landlord's property management agent;
(g) Fees for management services whether rendered by
Landlord (or affiliate) or a third-party property manager in an amount
not to exceed the rate of five percent (5%) of Rents charged to
Building tenants;
(h) Association fees and dues with respect to associations
of owners of first class office buildings located in Fairfield County,
Connecticut reasonably apportioned to the buildings owned by Landlord
and its affiliates;
(i) The operation and maintenance of the Building's
cafeteria, including, without limitation, the cost of insurance,
utilities and repairs; subject, however, to Landlord's agreement to
use reasonable efforts to operate the cafeteria on a "break even"
basis such that there is no net loss or gain to Landlord depending
upon operating price levels. Tenant agrees to cooperate with Landlord
in establishing an employee subsidy program for Tenant's employees to
effect the intent of this subsection to have a "break even" cafeteria
operation at the Building; and
(j) The operation and maintenance of the Building's fitness
center, including, without limitation, the cost of insurance,
utilities, repairs, and payment of any insurance deductible amounts
due to claims against Landlord or its employees or independent
contractors.
Operating Expenses shall not include: (a) utility expenses that are
separately metered for any individual tenant in the Building; (b) any expense
for which Landlord is reimbursed by a specific tenant by reason of a special
agreement or requirement of the occupancy of the Building by such tenant; (c)
expenses for services provided by Landlord for the exclusive benefit of a given
tenant or tenants for which Landlord is directly reimbursed by such tenant or
tenants; (d) all costs, fees and disbursements relating to activities for the
solicitation, negotiation and execution of leases for space in the Building
(including but not limited to attorneys' fees therefor); (e) the costs of
alterations to, or the decorating or the redecorating of, space in the Building
leased to other tenants; (f) except as stated in subparagraph (g) of the
definition of Operating Expenses, the costs associated with the operation of the
business of the ownership or entity which constitutes "Landlord", including
costs of selling, syndicating, financing or mortgaging any of Landlord's
interest in the Project; (g) depreciation, interest and principal payments on
mortgages and other debt costs, if any; (h) repairs or other work required due
to fire or other casualty to the extent of insurance proceeds received by
Landlord; (i) capital expenses for items that are not included in the definition
of "Operating Expenses"; and (j) payments to affiliates of Landlord (excluding
property management fees) but only to the extent that they exceed market
charges.
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"Tenant's Proportionate Share": Tenant's Proportionate Share shall be
a fraction, the numerator of which shall be the rentable area of the Premises
and the denominator of which shall be the rentable area of the Building. On the
Commencement Date the Tenant's Proportionate Share is six and five hundred and
fifty-four thousandths percent (6.554%). The Tenant's Proportionate Share shall
be recalculated from time to time in the event that there shall be a change in
the rentable area of either the Premises or the Building.
"Landlord's Statement": Shall mean an instrument containing a
computation of any Additional Rent due pursuant to the provisions of this
Article 5.
"Utility Expenses": All expenses paid or incurred on behalf of
Landlord for utility or utility services for the Project, including, but not
limited to, water, sewer, electric, gas, steam, fuel oil and chilled water,
together with any taxes on said costs.
5.02 Payment of Taxes. Tenant shall pay, as Additional Rent, Tenant's
Proportionate Share of all Taxes payable in respect of any Tax Year falling
wholly or partially within the Term, to the extent that Taxes for any such
period shall exceed the Base Taxes (which payment shall be adjusted by proration
with respect to any partial Tax Year). Within thirty (30) days after the
issuance by the Town of Wilton or other applicable governmental authority of the
xxxx for Taxes, Landlord shall submit to Tenant a copy of such xxxx, together
with Landlord's Statement and Tenant shall pay the Additional Rent set forth on
such Landlord's Statement (less the amount of estimated payments paid by Tenant
on account thereof) as set forth herein. Landlord, at its option, may require
Tenant to make monthly payments on account of Tenant's Proportionate Share of
Taxes in excess of the Base Taxes. The monthly payments shall be one-twelfth
(1/12th) of the amount of Tenant's Proportionate Share of Taxes in excess of the
Base Taxes and shall be payable on or before the first day of each month during
the Term, in advance, in an amount estimated by Landlord and billed by Landlord
to Tenant; provided that Landlord shall have the right initially to determine
such monthly estimates and to revise such estimates from time to time. With
reasonable promptness after Landlord has received the tax bills for any Tax
Year, Landlord shall furnish Tenant with Landlord's Statement with respect
thereto. If the actual amount of Tenant's Proportionate Share of Taxes exceeds
the estimated amount of Tenant's Proportionate Share of Taxes paid by Tenant for
any Tax Year, then Tenant shall pay to Landlord as Additional Rent the
difference between the amount of estimated Tenant's Proportionate Share of Taxes
paid by Tenant and the actual amount of Tenant's Proportionate Share of Taxes.
This Additional Rent payment shall be due and payable within thirty (30) days
after delivery of Landlord's Statement. If the total amount of estimated
payments made by Tenant in respect of Tenant's Proportionate Share of Taxes paid
by Tenant for any Tax Year shall exceed the actual amount of Tenant's
Proportionate Share of Taxes for such Tax Year, then such excess amount shall be
credited against the monthly installments of Additional Rent due and payable
from Tenant to Landlord hereunder with respect to Taxes, until such amount shall
have been refunded in full to Tenant.
5.03 Payment of Operating Expenses. Tenant shall pay to Landlord on account
of Tenant's Proportionate Share of Expense Increase and as Additional Rent, a
sum equal to one-twelfth (1/12) of the amount of Tenant's Proportionate Share of
Expense Increases for each Expense Year on or before the first day of each month
of such Expense Year, in advance, in an amount estimated by Landlord and billed
by Landlord to Tenant; provided that Landlord shall have the right initially to
determine such monthly estimates and to revise such estimates from time to time.
After the expiration of the Base Expense Year and each Expense Year, Landlord
shall prepare and furnish Tenant with Landlord's Statement showing the Base
Expenses or the Operating Expenses incurred during such Expense Year. Within
thirty (30) days after receipt of Landlord's Statement for any Expense Year
setting forth Tenant's Proportionate Share of any Expense Increase attributable
to such Expense Year, Tenant shall pay Tenant's Proportionate Share of such
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Expense Increase (less the amount of estimated payments paid by Tenant on
account thereof) to Landlord as Additional Rent. If the actual amount of
Tenant's Proportionate Share of the Expense Increase for such Expense Year
exceeds the estimated amount of Tenant's Proportionate Share of Expense
Increases paid by Tenant for such Expense Year, then Tenant shall pay to
Landlord the difference between the estimated amount of Tenant's Proportionate
Share of Expense Increases paid by Tenant and the actual amount of Tenant's
Proportionate Share of Expense Increases. This Additional Rent payment shall be
due and payable within thirty (30) days following delivery of Landlord's
Statement. If the total amount of estimated payments made by Tenant in respect
of Tenant's Proportionate Share of Expense Increases for such Expense Year shall
exceed the actual amount of Tenant's Proportionate Share of Expense Increases
for such Expense Year, then such excess amount shall be credited against the
monthly installments of Additional Rent due and payable from Tenant to Landlord
hereunder with respect to Expense Increases until such amount shall have been
refunded in full to Tenant. Notwithstanding anything to the contrary herein, in
no event shall the aggregate credits allowable to Tenant, in any Expense Year
pursuant to this Article 5 exceed the aggregate of the Additional Rent payments
payable by Tenant pursuant to this Article 5; provided, however, any excess
payments made by Tenant during the Term that have not been so applied and are
outstanding at the end of the Term shall be paid to Tenant promptly following
Landlord's final accounting for the final Expense Year.
5.04 Payment of Electric Expense. Tenant shall pay for the full cost (the
"Electric Expense") of the electric energy consumed within the Premises as
reasonably determined by Landlord from time to time based upon the survey report
of a third party engineering consultant which shall take into consideration
Tenant's electricity consumption, actual hours of operation, the equipment and
machinery in the Premises and the rentable area of the Premises and the actual
rate of payment established by the utility company for such service. The
Electric Expense is initially established at the rate of $1.75 per rentable
square foot of the Premises during the calendar year 1999. During the remainder
of the Term the Electric Expense shall increase based upon the increases in rate
charged by the utility company to the Landlord and, at Landlord's election, by
re-survey by Landlord's consultant. The Electric Expense payable in respect of
the Premises shall constitute Additional Rent under this Lease (but shall not be
included as an Operating Expense), and shall be due and payable monthly in
advance beginning on the Commencement Date and continuing on the first day of
each calendar month during the Term.
5.05 Landlord's Statements and Tenant's Inspection Rights.
----------------------------------------------------
(a) Landlord's Statements shall be rendered to Tenant, but Landlord's
failure to render Landlord's Statement with respect to the Base Expense Year,
any Expense Year or any Tax Year or Landlord's delay in rendering said Statement
beyond a date specified herein shall not prejudice Landlord's right to render a
Landlord's Statement with respect to that or any subsequent Expense Year or Tax
Year. The obligations of Landlord and Tenant under the provisions of this
Article with respect to any Additional Rent incurred during the Term shall
survive the expiration or any sooner termination of the Term. If Landlord fails
to give Tenant a statement of projected Operating Expenses prior to the
commencement of any Expense Year, Tenant shall continue to pay Operating
Expenses in accordance with the previous statement, until Tenant receives a new
statement from Landlord.
(b) During the sixty (60) day period after receipt of any Landlord's
Statement (the "Review Period"), Tenant may inspect and audit Landlord's records
relevant to the cost and expense items reflected in such Landlord's Statement at
a reasonable time mutually agreeable to Landlord and Tenant during Landlord's
usual business hours. Each Landlord's Statement shall be conclusive and binding
upon Tenant unless within sixty (60) days after receipt of such Landlord's
Statement Tenant shall notify Landlord that it disputes the correctness of
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Xxxxxxxx'x Xxxxxxxxx, specifying the respects in which Landlord's Statement is
claimed to be incorrect. If, after such inspection, Tenant disputes the amount
of its Proportionate Share of Operating Expenses or Taxes, Tenant shall be
entitled to retain an independent company or certified public accountant
reasonably acceptable to Landlord to review Landlord's records to determine the
proper amount of such Additional Rent. If such audit or review reveals that
Landlord has overcharged Tenant, then within fifteen (15) days after the results
of such audit are made available to Landlord, Landlord shall reimburse Tenant
the amount of such overcharge plus interest at the reference or prime rate in
effect from time to time at Fleet Bank, N.A., or its successor, from the date of
overpayment (the "Interest Rate"). If the audit reveals that Tenant was
undercharged, then within fifteen (15) days after the results of the audit are
made available to Tenant, Tenant shall reimburse Landlord the amount of such
undercharge plus interest thereon at the Interest Rate. If Landlord desires to
contest such audit results, Landlord may do so by submitting the results of the
audit to arbitration pursuant to Section 13.06 of the Lease within sixty (60)
days of receipt of the results of the audit, and the arbitration shall be final
and binding upon Landlord and Tenant. Tenant agrees to pay the cost of such
audit, provided that, if the audit reveals that Landlord's determination of such
Additional Rent as set forth in any statement sent to Tenant was in error in
Landlord's favor by more than five percent (5%), Landlord shall pay the
reasonable cost of such audit. Pending the determination of such dispute as
hereinafter provided, Tenant shall pay Additional Rent in accordance with the
applicable Landlord's Statement, and such payment shall be without prejudice to
Tenant's position. All inspections and audits of Landlord's books and records
and any arbitration shall be subject to a confidentiality agreement reasonably
acceptable to Landlord.
5.06 Additional Rent Adjustments. If the Term shall expire on a date other
than December 31st, any Additional Rent for the Lease Year in which the
expiration date shall occur shall be apportioned (based upon the immediately
preceding 12 month period) in that percentage which the number of days in the
period from January 1st of such Lease Year to such date of expiration, both
inclusive, shall bear to the total number of days in the calendar year in which
such expiration occurs.
ARTICLE 6. SERVICES AND UTILITIES
6.01 Services. Landlord shall provide the following services to the
Building and Premises (subject to Tenant's reimbursement and payment obligations
therefor in accordance with the operation of Article 5 hereof):
(a) Janitor services in and about the Premises in accordance with the
cleaning specifications set forth in Exhibit D, Saturdays, Sundays and union and
state and federal government holidays (the "Holidays") excepted. Tenant shall
not provide any janitor service without Landlord's written consent. If
Landlord's consent is given, such janitor services shall be subject to
Landlord's supervision and control, but shall be performed at Tenant's sole cost
and responsibility.
(b) Heat and air-conditioning as required to maintain comfortable
temperature (excluding specialized temperature and humidity control for
computers, printers and other equipment) daily from 8:00 a.m. to 6:00 p.m.
Monday through Friday, Saturdays from 8:00 a.m. to 12:00 noon ("Normal Business
Hours"), the remainder of Saturdays, Sundays and Holidays excepted, consistent
with such service typical of comparable buildings in Fairfield County.
(c) Hot and cold running water for cleaning, landscaping, grounds
maintenance, fire protection, drinking, lavatory and toilet purposes drawn
through fixtures installed by Landlord or by Tenant with Landlord's written
consent. If Tenant's water use increases beyond customary office user levels,
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Landlord shall have the right to install a water meter at Tenant's expense and
to charge Tenant as Additional Rent for its water consumption in the Premises in
accordance with readings from such meter.
(d) Electric current only, in amounts required for normal lighting by
building standard lighting overhead fixtures and for Tenant's normal business
operations, including without limitation, personal computers, copiers,
facsimilies and other ordinary business equipment, subject, however, to
Landlord's approval of Tenant's final electrical plan for the Premises (but
specifically excluding electric current surge protection).
(e) Window washing of all windows in the Premises both inside and out,
weather permitting at intervals established by Landlord pursuant to the cleaning
specifications set forth in Exhibit D hereto.
(f) Maintenance of the Common Areas so that they are clean and free
from accumulations of snow, debris, filth, rubbish and garbage.
(g) Access by Tenant to the Premises and use of designated elevator
service 24 hours per day, seven (7) days per week, 52 weeks per year, subject to
the operation of Landlord's computerized access system at the Building's
entrances and to Landlord's Rules and Regulations. Overtime HVAC and other
services shall be available as provided in Section 6.02 hereof.
6.02 Additional Services. Landlord shall impose reasonable charges and may
establish reasonable rules and regulations for the following: (a) the use of any
heating, air-conditioning, ventilation, electric current or other utility
services or equipment by Tenant at any time other than during the hours set
forth in Section 6.01(b) above ("Overtime HVAC"); (b) the usage of any
additional or unusual janitorial services required because of any non-building
standard improvements in the Premises, the carelessness of Tenant, the nature of
Tenant's business (including the operation of Tenant's business other than
during the hours set forth in Section 6.01(b); and (c) the removal of any refuse
and rubbish from the Premises except for discarded material placed in wastepaper
baskets and left for emptying as an incident to Landlord's normal cleaning of
the Premises in accordance with Exhibit D. The expense charged by Landlord to
Tenant for any Overtime HVAC shall be based on Landlord's actual cost for such
utility services as charged to Landlord by the utility companies providing such
services. This amount shall constitute Additional Rent and shall be payable in
accordance with Section 4.04.
6.03 Excessive Current. Tenant shall comply with the conditions of
occupancy and connected electrical load reasonably established by Landlord for
the Building and Tenant shall not use utilities or other services in excess of
the services described above in Section 6.01 or in a manner which exceeds or
interferes with any Building systems or Landlord's ability to provide services
to other tenants in the Building. To avoid possible adverse effects upon the
Building's electrical and mechanical systems, Tenant shall not, without
Landlord's prior consent in each instance (which shall not be unreasonably
withheld), connect air conditioning equipment, computers, (excluding personal
computers and printers and office copiers and facsimile machines), major
appliances (excluding coffee makers, microwave ovens and other similar food
preparation appliances) or heavy duty equipment ("High Usage Equipment") to the
Building's electrical system. Landlord may survey Tenant's use of services from
time to time. Tenant shall pay Landlord all costs arising out of any excess use
or other connection of High Usage Equipment, including the cost of all repairs
and alterations to the Building's mechanical and electrical systems (including
the installation of meters) and the cost of additional electricity made
available to Tenant, if any. Such costs shall constitute Additional Rent and
Tenant shall pay such costs pursuant to Section 4.04.
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6.04 Maintenance of Common Areas. The manner in which the Common Areas are
maintained and operated and the expenditures therefor shall be at the sole
discretion of Landlord and in accordance with the standards of comparable
buildings in Fairfield County. Landlord reserves the right from time to time to
(a) make changes in the shape, size, location and appearance of the land and
improvements which constitute the Common Areas, provided that Landlord shall not
materially impair the Tenant's ability to operate its business, except temporary
impairments required by said changes; (b) make such improvements, alterations
and repairs to the Common Areas as may be required by governmental authorities
or by utility companies servicing the Building; (c) construct, maintain and
operate lighting and other facilities on all said areas and improvements; and
(d) to add or remove improvements and facilities to or from the Common Areas.
The use of the Common Areas shall be subject to such reasonable regulations and
changes therein as Landlord shall make from time to time, including (but not by
way of limitation) the right to close from time to time, if necessary, all or
any portion of the Common Areas to such extent as may be legally sufficient, in
the opinion of Landlord's counsel, to prevent a dedication thereof or the
accrual of rights of any person or of the public therein; provided, however,
Landlord shall do so at such times and in such manner as shall minimize any
disruption to Tenant to the extent reasonably possible.
6.05 Access to Premises. Landlord shall have the right to enter the
Premises without abatement of Rent at all reasonable times upon twenty-four (24)
hours prior notice to Tenant (except in emergencies when no notice shall be
required), (i) to supply any service to be provided by Landlord to Tenant
hereunder, (ii) to show the Premises to Landlord's Mortgagee and to prospective
purchasers, mortgagees and tenants, and (iii) to inspect, alter, improve or
repair the Premises and any portion of the Building. For each of the purposes
stated above in this Section 6.05, Landlord shall at all times have and retain a
key with which to unlock all of the doors in, upon and about the Premises,
excluding Tenant's vaults and safes, or special security areas (designated in
advance), and Landlord shall have the right to use any and all means that
Landlord may deem necessary or proper to open said doors in an emergency, in
order to obtain entry to any portion of the Premises. Landlord and its agents
and representatives shall have the right to enter upon the Premises for any and
all of the purposes set forth in this Article and may exercise any and all of
the foregoing rights without being deemed guilty of a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction, actual or constructive of
Tenant from the Premises, or any portion thereof, if reasonably necessary to
comply with any governmental statute, ordinance or building, fire or other code.
6.06 Interruption of Services. There shall be no abatement of Rent and
Landlord shall not be liable in any respect whatsoever for the inadequacy,
stoppage, interruption, or discontinuance of any utility or service due to riot,
strike, labor dispute, government request or direction, breakdown, accident,
repair, or other cause. The foregoing notwithstanding, in the event of any
interruption or stoppage of any essential utility service which Landlord is
required to provide, if such interruption or stoppage is for more than ten (10)
consecutive days after written notice by Tenant to Landlord, is of a nature
which prevents Tenant from using the Premises for the conduct of its business,
is not rendered necessary by the negligence or misconduct of Tenant or any
Tenant Parties, and is within Landlord's reasonable control, then the Rent shall
be abated at the rate of one (1) day for each day of interruption and stoppage
after the tenth (10th) consecutive day after notice by Tenant to Landlord of
such interruption or stoppage until such service is restored.
6.07 Cafeteria and Fitness Center. Landlord will construct in the Building
a fitness center (the "Fitness Center") and a cafeteria (the "Cafeteria") and
each will be operated and maintained by the Landlord (or an operator selected by
the Landlord). The Cafeteria and Fitness Center may not be available from time
to time due to construction activities, repairs, maintenance or alterations, or
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a change in the managing or operating company hired by Landlord. Landlord agrees
to make the Fitness Center (and its facilities and equipment) available to
Tenant's employees on a direct, non-exclusive basis subject to (a) Landlord's
Rules and Regulations regarding the use thereof; (b) payment of a monthly or
other periodic user fee; and (c) execution of a waiver of liability and
indemnity agreement for Landlord's benefit in form and substance satisfactory to
Landlord prior to such person's use of the Fitness Center.
Landlord and Tenant agree to the following payment plan with respect to the
Fitness Center for Tenant's employees: (a) if Tenant's employees pay Landlord
directly, the current monthly fee is $20.00 per person, payable quarterly on the
first day of each calendar quarter; (b) if Tenant elects to pay the fees for its
employees, Tenant shall pay 25% of the gross monthly fee (i.e. $20.00 per person
per month currently) which gross monthly fee will be determined with respect to
all employees at the Premises, which amount shall be payable to Landlord monthly
on the first day of each month together with Tenant's payment of Annual Base
Rent. Landlord will notify Tenant in writing of any changes to the current
monthly per person fee for use of the Fitness Center.
ARTICLE 7. CONDUCT OF BUSINESS BY TENANT
7.01 Permitted Use. The Premises shall be used and occupied for general
office purposes only. Tenant shall not use or occupy, or permit the use or
occupancy of, the Premises or any part thereof for any use other than the sole
use specifically set forth above or in any illegal manner, or in any manner
that, in Landlord's judgment, would adversely affect or interfere with any
services required to be furnished by Landlord to Tenant or to any other tenant
or occupant of the Building, or with the proper and economical rendition of any
such service, or with the use and enjoyment of any part of the Building by any
other tenant or occupant. Tenant agrees that it will not exceed the maximum
floor bearing capacity for the Premises.
7.02 Compliance with Laws.
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(a) Tenant, at Tenant's expense, shall comply promptly with the laws,
ordinances, rules, regulations and orders of all governmental authorities in
effect from time to time during the Term that shall impose any duty on Tenant
with respect to the Premises or the use, occupancy and operation thereof,
including, without limitation, the Americans with Disabilities Act ("ADA"), and
all applicable zoning, fire and health codes. Tenant will obtain and maintain in
full force and effect any and all licenses and permits necessary for its use.
Tenant shall make any Alterations in or to the Premises in order to comply with
the foregoing, which are necessitated or occasioned, in whole or in part by the
use or occupancy or manner of use, occupancy or operation of the Premises by
Tenant or any of its officers, employees, agents, contractors, invitees,
licensees or subtenants (the "Tenant Parties").
(b) Landlord shall comply with all laws, ordinances, rules,
regulations and orders of all governmental authorities in effect from time to
time during the Term that shall impose any duty on Landlord with respect to the
Common Areas of the Building, and excluding any matters that arise from the acts
or omissions of Tenant or other tenants of the Building or that are Tenant's
responsibility under this Lease or the responsibility of other tenants of the
Building. The Leasehold Improvements designed and constructed by Landlord will
conform upon completion to all applicable legal requirements, including, without
limitation, the requirements of Title III of the ADA. Notwithstanding anything
to the contrary contained herein, Tenant shall be responsible for legal
compliance, including the requirements of the ADA, with respect to (i) any and
all requirements on account of Tenant's use of, or operations in, the Premises,
and (ii) all Alterations designed or constructed by Tenant or its contractors or
agents.
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7.03 Landlord's Rules and Regulations. Tenant shall faithfully observe and
comply with the rules and regulations attached to this Lease as Exhibit E, and
all reasonable modifications thereof and additions thereto from time to time put
into effect by Landlord (the "Rules and Regulations"). Tenant shall not use or
permit the use of the Premises in any manner that will tend to create waste or a
nuisance, or which shall tend to unreasonably disturb other tenants of the
Building. Landlord shall not be responsible to Tenant for the nonperformance of
any of the Rules and Regulations by any other tenants or occupants on the
Building. Landlord shall use reasonable efforts to enforce the Rules and
Regulations in a fair and non-discriminatory manner. In the event of an express
and direct conflict between the terms, covenants, agreements and conditions of
this Lease and the terms, covenants, agreements and conditions of such rules and
regulations, as modified and amended from time to time by Landlord, this Lease
shall control.
7.04 No Liens. Tenant shall keep the Premises and Project free from any
liens or encumbrances arising out of any work performed, material furnished or
obligations incurred by or for Tenant or any person or entity claiming through
or under Tenant. Prior to Tenant performing any construction or other work on or
about the Premises for which a lien could be filed against the Premises or the
Project, Tenant shall obtain satisfactory lien waiver agreements with each
contractor who is to perform such work or furnish any material. Any claim to, or
lien upon, the Premises or the Building arising from any act or omission of
Tenant shall accrue only against the leasehold estate of Tenant and shall be
subject and subordinate to the paramount title and rights of Landlord in and to
the Premises and the Project. If any mechanics' or other lien shall be filed
against the Premises or the Project purporting to be for labor or material
furnished or to be furnished at the request of the Tenant, then Tenant shall at
its expense cause such lien to be discharged of record by payment, bond or
otherwise, within thirty (30) days after the filing thereof.
7.05 Hazardous Substances.
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(a) Tenant shall not generate, store (except for small quantities of
substances ordinarily stored and used in connection with general office use if
stored, used and disposed of, in accordance with all laws relating thereto),
dispose of or release, or permit the storage, use, disposal or release of, any
"Hazardous Substances" (as hereinafter defined), in, above, on or under the
Premises or the Project. Tenant shall remove, clean-up and remedy any Hazardous
Substance on the Premises or in accordance with applicable law, provided that
the presence of such Hazardous Substance resulted from the action or inaction of
Tenant, or any Tenant Parties and Tenant shall be obligated to continue to pay
Rent hereunder until such removal, clean-up or remedy is completed in accordance
with applicable laws, whether or not the Term shall terminate or expire.
(b) Tenant shall not take or permit any action that would cause the
Premises or Project to become an "establishment" (as defined in the Connecticut
Transfer Act, C.G.S. ss. 22a-134). Tenant hereby grants Landlord the right to
inspect the Premises on not less than twenty-four (24) hours notice to Tenant
(except in the event of an emergency in which case Landlord will use reasonable
efforts commensurate with the nature of the emergency condition to give Tenant
prior notice) throughout the Term, to determine that Tenant is in compliance
with applicable laws and Tenant agrees to provide Landlord with all information
necessary to ascertain that Tenant is in compliance with applicable laws. Tenant
shall cooperate with Landlord in satisfying any legal requirements imposed upon
Landlord relating to Tenant's operations, and, upon Landlord's written request,
shall furnish complete information to Landlord with regard to its operations. In
connection with any transfer of the Premises or Project, Tenant shall comply
with the Connecticut Transfer Act and any other applicable laws relative to its
operations.
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(c) "Hazardous Substances" shall mean any petroleum, petroleum
products, fuel oil, waste oil, explosives, reactive materials, ignitable
materials, corrosive materials, hazardous chemicals, hazardous wastes, hazardous
substances, extremely hazardous substances, toxic substances, toxic chemicals,
radioactive materials, medical waste, pollutants, herbicides, fungicides,
rodenticides, insecticides, contaminant, or pesticides and including, but not
limited to any other element, compound, mixture, solution or substance which may
pose a present or potential hazard to human health or the environment. Tenant
shall comply with all laws applicable to the generation, storage, use, disposal
or release of Hazardous Substances, including but not limited to, obtaining and
maintaining any permits from, or making any filings or registrations with, by
any governmental authority as required under any applicable law.
(d) Tenant shall indemnify, defend with counsel reasonably acceptable
to Landlord, and hold Landlord fully harmless and any mortgagee of the Project,
from and against any and all liability, loss, suits, claims, actions, causes of
action, remediation orders, proceedings, demands, costs, penalties, damages,
fines and expenses, including, without limitation, attorneys' fees, consultants'
fees, laboratory fees and clean-up costs, and the costs and expenses of
investigating and defending any claims or proceedings, resulting from, or
attributable to, (i) the presence of any Hazardous Substance on the Premises or
the Project arising from the action, inaction or negligence of Tenant, its
officers, employees, contractors, agents, subtenants or invitees, or arising out
the generation, storage, treatment, handling, transportation, disposal or
release by Tenant of any Hazardous Substance at or near the Premises or the
Project, and (ii) any violation(s) by Tenant of any applicable law regarding
Hazardous Substances, and (iii) default of any of its agreements under Section
7.05 of this Lease.
7.06 Tenant's Failure to Maintain. If Landlord gives Tenant written notice
of the necessity of any repairs or replacements required to be made under
Section 8.02 and Tenant fails to commence diligently to cure the same within
twenty (20) days thereafter (except that no notice will be required in case of
any emergency repair or replacement necessary to prevent substantial damage or
deterioration), Landlord, at its option and in addition to any other remedies,
may proceed to make such repairs or replacements and the expenses incurred by
Landlord in connection therewith plus 10% thereof for Landlord's supervision,
shall be due and payable from Tenant in accordance with Section 4.04 hereof, as
Additional Rent; provided, that Landlord's making any such repairs or
replacements shall not be deemed a waiver of Tenant's default in failing to make
the same.
7.07 Surrender. Upon the expiration or sooner termination of the Term,
Tenant will quietly and peacefully surrender to Landlord the Premises in as good
condition as when Tenant took possession, ordinary wear and tear excepted, and
otherwise as is required in Article 8. In addition, at such time Tenant shall
remove all Hazardous Substances stored, or disposed of, or generated by Tenant
in its use or operation of the Premises and all equipment and materials
contaminated or affected by such Hazardous Substances in conformity with the
Hazardous Substance laws. Tenant shall surrender the Premises to Landlord at the
end of the Term hereof, without notice of any kind, and Tenant waives all right
to any such notice as may be provided under any laws now or hereafter in effect
in Connecticut.
ARTICLE 8. ALTERATIONS, IMPROVEMENTS AND SIGNAGE
8.01 Landlord's Obligations. Landlord will maintain all structural
components of the Building, including, without limitation, the roof, foundation,
exterior and load-bearing walls (including exterior windows and doors), the
structural floor slabs and all other structural elements of the Premises, as
well as the Common Areas of the Building, in good repair, reasonable wear and
use, casualty and condemnation excepted. The cost of this maintenance and repair
shall be included in Operating Expenses and shall be subject to reimbursement
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under Article 5 hereof to the extent provided therein. Maintenance and repair
expenses caused by Tenant's willful misconduct or negligent acts or omissions
shall be paid directly to Landlord by Tenant in accordance with Section 4.04,
and shall not constitute an Operating Expense. Landlord shall not be liable for
and there shall be no abatement of Rent with respect to any injury to or
interference with Tenant's business arising from any repairs, maintenance,
alteration or improvement in or to any portion of the Project, including the
Premises, or in or to the fixtures, appurtenances and equipment therein.
8.02 Tenant's Obligations. Tenant shall take good care of the Premises, and
at Tenant's cost and expense, shall make all repairs and replacements necessary
to preserve the Premises in good working order and in a clean, safe and sanitary
condition, and will suffer no waste. Tenant shall maintain, at its own expense,
in good order, condition and repair to Landlord's reasonable satisfaction, all
plumbing facilities and electrical fixtures and devices (including replacement
of all lamps, starters and ballasts) located within the Premises. Tenant shall
repair, at its cost, all deteriorations or damages to the Project occasioned by
its negligent acts or omissions or willful misconduct. If Tenant does not make
such repairs to the Building within twenty (20) days following notice from
Landlord, Landlord may, but need not, make such repairs, and Tenant shall pay
the cost thereof as provided in Section 7.06 hereof. All repairs and
replacements made by or on behalf of Tenant shall be made and performed in
accordance with the "Construction Standards" (as defined in Section 8.03).
8.03 Tenant's Alterations.
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(a) Tenant shall not make or permit any improvements, installations,
alterations or additions ("Alterations") in or to the Premises, the Building or
the Project; provided, however, Tenant may, with Landlord's advance written
consent, which consent shall not be unreasonably withheld, make Alterations to
the Premises that do not involve or affect either structural portions of the
Premises or the Building or any of the Building's HVAC, mechanical, electrical,
plumbing or other systems or equipment (the "Building Systems"). At the
expiration of the Term, Landlord may require the removal of any or all of said
Alterations and the restoration of the Premises and the Project to their prior
condition, at Tenant's expense in accordance with Section 8.05.
(b) All Alterations permitted by Landlord and made by or on behalf of
Tenant shall be made and performed: (a) at Tenant's cost and expense and at such
time and in such manner as Landlord may designate, (b) by contractors or
mechanics approved by Landlord, who shall carry liability insurance of a type
and in such amounts as Landlord shall reasonably require, naming Landlord and
Tenant as additional insureds, (c) in a good and workmanlike manner, (d) so that
same shall be at least equal in quality, value, and utility to the original work
or installation, (e) in accordance with the Rules and Regulations for the
Building adopted by Landlord from time to time and in accordance with all
applicable Laws, and (f) pursuant to plans, drawings and specifications
("Tenant's Plans") which have been reviewed and approved by Landlord prior to
the commencement of the repairs or replacements and approved by, and filed with,
all applicable governmental authorities, and subject to all other terms and
conditions of this Lease, including, but not limited to, Section 7.05
(collectively the "Construction Standards"). All Alterations made by Tenant
shall become, upon installation, the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the Lease term, unless
Landlord requires their removal pursuant to Section 8.03(a). Landlord agrees not
to unreasonably withhold any approvals requested under this Section 8.03(b).
8.04 Tenant's Property. Any trade fixtures, furnishings, equipment and
personal property placed in the Premises that are removable without damage to
the Building or the Premises, whether the property of Tenant or leased by
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Tenant, are herein sometimes called "Tenant's Property". Any of Tenant's
Property remaining on the Premises at the expiration of the Term shall be
removed by Tenant at Tenant's cost and expense, and Tenant shall, at its cost
and expense, repair any damage to the Premises or the Building caused by such
removal. Any of Tenant's Property not removed from the Premises prior to the
Expiration Date shall, at Landlord's option, become the property of Landlord or
Landlord may remove such Tenant's Property, and Tenant shall pay to Landlord,
Landlord's cost of removal and of any repairs in connection therewith in
accordance with Section 4.04(b) hereof.
8.05 Ownership and Removal. All appurtenances, additions, fixtures and
improvements attached to or installed in or upon the Premises, whether placed
there by Tenant or by Landlord, shall be Landlord's property and shall remain
upon the Premises at the termination of this Lease by lapse of time or otherwise
without compensation or allowance or credit to Tenant. Landlord may require, in
its discretion, the removal by Tenant of any of Tenant's Property or Alterations
which have been attached to or installed in the Premises (excluding the Initial
Leasehold Improvements) unless Landlord consents to a written request from
Tenant at the time of its approval of the Tenant's Plans that an installation
need not be so removed. On or before the Expiration Date, or the sooner date of
termination of this Lease, Tenant shall pay to Landlord the cost of repairs of
any damage to the Premises or Building and losses caused by the removal of such
property.
8.06 Signage. Landlord shall provide building standard signage identifying
Tenant by name on all Building multi-tenant signage including in the main
Building lobby directory and on any directories located on the floor occupied by
the Tenant under this Lease. Landlord will also provide building standard entry
signage at the main entry to the Premises and agrees to use Tenant's corporate
artwork which shall be subject to Landlord's prior written approval. Tenant has
no right to any Tenant signage, monuments, graphics or advertising on the
exterior of the Premises or any other location in or at the Project. Landlord
shall have the absolute and exclusive right to approve or disapprove the
content, design, size and location of any and all proposed Tenant signage and
monuments proposed to be erected and/or maintained at the Premises or Project.
ARTICLE 9. INSURANCE
9.01 Tenant's Insurance. Tenant, at its own expense, shall provide and keep
in force with companies acceptable to Landlord during the Term: (a)
comprehensive general liability insurance insuring against liability for bodily
injury and property damage, including contractual liability, in the amount of
$3,000,000 maximum combined single limit; (b) "Special Form" property insurance,
including standard fire and extended coverage insurance, in amounts necessary to
provide replacement cost coverage, for Tenant's Property, trade fixtures,
machinery, equipment, furniture, furnishings and any Alterations in which Tenant
has an insurable property interest, including, without limitation, vandalism and
malicious mischief and sprinkler leakage coverage, and "all risk" Builder's Risk
insurance, completed value, non-reporting form at any time that Tenant has
commenced construction of any leasehold improvements or any Alterations, and at
any time any other construction activities are underway at the Premises; (c)
plate glass insurance for the Premises; (d) Workers' Compensation Insurance in
statutory limits as required by applicable law; and (e) any other insurance
reasonably required by Landlord. Such limits shall be for any greater amounts as
may be reasonably indicated by circumstances from time to time existing.
9.02 Delivery of Policies. The aforesaid insurance shall be provided by
companies and in form, substance and amounts (where not above stated)
satisfactory to Landlord and to Landlord's Mortgagee by companies rated A-/VII
or better by A.M. Best Company. Such insurance shall name Landlord as an
additional insured, shall specifically include the liability assumed hereunder
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by Tenant (provided that the amount of such insurance shall not be construed to
limit the liability of Tenant hereunder), and shall provide that it is primary
insurance, and not excess over or contributory with any other valid, existing
and applicable insurance in force for or on behalf of Landlord, and shall
provide that Landlord shall receive thirty (30) days' written notice from the
insurer prior to any cancellation or change of coverage. With respect to
Tenant's comprehensive general liability insurance, Landlord shall be named as
an additional insured with respect to its liability relative to this Lease and
the Building. Tenant shall deliver policies of such insurance or certificates
thereof to Landlord on or before the Commencement Date, and thereafter at least
thirty (30) days before the expiration dates of expiring policies; and, in the
event Tenant shall fail to procure such insurance, or to deliver such policies
or certificates, Landlord may, at its option, procure same for the account of
Tenant, and the cost thereof shall be paid to Landlord as Additional Rent within
five (5) days after delivery to Tenant of bills therefor. Tenant's compliance
with the provisions of this Article 9 shall in no way limit Tenant's liability
under any of the other provisions of this Lease.
9.03 Increased Insurance Risk. Tenant shall not do or permit anything to be
done, or keep or permit anything to be kept in the Premises, which would: (a) be
in violation of any governmental law, regulation or requirement, (b) invalidate
or be in conflict with the provision of any fire or other insurance policies
covering the Building or any property located therein, (c) result in a refusal
by fire insurance companies of good standing to insure the Building or any such
property in amounts required by Landlord's Mortgagee (as hereinafter defined) or
reasonably satisfactory to Landlord, (d) subject Landlord to any liability or
responsibility for injury to any person or property by reason of any business
operation being conducted in the Premises, or (e) cause any increase in the fire
insurance rates applicable to the Project or property located therein at the
beginning of the Term or at any time thereafter. Tenant, at Tenant's expense,
shall comply with all rules, orders, regulations or requirements of the American
Insurance Association (formerly the National Board of Fire Underwriters) and
with any similar body that shall hereafter perform the function of such
Association. In the event that any use of the Premises by Tenant increases such
cost of insurance, Landlord shall give Tenant written notice of such increase
and a reasonable opportunity to cure its use to prevent such increase; provided,
however, if Tenant fails to do so, Tenant shall pay such increased cost to
Landlord in accordance with Section 4.04 hereof. Acceptance of such payment
shall not be construed as a consent by Landlord to Tenant's such use, or limit
Landlord's remedies under this Lease.
9.04 Cross-Indemnification.
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(a) Tenant agrees to protect, indemnify and save harmless Landlord,
from and against any and all loss, cost, liability, damage and expense
including, without limitation, claims, demands, penalties, causes of action,
costs and expenses and attorneys' fees imposed upon and incurred by or asserted
against Landlord from any cause in, on, or about the Premises, including,
without limitation, those relating to the following: (i) Tenant's default in its
observance or performance of any of the terms, covenants or conditions of this
Lease, (ii) the use or occupancy or manner of use or occupancy of the Premises
by Tenant or of any Tenant Parties, (iii) any acts, omissions or negligence of
Tenant or any Tenant Parties, in, on or about the Premises or the Project,
either prior to, during, or after the expiration of, the Term including, without
limitation, any acts, omissions or negligence in the making or performing of any
Alterations in or to the Premises, or (iv) for personal injury, including
without limitation, bodily injury, death or property damage, occasioned by any
use, occupancy, condition, occurrence, omission or negligence referred to in the
preceding clauses. In case any action, suit or proceeding is brought against
Landlord by reason of any such occurrence, Tenant will, at Tenant's expense,
resist and defend such action, suit or proceeding or cause the same to be
resisted or defended by counsel reasonably approved by Landlord.
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(b) Landlord agrees to protect, indemnify and save harmless Tenant
from and against any and all loss, cost, liability, damage and expense
including, without limitation, claims, demands, penalties, causes of action,
costs and expenses and attorneys' fees imposed upon and incurred by or asserted
against Tenant that result from the conduct of Landlord or its employees, agents
or contractors (the "Landlord Parties") at the Common Areas, including, without
limitation, those relating to the following: (a) for personal injury, death or
property damage arising from the negligence or willful misconduct of Landlord or
any Landlord Parties, or (b) Landlord's default in its observance or performance
of any of the terms, covenants or conditions of this Lease. In case any action,
suit or proceeding is brought against Tenant by reason of any such occurrence,
Landlord will, at Landlord's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted or defended by counsel reasonably
approved by Tenant.
9.05 Limitation on Landlord's Liability. Landlord shall not be responsible
or liable to Tenant for any loss or damage to Tenant, or its business (including
any loss of income therefrom) or its property occasioned by or through the acts
or omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connected with the Premises or any part of the Project, or for
any loss or damage resulting to Tenant, or its business (including any loss of
income therefrom), or its property from smoke, fire, electricity, steam, gas,
vapor, water or rain, or other airborne contaminants, or from the breakage,
leakage, obstruction or other defects of pipes, wires, appliances, plumbing,
heating, air-conditioning or lighting fixtures, or from any other cause, whether
the said damage or injury results from conditions arising from or upon Premises
or upon other portions of the Project, or from other sources or places,
including theft.
9.06 Waiver of Claims.
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(a) Landlord and Tenant hereby agree and hereby waive any and all
rights of recovery against each other for loss or damage occurring to the
Premises or the Project or any of Landlord's or Tenant's Property contained
therein regardless of the cause of such loss or damage to the extent that the
loss or damage is covered by the injured party's insurance or the insurance the
injured party is required to carry under this Lease, whichever is greater
(without regard to any deductible provision in any policy). This waiver does not
apply to claims caused by a party's willful misconduct. This waiver also applies
to each party's directors, officers, employees, shareholders, and agents.
(b) Each party will assure that its insurance permits waiver of
liability and contains a waiver of subrogation. Each party shall secure an
appropriate clause in, or an endorsement to, each insurance policy obtained by
or required to be obtained by Landlord or Tenant, as the case may be, under this
Lease, pursuant to which the insurance company: (i) waives any right of
subrogation against Landlord or Tenant as the same may be applicable, or (ii)
permits Landlord or Tenant, prior to any loss to agree to waive any claim it
might have against the other without invalidating the coverage under the
insurance policy. If, at any time, the insurance carrier of either party refuses
to write (and no other insurance carrier licensed in Connecticut will write)
insurance policies which consent to or permit such release of liability, then
such party shall notify the other party and upon the giving of such notice, this
Section shall be void and of no effect.
9.07 Landlord's Insurance. Landlord shall maintain and keep in effect
during the entire Term the following insurance coverage (together with such
other coverages as Landlord may reasonably elect to carry for the benefit of the
Project):
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(a) Standard Commercial General Liability Insurance with a Broad Form
Comprehensive General Liability endorsement. The limits of liability of such
insurance shall be an amount not less than $3,000,000 per occurrence, bodily
injury including death, and $3,000,000 per occurrence, property damage liability
or $3,000,000 combined single limit for bodily injury and property damage
liability; and
(b) "Special Form" fire and extended coverage insurance on the Project
insuring the guaranteed replacement value thereof, excluding Tenant's Property
and Tenant's Alterations. The insurance shall include, but not be limited to,
fire and extended coverage perils and shall be placed with companies licensed to
sell insurance in Connecticut.
ARTICLE 10. CASUALTY
10.01 Damage or Destruction. Tenant shall give prompt notice to Landlord of
any damage by fire or other casualty to the Premises or any portion thereof. In
the event that the Premises, or any part thereof, or access thereto, shall be so
damaged or destroyed by fire or other insured casualty (a "Casualty") that the
Tenant shall not have reasonably convenient access to the Premises or any
portion of the Premises shall thereby be otherwise rendered unfit for use and
occupancy by the Tenant for the purposes set forth in Section 7.01, and if in
the judgment of the Landlord the damage or destruction may be repaired within
one hundred eighty (180) days with available insurance proceeds, then the
Landlord shall so notify the Tenant within sixty (60) days after the occurrence
of the damage or destruction (the "Notice Period") and shall repair such damage
or destruction (except damage or destruction to Tenant's Property or Tenant's
Alterations) with reasonable diligence. In the event that the Landlord shall not
complete such repairs within one hundred eighty (180) days after the elapse of
the Notice Period, then the Tenant shall have the right to terminate the term of
this lease by giving written notice of such termination to the Landlord within
twenty (20) days after the end of such one hundred eighty (180) day period;
provided, however, that in the event that the completion of repairs shall be
delayed by causes beyond the Landlord's control, including those events
described in Section 16.11 hereof, the time for completion shall be extended by
the period of such delay, but not to exceed an additional thirty (30) days. If
in the judgment of the Landlord the Premises, or means of access thereto, cannot
be repaired within one hundred eighty (180) days after the elapse of the Notice
Period with available insurance proceeds and the Landlord does not deliver the
Tenant notice of its decision to repair such damage within sixty (60) days after
the occurrence of the Casualty, then either party shall have the right to
terminate the term of this Lease by giving written notice of such termination to
the other party within the period of sixty (60) to seventy-five (75) days after
the occurrence of the Casualty.
10.02 Abatement of Rent. Annual Base Rent and Additional Rent shall not be
abated or suspended if, following any Casualty, Tenant shall continue to have
reasonably convenient access to the Premises and the Premises are not rendered
unfit for use and occupancy. If Tenant shall not have reasonably convenient
access to the Premises or any portion of the Premises shall be otherwise
rendered unfit for use and occupancy by the Tenant for the purposes set forth in
Section 7.01 by reason of such Casualty, then Rent shall be equitably suspended
or abated relative to the portion of the Premises that cannot be used by Tenant
for any of its business operations, effective as of the date of the Casualty
until Landlord has (i) substantially completed the repair of the Premises and
the means of access thereto, and (ii) has delivered notice thereof to Tenant. If
such damage or destruction was caused by the negligence or willful act or
omission of the Tenant or any of its officers, employees, contractors, agents or
invitees, then there shall be no abatement of Rent; an election by Landlord to
carry rental loss insurance shall not affect the provisions of this Article 10.
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10.03 Events of Termination. In addition to the foregoing termination
rights provided in Section 10.01 hereof, in the event of a Casualty, the
following termination rights shall apply:
(a) If more than 25% of the gross rentable area of the Premises shall
be wholly or substantially damaged or destroyed by Casualty at any time during
the last six (6) months of the Term, either Landlord or Tenant may terminate
this Lease by delivery of written notice of such termination to the other party
within thirty (30) days after the occurrence of such damage.
(b) Notwithstanding the provisions of this Article 10, if, prior to
or during the Term the Building shall be so damaged by Casualty that, in
Landlord's reasonable estimate, the cost to repair the damage will be more than
25% of the replacement value of the Building immediately prior to the occurrence
of the Casualty (whether or not the Premises shall have been damaged or rendered
untenantable), then, in any of such events, Landlord, at Landlord's option, and
with the written consent of Landlord's Mortgagee, may give to Tenant, within
ninety (90) days after such Casualty, a thirty (30) days' notice of the
termination of this Lease and, in the event such notice is given, this Lease and
the term shall terminate upon the expiration of such thirty (30) days with the
same effect as if such date were the Expiration Date; and the Rent shall be
apportioned as of such date and any prepaid portion of Rent for any period after
such date shall be refunded by Landlord to Tenant within thirty (30) days
following the Expiration Date.
10.04 Insurance Proceeds Upon Termination. If this Lease is terminated
pursuant to any right granted or reserved to Landlord under this Section, all
insurance proceeds payable with respect to the damage giving rise to such right
of termination shall be paid to Landlord, and Tenant shall have no claim
therefor. No damages, compensation or claim shall be payable by the Landlord to
Tenant, or any other person, by reason of inconvenience, loss of business or
annoyance arising from any damage or destruction, or any repair thereof, as is
referred to in this Article 10.
10.05 Scope of Landlord's Repairs. In the event Landlord elects or shall be
obligated to repair or restore any damage or destruction as aforesaid, the scope
of work shall be limited to the original Leasehold Improvements that were
constructed by Landlord at its expense, and Landlord shall have no obligation to
restore or replace Tenant's Property or Tenant's Alterations.
ARTICLE 11. CONDEMNATION
11.01 Entire Condemnation. In the event that the whole of the Premises
shall be taken under the power of eminent domain, this Lease and the term and
estate hereby granted shall automatically terminate as of the earlier of the
date of the vesting of title or the date of dispossession of Tenant as a result
of such taking.
11.02 Partial Condemnation.
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(a) In the event that only a part of the Premises shall be taken by
Condemnation and Tenant shall have reasonable, convenient access to and from the
Premises, the Term shall expire as to that portion of the Premises condemned
effective as of the date of the vesting of title in the condemning authority,
and this Lease shall continue in full force and effect as to the part of the
Premises not so taken.
(b) In the event that a part of the Project shall be subject to
Condemnation (whether or not the Premises are affected), Landlord may, at its
option, terminate this Lease as of the date of such vesting of title, by
notifying Tenant in writing of such termination within ninety (90) days
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following the date on which Landlord shall have received notice of the vesting
of title in the condemning authority if in Landlord's reasonable opinion: (i) a
substantial alteration or reconstruction of the Project (or any portion thereof)
shall be necessary or appropriate, or (ii) the portion of the Project so
condemned has the effect of rendering the remainder of the Project uneconomic to
maintain.
(c) In the event that this Lease is not terminated in accordance with
subsection (b) hereof, Landlord shall, upon receipt of the award in
condemnation, make all necessary repairs or alterations to the Building in which
the Premises are located so as to constitute the remaining Premises a complete
architectural unit to the extent feasible, but Landlord shall not be required to
spend for such work an amount in excess of the amount received by Landlord as
damages for the part of the Premises so taken. "Amount received by Landlord"
shall mean that part of the award in condemnation which is free and clear to
Landlord of any collection by mortgagees and after payment of all costs involved
in collection, including but not limited to attorney's fees. Tenant, at is own
cost and expense shall, restore all exterior signs, trade fixtures, equipment,
furniture, furnishings and other installations of personalty of Tenant which are
not taken to as near its former condition as the circumstances will permit. In
the event of a partial taking, all provisions of this Lease shall remain in full
force and effect.
11.03 Temporary Taking. If there is a taking of the Premises for temporary
use arising out of a temporary emergency or other temporary situation, this
Lease shall continue in full force and effect, and Tenant shall continue to
comply with Tenant's obligations under this Lease, except to the extent
compliance shall be rendered impossible or impracticable by reason of the
taking, and Tenant shall be entitled to the award for its interest.
11.04 Condemnation Awards. Except as provided in the preceding Section
11.03, Landlord shall be entitled to the entire award in any condemnation
proceeding or other proceeding for taking for public or quasi-public use,
including, without limitation, any award made for the value of the leasehold
estate created by this Lease. No award for any partial or entire taking shall be
apportioned, and Tenant hereby assigns to Landlord any award that may be made in
such condemnation or other taking, together with any and all rights of Tenant
now or hereafter arising in or to same or any part thereof; provided, however,
that nothing contained herein shall be deemed to give Landlord any interest in
or to require Tenant to assign to Landlord any award made to Tenant specifically
for its relocation expenses or the taking of Tenant's Property provided that
such award does not diminish or reduce the amount of the award payable to
Landlord.
11.05 Proration. In the event of a partial condemnation or other taking
that does not result in a termination of this Lease as to the entire Premises,
then the Annual Base Rent and Tenant's Proportionate Share shall be adjusted in
proportion to that portion of the Premises taken by such condemnation or other
taking and Tenant's Proportionate Share.
ARTICLE 12. ASSIGNMENT AND SUBLETTING
12.01 Assignment and Subletting.
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(a) Tenant shall not, without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, assign, mortgage,
encumber or otherwise transfer this Lease or any interest herein directly or
indirectly, by operation of law or otherwise, or sublet the Premises or any part
thereof, or permit the use or occupancy of the Premises by any party other than
Tenant (any such action, a "Transfer"). If at any time or from time to time
during the Term, when no Event of Default has occurred and is continuing, Tenant
desires to effect a Transfer, Tenant shall deliver to Landlord written notice
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("Transfer Notice") setting forth the terms of the proposed Transfer and the
identity of the proposed assignee, sublessee or other transferee (each a
"Transferee"). Tenant shall also deliver to Landlord with the Transfer Notice an
acceptable assumption agreement for Tenant's obligations under this Lease
together with all relevant information requested by Landlord concerning the
proposed Transferee to assist Landlord in making an informed judgment regarding
the financial responsibility, creditworthiness, reputation, and business
experience of the Transferee. Tenant shall reimburse Landlord promptly for all
reasonable out-of-pocket expenses incurred by Landlord including reasonable
attorneys' fees in connection with the review of Tenant's request for Landlord's
approval of any Transfer. The provisions of this Section 12.01 shall apply to a
Transfer (by one or more Transfers) of a controlling portion of or interest in
the stock or partnership or membership interests or other evidences of equity
interests of Tenant as if such Transfer were an assignment of this Lease;
provided that if equity interests in Tenant at any time are or become traded on
a public stock exchange, the transfer of equity interests in Tenant on a public
stock exchange shall not be deemed an assignment within the meaning of this
Section.
(b) Notwithstanding anything to the contrary in Section 12.01, Tenant
shall have the right to assign this Lease or sublet the Premises to any
subsidiary, parent, or affiliate company controlled by, controlling, or under
common control with Tenant with Landlord's prior written approval subject to the
following conditions: (i) such Transferee shall use the Premises only for those
uses expressly permitted by the terms of this Lease; (ii) such transaction is
not entered into as a subterfuge to avoid the restrictions and provisions of
this Article 12; (iii) no Event of Default has occurred and is continuing; (iv)
the financial net worth and creditworthiness of the proposed Transferee shall be
acceptable to Landlord (but not less than that of Tenant on the date hereof);
(v) Landlord shall have received and approved audited financial statements or
equivalent financial information which substantiate the Transferee's financial
condition; and (vi) Tenant shall remain fully liable under this Lease and shall
be jointly and severally liable with the Transferee, and Tenant's financial
condition shall be the same or better than its financial condition on the date
hereof.
12.02 Landlord's Options. Landlord shall have the option, exercisable by
written notice delivered to Tenant within thirty (30) days after Landlord's
receipt of a Transfer Notice accompanied by the other information described in
Section 12.01, to: (a) permit Tenant to Transfer the Premises; or (b) disapprove
the Tenant's Transfer of the Premises and to continue the Lease in full force
and effect as to the entire Premises; or (c) terminate the Lease as to the
portion of the Premises affected by the Transfer as of the date set forth in
Landlord's notice of exercise of such option, which date shall not be less than
thirty (30) days nor more than ninety (90) days following the giving of such
notice. As a condition for granting its consent to any Transfer, Landlord may
require that the Annual Base Rent and Additional Rent payable by such Transferee
is at the then current published rental rates for the Premises or comparable
premises in the Building, but not less than the then current Annual Base Rent
under this Lease and may require that the Transferee remit directly to Landlord
on a monthly basis, all monies due to Tenant by the Transferee. If Landlord
exercises its option to terminate this Lease (or in the case of a partial sublet
to release Tenant with respect to a portion of the Premises), Tenant shall
surrender possession of such Premises on the date set forth in Landlord's
notice, and thereafter neither Landlord nor Tenant shall have any further
liability with respect thereto. If this Lease shall be terminated as to a
portion of the Premises only, Rent and Tenant's parking allocation shall be
readjusted proportionately according to the ratio that the number of square feet
and the portion of the space surrendered compares to the floor area of Tenant's
Premises during the Term of the proposed sublet.
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12.03 Additional Conditions.
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(a) Tenant shall not offer to make, or enter into negotiations with
respect to any Transfer to: (i) any tenant of the Building or any entity owned
by, or under the common control of, whether directly or indirectly, a tenant in
the Building unless there is no competing space then available for leases
therein; or (ii) any party with whom Landlord (or its affiliate) is then
negotiating with respect to other space in the Building unless there is no
competing space then available for leases therein; or (iii) any party which
would be of such type, character, or condition as to be inappropriate as a
tenant for the Building. It shall not be unreasonable for Landlord to disapprove
any proposed assignment, sublet or transfer to any of the foregoing entities.
The parties also agree that it shall be a material condition for Landlord's
consent to a Transfer that the Transferee has a financial net worth not less
than that of Tenant on the date hereof.
(b) If Landlord approves of the proposed Transfer pursuant to Section
12.01 above, Tenant may enter into the proposed Transfer with such proposed
Transferee subject to the following further conditions: (i) the Transfer shall
be on the same terms set forth in the Transfer Notice , and (ii) no Transfer
shall be valid and no Transferee shall take possession of the Premises until an
executed counterpart of the assignment, sublease or other instrument effecting
the Transfer (in the form approved by Landlord) has been delivered to Landlord
pursuant to which the Transferee shall expressly assume all of Tenant's
obligations under this Lease; and (iii) Tenant shall provide Landlord with a
written ratification agreement from each guarantor of this Lease in form and
substance satisfactory to Landlord.
12.04 No Release. No Transfer shall be effective unless approved in writing
by Landlord. Landlord's consent to a Transfer shall not release Tenant of
Tenant's obligations under this Lease and this Lease and all of the obligations
of Tenant under this Lease shall continue in full force and effect as the
obligations of a principal (and not as the obligations of a guarantor or
surety). From and after any Transfer, the Lease obligations of the Transferee
and of the original Tenant named in this Lease shall be joint and several. No
acceptance of Rent by Landlord from or recognition in any way of the occupancy
of the Premises by a Transferee shall be deemed a consent to such Transfer, or a
release of Tenant from direct and primary liability for the further performance
of Tenant's covenants hereunder. The consent by Landlord to a particular
Transfer shall not relieve Tenant from the requirement of obtaining the consent
of Landlord to any further Transfer. Each violation of any of the covenants,
agreements, terms or conditions of this Lease, whether by act or omission, by
any of Tenant's permitted Transferees, shall constitute a violation thereof by
Tenant. In the event of default by any Transferee of Tenant or any successor of
Tenant in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies against
such Transferee or successor.
12.05 Transfer Profit. Any rent or other economic consideration received by
Tenant as a result of such Transfer which exceeds, in the aggregate, (a) the
total of the remaining rent which Tenant is obligated to pay Landlord under this
Lease (prorated to reflect obligations allocable to any portion of the Premises
subleased) plus (b) any reasonable tenant fit-up costs, brokerage commissions
and attorneys' fees actually paid by Tenant in connection with such Transfer
(specifically excluding moving or relocation costs paid to the Transferee),
shall be paid to Landlord on a monthly basis within ten (10) days after receipt
thereof as Additional Rent under this Lease, without affecting or reducing any
other obligations of Tenant hereunder. Each such payment shall be sent with a
detailed statement. Landlord shall have the right to audit Tenant's books and
records to verify the accuracy of the detailed statement.
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ARTICLE 13. DEFAULTS AND REMEDIES
13.01 Events of Default. The occurrence of any one or more of the following
events shall constitute an event of default (each an "Event of Default")
hereunder:
(a) Nonpayment of Annual Base Rent or Additional Rent. Failure by
Tenant to pay any installment of Annual Base Rent or Additional Rent due and
payable hereunder, upon the date when said payment is due; provided, however, on
the first (1st) two (2) occasions only during any Lease Year, Landlord shall
furnish Tenant with written notice of such failure and permit Tenant a 5-day
period to cure such failure.
(b) Certain Obligations. Failure by Tenant to perform, observe or
comply with any obligation, agreement or covenant contained in Sections 7.05
("Hazardous Substances"), 8.03 ("Alterations"), Section 9.01 ("Tenant's
Insurance"), and Article 12 ("Assignment and Subletting") of this Lease.
(c) Other Obligations. Failure by Tenant to perform any obligation,
agreement or covenant under this Lease other than those matters specified in
subparagraph (a) or (b) of this Section 13.01, such failure continuing for
thirty (30) days after written notice by Landlord to Tenant of such failure;
provided, however, that if the nature of Tenant's obligation is such that more
than thirty (30) days are required for performance, then Tenant shall not be in
default if Tenant commences performance within such thirty (30) day period and
thereafter diligently and continuously prosecutes the same to completion within
sixty (60) days following the date of Landlord's written notice with respect to
such failure.
(d) Abandonment. Abandonment of the Premises by Tenant for a
continuous period in excess of twenty (20) business days.
(e) Assignment; Receivership; Attachment. (i) The making by Tenant of
any arrangement or assignment for the benefit of creditors; (ii) the appointment
of a trustee or receiver to take possession of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30) days; or (iii) the
attachment, execution, or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where such seizure is not discharged within thirty (30) days.
(f) Bankruptcy. The admission by Tenant or Tenant's guarantor (if
any) in writing of its inability to pay its debts as they become due, the filing
by Tenant or Tenant's guarantor (if any) of a petition in bankruptcy seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation, the
filing by Tenant or Tenant's guarantor (if any) of an answer admitting or
failing timely to contest a material allegation of a petition filed against
Tenant or Tenant's guarantor (if any) in any such proceeding or, if within
forty-five (45) days after the commencement of any proceeding against Tenant or
Tenant's guarantor (if any) seeking any involuntary reorganization, or
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation by any of Tenant's
creditors or such guarantor's creditors, such proceeding shall not have been
dismissed.
13.02 Remedies. Upon the occurrence of any Events of Default by Tenant
which is not cured by Tenant within the grace periods specified in Section 13.01
hereof, if any, Landlord shall have the following rights and remedies, in
addition to all other rights or remedies available to Landlord in law or equity:
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(a) Landlord may give written notice to Tenant specifying such Event
of Default or Events of Default and stating that this Lease and the Term hereby
demised shall expire and terminate on the date specified in such notice, and
upon the date specified in such notice, this Lease and the Term hereby demised,
and all rights of Tenant under this Lease shall expire and terminate. Upon any
termination of this Lease, Tenant shall quit and peaceably surrender the
Premises, and all portions thereof, to Landlord. Following any such termination,
Landlord may, without further notice, enter the Premises, and any portions
thereof, and take possession thereof by force, summary proceeding, ejectment or
otherwise, and may dispossess Tenant and remove Tenant and all other persons and
property from the Premises and Landlord shall have the right to receive all
rental and other income of and from the same.
(b) At Landlord's election, without terminating this Lease, Landlord
may, without re-entry, recover possession of the Premises in the manner
prescribed by any statute relating to summary process, and any demand for the
Rent, re-entry for condition broken, and any and all notices to quit, or other
formalities of any nature, to which Tenant may be entitled, are hereby
specifically waived. Landlord may relet the Premises for the account of Tenant.
No such termination of Tenant's right to possess the Premises under this Section
13.02(b) shall relieve Tenant of its liabilities and obligations under this
Lease (as if such right of possession had not been so terminated or expired),
and such liabilities and obligations shall survive any such termination of
Tenant's possessory interest. In the event of any such termination of this Lease
or Tenant's right of possession, whether or not the Premises, or any portion
thereof, shall have been relet, Tenant shall pay the Landlord a sum equal to the
Rent and any other charges required to be paid by Tenant up to the time of such
termination of such right of possession and thereafter Tenant, until the end of
the Term, shall be liable to Landlord for and shall pay to Landlord: (i) the
equivalent of the amount of the Rent payable under this Lease, less (ii) the net
proceeds of any reletting effected pursuant to the provisions hereof after
deducting all of Landlord's "Reletting Expenses" (as defined in Section 13.02).
Tenant shall pay such amounts in accordance with the terms of this Section
13.02(b) as set forth in a written statement thereof from Landlord to Tenant
(hereinafter, the "Deficiency") to Landlord in monthly installments on the days
on which the Annual Base Rent is payable under this Lease, and Landlord shall be
entitled to recover from Tenant each monthly installment of the Deficiency as
the same shall arise. Tenant shall also pay to Landlord upon demand the costs
incurred by Landlord in curing Tenant's defaults existing at or prior to the
date of such termination and the cost of recovering possession of the Premises.
Tenant agrees that Landlord may file suit to recover any sums that become due
under the terms of this Section from time to time, and all reasonable costs and
expenses of Landlord, including attorneys' fees and costs incurred in connection
with such suits shall be payable by Tenant on demand.
(c) At any time after an Event of Default and termination of the
Lease by Landlord, whether or not Landlord shall have collected any monthly
Deficiency as set forth in Section 13.02(b), Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, as and for
final damages for Tenant's default and in lieu of any subsequent Deficiency (but
without limitation of the provisions of subsection (f) hereof):
(i) all Rent and other sums due and payable by Tenant
on the date of termination; plus
(ii) the costs of curing Tenant's defaults existing at
or prior to the date of termination; plus
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(iii) the cost of recovering possession of the Premises
and the Reletting Expenses; plus
(iv) an amount equal to the difference between the then
present worth of the aggregate of the Rent and any
other charges to be paid by Tenant hereunder for
the then unexpired term of this Lease (assuming
this Lease had not been so terminated), and the
then present worth of the then aggregate fair
market rent of the Premises for the same period
(taking into account rentals received by Landlord
under a replacement Lease of the Premises). In the
computation of present worth, a discount at the
then market discount rate as reasonably determined
by Landlord shall be employed.
(d) In connection with any reletting of the Premises following an
Event of Default, Landlord shall be entitled to grant such rental and economic
concessions and other incentives as may be customary for similar space in
central Fairfield County, Connecticut. Landlord shall not be required to accept
any tenant offered by Tenant or observe any instruction given by Tenant about
such reletting or do any act or exercise any care or diligence with respect to
such reletting or to the mitigation of damages.
(e) Any and all property belonging to Tenant or to which Tenant is or
may be entitled which may be removed from the Premises by Landlord pursuant to
the authority of this Lease or applicable law, may be handled, removed or stored
in a commercial warehouse or otherwise by Landlord at Tenant's risk and expense
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges for such property so
long as the same shall be in Landlord's possession or under Landlord's control.
(f) Landlord shall have the right of injunction, in the event of a
breach or threatened breach by Tenant of any of the agreements, conditions,
covenants or terms hereof, to restrain the same and the right to invoke any
remedy allowed by law or in equity, whether or not other remedies, indemnity or
reimbursements are herein provided. The rights and remedies given to Landlord in
this Lease are distinct, separate and cumulative remedies; and no one of them,
whether or not exercised by Landlord, shall be deemed exclusive of any of the
others.
(g) For purposes of this Section 13.02, "Reletting Alterations" shall
mean all repairs, changes, improvements, alterations or additions made by
Landlord in or to the Premises to the extent deemed reasonably necessary by
Landlord to prepare the Premises for the re-leasing following an Event of
Default; and "Reletting Expenses" shall mean the reasonable expenses paid or
incurred by Landlord in connection with any re-leasing of the Premises following
an Event of Default, including, without limitation, marketing expenses,
brokerage commissions, management fees, attorneys' fees, the costs of Reletting
Alterations, operating expenses and rent and other economic concessions provided
to the new tenant.
13.03 Landlord's Right to Cure Defaults. If the Tenant shall default in the
observance or performance of any condition or covenant on Tenant's part to be
observed or performed under or by virtue of any of the provisions of this Lease,
and such default continues beyond any applicable notice and cure period or
Landlord reasonably determines that an emergency exists, the Landlord, without
being under any obligation to do so and without thereby waiving such default,
may remedy such default for the account and at the expense of the Tenant. If the
Landlord makes any expenditures or incurs any obligations for the payment of
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money in connection therewith, including but not limited to reasonable
attorney's fees in instituting, prosecuting or defending any action or
proceeding, such sums paid or obligation incurred and costs, shall be paid upon
demand to the Landlord by the Tenant as Additional Rent pursuant to Section 4.04
hereof and if not so paid with interest from its due date until paid at the
lesser of eighteen (18%) percent per annum or the maximum legal rate that
Landlord may charge Tenant.
13.04 No Accord and Satisfaction. Landlord may collect and receive any rent
due from Tenant, and the payment thereof shall not constitute a waiver of or
affect any notice or demand given, suit instituted or judgment obtained by
Landlord, or be held to waive, affect, change, modify or alter the rights or
remedies that Landlord has against Tenant in equity, at law, or by virtue of
this Lease. No receipt or acceptance by Landlord from Tenant of less than the
monthly rent herein stipulated shall be deemed to be other than a partial
payment on account for any due and unpaid stipulated rent; no endorsement or
statement on any check or any letter or other writing accompanying any check or
payment of rent to Landlord shall be deemed an accord and satisfaction, and
Landlord may accept and negotiate such check or payment without prejudice to
Landlord's rights to (i) recover the remaining balance of such unpaid rent, or
(ii) pursue any other remedy provided in this Lease.
13.05 Default by Landlord. If Landlord fails to perform or observe any of
its Lease obligations and such failure continues for more than thirty (30) days
after Tenant has delivered written notice thereof to Landlord and Landlord's
Mortgagee, such failure shall constitute a default under this Lease unless
Landlord disputes the claimed default in good faith by written notice to Tenant
within such 30-day period; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for performance
then Landlord shall not be in default if Landlord commences performance within
such thirty (30) day period and thereafter diligently prosecutes the same to
completion. Tenant shall identify the Lease provisions containing the Landlord's
obligations that are the subject of Tenant's complaint and specify in reasonable
detail the nature and extent of Landlord's failure with respect thereto. If
Landlord or Landlord's Mortgagee fails to cure any default within the applicable
grace period, Tenant may pursue any remedies given in this Lease or under the
law.
13.06 Arbitration. Any dispute arising out of or relating to Article 5 of
this Lease (with respect to the issues expressly stated therein) shall be
submitted to and determined in binding arbitration under the Commercial
Arbitration Rules of the American Arbitration Association. The arbitration shall
be conducted before and by a single arbitrator selected by the parties. If the
parties have not selected an arbitrator within 30 days of written demand for
arbitration, the arbitrator shall be selected by the American Arbitration
Association pursuant to the then current rules of that Association on
application by either party. The arbitrator shall have authority to fashion such
just, equitable and legal relief as he, in his sole discretion, may determine.
The parties agree that the arbitration hearing shall be held within thirty (30)
business days following notification to the parties of the appointment of such
arbitration, and that the arbitration proceedings shall be concluded within
thirty (30) business days following the first scheduled arbitration hearing.
Each party shall bear all its own expenses of arbitration and shall bear equally
the costs and expenses of the arbitrator. All arbitration proceedings shall be
conducted in the City of Stamford, State of Connecticut. Landlord and Tenant
further agree that they will faithfully observe this agreement and rules, and
that they will abide by and perform any award rendered by the arbitrator and
that a judgment of the court having jurisdiction may be entered upon the award.
The duty to arbitrate shall survive the cancellation or termination of this
Lease.
13.07 Indirect Damages. Notwithstanding any provision of this Lease to the
contrary (except Section 2.02), none of the provisions of this Lease shall cause
either party to be liable to the other party, or anyone claiming through or on
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behalf of such other party, for any special, indirect or consequential damages,
including, without limitation, lost profits or revenues.
13.08 Waivers. TENANT HEREBY REPRESENTS, COVENANTS AND AGREES THAT IT IS
ENGAGED PRIMARILY IN COMMERCIAL PURSUITS, AND THAT THE LEASE IS A "COMMERCIAL
TRANSACTION" WITHIN THE MEANING OF SECTION 52-278a(a) OF THE CONNECTICUT GENERAL
STATUTES (REV. 1958), AS AMENDED. TENANT HEREBY WAIVES ALL RIGHTS TO NOTICE,
PRIOR JUDICIAL HEARING OR COURT ORDER UNDER SECTION 52-278a ET SEQ. OF THE
CONNECTICUT GENERAL STATUTES (REV. 1958) AS AMENDED OR UNDER ANY OTHER STATE OR
FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDIES THE LANDLORD MAY EMPLOY TO
ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER.
13.09 Claims in Bankruptcy. Nothing herein shall limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of any such termination, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, the damages are to be proved, whether or not the
amount be greater, equal to or less than the amount of the loss or damage
referred to above. Without limiting any of the provisions of this Article 13, if
pursuant to the Bankruptcy Code, as the same may be amended, Tenant is permitted
to assign this Lease in disregard of the restrictions contained in Article 12,
Tenant agrees that adequate assurance of future performance by the assignee
permitted under the Bankruptcy Code shall mean the deposit of cash security with
Landlord in any amount equal to all Rent payable under this Lease for the
calendar year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord, without interest, for the
balance of the term as security for the full and faithful performance of all of
the obligations under this Lease on the part of Tenant yet to be performed. If
Tenant receives or is to receive any valuable consideration for such an
assignment of this Lease, such consideration, after deducting therefrom (a) the
brokerage commissions, if any, and other expenses reasonably designated by the
assignee as paid for the purchase of Tenant's property in the Premises, shall be
and become the sole exclusive property of Landlord and shall be paid over to
Landlord directly by such assignee. In addition, adequate assurance shall mean
that any such assignee of this Lease shall have a net worth indicating said
assignee's reasonable ability to pay the Rent, and abide by the terms of this
Lease for the remaining portion thereof applying commercially reasonable
standards.
ARTICLE 14. NONDISTURBANCE AND RIGHTS OF MORTGAGE HOLDERS
14.01 Subordination.
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(a) Subject to the provisions of this Section 14.01, without the
necessity of any additional document being executed by Tenant for the purpose of
effecting a subordination, Tenant agrees that this Lease and Tenant's tenancy
hereunder are and shall be automatically subject and subordinate at all times to
(a) the lien (and the terms and conditions) of any mortgage that may now exist
or hereafter be executed in any amount for which the Building, or Landlord's
interest or estate in any of said items is specified as security; and (b)
renewals, modifications, consolidations, replacements, and extensions of any of
the foregoing. Landlord agrees to use commercially diligent efforts to obtain
from the holders of any mortgage lien on the Building (collectively, "Landlord's
Mortgagee") a recordable instrument substantially in the form attached hereto as
Exhibit F by which Landlord's Mortgagee shall agree not to disturb Tenant's
possession and occupancy of the Premises or join Tenant in any such action as a
party defendant so long as Tenant is not in default in the performance or
observance of any of the terms, covenants or conditions contained in the Lease.
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Landlord's inability to obtain such an instrument from Landlord's Mortgagee
shall not be a condition to Tenant's subordination agreements herein.
(b) In the event that any such first mortgage is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant shall, at the
option of Landlord's Mortgagee or the grantee or purchaser in foreclosure,
notwithstanding any subordination of any such lien to this Lease, attorn to and
become the Tenant of the successor in interest to Landlord at the option of such
successor in interest. Tenant covenants and agrees to execute and deliver,
within ten (10) days following delivery of request by Landlord, Landlord's
Mortgagee, or by Landlord's successor in interest and in the form requested by
Landlord, Landlord's Mortgagee, or by Landlord's successor in interest, any
additional documents evidencing the priority or subordination of this Lease with
respect to the lien of any such first mortgage, which additional documents shall
be satisfactory to Landlord, Landlord's Mortgagee, and Landlord's successors in
interest.
(c) If Landlord's Mortgagee shall succeed to the interest of Landlord
under this Lease, Landlord's Mortgagee shall assume and perform Landlord's
obligations under this Lease only while it is the fee owner of the Building and
shall not be (i) liable for any breach, act or omission of any prior landlord,
including Landlord; (ii) subject to offsets, claims or defenses which Tenant
might have against prior landlords; (iii) bound by the payment of Annual Base
Rent or Additional Rent or other payment in lieu of rent which Tenant may have
paid to any prior landlord for more than thirty (30) days in advance of its due
date; (iv) bound by any assignment, surrender, termination, waiver, lease
amendment or modification of or affecting this Lease made without its consent;
or (v) bound by any of the construction obligations of Landlord under this
Lease.
14.02 Notices. If Tenant is given written notice of the identity and
address of Landlord's Mortgagee, then Tenant shall give to such Landlord's
Mortgagee written notice of any default by Landlord under the terms of this
Lease by registered or certified mail, and such Landlord's Mortgagee shall be
given the opportunity to cure Landlord's default within the thirty (30) days
following such written notice; provided, however, that said thirty (30) day
period shall be extended so long as within said thirty (30) day period such
party has commenced to cure the default and such party is proceeding with due
diligence (including the exercise of its remedies against Landlord if necessary
to obtain possession of the Premises) to effect such cure.
14.03 Estoppel Certificates. Tenant shall at any time, and from time to
time, upon not less than five (5) days prior written notice from Landlord
execute, acknowledge and deliver to Landlord, to any prospective purchaser, or
Landlord's Mortgagee, a written certificate of Tenant substantially in the form
of Exhibit G attached hereto (or in such other form as may be required by
Landlord) stating: (a) whether Tenant has accepted the Premises and the
commencement date and termination date of this Lease; (b) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), and has not been assigned; (c) that there are not, to Tenant's
best knowledge, any uncured defaults on the part of the Landlord or Tenant
hereunder, or specifying any defaults that may exist; (d) whether or not there
are then existing any defenses against the enforcement of any of the obligations
of Tenant under this Lease (and, if so, specifying same); (e) whether Tenant has
received all required contributions from Landlord on account of Tenant's
improvements; (f) the dates, if any, to which the Annual Base Rent and
Additional Rent and other charges under this Lease have been paid and the
amounts of said Annual Base Rent and Additional Rent, and that no Annual Base
Rent, Additional Rent, or security deposit has been paid in advance of its due
date, and (g) any other information that may reasonably be required by any of
such persons. It is intended that any such certificate of Tenant delivered
pursuant to this Section 14.03 may be relied upon by Landlord and any
prospective purchaser or Landlord's Mortgagee of any part of the Building.
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14.04 Quiet Enjoyment. Upon Tenant paying the Annual Base Rent and
Additional Rent and performing all of Tenant's obligations under this Lease,
Tenant may peacefully and quietly enjoy the Premises during the Term as against
all persons or entities lawfully claiming by or through Landlord; subject,
however, to the provisions of this Lease and to the rights of Landlord's
Mortgagee.
ARTICLE 15. NOTICES
15.01 Manner of Notice.
----------------
(a) All notices, demands and other communications ("notices")
permitted or required to be given under this Lease shall be in writing and sent
by personal service, telecopy transmission (if a copy thereof is also sent on
the same day by a nationally recognized overnight courier service), certified
mail (postage prepaid) return receipt requested or by a nationally recognized
overnight courier service, (a) to Tenant (i) at 00 Xxx Xxxxxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxxxx 00000, if sent prior to Tenant's taking possession of the Premises,
or (ii) at the Building if sent subsequent to Tenant's taking possession of the
Premises, or (iii) at any place where Tenant or any agent or employee of Tenant
may be found if sent subsequent to Tenant's vacating, abandoning or surrendering
the Premises, and (b) to Landlord at c/o The Xxxxx Companies, Xxx Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 with a copy to Xxxxx Management Corp., 000
Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000, or (c) to such other address as either
Landlord or Tenant may designate as its new address for such purpose by notice
given to the other in accordance with the provisions of this Section 15.01.
(b) Notices shall be deemed to have been given (i) when hand
delivered (provided that delivery shall be evidenced by a receipt executed by or
on behalf of the addressee if delivered by personal service) if personal service
is used, (ii) on the date of transmission if sent before 4:00 p.m. (Hartford
time) on a business day when telecopy transmission is used, (iii) the sooner of
the date of receipt or the date that is three (3) days after the date of mailing
thereof if sent by postage pre-paid registered or certified mail, return receipt
requested, and (iv) one (1) day after being sent by Federal Express or other
reputable overnight courier service (with delivery evidenced by written receipt)
if overnight courier service is used.
ARTICLE 16. MISCELLANEOUS
16.01 Brokers. Landlord and Tenant warrant to each other that they have had
no dealings with any broker, agent or finder in connection with this Lease
except Desmond, Virgulak, Xxxxx. Landlord agrees to pay the commissions due to
such brokerage companies pursuant to separate agreements. Both parties hereto
agree to protect, indemnify and hold harmless the other from and against any and
all expenses with respect to any compensation, commissions and charges claimed
by any other broker, agent or finder not identified above with respect to this
Lease or the negotiation thereof that is made by reason of any action or
agreement by such party.
16.02 Attorney's Fees. In any litigation between the parties regarding this
Lease, the losing party shall pay to the prevailing party all reasonable
expenses and court costs including reasonable attorneys' fees incurred by the
prevailing party. A party shall be considered the prevailing party if: (a) it
initiated the litigation and substantially obtains the relief it sought, either
through a judgment or the losing party's voluntary action before arbitration
(after it is scheduled), trial or judgment; (b) the other party withdraws its
-34-
action without substantially obtaining the relief it sought or judgment is
entered dismissing the other party's action or granting summary judgment against
the other party; or (c) it did not initiate the litigation and judgment is
entered for either party, but without substantially granting the relief sought.
16.03 No Merger. There shall be no merger of this Lease or of the leasehold
estate hereby created with the fee estate in the Premises or any part thereof by
reason of the fact that the same person may acquire or hold, directly or
indirectly, this Lease or the leasehold estate hereby created or any interest in
this Lease or in such leasehold estate as well as the fee estate in the
leasehold Premises or any interest in such fee estate.
16.04 Easements. Landlord reserves the right, from time to time, to grant
easements and rights, make dedications, agree to restrictions and record maps
affecting the Project as Landlord may deem necessary or desirable, so long as
such easements, rights, dedications, restrictions, and maps do not unreasonably
interfere with the use of the Premises by Tenant; and this Lease shall be
subordinate to such instruments.
16.05 Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and enforceable to the full extent permitted by law. No remedy or
election hereunder shall be deemed exclusive, but shall wherever possible, be
cumulative with all other remedies at law or in equity. Neither this Lease nor
any term or provision hereof may be changed, waived, discharged or terminated
orally, and no breach thereof shall be waived, altered or modified, except by a
written instrument signed by the party against which the enforcement of the
change, waiver, discharge or termination is sought. Any right to change, waive,
discharge, alter or modify, or terminate this Lease shall be subject to the
prior express written consent of Landlord's Mortgagee.
16.06 No Waiver. No waiver of any provision hereof shall be deemed a waiver
of any other provision hereof or of any subsequent breach of the same or any
other provision. No waiver of any breach shall affect or alter this Lease, but
each and every term, covenant and condition of this Lease shall continue in full
force and effect with respect to any other then existing or subsequent breach
thereof. No reference to any specific right or remedy shall preclude the
exercise of any other right or remedy permitted hereunder or that may be
available at law or in equity. No failure by Landlord to insist upon the strict
performance of any agreement, term, covenant or condition hereof, or to exercise
any right or remedy consequent upon a breach thereof, and no acceptance of full
or partial rent during the continuance of any such breach, shall constitute a
waiver of any such breach, agreement, term, covenant or condition.
16.07 Bind and Inure. The terms, provisions, covenants and conditions
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant, and, except as otherwise provided herein, their respective heirs, legal
representatives, successors and assigns.
16.08 Landlord's Liability.
--------------------
(a) The term "Landlord" as used herein and throughout the Lease shall
mean only the owner or owners at the time in question of Landlord's interest in
this Lease. Upon any transfer of such interest, from and after the date of such
transfer, Landlord herein named (and in case of any subsequent transfers the
then transferor) and each of its partners, principals, shareholders,
beneficiaries or co-tenants, as the case may be, ("Landlord's Constituent
Parties") shall be relieved of all liability for the performance of any
-35-
obligations on the part of the Landlord contained in this Lease, provided that
any monies in the hands of Landlord or the then transferor at the time of such
transfer, in which Tenant has an interest, shall be delivered to the transferee.
(b) The obligations contained in this Lease to be performed by
Landlord shall be binding on Landlord's successors and assigns, only during
their respective periods of ownership, provided, however, that Landlord and each
of Landlord's Constituent Parties shall be under no personal liability with
respect to any of the provisions, covenants or agreements of this Lease. If
Landlord becomes obligated to pay Tenant a money judgment arising out of any
failure by Landlord to perform any of its obligations under this Lease, Tenant
shall be limited for the satisfaction of the money judgment solely to Landlord's
interest in the Building and no other property or assets of Landlord or
Landlord's Constituent Parties shall be subject to levy, execution or other
enforcement procedure whatsoever for the satisfaction of the money judgment.
16.09 Interpretation. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The words used in neuter
gender include the masculine and feminine. If there is more than one Tenant, the
obligations under this Lease imposed on Tenant shall be joint and several. The
captions preceding the articles of this Lease have been inserted solely as a
matter of convenience and such captions in no way define or limit the scope or
intent of any provision of this Lease.
16.10 Time of Essence. Except as provided in Section 16.11, TIME IS OF THE
ESSENCE with respect to the due performance of the terms, covenants and
conditions herein contained; provided, however, that no delay or failure to
enforce any of the provisions herein contained and no conduct or statement shall
waive or affect any of Landlord's rights hereunder.
16.11 Force Majeure. Landlord shall be excused for the period of any delay
in the performance of any obligations hereunder, when prevented from so doing by
cause or causes beyond Landlord's control including, without limitation, civil
commotion, war, labor disputes or strikes, governmental regulations or controls,
inspection delays by governmental authorities, delays in obtaining governmental
permits, inability to obtain any material or services, casualty, acts of God, or
the elements. Tenant shall similarly be excused for delay in the performance of
obligations hereunder provided: (a) nothing contained in this Section or
elsewhere in this Lease shall be deemed to excuse or permit any delay in the
payment of any sums of money required hereunder, or any delay in the cure of any
default which may be cured by the payment of money; (b) no reliance by Tenant
upon this Section shall limit or restrict in any way Landlord's right of
self-help as provided in this Lease; and (c) Tenant shall not be entitled to
rely upon this Section unless it shall advise Landlord in writing, of the
existence of any force majeure preventing the performance of an obligation of
Tenant promptly after the commencement of the force majeure.
16.12 Joint and Several. If two or more individuals, corporations,
partnerships or other business associations (or any combination of two or more
thereof) shall sign this Lease as Tenant, the liability of each such individual,
corporation, partnership or other business association to pay Rent and perform
all other obligations hereunder shall be deemed to be joint and several.
16.13 Entire Agreement. This Lease, including the Exhibits hereto, which
are made part of this Lease, contain the entire agreement of the parties and all
prior negotiations and agreements are merged herein. Neither Landlord nor
Landlord's agents have made any representations or warranties with respect to
the Premises, the Building or this Lease except as expressly set forth herein,
-36-
and no rights, easements or licenses are or shall be acquired by Tenant by
implication or otherwise unless expressly set forth herein. Tenant covenants and
agrees that no diminution of light, air or view by any structure that may
hereafter be erected (whether or not by Landlord) shall entitle Tenant to any
reduction of Annual Base Rent or Additional Rent under this Lease, result in any
liability of Landlord or Tenant, or in any other way affect this Lease or
Tenant's obligations hereunder.
16.14 Authority. If Tenant signs as a corporation or a partnership, each
person executing this Lease on behalf of Tenant hereby covenants and warrants
that Tenant is a duly authorized and existing entity, that Tenant is duly
qualified to do business in Connecticut, that Tenant has full right and
authority to enter into this Lease, and that each person signing on behalf of
Tenant is duly authorized to do so and that no other signatures are necessary.
Upon Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord confirming the foregoing covenants and warranties.
16.15 Governing Law. This Lease and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with the laws of
the State of Connecticut.
16.16 Survival. All agreements, covenants and indemnifications contained
herein or made in writing pursuant to the terms of this Lease by or on behalf of
Tenant shall be deemed material and shall survive expiration or sooner
termination of this Lease.
16.17 Building Name. The Building and the Project may be known by such name
as Landlord, in its sole discretion, may elect, and Landlord shall have the
right from time to time to change such designation or name without Tenant's
consent upon thirty (30) days prior written notice to Tenant.
16.18 Tenant's Financial Statements. Tenant shall furnish Landlord
annually, within sixty (60) days after the end of each fiscal year of Tenant,
copies of the balance sheets of Tenant, as at the close of such fiscal year, and
statements of income and retained earnings of Tenant for such year, prepared in
accordance with generally accepted accounting principles and audited by Tenant's
independent certified public accountants.
16.19 Submission. Submission of this instrument for examination does not
constitute a reservation of or option for lease of the Premises, and it is not
effective as a lease or otherwise until this Lease has been executed by both
Landlord and Tenant and a fully executed copy has been delivered to each.
ARTICLE 17. EXTENSION RIGHT
17.01 Right to Extend. Landlord grants Tenant the option to extend this
Lease with respect to the entire Premises for one (1) additional period of five
(5) Lease Years (the "Extension Period") subject to each and all of the
following terms and conditions (the "Extension Option"):
(a) The Extension Option may not be exercised or assigned,
voluntarily or involuntarily, by or to any person or entity other than the
Tenant named in this Lease, and the parties hereto agree that if Tenant assigns
any of its interest in this Lease or subleases the Premises (or any portion
thereof), this Extension Option shall terminate immediately without the need for
any act or notice by either party to be effective.
(b) The Annual Base Rent for the Extension Period shall be equal to
the greater of: (i) the Annual Base Rent payable during the final Lease Year of
the original Term, or (ii) 95% of the then prevailing fair market rental rate
(such prevailing fair market rental rate, the "Market Rent") for Tenant's space;
-37-
during the Extension Period the Additional Rent shall continue to be payable in
the amount and manner as provided in the Lease with the same Base Taxes and Base
Expense Year as established in Section 5.01 and all of the terms, conditions and
covenants of this Lease shall apply.
(c) Tenant shall have delivered to Landlord written notice (the
"Extension Notice") of the exercise of the Extension Option not later than 270
days prior to the expiration of the current term of this Lease, time being of
the essence. If an Extension Notice is not so delivered, Tenant's Extension
Option shall automatically expire.
(d) Tenant's right to exercise the Extension Option shall be
suspended at the election of Landlord during any period in which an Event of
Default has occurred and is continuing, but the period of time within which the
Extension Option may be exercised shall not be extended. Notwithstanding
Tenant's due and timely exercise of the Extension Option, if, after such
exercise and prior to the effective date of the Extension Option an Event of
Default occurs under this Lease that is not cured within the applicable grace
period, if any, Landlord shall have the right to cancel Tenant's exercise of the
Extension Option by delivery of written notice to Tenant.
(e) Tenant's right to exercise its Extension Option is subject and
subordinate to the exercise of all rights of first offer, first refusal,
expansion, lease renewal and lease extension rights (the "Expansion Rights")
with regard to the Premises that have been granted by Landlord to Old Danbury
Road Lessee Corp. and other Building tenants prior to the Commencement Date.
17.02 Market Rent Notice. If Tenant properly exercises its Extension
Option, Landlord shall provide Tenant with written notice (the "Market Rent
Notice") of the rate of the Market Rent (as determined by Landlord for a 5-year
term) and the Annual Base Rent for the Extension Period within sixty (60) days
following Landlord's receipt of Tenant's Extension Notice. Tenant shall respond
in writing to Landlord within twenty (20) days following Landlord's delivery of
its Market Rent Notice (the "Tenant Response Period") stating whether Tenant
agrees or disagrees with the Annual Base Rent determined by Landlord. If the
parties agree on the Annual Base Rent for the Extension Period during the Tenant
Response Period, they shall execute an amendment to this Lease within ten (10)
days stating the Extension Period, the Annual Base Rent and monthly rental and
any related terms and conditions. Otherwise, the Market Rent shall be determined
in accordance with Section 17.03.
17.03 Dispute. If the parties are unable to agree on the Annual Base Rent
for the Extension Period within the Tenant Response Period, the Market Rent
shall be determined by appraisal as set forth below in order to establish the
Annual Base Rent for the Extension Period and Landlord and Tenant shall be bound
by the results of the appraisal. Notwithstanding the submission of the issue of
Market Rent to appraisal, if such Annual Base Rent has not been established
pursuant to Section 17.04 prior to the commencement of the Extension Period,
Annual Base Rent for the next ensuing Lease Year of the Term shall be paid at
the Annual Base Rent established by Landlord in its Market Rent Notice until the
appraisal is completed. If, upon completion of the appraisal, it is determined
that Market Rent is less or more than that set by Landlord, then an adjustment
based upon such lower or greater rent shall be made based on the number of
months therefor paid by Tenant but in no event shall rent be lower than that
paid for the final Lease Year of the initial Term. In no event shall the
extension of the Term be affected by the determination of the Annual Base Rent,
such exercise of the Extension Option being fixed at the time at which Tenant
delivers the Extension Notice.
17.04 Appraisal. When the terms of this Lease provide that Market Rent
shall be determined by appraisal, the following appraisal procedures shall
apply:
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(a) Within five (5) business days following the end of the Tenant
Response Period, each of Tenant and Landlord shall choose a real estate
appraiser who is a member of the American Institute of Appraisers and has at
least five (5) years' full time commercial appraisal experience in Fairfield
County and shall notify the other party in writing of its selection. If a party
does not appoint an appraiser within such five (5) day period, the single
appraiser appointed shall be the sole appraiser and shall establish the Market
Rent for the Extension Term;
(b) If the two (2) appraisers are appointed by the parties as stated
above, they shall meet within five (5) business days following their appointment
in accordance with "(a)" above, and the appraisers selected shall select a third
appraiser meeting the qualifications as set forth in "(a)" above; if the two (2)
appraisers fail to select the third appraiser within such time period, either of
the parties to this Lease by giving ten (10) days' notice to the other party can
apply to the then president of the county real estate board of Fairfield County,
or to the presiding judge of the Superior Court of that county, for the
selection of a third appraiser who meets the qualifications stated in "(a)"
above. Each of the parties shall bear one half (1/2) of the cost of appointing
the third appraiser and of paying the third appraiser's fee. The third
appraiser, however selected, shall be a person who has not previously acted in
any capacity for either party;
(c) Within fifteen (15) business days after their appointment, the
appraisers shall determine the Market Rent for the Premises for the Extension
Period, and shall notify Tenant and Landlord of such determination within three
(3) days thereafter, which determination shall be final and binding upon Tenant
and Landlord. If the appraisers are unable to agree upon the Market Rent, the
Market Rent will be deemed to be the average of the Market Rents proposed by the
appraisers, except that (i) if the lowest proposed fair market rent is less than
90% of the second to lowest proposed Market Rent, the lowest proposed Market
Rent will automatically be deemed to be 90% of the second to lowest proposed
Market Rent and (ii) if the highest proposed Market Rent is greater than 110% of
the second to highest proposed Market Rent, the highest proposed Market Rent
will automatically be deemed to be 110% of the second to highest proposed Market
Rent;
(d) Landlord and Tenant shall each pay one-half (1/2) of the expense
of the appraisers' fees.
For the purpose of determining Market Rent, the parties shall use as
a guideline the average rental rates for comparable space in the Building over
the previous 3-month period, or if no comparable lease transactions have taken
place during the past 3 months, then the guideline shall be the then market rent
for similar available space in buildings of similar age and class in the same
geographic area, Westport/Wilton, Connecticut.
17.05 Amendment. Within ten (10) days following the establishment of the
Market Rent and the resulting Annual Base Rent with respect to the Extension
Period pursuant to the appraisal procedure set forth above, Landlord and Tenant
shall execute an amendment to this Lease confirming the Annual Base Rent payable
with respect to the Extension Period. Each such amendment shall set forth the
Extension Period, the applicable Annual Base Rent and the monthly rental and any
related terms and conditions.
17.06 Landlord's Right of Termination. Following Tenant's exercise of the
Extension Option, Landlord shall have the right to terminate this Lease
effective on the seventh (7th) anniversary of the Commencement Date subject to
delivery of written notice to Tenant of the exercise of this right at least one
hundred and fifty (150) days prior to the seventh (7th) anniversary of the
Commencement Date.
-39-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
LANDLORD:
CD STATION, LLC
--------------------------
By: DIV Station, LLC,
Its Manager
--------------------------
By:
-----------------------------------
Name:
Title:
TENANT:
STARTECH ENVIRONMENTAL CORP.
--------------------------
By:
-------------------------- -----------------------------------
Name:
Title:
-40-
STATE OF ______________ )
) ss. ________________
COUNTY OF ____________ )
On this the _____ day of September, 1999, before me, _________________, the
undersigned officer, personally appeared Xxxx X. Xxxxxx, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged himself/herself to be a manager of DIV STATION,
LLC, the manager of CD STATION, LLC, a limited liability company, and that
he/she, as such manager, being authorized so to do, executed the foregoing
instrument as the free act and deed of the company for the purposes contained
therein by signing the name of the company by himself/herself as such manager.
IN WITNESS WHEREOF, I hereunto set my hand.
-----------------------------------
Commissioner of the Superior Court/
Notary Public
[Affix Notarial Seal] My Commission Expires:
STATE OF )
) ss. _______________
COUNTY OF )
On this the ____ day of September, 1999, before me,
_________________________, the undersigned officer, personally appeared
__________________, who acknowledged himself to be the ________________________
of STARTECH ENVIRONMENTAL CORP., a corporation, and that he, as such
__________________________, being authorized so to do, executed the foregoing
instrument as his free act and deed and the free act and deed of the corporation
for the purposes contained therein by signing the name of the corporation by
himself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand.
-----------------------------------
Commissioner of the Superior Court/
Notary Public
[Affix Notarial Seal] My Commission Expires:
-41-
EXHIBIT A
Plan of Premises
EXHIBIT B
Legal Description
00 Xxx Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx
ALL THAT CERTAIN piece of parcel of land with the buildings and other
improvements thereon, situated in the Town of Wilton, County of Fairfield and
State of Connecticut, shown on that certain map entitled, "Map of Property
Prepared for Xxxxxxxxx X. and Xxxxxx X. Xxxxx, Wilton, Conn." dated September
17, 1981, which Map is on file in the Wilton Town Clerk's Office as Map No.
3894, said parcel being bounded and described as follows:
COMMENCING at a point formed by the intersection of the westerly line of
Old Danbury Road with the northerly line of Station Road,
THENCE along the northerly line of Station Road, the following courses and
distances: South 67" 16' 20" West, a distance of 154.10 feet; South 67" 00' 40"
West, a distance of 67.03 feet; South 67" 07' 10" West, a distance of 77.62 feet
to a point in the easterly line of Railroad Avenue;
THENCE along the easterly line of Railroad Avenue the following course and
distance: North 38" 31' 54" West, a distance of 365.13 feet to a point in the
southeasterly line of Railroad Avenue;
THENCE along the southeasterly line of Railroad Avenue, the following
courses and distances: North 11" 38' 20" East, a distance of 138.59 feet; North
7" 34' 10" East, a distance of 13.74 feet; North 9" 59" 00" East, a distance of
65.01 feet; North 14" 52' 30" East, a distance of 82.11 feet to a point in the
curve of Railroad Avenue as shown on said survey;
THENCE along the southerly line of Railroad Avenue, the following courses
and distances: North 73" 23' 30" East, a distance of 33.49 feet' North 79" 15'
10" East, a distance of 13.57 feet; North 76" 46' 00" East, a distance of 101.74
feet; North 77" 22' 50" East, a distance of 13.05 feet; South 86" 30' 20" East,
a distance of 10.99 feet to a point which forms the intersection of the
southerly line of Railroad Avenue with the westerly line of Old Danbury Road;
THENCE along the westerly line of Old Danbury road, the following courses
and distances: South 46" 42' 30" East, a distance of 11.14 feet; South 39" 53'
20" East, a distance of 28.89 feet; South 37" 53' 40" East, a distance of 53.73
feet; South 32" 44' 20" East, a distance of 20.05 feet; South 35" 37' 20" East,
a distance of 53.64 feet; South 24" 00' 30" East, a distance of 78.06 feet;
South 25" 39' 00" East, a distance of 80.00 feet; South 24" 30' 00" East, a
distance of 57.82 feet; South 28" 42' 00" East, a distance of 35.28 feet; South
24" 56' 30" East, a distance of 38.80 feet; South 24" 09' 00" East, a distance
of 115.29 feet to the point of COMMENCEMENT.
EXHIBIT C-1
Tenant Standards
EXHIBIT C-2
Tenant's Space Plan
EXHIBIT D
CLEANING SPECIFICATIONS
00 Xxx Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx
LOBBY AND PUBLIC AREAS
Daily:
-----
1. Remove all trash. Replace liners as needed
2. Empty and clean exterior cigarette urns and ash trays
3. Spot wash all walls and doors
4. Vacuum all carpeting
5. Thoroughly clean all drinking fountains
6. Sweep all stairwells
Weekly:
------
1. Spot wash walls
2. Dust rails and ledges
3. Wipe down fixed equipment such as fire extinguisher
4. Spot clean carpeting
5. Clean all glass in doors and partitions
6. Dust down all ledges
Yearly:
------
Carpet shampooing all common hallways, one time per year.
Periodic Spot Cleaning:
The following list of items and components includes by
example, but is not limited to items/components that require
spot cleaning.
* Door hardware and accessories (including knobs,
latches, push plate/bars, etc.)
* Wall/door partition surfaces (including glass in
walls, doors and partitions)
* All moldings/framings
* Vents, grills/registers
* Telephones, disinfect all phone receivers
* Recessed fire equipment cabinets
* Light fixtures
* Lavatory fixtures
* Glass/mirrors
* Directory signage/panel frames
* Water coolers/fountains
* Elevator floor selector panels (metal polish to be
used)
OFFICE AREAS
------------
Daily:
-----
1. Remove all trash and replace liners if necessary
2. Vacuum all carpeted areas
3. Spot clean all walls, woodwork, doors and other
surfaces
4. Sweep and spot wash all tile areas, if any
Weekly:
------
1. Clean all glass doors and partitions
2. Spot clean carpet*
3. Remove dust from all furniture, window ledges,
radiators, and coat racks providing areas are free of
personal belongings, paperwork, etc.
*Carpet shampooing all common hallways, one time per year.
Periodic Spot Cleaning:
----------------------
1. Dust artificial plants, paintings, and other wall
decorations
Yearly:
------
1. Clean all baseboards
2. Clean all vents
3. Clean both sides of exterior glass (window washing)
RESTROOMS
Daily:
-----
1. Remove all trash. Replace liners as needed
2. Replenish towel in dispensers, soap dispensers and
toilet paper dispensers
3. Clean and thoroughly sanitize all toilets, sinks,
and urinals
4. Spot wash all walls, doors and partitions, including
all graffiti.
5. Thoroughly wash all floors and baseboards with
disinfectant cleaner
6. Wipe down and clean all mirrors and bright work
including stainless steel and chrome plumbing
fixtures.
7. Wash down all sinks and counters
8. Empty and wash all feminine napkin disposal cans
Monthly:
-------
Dust down all pipes, vents, and high spots
Thoroughly wash down all walls, partitions, doors and other
surfaces with disinfectant cleaner.
Semi-Annually:
-------------
Thoroughly machine scrub all floor surfaces to remove any
build-up in grouting or edges.
EXHIBIT E
RULES AND REGULATIONS
00 Xxx Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx
1. Tenant shall not display, inscribe, print, paint, maintain or affix on
any place or in or about the Building any sign, notice, legend, direction,
figure or advertisement, except on the doors of the Premises and on the
Directory Boards, and then only such name or names and matter, and in such
color, size, style, place and materials, as shall first have been approved in
writing by Landlord.
2. Tenant shall not advertise the business, profession or activities of
Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities or, which in
Landlord's reasonable judgment, tends to impair the reputation of the Building
or its desirability as a building for offices, and shall not use the name of the
Building for any purpose other than as the business address of Tenant, and
Tenant shall not use any picture or likeness of the Building in any circulars,
notices, advertisements or correspondence without Landlord's prior written
consent.
3. Tenant shall not use the Premises for housing accommodations or lodging
or sleeping purposes, or do any cooking therein (except any convenience
kitchen), or use any illumination other than electric light, or use or permit to
be brought into the Building any flammable oils or fluids such as gasoline,
kerosene, naptha, and benzine, or any explosives, radioactive materials or other
articles deemed hazardous to life, limb or property.
4. Tenant shall not contract for any work or service which might involve
the employment of labor incompatible with the Building employees or employees of
contractors doing work or performing services by or on behalf of Landlord or
with the terms and conditions of any collective bargaining agreement to which
Landlord or Landlord's agents or contractors may be a party.
5. Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly from
outside the Premises, and Tenant shall not cover or obstruct the sashes, sash
doors, skylights, windows and doors that reflect or admit light and air into the
public places in the Building.
6. No Tenant shall have any property stored outside, except with the prior
consent of Landlord.
7. All sidewalks, halls, passages, exits, entrances, elevators, lobbies and
stairways of the Building, if any, shall not be obstructed by any Tenant or used
by him for any purpose other than for ingress to and egress from his respective
Premises no shall any door be locked during normal business hours. No Tenant and
no employees or invitees of Tenant shall go upon the roof of the Building.
8. Tenant shall not alter any lock nor install any new or additional locks
or any bolts on any door of the Premises, except with the prior consent of
Landlord, which consent shall not be unreasonably withheld.
9. Tenant shall not overload the floor of the Premises or xxxx, drive
nails, screw or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof.
10. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals, fish or birds, bicycles or other vehicles be brought in or
kept in or about the Premises or the Building. All bicycles shall be parked in
areas designated by Landlord at the Building.
11. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air-conditioning other than that supplied by Landlord.
12. Landlord will direct Tenant as to where and how telephone and telegraph
wire are to be introduced. No boring or cutting for wires will be allowed
without the consent of Landlord. The location of telephones, call boxes and
other office equipment affixed to the Premises shall be subject to the approval
of Landlord.
13. Each Tenant, upon the termination of his tenancy, shall deliver to
Landlord the keys of offices, rooms and toilet rooms which shall have been
furnished Tenant or which Tenant shall have had made, and in the event of loss
of any keys so furnished, shall pay the Landlord therefor.
14. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the Rules and Regulations of the Building.
15. No vending machine or machines of any description shall be installed,
maintained or operated outside the Premises without the written consent of
Landlord. Should tenants desire vending machines of any type within their
Premises, such vending machines shall be provided, maintained and serviced by
Landlord or Landlord's designee.
16. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
17. Any permitted corrosive, flammable or other special wastes shall be
handled for disposal as directed by Landlord and strictly in accordance with all
applicable law.
18. Tenant's use of the Common Areas shall be limited to access and parking
purposes and under no circumstances shall Tenant be permitted to store any goods
or equipment, conduct any operations or construct or place any improvements,
barriers or obstructions in the Common Areas, or otherwise adversely affect the
appearance thereof, without the prior consent of Landlord.
19. Tenant agrees to handle and dispose of all rubbish, garbage, and waste
from Tenant's operations in accordance with regulations established by Landlord
and not permit the accumulation or burning of any rubbish or garbage in, or
about any part of the Building.
20. Tenant shall not change (whether by alteration, replacement, rebuilding
or otherwise) the exterior color and/or architectural treatment of the Premises
or of the Building in which the same are located, or any part thereof.
21. Tenant shall not use the plumbing facilities for any purpose other than
for which they were constructed, or dispose of any garbage or other foreign
substance therein, whether through the utilization of so-called "disposal" or
similar units, or otherwise.
22. Tenant shall not subject any fixtures, furnishings or equipment in or
on the Premises and affixed to the realty, to any mortgages, liens, conditional
sales agreements or encumbrances.
23. Tenant shall not install any awnings or curtains, blinds, shades or
screens in, on or outside the Premises which are visible to public view outside
the Premises.
24. Tenant shall not permit window cleaning or other exterior maintenance
and janitorial services in and for the Premises to be performed except by such
person(s) as shall be approved by Landlord and except during reasonable hours
designated for such purposes by Landlord.
25. Tenant shall not install, operate or maintain in the Premises any
electrical equipment which will overload the electrical system therein, or any
part thereof, beyond its reasonable capacity for proper and safe operation as
determined by Landlord in light of the over-all system and requirements therefor
in the Building, or which does not bear underwriters' approval.
26. Landlord reserves the right to make such other and further
nondiscriminatory Rules and Regulations as in its judgment may be necessary or
desirable for the safety, care and cleanliness of the Premises and the Building
and for the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations hereinabove stated and any additional Rules and
Regulations which are adopted.
27. Heating, lighting and plumbing: The Landlord or his agent should be
notified at once of any trouble with heating, lighting or plumbing fixtures.
Tenants must not leave doors of the Premises unlocked at night.
28. All freight, furniture, etc. must be received and delivered through
entrances to the Building designated for such purpose unless otherwise
authorized by the Landlord, and only during such hours and in such elevators as
Landlord may reasonably determine from time to time.
29. Nothing shall be thrown from or taken in through the windows, nor shall
anything be left outside the building on the window xxxxx of the Premises.
30. No person shall loiter in the halls, corridors or lavatories.
31. The Landlord, its agents and employees shall have access at reasonable
times to perform their duties in the maintenance and operation of the Premises.
32. No Tenant shall use any method of heating other than that provided for
in the Tenant's lease without the consent of the Landlord.
33. Any damage caused to the Building or the Premises or to any person or
party herein as a result of any breach of any of the rules and regulations by
the Tenant shall be borne by the Tenant.
34. Tenant will not store vehicles for extended periods of time in the
parking garage.
35. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or the Lease. Landlord
may require any person leaving the Building with any package or other object or
matter to submit a pass, listing such package or object or matter, from the
tenant from whose premises the package or object or matter is being removed, but
the establishment and enforcement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of such tenant. Landlord shall in no way be liable
to Tenant for damages or loss arising from the admission, exclusion or ejection
of any person to or from the Premises or the Building under the provisions of
this Rule or the following Rule.
36. All persons entering and/or leaving the Building during hours other
than business hours may be required to sign a register. Landlord will notify
each tenant if Landlord elects to institute a pass system outside of regular
business hours.
37. Tenant shall not occupy or permit any portion of the Premises to be
occupied as an office for a public stenographer or public typist, or for the
warehousing, manufacture or sale to the general public of beer, wine, liquor, or
drugs; for rendition of medical, dental or other diagnostic or therapeutic
services; as a xxxxxx, beauty or manicure shop; as an employment bureau; or for
the preparation, dispensing or consumption of food and beverages in any manner
not consistent with office use, unless specifically approved and agreed to in
writing by Landlord and only for the exclusive use of Tenant, its employees and
visitors. Tenant shall not use the Premises or any part thereof, or permit the
Premises or any part thereof to be used, for sale at retail or auction of
merchandise, goods or property of any kind, except for promotional purposes, or
for manufacturing, printing or electronic data processing, except for the
operation of normal business office reproducing or printing equipment and other
business machines for Tenant's own requirements at the Premises; provided that
such use shall not exceed that portion of the mechanical or electrical
capabilities of the Building equipment allocable to the Premises.
38. Tenant shall not take or permit any action which would impair or
interfere with any of the Building services or the proper and economic heating,
cleaning, air conditioning or other servicing of the Building or the Demised
Premises, or impair or interfere with or tend to impair or interfere with the
use of any of the other areas of the Building by occasion or discomfort,
annoyance or inconvenience to, Landlord or any other tenants or occupants of the
Building. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system and if requested by Landlord shall lower and
close drapes and curtains when the sun's rays fall directly on the windows of
the Premises.
39. Tenant shall comply with such rules and regulations governing parking
as may be promulgated from time to time by Landlord, including, without
limitation, rules and regulations requiring the parking of vehicles in
designated spaces or areas or regarding the exclusion of other spaces or areas.
40. If any governmental license or permit shall be required for the
property and lawful conduct of Tenant's business in the Premises, or any part
thereof, and if failure to secure such license or permit would in any affect
Landlord, then Tenant, at its expense, shall duly procure and thereafter
maintain such license or permit and submit the same inspection by Landlord.
Tenant shall at all times comply with the terms and conditions of each such
license or permit, and failure to procure and maintain same by Tenant shall not
affect Tenant's obligations hereunder.
41. Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense, in such a manner as shall be
sufficient in Landlord's judgment to absorb and prevent vibration, noise and
annoyance.
42. In the moving, delivery of receipt of safes, freight, furniture,
packages, boxes, crates, paper, office material, or any other matter or thing,
Tenant shall use and shall cause its employees and contractors and any others
making deliveries to the Premises to use hand trucks equipped with rubber tires,
side guards and such other safeguards as Landlord shall reasonably require. No
hand trucks shall be used in passenger elevators, and no such passenger
elevators shall be used for moving, delivery or receipt of the aforementioned
articles.
43. Landlord shall have the right to prohibit any advertising by any Tenant
which, in Landlord's opinion, tends to impair the reputation of the building or
its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising. Tenant
shall not use the name of the building or its owner in any advertising without
the express prior written consent of the Landlord.
Landlord's Initials: Tenant's Initials:
--------------- ----------------
EXHIBIT F
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
------------------------------------------------------
THIS AGREEMENT, made this ____ day of _________, 1999, by and among
STARTECH ENVIRONMENTAL CORP., a ______________ corporation with offices at 00
Xxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000 (hereinafter called "Tenant"), CD
STATION, LLC, a Delaware limited liability company with offices c/o The Xxxxx
Companies, Xxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 (hereinafter called
"Landlord") and MELLON BANK, N.A., a national banking association having its
principal office and place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Real Estate Finance Department (hereinafter
called "Mortgagee").
WITNESSETH:
WHEREAS, the Tenant has entered into a certain lease (the "Lease") dated
September 16, 1999, with Landlord covering premises located in Wilton,
Connecticut (the "Premises") and more particularly described in Exhibit "A"
attached hereto and incorporated herein; and
WHEREAS, the Mortgagee made a mortgage loan (the "Loan") to Landlord
secured by, among other security, a mortgage (the "Mortgage"; which term
includes all modifications, renewals, replacements, consolidations and
extensions thereof) on the Premises from Landlord which Mortgage includes a
certain Assignment of Leases and Rents from Landlord to Mortgagee (the
"Assignment"; which term includes all modifications, renewals, replacements,
consolidations and extensions thereof) pertaining to the Premises; and
WHEREAS, Mortgagee has been requested by Tenant and Landlord to enter into
a nondisturbance agreement with Tenant.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto covenant and
agree as follows:
1. The Lease and any extensions, renewals, replacements or modifications
thereof, and all of the right, title and interest of the Tenant in and to said
Premises are and shall be subject and subordinate to the Mortgage and to all of
the terms and conditions contained therein (including, without limitation, the
casualty and condemnation provisions of the Mortgage).
2. In the event of foreclosure of said Mortgage, or in the event Mortgagee
comes into possession, makes entry upon or acquires title to the Premises as a
result of the enforcement or foreclosure of the Mortgage or the promissory note,
or the Assignment or as a result of any other means, Mortgagee agrees that the
Lease shall not thereby be terminated and further agrees that Tenant shall not
be disturbed in its possession of the premises demised under the Lease for any
reason other than one which would entitle the Landlord to terminate the Lease
under its terms or would cause, without any further action by such Landlord, the
termination of the Lease or would entitle such Landlord to dispossess the Tenant
from such demised premises.
3. Tenant agrees with Mortgagee that, if the interests of Landlord in the
Premises shall be transferred to and owned by Mortgagee by reason of foreclosure
or other proceedings brought by it, or by any other manner, or if Mortgagee
takes possession of or makes entry upon the Premises pursuant to the Mortgage,
the Assignment or any other document evidencing or securing the Loan, Tenant
shall be directly bound to Mortgagee under all of the terms, covenants and
conditions of the Lease for the balance of the terms thereof remaining and any
extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, with the same force and effect as if Mortgagee
were the Landlord under the Lease, and Tenant does hereby attorn to Mortgagee as
its Landlord, said attornment to be effective and self-operative without the
execution of any further instruments on the part of any of the parties hereto
immediately upon Mortgagee succeeding to the interest of the Landlord in the
Premises. Tenant agrees, however, upon the election of and written demand by
Mortgagee within twenty (20) days after Mortgagee receives title to the Premises
to execute an instrument in confirmation of the foregoing provisions,
satisfactory to Mortgagee, in which Tenant shall acknowledge such attornment and
shall set forth the terms and conditions of its tenancy.
4. Tenant agrees with Mortgagee that, if Mortgagee shall succeed to the
interest of Landlord under the Lease, Mortgagee shall not be (a) liable for any
act, waiver, representation (express or implied), or omission of any prior
landlord (the term "prior landlord" as used in this Section 4 includes, without
limitation, the Landlord) under the Lease or otherwise, or (b) subject to any
offsets, counterclaims or defenses which Tenant might have against any prior
landlord, or (c) bound by any rent, percentage rent or additional rent or
charges which Tenant might have paid for more than the current month to any
prior landlord, or (d) bound by any security deposit or tax and/or insurance
escrow which Tenant may have paid to any prior landlord, except to the extent
such deposit and escrowed funds are in an escrow fund controlled by Mortgagee,
or (e) bound by any amendment or modification of the Lease or any consent by any
prior landlord under the Lease to any assignment or sublease of the lessee's
interest in the Lease made without Mortgagee's prior written consent, or (f)
bound by any provision in the Lease which obligates the Landlord to perform any
construction work or to make any improvements to the Premises or any parts
thereof, or (g) bound with respect to breaches other than those occurring during
Mortgagee's possession of the Premises or ownership of the landlord's interest
under the Lease. Tenant agrees to look solely to the landlord's interest in the
Premises for recovery of any judgment from Mortgagee, it being specifically
agreed that neither Mortgagee nor anyone claiming under the Mortgagee shall ever
be personally liable for such judgment. Tenant further agrees with Mortgagee
that Tenant will not voluntarily subordinate the Lease to any lien or
encumbrance other than the Mortgage without Mortgagee's prior written consent.
5. Tenant hereby acknowledges that all of Landlord's right, title and
interest as lessor under the Lease (and in any guarantees of Tenant's
obligations thereunder) are being duly assigned to the Mortgagee pursuant to the
terms of the Mortgage and/or the Assignment and that pursuant to the terms
thereof all rental payments under the Lease shall continue to be paid to
Landlord in accordance with the terms of the Lease unless and until Tenant is
otherwise notified in writing by the Mortgagee. Upon receipt of any such written
notice from the Mortgagee, Tenant covenants and agrees to make payment of all
rental payments and other charges and payments then due or to become due under
the Lease directly to the Mortgagee or to the Mortgagee's agent designated in
such notice, whether or not the Mortgagee has made entry or become mortgagee in
possession pursuant to the Mortgage or the Assignment, and to continue to do so
until otherwise notified in writing by the Mortgagee. Landlord hereby
irrevocably directs and authorizes Tenant to make rental payments directly to
the Mortgagee following receipt of such notice, and covenants and agrees that
Tenant shall have the right to rely on such notice without any obligation to
inquire as to whether any default exists under the Mortgage or the Assignment or
the indebtedness secured thereby, and notwithstanding any notice or claim of
Landlord to the contrary, and that Landlord shall have no right or claim against
Tenant for or by reason of any rental payments made by Tenant to the Mortgagee
following receipt of such notice Tenant further acknowledges and agrees: (a)
that under the provisions of the Mortgage and/or Assignment, the Lease (and any
guarantees thereof) cannot be terminated (nor can Landlord accept any surrender
of the Lease) or modified in any of its terms, or consent be given to the waiver
or release of Tenant from the performance or observance of any obligation under
the Lease or to any assignments or subleases thereof, without the prior written
consent of the Mortgagee, and without such consent no rent may be collected or
accepted by Landlord more than one month in advance; (b) that the interest of
Landlord as lessor under the Lease (any in any guarantees of Tenant's
obligations thereunder) have been assigned to the Mortgagee for the purposes
specified in the Mortgage and/or the Assignment and the Mortgagee assumes no
duty, liability or obligation under the Lease, except only under the
circumstances, terms and conditions specifically set forth in the Mortgage
and/or the Assignment, copies of which are being recorded concurrently herewith;
and (c) that a default by Tenant under the Lease which is not cured within the
earlier of (i) the applicable cure period provided under the Lease or (ii) the
thirty (30) day period following the occurrence of such default will constitute,
at Mortgagee's election, an event of default under the Lease with the Mortgagee
having no obligation to provide Tenant with any notice thereof or cure
opportunity therefor and notwithstanding the existence of any longer cure period
provided to Tenant under the Lease.
6. Tenant, as lessee under the Lease, hereby covenants and agrees to give
the Mortgagee written notice properly specifying wherein the landlord under the
Lease has failed to perform any of the covenants or obligations of the landlord
under the Lease, simultaneously with the giving of any notice of such default to
the landlord under the provisions of the Lease. Tenant agrees that the Mortgagee
shall have the right, but not the obligation, within sixty (60) days after
receipt by the Mortgagee of such notice (or within such additional time as is
reasonably required to correct any such default or is provided for in the Lease,
whichever is longer) to correct or remedy, or cause to be corrected or the Lease
by reason of such default. Such notices to the Mortgagee shall be delivered in
duplicate to:
Mellon Bank, N.A.
One Mellon Bank Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Real Estate Finance Department
With a copy to: Sherin and Lodgen LLP
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
or to such other address as the Mortgagee shall have designated to Tenant by
giving written notice to Tenant at 00 Xxx Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx, or
to such other address as may be designated by written notice from Tenant to the
Mortgagee. All written notices required or permitted hereunder shall be sent by
registered or certified mail, return receipt requested, or by recognized
overnight delivery service (such as Federal Express) by telex or fax with
confirmation in writing mailed first-class, in all cases with postage and
charges prepaid, and shall be considered effective when received or refused.
7. This Agreement shall bind and inure to the benefit of the parties
hereto, their successor and assigns. Whenever a reference is made herein to a
requirement for Mortgagee's consent, such reference shall mean that Mortgagee
may give or withhold consent in its sole discretion. As used herein, the term
"Tenant" shall include the Tenant, its successors and assigns, and the term
"Landlord" shall include the Landlord and its successors and assigns. The
foregoing references to successors and assigns of Tenant and Landlord is not
intended to and does not constitute a consent by Landlord or Mortgagee to any
assignment or sublease by Tenant of its interests under the Lease or any consent
by Mortgagee to any assignment by Landlord of its interests under the Lease. The
words "foreclosure" and "foreclosure sale" as used herein shall be deemed to
include the acquisition of Landlord's estate in the Premises by voluntary deed
(or assignment) in lieu of foreclosure, and the word "Mortgagee" shall include
the Mortgagee herein specifically named and any of its successors and assigns,
and anyone who shall have succeeded to Landlord's interest in the Premises by,
through or under foreclosure of the Mortgage, including, without limitation, any
purchaser of the Premises through foreclosure or any successor or assign
thereof.
8. This Agreement shall not be modified or amended except in writing signed
by all parties hereto.
9. The use of the neuter gender in this Agreement shall be deemed to
include any other gender, and words in the singular number shall be held to
include the plural, when the sense requires.
IN WITNESS WHEREOF, the parties hereto have placed their hands and seals,
the day and year first above written.
WITNESS: TENANT:
STARTECH ENVIRONMENTAL CORP.
------------------------------------
By:________________________________
------------------------------------
Its:
Hereunto duly authorized
WITNESS: LANDLORD:
CD STATION, LLC
------------------------------------
------------------------------------ BY: DIV STATION, LLC
By:________________________________
Name:
Title:
Hereunto duly authorized
WITNESS: MORTGAGEE:
MELLON BANK, N.A.
------------------------------------
By:________________________________
------------------------------------ Name:
Its:
Hereunto duly authorized
STATE OF ______________ )
) ss. ________________
COUNTY OF ____________ )
On this the _____ day of _______________, 1999, before me,
_________________, the undersigned officer, personally appeared
_____________________________________, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and
acknowledged himself/herself to be the ____________________ of STARTECH
ENVIRONMENTAL CORP., a corporation, and that he/she, as such officer, being
authorized so to do, executed the foregoing instrument as the free act and deed
of the corporation for the purposes contained therein by signing the name of the
corporation by himself/herself as such officer.
In witness whereof, I hereunto set my hand.
-----------------------------------
Commissioner of the Superior Court
Notary Public
[Affix Notarial Seal] My Commission Expires:
STATE OF ______________ )
) ss. ________________
COUNTY OF ____________ )
On this the _____ day of ______________, 1999, before me,
_________________, the undersigned officer, personally appeared Xxxx X. Xxxxxx,
known to me (or satisfactorily proven) to be the person whose name is subscribed
to the within instrument, and acknowledged himself/herself to be a manager of
DIV STATION, LLC, the manager of CD STATION, LLC, a limited liability company,
and that he/she, as such manager, being authorized so to do, executed the
foregoing instrument as the free act and deed of the company for the purposes
contained therein by signing the name of the company by himself/herself as such
manager.
In witness whereof, I hereunto set my hand.
-----------------------------------
Commissioner of the Superior Court/
Notary Public
[Affix Notarial Seal] My Commission Expires:
STATE OF ______________ )
) ss. _______________
COUNTY OF ____________ )
On this the ____ day of ________________, 1999, before me,
________________, the undersigned officer, personally appeared
__________________, who acknowledged himself/herself to be the ________________
of MELLON BANK, N.A., a national banking association, and that he/she, as such
_____________________, being authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
national banking association by himself/herself as such __________________.
In witness whereof, I hereunto set my hand.
-----------------------------------
Commissioner of the Superior Court
Notary Public
[Affix Notarial Seal] My Commission Expires:
EXHIBIT G
Form of Tenant Estoppel Certificate
REFERENCE is made to that certain Lease or Lease Agreement dated September
16, 1999, between CD STATION, LLC as Landlord or Lessor, and the undersigned,
STARTECH ENVIRONMENTAL CORP., a ____________________ corporation, as Tenant or
Lessee, (said Lease or Lease Agreement, being hereinafter referred to as the
"Lease"), covering certain premises located at 00 Xxx Xxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxxxx (the "Building"). This Certificate is executed by the undersigned
and delivered to Landlord and MELLON BANK, N.A. (hereinafter "Lender"), in
connection with Landlord's acquisition of the Building and Lender's making to
Landlord a certain first mortgage loan (the "Loan") secured by the Building with
the recognition that Landlord and Lender are relying upon the truth, accuracy
and completeness hereof in acquiring the Building and making said loan and/or in
disbursing some or all of the proceeds thereof. The undersigned hereby certifies
and declares as follows:
1. The undersigned is the holder of the Tenant's interest under the Lease
and the Lease is in full force and effect and has not been modified,
supplemented, or amended. Except for the Lease, there are no agreements between
the undersigned and the Landlord under the Lease in any way concerning the
subject matter of the Lease or the premises covered by the Lease. The interests
of the Tenant under the Lease have not been assigned (collaterally or otherwise)
or subject to any sublet agreement.
2. As of the date hereof all conditions or obligations under the Lease to
be satisfied or performed by the Landlord have been satisfied or performed, and
the Landlord is not in default under the Lease. As of the date hereof the
undersigned does not assert, and is not entitled to assert, any defense to or
counterclaim or offset against the enforcement of the Lease or any of the
provisions thereof by the Landlord thereunder.
3. The Commencement Date under the Lease is ____________, 1999. If there
are any rights of extension or renewal remaining under the terms of the Lease,
the same have not, as of the date of this Certificate, been exercised.
4. The undersigned is current in the payment of all fixed rent and other
charges due to be paid under the Lease, in full, for the period ending
____________, 1999. No rent or other sum payable under the Lease has been paid
in advance of the due date thereof, and we hereby agree with Lender that Lender
shall not be bound by any prepayment of rent or any other sum due to be paid
under the Lease more than thirty (30) days in advance of the due date thereof
unless such prepayment has been expressly approved by Lender.
5. The amount of the security deposit given by the undersigned and held by
the Landlord under the Lease is the sum of $___________. The undersigned, as
Tenant under the Lease, hereby agrees not to look to the holder (including
Lender) of a first mortgage on the premises covered by the Lease, as mortgagee,
assignee under any collateral assignment of the Lease, mortgagee-in-possession,
or successor in title to said premises, for accountability for any security
deposit required or held by the Landlord under the Lease, unless said deposit
has actually been received by said holder as security for the undersigned's
performance under the Lease.
6. The undersigned hereby acknowledges notice that, in connection with the
Loan, the Lease and the interests of the Landlord thereunder have been or are
being assigned to Lender through an Assignment of Leases (or other document)
which provides, among other things, that the Landlord shall not, without
Landlord's prior written consent, modify, terminate, or accept surrender of the
Lease or reduce, xxxxx, or accept prepayment of any rent payable under the
Lease. The undersigned hereby certifies that, to the best of its knowledge,
there have been no prior assignments of the Lease.
7. The undersigned hereby certifies that the attached copy of the Lease is
a true and complete copy of the Lease, as amended to date.
8. The undersigned does not engage in the generation, storage or disposal
of hazardous wastes or hazardous substances and the building(s) are not and
shall not be used for such purposes. The undersigned has no notice of any local,
state or federal environmental regulatory action regarding the building(s) or
the real property on which it is located. the undersigned agrees to send to
Lender a copy of any notice received of any pending or threatened environmental
regulatory action and notify Lender of any release or discharge of any hazardous
substances on the property or in the building. Such notice shall be delivered to
Lender in the same manner required for notices under a certain Subordination,
Nondisturbance and Attornment Agreement executed by the undersigned in
connection with the Loan.
9. The undersigned has not made nor is there presently contemplated any
assignment by the undersigned for the benefit of creditors or any filing by the
undersigned of a proceeding under the United States Bankruptcy Code or similar
laws of any state seeking the liquidation or reorganization of the undersigned,
and to the undersigned's knowledge no such proceedings are currently pending or
threatened against the undersigned.
10. The undersigned acknowledges that Lender may, from time to time,
including in connection with advances under the Loan, request the undersigned to
reaffirm the status of the matters covered by this Certificate. The undersigned
agrees to respond to these requests in as prompt a manner as possible so as not
to unduly delay any scheduled Loan advance.
EXECUTED as a sealed instrument this ____ day of _______________, 1999.
STARTECH ENVIRONMENTAL CORP.
________________________ By:________________________________
Its:
Hereunto Duly Authorized
