Exhibit 10(q)
-150-
AGREEMENT OF LEASE
BY AND BETWEEN
NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP
(LANDLORD)
AND
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
(TENANT)
INDEX TO LEASE
ARTICLES NUMBER CAPTION
ARTICLE 1 Basic Lease Provisions and Enumeration of Exhibits..............4
ARTICLE 2 Description of Premises and Appurtenant Rights..................6
ARTICLE 3 Rent and Additional Rent........................................8
ARTICLE 4 Landlord's Covenants, Interruptions and Delays.................15
ARTICLE 5 Tenant's Covenants.............................................17
ARTICLE 6 Assignment, Subletting, and Mortgaging.........................22
ARTICLE 7 Casualty and Taking............................................24
ARTICLE 8 Defaults; Events; Remedies.....................................26
ARTICLE 9 Rights of Mortgagee/Ground Lessor..............................28
ARTICLE 10 Miscellaneous Provisions.......................................29
10.1 Title..........................................................29
10.2 Notices........................................................29
10.3 Bind and Inure.................................................30
10.4 Partial Invalidity.............................................30
10.5 No Waiver......................................................30
10.6 No Surrender...................................................30
10.7 No Accord and Satisfaction.....................................30
10.8 Intentionally Deleted..........................................30
10.9 Self-Help......................................................30
10.10 Estoppel Certificates..........................................31
10.11 Waiver of Subrogation..........................................32
10.12 Governing Law..................................................32
10.13 Acts of God....................................................32
10.14 Consent........................................................32
10.15 Brokerage Commissions..........................................32
10.16 Intentionally Deleted..........................................33
10.17 Limitation of Liability........................................33
10.18 Intentionally Deleted..........................................33
10.19 Recording......................................................33
10.20 Intentionally Deleted..........................................33
10.21 Term Commencement Date.........................................33
10.22 Improvements...................................................34
10.23 Electricity....................................................36
10.24 Option to Extend...............................................37
10.25 Hazardous Materials............................................39
10.26 Right of First Offer...........................................40
10.27 Right of First Refusal.........................................42
10.28 Right to Reduce Space..........................................43
10.29 Storage Premises...............................................44
10.30 Antenna Installation...........................................45
10.31 Exterior Signage...............................................48
10.32 Food Service Facility..........................................49
10.33 Exercise Facility..............................................49
10.34 Temporary Premises.............................................49
10.35 Testing of Building HVAC System................................50
DATE OF LEASE EXECUTION: February __, 1998
ARTICLE I
REFERENCE
1.1 Subjects Referred To. Each reference in this Lease to any of the following
subjects shall be construed to incorporate the data for that subject in this
Article.
PARTIES:
LANDLORD: NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP, a Massachusetts
limited partnership
MANAGING AGENT: NORTHLAND INVESTMENT CORPORATION
LANDLORD'S/MANAGING AGENT'S ADDRESS FOR NOTICES:
Northland Investment Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
MAKE CHECKS PAYABLE TO: NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP
SEND CHECKS TO: x/x Xxxxxxxxx
X.X. Xxx 000000
Xxxxxx Xxxxx Xxxxx, XX 00000-0000
TENANT: THE LINCOLN NATIONAL LIFE INSURANCE COMPANY,
an Indiana corporation
TENANT'S ADDRESS (FOR NOTICE AND BILLING):
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Vice President, Financial Reporting & Pricing
BUILDING & LEASED PREMISES: Approximately 149,778 rentable square feet
comprising the entire seventh (7th) through twelfth (12th) floors (collectively,
the "Premises") of the building known as the Metro Center and located at 000
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx (the "Building"), substantially as shown on
the Plans attached hereto as Exhibit "A". All measurements and determinations of
area required pursuant to this Lease shall be made in accordance with the
Building Owners and Managers Association ("BOMA") standards, BOMA publication
ANSI 265.1-1996. Prior to the Term Commencement Date, as hereinafter defined,
the area of the Premises will be remeasured in accordance with BOMA standards.
If such remeasurement discloses a different rentable area for the Premises than
that set forth above, then the Base Rent and Tenant's Proportionate Share (as
such terms are hereinafter defined) shall be adjusted accordingly.
PROPERTY: The Building, the parking structure (the "Garage") with an address at
000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx, and the land parcel(s) on which the
Building and the Garage are located, including exterior grounds and sidewalks,
if any.
TERM COMMENCEMENT DATE: See Section 10.21
EXPIRATION DATE: The date which is one hundred twenty (120) months and two (2)
weeks after the Term Commencement Date; provided, however, if such date shall
fall on other than the last day of a calendar month, the Expiration Date shall
be deemed to be the last day of the calendar month in which such date shall
occur.
TERM: One hundred twenty (120) months and two (2) weeks (plus the partial month,
if any, at the end of the Term), as the same may be sooner terminated or
extended in accordance with the terms of this Lease.
OPTION TO EXTEND: See Section 10.24
BASE RENT RATE:
Months 1- 24: $12.00 per rentable square foot of the Premises per year
Months 25-60: $17.00 per rentable square foot of the Premises per year
Months 61-84: $22.00 per rentable square foot of the Premises per year
Months 85-96: $24.00 per rentable square foot of the Premises per year
Months 97-108: $24.50 per rentable square foot of the Premises per year
Months 109-
Expiration Date: $25.00 per rentable square foot of the Premises per year
PROPORTIONATE SHARE: 52.56%, being a fraction, the numerator of which is the
rentable area of the Premises and the denominator of which is the rentable
area of the Building.
OPERATING COSTS FOR THE BASE CALENDAR YEAR: The actual amount of Operating
Costs for the first twelve (12) months of the Term
-------------------------------------------
REAL ESTATE TAXES FOR THE BASE CALENDAR YEAR: The actual amount of
Landlord's Tax Expense for the first twelve (12) months of the
-----------------------------------------------
Term
PERMITTED USE OF PREMISES: General office use only (without associated bulk
storage or uses requiring above building standard structural, electrical or HVAC
facilities), and for no other use or purpose.
TENANT INSURANCE REQUIREMENTS: Public Liability Insurance
Combined Single Limit
Bodily Injury & Property Damage: $3,000,000.00/$5,000,000.00
SECURITY DEPOSIT: None
GUARANTOR: None
BROKER: Xxxxxxx & Xxxxxxxxx of Connecticut, Inc.
1.2 Exhibits & Riders. The Exhibits and Riders listed below in this Section are
incorporated in this Lease by reference and are to be construed as part of this
Lease:
Exhibit A Plan of Premises
Exhibit B Landlord Services
Exhibit B-1 Cleaning Specifications
Exhibit C Rules and Regulations
Exhibit D Form of Subordination, Non-Disturbance and Attornment
Agreement
Exhibit E Plan of Storage Premises
Exhibit F Form of Metro Center Fitness Club Usage Agreement
ARTICLE II
DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS
2.1 Location of Premises. Landlord hereby demises and leases to Tenant, and
Tenant hereby accepts from Landlord, the Premises suitably identified in the
foregoing portion of this Lease.
2.2 Appurtenant Rights and Reservations. Tenant shall have, as appurtenant to
the Premises, the non-exclusive right to use, and permit its invitees to use in
common with others, the public or common lobbies, hallways, stairways, passenger
elevators and sanitary facilities in the Building, but such rights shall always
be subject to the Rules and Regulations set forth on Exhibit C (as the same may
be amended or modified from time to time by Landlord by prior notice to Tenant),
and to the right of Landlord to designate and change from time to time areas and
facilities so to be used (provided that Tenant's use and enjoyment thereof and
of the Premises and Tenant's rights under this Lease are not materially
adversely affected thereby). Tenant shall also have, as appurtenant to the
Premises, subject to obtaining Landlord's prior written consent, the
non-exclusive right to use reasonable portions of common area conduits, chutes
and pipes adjacent to the Premises for the purpose of running wires and cabling
between floors of the Premises to serve Tenant's equipment located within the
Premises.
Tenant agrees that Landlord shall have the right, upon reasonable prior
written notice to Tenant, to place in, over and upon the Premises (but in such a
manner as to reduce interference with Tenant's use of the Premises and not be
visible from within the Premises) utility lines, pipes, equipment and the like
to serve the Premises or premises other than the Premises, and to replace,
maintain and/or repair such utility lines, pipes, equipment and the like.
During the hours of 7:00 A.M. to 6:00 P.M., Monday through Friday,
legal holidays recognized generally in first-class office buildings in downtown
Hartford excepted (hereinafter referred to as "Normal Building Operating
Hours"), the Building shall be open and access to the Premises shall be freely
available, subject to interruption due to causes beyond Landlord's reasonable
control. During all periods other than Normal Building Operating Hours Tenant
shall have access to the Premises, and at all times Tenant shall have access to
the Garage, but always subject to reasonable rules and regulations therefor from
time to time established by Landlord by suitable notice.
2.3 Parking. During the Term of this Lease, Landlord will make available for the
use by Tenant and its employees four (4) Garage parking passes for each one
thousand (1,000) rentable square feet of the Premises. Notwithstanding the
foregoing, Tenant shall have the one-time right, upon thirty (30) days prior
written notice to Landlord, which notice must be given on or before the third
(3rd) anniversary of the Term Commencement Date, to reduce the number of Garage
parking passes available for its use to three (3) Garage parking passes for each
one thousand (1,000) rentable square feet of the Premises; and, if Tenant shall
exercise such right, the number of Garage parking passes shall be so reduced
effective as of the expiration of such thirty (30) day period. Said parking
passes shall be paid for by Tenant at the following rates (in each case plus
applicable State sales tax): $50.00 per pass per month for months 1-24 of the
Term; $70.00 per pass per month for months 25-36 of the Term; $80.00 per pass
per month for months 37-48 of the Term; $100.00 per pass per month for months
49-60 of the Term; $125.00 per pass per month for one-half (1/2) of the passes
for months 61 through the Expiration Date of the Term; and at the then current
prevailing rate in the Garage, as such rate may vary from time to time, for the
other one-half (1/2) of the passes for months 61 through the Expiration Date of
the Term. All parking passes (and the parking spaces in the Garage) will be on
an unassigned, non-reserved basis, except for thirty (30) spaces, twenty (20) of
which shall be designated by Landlord as reserved for Tenant's exclusive use and
ten (10) of which shall be designated by Landlord as reserved for the use by
Tenant's visitors and guests. Such thirty (30) spaces shall be in a preferred
location in the Garage (as designated by Landlord) and shall be indicated by
signage (or other form of identification) installed by Landlord and approved by
Tenant; provided, however, that in no event shall Landlord be obligated to
police the use of such thirty (30) spaces. Notwithstanding the preceding
sentence, upon written notice from Tenant that unauthorized persons are using
any of such thirty (30) spaces, Landlord shall use reasonable efforts to cause
such persons not to use such spaces; provided, however, that Landlord shall have
no obligation to terminate any lease to which Landlord and such persons may be
parties by reason of such unauthorized use. The use of all parking spaces in the
Garage shall be subject to rules and regulations promulgated by Landlord from
time to time.
Except in connection with a permitted sublease or assignment under
Article VI hereof, Tenant shall have no right to sublet, assign or otherwise
transfer said parking passes without Landlord's prior written consent. If Tenant
shall desire to sublet, assign or otherwise transfer any of said parking passes,
Tenant shall submit to Landlord in writing the name of the proposed transferee,
the terms and conditions of the transfer (including copies of the proposed
sublease or assignment) and any other information reasonably requested by
Landlord. Landlord shall have the right, exercisable by written notice to Tenant
within ten (10) business days after Landlord's receipt of Tenant's notice, to
recapture any or all of the parking passes which are the subject of the proposed
sublease, assignment or other transfer. If Landlord shall exercise such right,
Tenant shall have no further right to such parking passes (and shall return the
same to Landlord) effective as of the date and for the period of time set forth
in Landlord's recapture notice. If Landlord shall not exercise such right,
Landlord's consent to the proposed sublease, assignment or other transfer shall
not unreasonably withheld or unduly delayed; provided, however, that Landlord
may withhold its consent if in the exercise of its sole judgment Landlord
determines that (i) the financial condition or general reputation of the
proposed transferee is not consistent with the extent of the obligations
undertaken by the proposed sublease, assignment or other transfer, or (ii)
Tenant proposes to sublet or assign to one who, at the time of Tenant's request
for consent, is a tenant or occupant of the Building and/or is using parking
spaces in the Garage or to one with whom Landlord or its agents is (are)
actively negotiating for space in the Building or for parking spaces or passes
in the Garage, or (iii) the charges for the parking passes which the transferee
is obligated to pay are less than the then current prevailing rate (from time to
time) in the Garage. Tenant acknowledges that Landlord's consent may be
conditioned upon, inter alia, a requirement that all charges payable for the use
of such parking passes in excess of the charges payable hereunder for such
parking passes be paid to Landlord.
ARTICLE III
RENT AND ADDITIONAL RENT
3.1 Rent. All monies payable by Tenant to Landlord under this Lease shall be
deemed to be rent and shall be payable and recoverable as rent in a manner
herein provided. Rent shall be paid to the Landlord, commencing on the Term
Commencement Date, and on the first day of each calendar month during the Term
of this Lease without any withholding, offset, abatement, reduction, prior
notice or demand, except as otherwise expressly set forth in this Lease. Until
notice of some other designation is given, rent and all other charges shall be
paid by check to the order of Landlord at Landlord's mailing address set forth
in Section 1.1 hereof, receipt of same being subject to collection.
Notwithstanding the foregoing, provided that Tenant is not in default under this
Lease, Tenant shall be entitled to a credit against Base Rent payable hereunder
in the amount of $.50 for each rentable square foot of the Premises not occupied
by Tenant for business during the first two (2) weeks of the Term, the amount of
such credit to be confirmed in writing by Landlord and Tenant promptly after the
expiration of such first two (2) week period.
If Tenant shall fail to pay rent when due, such unpaid amount shall
bear interest until paid at the rate of 1.5% per month for all sums which are in
excess of ten (10) business days overdue. In the event Tenant pays any rent or
other charge by check or draft, and said check or draft is not honored by the
bank on which it is drawn, interest as set forth herein and an additional charge
of $15.00 shall be due from Tenant to Landlord.
3.2 Operating Cost Increase. If the Operating Costs for any calendar year or
partial calendar year during the Term are greater than the Operating Costs for
the Base Calendar Year set forth in Section 1.1 (or a prorated amount thereof
for any partial calendar year), then Tenant shall pay to Landlord its
Proportionate Share set forth in Section 1.1 of such excess, as the same may be
adjusted in the event of a remeasurement or change in size of the Premises or
Building. Operating Costs for the Base Calendar Year shall be adjusted to
reflect an occupancy rate in the Building of ninety-five percent (95%).
Landlord may from time to time reasonably estimate the amount due from
Tenant under this Section with respect to any calendar year or portion thereof
and, commencing no sooner than the first (1st) anniversary of the Term
Commencement Date, Tenant shall pay periodically as Landlord may determine, but
not more frequently than monthly, the amount of Landlord's estimate as rent with
the next due payment of monthly Base Rent.
Not later than one hundred twenty (120) days after the end of each
calendar year, Landlord shall render Tenant a statement of Operating Costs for
such calendar year and any amount due from Tenant or any credit due to Tenant
hereunder. Payment by Tenant of any amount due shall be made as additional rent
with Tenant's next due payment of monthly Base Rent (or, if the term of this
Lease has ended, within ten (10) days of receipt of such statement), and
Landlord shall credit the amount of any overpayment against subsequent
obligations of Tenant under this clause (or refund such overpayment, if the term
of this Lease has ended and Tenant has no further obligations to Landlord).
Failure by Landlord to deliver such statement within the one hundred twenty
(120) day period does not relieve Tenant of its obligation to pay the charges
described herein; provided, however, that in the event that Landlord fails to
furnish Tenant with such statement within two (2) years after the end of any
calendar year, then Tenant shall not be required to pay Tenant's Proportionate
Share of any increase in Operating Costs for that calendar year.
Tenant shall have the right, at Tenant's cost and expense (subject to
the penultimate sentence of this paragraph), to examine Landlord's books and
records of Operating Costs for any year with respect to which Tenant has made
its payments on account thereof, subject to the following provisions:
(a) Such books and records shall be made available to Tenant at the
offices where Landlord keeps the same during normal business hours.
(b) Tenant shall have the right to make such examination no more than
once in respect of any period in which Landlord has given Tenant a statement of
the actual amount of Operating Costs.
(c) Any request for examination in respect of any year may be made no
more than one (1) year after Landlord renders the statement of the actual amount
of Operating Costs for such year, and such examination shall be performed within
such one (1) year period.
(d) Such examination may be made only by an independent certified
public accountant reasonably acceptable to Landlord. Without limiting Landlord's
approval rights, Landlord may withhold its approval of any examiner of Tenant
who is being paid by Tenant on a contingent fee basis.
(e) As a condition to performing any such examination, Tenant and its
examiners shall be required to execute and deliver to Landlord an agreement, in
form acceptable to Landlord, agreeing to keep confidential any information which
it discovers about Landlord or the Building in connection with such examination.
If it is determined that Landlord overstated Operating Costs for the year to
which Tenant's examination relates by more than 4%, Landlord shall reimburse
Tenant for the reasonable costs and expenses incurred by Tenant in performing
such examination, but in no event shall such reimbursement exceed $2,000.00; and
if it is determined that Landlord understated Operating Costs for the year to
which Tenant's examination relates, Landlord shall reimburse Tenant for the
reasonable costs and expenses incurred by Tenant in performing such examination,
but in no event shall such reimbursement exceed the amount of Tenant's
underpayment on account of Operating Costs for such year. If it is determined
that there was an overpayment or underpayment on account of Operating Costs for
the year to which Tenant's examination relates, Landlord shall reimburse Tenant,
or Tenant shall pay to Landlord, within thirty (30) days of such determination,
the amount of such overpayment or underpayment (as the case may be).
3.3 Definition of "Operating Costs." The term "Operating Costs" is defined to be
the aggregate of costs and expenses incurred for operating, maintaining,
repairing, cleaning and managing the Property, including, without limitation,
the following: salaries, wages, employment taxes, reasonable, customary and
mandatory benefits for employees of Landlord or its managing agent (provided,
however, that with respect to any employee who performs services for buildings
other than the Building, the salaries, wages, taxes and benefits payable or
allocable to such employee shall be equitably apportioned among the buildings to
which such employee renders services based upon the time which such employee
spent performing services for each such building), costs of providing HVAC and
elevator service, costs of any contractor of Landlord engaged in the cleaning,
operating, maintenance or management of the Property, electricity properly
chargeable hereunder, gas, oil, water (including chilled water) and steam
(including sewer rental and any utility tax), rubbish removal, Landlord's
insurance of every description and type related to the Property, repairs,
replacements, maintenance of any grounds, landscaping and planting, building
supplies, costs of operating the food service facility described in Section
10.32 below (unless such food service facility is operated by a rent-paying
tenant, in which event only the costs of operating the food service facility in
excess of the rent paid by such tenant shall be included in Operating Costs),
costs of operating (including the maintenance and replacement of equipment for)
the exercise facility described in Section 10.33 below, snow removal, window
cleaning, building security, service contracts with independent contractors for
any of the foregoing (including elevator and air conditioning maintenance), the
cost of capital replacements, the cost of new (i.e., as opposed to replacement)
capital improvements which are reasonably projected to reduce energy or other
operating costs (provided, however, that the cost of all capital expenditures
(both for replacements and new improvements) shall be amortized over their
useful life in accordance with generally accepted accounting principles,
consistently applied ("GAAP"), together with market interest on the unamortized
balance), management fees, energy audits, and legal and accounting fees directly
related to the operating of the Property.
For purposes of this Lease, the aggregate controllable expenses
includable in Operating Costs for any calendar year shall not exceed one hundred
five percent (105%) of the aggregate controllable expenses for the prior
calendar year. "Controllable" shall mean within the reasonable control of
Landlord and not determined by a third party. For example, utility rates,
insurance premiums, mandated minimum wages and tax rates or assessments are not
controllable.
Notwithstanding the foregoing, the following items shall be excluded
from the definition of Operating Costs:
(a) Costs of decorating, redecorating or special cleaning or other
services provided to a particular tenant (but not all tenants) of the Building;
(b) Wages, salaries, fees and fringe benefits paid to officers or
partners of Landlord or personnel above the level of Property Manager;
(c) Any charge for depreciation of the Building or Building equipment;
(d) Any charge for Landlord's income taxes, excess profit taxes,
franchise taxes or similar taxes on Landlord's business;
(e) All costs directly relating to activities for the solicitation and
execution of leases of space in the Building;
(f) All costs and expenses of operating the Garage;
(g) All costs for which Tenant or any other tenant in the Building is
separately charged (other than through the operating cost escalation provisions
of the lease with such other tenant);
(h) The cost of any electric current furnished to office tenants for
non-customary office machinery and equipment;
(i) The cost of correcting defects in the original construction of the
Building, except that conditions (not occasioned by construction defects)
resulting from ordinary wear and tear will not be deemed defects for the purpose
of this clause (i);
(j) The cost of correcting defects in Building equipment to the extent
such cost is covered by warranty, except that conditions resulting from ordinary
wear and tear will not be deemed defects for the purpose of this clause (j);
(k) The cost of any repair made by Landlord because of the total or
partial destruction of the Building by fire or other casualty (except that
reasonable deductible amounts may be included in Operating Costs) or the
condemnation of a portion of the Building;
(l) Any increase in Landlord's insurance premiums to the extent that
such increase is caused by or attributable to the particular use, occupancy or
act of another tenant;
(m) The cost of any items for which Landlord is reimbursed by insurance
or otherwise compensated by other parties (other than tenants of the Building
through the operating cost escalation provisions of the leases with such
tenants);
(n) The cost of capital expenditures, except as set forth above;
(o) The cost of any removal, treatment or abatement of asbestos or any
other hazardous substance or gas in the Building or on the Premises (other than
those customarily handled and disposed of incident to the normal operation,
maintenance or repair of the Property, such as cleaning materials);
(p) Any amount paid to an affiliate of Landlord which is in excess of
the amount which would be paid in the absence of such relationship (it being
acknowledged and agreed, however, that a management fee not exceeding 4% of
gross revenues from the Property payable to an affiliate of Landlord will not
violate this clause (p));
(q) The cost of any work or service performed for or facilities
furnished to any tenant of the Building to a greater extent or in a manner more
favorable to such tenant that that performed for or furnished to Tenant;
(r) The cost of preparing, improving or altering space in the Building
leased to other tenants;
(s) The cost of overtime or other expense to Landlord in curing its
defaults; and
(t) Ground rent or similar payments to a ground lessor.
Landlord shall compute Operating Costs on an accrual basis in
accordance with GAAP. Until such time as the occupancy rate in the Building is
at least ninety-five percent (95%), Landlord shall have the right to adjust
those Operating Costs which may vary based on occupancy levels to reflect a
ninety-five percent (95%) occupancy rate in the Building.
In the event that Operating Costs shall contain any costs of operating
or maintaining any system or providing any services which shall serve the
Premises but less than the entire Building, then such portion of Operating Costs
shall be calculated separately from other costs within Operating Costs. With
respect to such costs, Tenant shall not pay its Proportionate Share as defined
in Section 1.1 but rather a proportionate share calculated as a fraction, the
numerator of which is the rentable square footage of the Premises as established
in Article I, and the denominator of which shall be the rentable square footage
of the space served by the system or receiving the services, as the case may be.
3.4 Real Estate Tax Increase. If Landlord's Tax Expense for any calendar year or
partial calendar year during the Term is greater than the Real Estate Taxes for
the Base Calendar Year set forth in Section 1.1, Tenant shall pay to Landlord,
as additional rent, its Proportionate Share set forth in Section 1.1 of such
excess, as the same may be adjusted in the event of a remeasurement or change in
size of the Premises or Building.
Landlord may from time to time reasonably estimate the amount due from
Tenant under this Section with respect to any calendar year or portion thereof
and, commencing no sooner than the first (1st) anniversary of the Term
Commencement Date, Tenant shall pay periodically as Landlord may determine, but
not more frequently than monthly, the amount of Landlord's estimate as rent with
the next due payment of monthly Base Rent.
Not later than one hundred twenty (120) days after Landlord's Tax
Expense for the applicable period is determined, Landlord shall render Tenant a
statement (which shall include copies of real estate tax bills and invoices from
tax abatement consultants, if any) showing for the applicable period Landlord's
Tax Expense and any other amount due from Tenant or any credit due to Tenant
hereunder. Payment by Tenant of any amount due shall be made as additional rent
with Tenant's next due payment of monthly Base Rent (or, if the term of this
Lease has ended, within ten (10) days of receipt of such statement), and
Landlord shall credit the amount of any overpayment against subsequent
obligations of Tenant under this clause (or refund such overpayment, if the term
of this Lease has ended and Tenant has no further obligations to Landlord).
Failure by Landlord to deliver such statement within the one hundred twenty
(120) day period does not relieve Tenant of its obligation to pay the charges
described herein.
The term "Landlord's Tax Expense" shall mean all taxes, betterments and
assessments of every kind and nature assessed by any governmental authority on
the Property which Landlord shall become obligated to pay because of or in
connection with the ownership, leasing and/or operating of the Property plus the
reasonable costs incurred in any attempt to obtain a real estate tax abatement
for the real estate taxes due during the term hereof, whether or not successful,
subject to the following:
(a) The amount of special taxes or special assessments to be included
shall be limited to the amount of the installment (plus any interest, other than
penalty interest, payable thereon) of such special tax or special assessment
required to be paid during the year in which such taxes are being determined;
(b) There shall be excluded from such taxes interest and penalties due
to Landlord's failure to pay taxes when they are due and all income taxes,
excess profit taxes, excise taxes, franchise taxes, estate, succession,
inheritance and transfer taxes; provided, however, that if at any time during
the Term the present system of ad valorem taxation of real property shall be
changed so that in lieu of the whole or any part of the ad valorem tax on real
property, there shall be assessed on Landlord a capital levy or other tax on the
gross rents received with respect to the Property or a federal, state, county,
municipal or other local income, franchise, excise or similar tax, assessment,
levy or charge (distinct from any now in effect) measured by or based, in whole
or in part, upon any such gross rents, then any and all of such taxes,
assessments, levies or charges, to the extent so measured or based, shall be
deemed to be included within the term "Landlord's Tax Expense" but only to the
extent that the same would be payable if the Property were the only property of
Landlord; and
(c) Landlord's Tax Expense shall be reduced by the amount of any
abatements or refunds actually received net of the reasonable expenses,
including without limitation legal fees and expert witness fees, incurred in
obtaining such abatements or refunds.
Although real estate taxes in Connecticut are payable on the basis of a July 1-
June 30 fiscal/tax year, for the purposes of this Section 3.4, Landlord's Tax
Expense shall be computed on a calendar year basis, based upon the sum of
one-half (1/2) of Landlord's Tax Expense payable in respect of one fiscal/tax
year, plus one-half (1/2) of Landlord's Tax Expense payable in respect of the
next fiscal/tax year. (For example, Landlord's Tax Expense for 1997 would be 1/2
of Landlord's Tax Expense in respect of the 1997 fiscal/tax year, plus 1/2 of
Landlord's Tax Expense in respect of the 1998 fiscal/tax year.)
ARTICLE IV
LANDLORD'S COVENANTS, INTERRUPTIONS AND DELAYS
4.1 Landlord Covenants.
4.1.1 To furnish services, facilities and supplies set forth in Exhibit
B, comparable to first-class office buildings in downtown Hartford.
4.1.2 Except as otherwise provided in Article VII and except in the
case of damage caused by any act or negligence of Tenant, its employees, agents,
contractors, invitees or servants, to make such repairs to the roof, exterior
walls, floor slabs and common areas and facilities of the Building as may be
necessary to keep them in serviceable condition.
4.1.3 That Tenant, on paying the rent and performing Tenant's
obligations in this Lease, shall peacefully and quietly have, hold and enjoy the
Premises, free from claims of Landlord or those claiming under Landlord, subject
to all of the terms and provisions hereof.
4.1.4 Landlord shall carry commercial general liability insurance for
the Building with a combined single limit of at least $5,000,000 (and, upon
written request, Landlord shall provide Tenant with a certificate of insurance
evidencing such coverage), as well as fire and hazard insurance coverage for the
Building. The coverages provided in the preceding sentence shall also satisfy
all requirements of Landlord's mortgagee. Landlord or Landlord's managing agent
shall carry appropriate workers' compensation and employer's liability insurance
on those employees who may at any time enter the Premises.
4.1.5 Landlord shall comply with all federal, state and local laws,
ordinances, regulations and codes relating to the operation of the Building
generally as an office building (specifically excluding, without limitation, the
manner of use by Tenant of the Premises or by other tenants of other premises in
the Building). Without limiting the foregoing, Landlord shall cause the common
areas of the Building to comply with the Americans with Disabilities Act of 1990
(the "ADA") as in effect on the date hereof.
4.1.6 Subject to the provisions of Section 10.11 hereof, Landlord
agrees to hold Tenant harmless and to defend, exonerate and indemnify Tenant
from any against any and all claims, liabilities or penalties (including,
without limitation, reasonable attorneys' fees) asserted by or on behalf of any
third party against Tenant for damage to property or injuries to persons
sustained or occurring in the Building to the extent arising from the negligence
or willful misconduct of Landlord or Landlord's agents, employees or
contractors.
4.2 Interruption and Delay. Landlord reserves the right to stop any service or
utility system when necessary by reason of accident or emergency or until
necessary repairs have been completed; provided, however, that in each instance
of stoppage, Landlord shall exercise reasonable diligence to eliminate the cause
thereof. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use reasonable
efforts to avoid unnecessary inconvenience to Tenant by reason thereof. In case
Landlord is prevented or delayed from making any repairs, alterations or
improvements, or furnishing any services or performing any other covenant or
duty to be performed on Landlord's part, by reason of any cause reasonably
beyond Landlord's control, including without limitation the causes set forth in
Section 10.13 hereof, Landlord shall not be liable to Tenant, nor shall the same
give rise to a claim in Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Premises, and Tenant's sole
remedies shall be in the following circumstances, as and to the extent
described:
(a) If, due to Landlord's failure to provide any service or utility
(including electricity) required to be provided by Landlord under this Lease,
the Premises or any portion thereof becomes untenantable so that, for the
Premises Untenantability Cure Period, as hereinafter defined, the continued
operation in the ordinary course of Tenant's business is materially adversely
affected, then, provided that Tenant ceases to use the affected portion of the
Premises during the entirety of the Premises Untenantability Cure Period (except
for such temporary access thereto as is necessary to obtain files, records and
the like) and that such untenantability and Landlord's inability to cure such
condition are not caused by the fault or neglect of Tenant or Tenant's agents,
employees or contractors or any other cause beyond Landlord's reasonable
control, Base Rent and Tenant's payments on account of Operating Costs and
Landlord's Tax Expense shall thereafter be abated in proportion to such
untenantability until the day such condition is corrected. For the purposes
hereof, the "Premises Untenantability Cure Period" shall be defined as five (5)
consecutive business days after Landlord's receipt of written notice from Tenant
of the condition causing untenantability in the Premises.
(b) If, due to Landlord's failure to provide any service or utility
(including electricity) required to be provided by Landlord under this Lease,
the Premises or any portion thereof becomes untenantable, the untenantability of
which materially adversely affects the continued operation in the ordinary
course of Tenant's business, and if (i) such untenantability continues for sixty
(60) consecutive days after Landlord's receipt of written notice of such
condition from Tenant, and (ii) such untenantability and Landlord's inability to
cure such condition are not caused by the fault or neglect of Tenant or Tenant's
agents, employees, or contractors, then, provided that Tenant ceases to use the
affected portion of the Premises during the entirety of such sixty (60) day
period (except for such temporary access thereto as is necessary to obtain
files, records and the like), Tenant shall have the right to terminate this
Lease exercisable by giving Landlord a written termination notice as follows.
Upon the giving of such notice, this Lease shall terminate as of the date which
is thirty (30) days after Landlord's receipt thereof, unless Landlord shall have
cured such condition on or before such thirtieth (30th) day.
The provisions of clauses (a) and (b) above shall not apply in the event of
untenantability caused by fire or other casualty or taking (see Article VII).
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the Term and such further time as Tenant
occupies any part of the Premises:
5.1 Tenant's Payments. To pay when due all rent and additional rent and all
charges for utility services rendered to the Premises therefor including
electricity costs and, as further additional rent, all charges for additional
services agreed to from time to time.
5.2 Repairs & Yielding Up. To keep and maintain the Premises in good order and
condition, reasonable wear and tear and damage by casualty or taking excepted,
and to notify Landlord promptly of any repairs to be made in or to the Premises.
At the expiration or termination of this Lease, Tenant shall peaceably yield up
the Premises and all alterations, additions and improvements (it is agreed that
alterations, additions and improvements made to the Premises, except for the
installation of so-called Liebert units which Tenant may remove, shall become
part of the Premises and the property of Landlord), unless Landlord requests
removal of same by Tenant, in good order and repair and in the same condition as
said Premises were in at Term Commencement Date or thereafter may be put in
accordance with this Lease, reasonable wear and tear or damage by casualty or
taking excepted, first removing all personal property, trade fixtures, business
equipment and other goods and effects of Tenant (including, without limitation,
all telephone and computer equipment), and repairing any damage caused by such
removal and restoring the Premises and leaving them broom clean and neat. Any of
Tenant's property which shall remain in the Building or on the Premises after
the expiration or earlier termination of the Lease shall be deemed conclusively
to have been abandoned and either may be retained by Landlord as its property or
may be disposed of in such manner as Landlord may see fit, at Tenant's sole cost
and expense.
5.3 Occupancy & Use. Continuously from the Term Commencement Date to use and
occupy the Premises for only the Permitted Use of Premises; to comply with all
applicable federal, state and local laws, ordinances, regulations and codes in
its use and occupancy of the Premises; not to injure or deface the Premises,
Building or any other portion of the Property; and not to dump, flush, or in any
way introduce any hazardous, toxic or chemical substances into the septic,
sewage or other waste disposal system; and not to use, generate, store or
dispose of hazardous, toxic or chemical substances in or on the Premises (except
those in customary types and quantities and ordinarily used by office tenants,
and then only in accordance with law and manufacturer's specifications
therefor); and not to permit the emission from the Premises of any objectionable
noise or odor, or to create any nuisance, and not to use the Premises for an
auction sale or any purpose which is inconsistent with the tenancy of the
Building, or which is improper, offensive, contrary to law or ordinance or
liable to invalidate or increase the premiums for any insurance on the Building
or its contents or liable to render necessary any alteration or addition to the
Building; and not to obstruct in any manner any portion of the Building not
hereby leased or any portion thereof or of the Building used by Tenant in common
with others and not without prior written consent of Landlord, permit the
painting or placing of any curtains, blinds, shades, awnings, aerials, signs,
flagpoles or the like, visible from outside the Premises.
5.4 Rules & Regulations. To comply with the Rules and Regulations attached
hereto as Exhibit C and all other reasonable rules and regulations hereafter
made or modified by Landlord, of which Tenant has been given notice, provided
that such other rules and regulations shall not materially adversely affect
Tenant's rights under this Lease. Landlord shall use reasonable efforts to
uniformly enforce such rules and regulations against all tenants of the
Building; provided, however, that in no event shall Landlord be obligated to
terminate the lease of any tenant of the Building by reason of a violation of
any rule or regulation.
5.5 Alterations by Tenant. In connection with making any changes, additions and
improvements to the Premises, to (i) obtain the prior written consent of
Landlord of the same (except for changes, additions or improvements costing no
more than $80,000 in the aggregate per calendar year and which are
non-structural in nature and not visible from outside the Premises, notice of
which is given to Landlord prior to the commencement of the same) and of plans,
specifications and the licensed contractor to be used by Tenant and any other
data reasonably required to be furnished by Tenant; (ii) comply with all
governmental requirements; including but not limited to building, electrical and
plumbing codes; (iii) equal or exceed the current construction standard for the
Building; (iv) provide Landlord with evidence of the insurance covering such
work; and (v) provide Landlord with "as-built" drawings and specifications upon
completion of such work. All work performed shall be done in such a manner as
not to disturb or disrupt the operation of the Building or any other occupants
in the Building. Any increase in Landlord's Tax Expense or insurance premiums on
the Property attributable to such change, addition or improvements shall be paid
by Tenant. Tenant agrees that it will not, either directly or indirectly, use
any contractors and/or materials if their use will create any difficulty,
whether in the nature of a labor dispute or otherwise, with other contractors
and/or labor engaged by Tenant or Landlord or others in the construction,
maintenance and/or operation of the Property or any part thereof.
5.6 Indemnity. To defend with counsel duly licensed in the state in which the
Building is located, save harmless, and indemnify Landlord and its agents and
employees from any liability for injury, loss, accident or damage to any person
or property, and from any claims, actions, proceedings and expenses and costs in
connection therewith, including without limitation reasonable counsel fees, (i)
arising from the negligence or willful misconduct of Tenant or Tenant's
servants, agents, employees, contractors, licensees or invitees, or arising from
any use made or thing done or occurring in or on the Premises not due to the
negligence or willful misconduct of Landlord, subject in any such case to the
provisions of Section 10.11 hereof, or (ii) resulting from the failure of Tenant
to perform and discharge its covenants and obligations under this Lease. Tenant
shall also indemnify and hold Landlord and its agents and employees harmless
from and against any losses, costs, damages or claims of whatever nature arising
out of or in connection with the compliance requirements set forth in the ADA
relating to Tenant's design, renovation, alteration and/or construction of the
Premises. The preceding sentence, however, shall not apply to Tenant's initial
design of the Premises as reflected in the Construction Drawings (as hereinafter
defined) or to the performance of Landlord's Work (as hereinafter defined).
5.7 Tenant's Liability Insurance. To maintain with responsible companies
qualified to do business in the state in which the Building is located public
liability insurance covering the Premises insuring Landlord, the Managing Agent
and others in interest whom Landlord may reasonably request as well as Tenant
with the limits set forth in Section 1.1, which limits may be increased based on
industry standards, and worker's compensation insurance with statutory limits
covering all of Tenant's employees working in the Premises. All policies shall
be noncancelable and nonamendable with respect to Landlord, the Managing Agent
and Landlord's designees without thirty (30) days prior notice to Landlord. A
certificate of insurance evidencing the above agreements shall be delivered to
Landlord on or before Term Commencement Date. If Tenant fails to comply with the
foregoing requirements, Landlord may obtain such insurance and keep same in
effect, and all sums paid by Landlord for such insurance hereunder shall be and
are hereby declared additional rent, due and payable forthwith.
5.8 Tenant's Property. That all of the furnishings, fixtures, equipment, effects
and property of every kind, nature and description of Tenant and of all persons
claiming by, through or under Tenant shall be insured to the full replacement
cost thereof under a broad form "all risk" insurance policy and kept in the
Premises or the Building at the sole risk and hazard to Tenant, and if the whole
or any part thereof shall be destroyed or damaged by fire, water or other
casualty including the leakage or bursting of water pipes, steam pipes, or other
pipes, or by theft or from any other cause, no part of said loss or damage is to
be charged to or borne by Landlord unless, subject to Section 10.11 hereof, such
loss or damage is due to the negligence of the Landlord, in which case Landlord
shall bear loss or damage only to "ordinary office property" (as hereinafter
defined). For purposes of this Section 5.8, "ordinary office property" shall
mean merchandise, furniture and other tangible personal property of a kind and
quantity which may customarily be expected to be found within comparable
business offices in downtown Hartford, and excluding any unusually valuable or
exotic property, works of art and the like. At Tenant's option, (a) Tenant may
provide the insurance coverages required under Sections 5.7 and/or 5.8 through
blanket policies of insurance covering more than one location, provided the
entire amount of insurance required of Tenant hereunder is applicable to the
Premises without regard to any other location, and (b) Tenant may elect to
self-insure for the liabilities and casualties required to be covered by the
insurance policies described in Sections 5.7 and/or 5.8, provided that Tenant's
net worth at all times during such self-insurance remains at least equal to
$1,000,000,000 and Landlord is given written notice reasonably in advance of the
effective date of such self-insurance.
5.9 Landlord's Right to Entry. Upon at least twenty-four (24) hours prior
written notice to Tenant (except that no notice shall be required in an
emergency or for cleaning or routine repair and maintenance operations), to
permit Landlord and its agents entry to the Premises at reasonable times to
examine the same, make any repairs or replacements or, with Tenant's prior
written consent, improvements and/or additions, to carry out any right granted
by Section 10.9 and to show the Premises to prospective tenants during the nine
(9) months preceding expiration of the Term and to prospective purchasers and
mortgagees at all reasonable times. Landlord shall exercise its rights of
access to the Premises permitted hereunder in such manner so as to minimize
interference with Tenant's use and occupation of the Premises, but in no event
shall Landlord's entry prevent Tenant's use of the Premises (except as may be
required in an emergency). Except in an emergency, Tenant shall have the
opportunity to have a representative of Tenant present during any entry by
Landlord into the Premises.
5.10 Loading. Not to place a load upon the Premises exceeding 100 pounds of
combined load per square foot of floor area, and not to move any safe, vault or
other heavy equipment in, about or out of the Premises except in such manner and
at such time as Landlord shall in each instance authorize. Tenant's business
machines and mechanical equipment shall be installed to prevent vibration or
noise outside the Premises.
5.11 Liens & Property Taxes. Not to cause or allow liens of any kind to be filed
or placed against the Premises or the Property, and to immediately, at its sole
cost and expense, eliminate or bond over said lien and to pay promptly when due
all taxes which may be imposed upon personal property (including, without
limitation, fixtures and equipment) in the Premises to whomever assessed.
5.12 Attorney's Fees. In the event of any litigation between the parties
concerning the enforcement of any obligations under this Lease, the prevailing
party shall be entitled to recover from the other party the reasonable
attorneys' fees and other expenses of litigation incurred by the prevailing
party.
5.13 Holding Over.
(a) Tenant shall have the right (which, if timely and properly
exercised as provided herein, shall be in lieu of the then applicable option, if
any, to extend the Term as provided in Section 10.24 below) to extend the Term
of this Lease for an additional period of three (3) months (the "Elected
Holdover Period"), such right to be exercised by notice to Landlord no later
than nine (9) months prior to the expiration of the then current Term of this
Lease. Said notice shall be effective only if given in the timely manner
described; however, Tenant's exercise of such right may be deemed void in
Landlord's sole discretion if Tenant is not occupying the Premises for the
Permitted Use or is in default under the terms of this Lease either on the date
of the notice or on the date of the expiration of the then current Term hereof.
If Tenant fails to give timely notice to Landlord as herein provided, Tenant
shall have no right to extend the Term for the Elected Holdover Period, time
being of the essence of this Section 5.13(a). Upon the timely giving of such
notice by Tenant, the Term of this Lease shall be extended for the Elected
Holdover Period upon all of the same terms and conditions of this Lease in
effect as of the expiration of the then current Term of this Lease, except that
the Base Rent shall equal one hundred twenty-five percent (125%) of the Base
Rent in effect at the expiration of the then current Term of this Lease.
Notwithstanding the fact that, upon Tenant's exercise of its right to extend the
Term for the Elected Holdover Period, such extension shall be self-executing, as
aforesaid, upon request of either party, the parties shall promptly execute a
lease amendment reflecting such extension of the Term following Tenant's
exercise of such right.
(b) If Tenant continues to occupy the Premises after the expiration or
sooner termination of the Term of this Lease (as the same may be extended for
the Elected Holdover Period or pursuant to Section 10.24 below) without
Landlord's written consent (which consent may be withheld in Landlord's sole and
absolute discretion), Tenant shall pay, as a charge for use and occupancy and
liquidated damages (and not as rent), for each month of continued occupancy an
amount equal to one hundred fifty percent (150%) of the total monthly rent
payment (rent and all other monthly charges) in effect prior to such holdover,
and shall also pay all damages, both direct and/or indirect (including, without
limitation, loss of a tenant(s) or of rental income), sustained by Landlord on
account of such holding over if Landlord shall have secured another tenant to
lease the Premises or any part thereof. No receipt of money by Landlord from
Tenant after expiration or termination of this Lease shall reinstate or extend
this Lease.
5.14 Safety Requirements. To keep the Premises equipped with all safety
appliances required by law or ordinance or any other regulation of any public
authority because of any use made by Tenant (except that Tenant shall not be
required to install safety appliances that Landlord is required to install
generally throughout the Property), and to procure all licenses and permits so
required because of such use and, if requested by Landlord, to do any work so
required because of such use, it being understood that the foregoing provisions
shall not be construed to broaden in any way the Permitted Use of the Premises.
ARTICLE VI
ASSIGNMENT, SUBLETTING, AND MORTGAGING
6.1 Procedure.
(a) Tenant will not, by operation of law or otherwise, assign, mortgage
or encumber this Lease, or sublet or permit the Premises or any part thereof to
be used by others, without Landlord's prior express written consent in each
instance. The consent by Landlord to any assignment or subletting shall not in
any manner be construed to relieve Tenant from obtaining Landlord's express
written consent to any other or further assignment or subletting nor shall any
assignment or subletting, with or without consent by Landlord, serve to relieve
or release Tenant from its obligations to fully and faithfully observe and
perform all of the terms, covenants and conditions of this Lease on Tenant's
part to be observed and performed.
(b) If Tenant shall desire to assign this Lease or to sublet the
Premises, Tenant shall submit to Landlord in writing (i) the name of the
proposed assignee or subtenant; (ii) the terms and conditions of the proposed
assignment or subletting (including copies of the proposed assignment or
sublease); (iii) the nature and character of the business and credit of the
proposed assignee or subtenant; and (iv) any other information reasonably
requested by the Landlord.
Landlord's consent to any such proposed assignment or subletting shall
not be unreasonably withheld or unduly delayed, provided, however, that Landlord
may withhold consent thereto if in the exercise of its sole judgment it
determines that:
1. The financial condition or general reputation of the proposed
assignee or subtenant is not consistent with the extent of the obligations
undertaken by the proposed assignment or sublease; or
2. The proposed use of the Premises is not in keeping with the
character of the existing tenancies of the Building or permitted by Section 1.1
of this Lease; or
3. The nature of the occupancy of the proposed assignee or subtenant
will cause an excessive density of employees or traffic or make excessive
demands on the Building's services or facilities or in any other way will lessen
the character of the Building; or
4. The Tenant proposes to assign or sublet to one who at the time is a
tenant or occupant of premises in the Building (unless such tenant or occupant
is expanding and not relinquishing space and Landlord has no other available
space to lease to such tenant or occupant in the Building) or to one with whom
Landlord or its agents are actively negotiating for space in the Building; or
5. The Tenant proposes to assign or sublet all or a portion of the
Premises at a rental rate less than the rental rate Landlord is then asking for
other space in the Building.
(c) Any instrument of sublease shall specifically state that such
sublease is subject to all of the terms, covenants and conditions of this Lease.
Each assignee or sublessee shall assume in writing this Lease and shall be
jointly and severally liable with Tenant for the full performance of all
covenants hereunder. An original or duplicate original of the assignment or
sublease shall be delivered to Landlord within ten (10) days following the
making thereof.
(d) Tenant shall pay to Landlord, as additional rent, (1) in the event
of an assignment, fifty percent (50%) of the amount of all monies, if any, which
the assignee has agreed to and does pay to Tenant in consideration of the making
of such assignment, after deduction for Tenant's reasonable out-of-pocket costs
in connection with such assignment, as set forth in a reasonably detailed
accounting (with supporting invoices) submitted by Tenant to Landlord, and (2)
in the event of a subletting, fifty percent (50%) of the amount, if any, by
which the rent and additional rent (including parking charges, if any) payable
by the sublessee to Tenant shall exceed the sum of (x) the Base Rent plus
additional rent (including parking charges) allocable to that part of the
Premises affected by such sublease, plus (y) all of Tenant's reasonable
out-of-pocket costs in connection with such sublease, as set forth in a
reasonably detailed accounting (with supporting invoices) submitted by Tenant to
Landlord. Such additional rent payments shall be made monthly to Landlord within
ten (10) days after receipt of the same by Tenant.
(e) Landlord may collect rent directly from the assignee or, after a
monetary default by Tenant, subtenant or occupant upon notice thereof by
Landlord and apply the net amount collected (which may be treated by Landlord as
rent for use and occupancy) to the rent due hereunder or to cure Tenant's
default. Such collection of rent shall not be deemed a waiver of the covenants
in this Article, nor shall it be deemed acceptance of the assignee, subtenant or
occupant.
6.2 Affiliate Transfers. Notwithstanding anything to the contrary herein
contained, provided that Tenant is not in default under any terms of this Lease,
Tenant shall have the right, without Landlord's prior written consent, but upon
prior written notice to Landlord, to assign its interest in this Lease or to
sublease the Premises to an Affiliated Entity, as hereinafter defined, so long
as such Affiliated Entity remains in such relationship with Tenant and has not
been formed for the purpose of subverting the restraints on alienation contained
herein. For purposes hereof, an "Affiliated Entity" shall be defined as (a) any
entity which is controlled by, is under common control with or which controls
Tenant (control, for purposes hereof, shall mean the direct or indirect
ownership of more than fifty percent (50%) of the beneficial interest of the
entity in question), or (b) a successor to Tenant by way of merger or purchase
of all or substantially all of Tenant's assets, provided that such successor has
a net worth at least equal to the net worth of Tenant as of the date hereof or
immediately prior to such merger or purchase, whichever is greater (as evidenced
by financial information submitted and reasonably acceptable to Landlord). As a
further condition to and prior to or simultaneously with any such assignment,
such Affiliated Entity shall execute and deliver to Landlord an agreement in
form and substance reasonably acceptable to Landlord whereby the assignee agrees
to be bound by and to assume the obligations of the tenant under this Lease.
6.3 Further Limitations. In no event shall Landlord be obligated either to
consent to any proposed assignment or subletting or to elect to terminate this
Lease if at the time of proposal of assignment or subletting, Tenant is in
default under any terms of this Lease. If Landlord fails to respond to Tenant's
request for consent to any assignment or sublease within thirty (30) days of
receipt of Tenant's request therefor, and such failure continues for ten (10)
days after a reminder notice from Tenant to Landlord, Landlord shall be deemed
to have consented to the assignment or sublease in question. Anything contained
in the foregoing provision of this Article to the contrary notwithstanding,
neither Tenant nor any other person having an interest in the possession, use,
occupancy or utilization of the Premises shall enter into any lease, sublease,
license, concession or other agreement for use, occupancy or utilization of
space in the Premises which provides for rental or other payment for such use,
occupancy or utilization based, in whole or in part, on the net income or
profits derived by any person from the Premises leased, used, occupied or
utilized (other than an amount based on a fixed percentage or percentages of
receipts or sales), and any such purported lease, sublease, license, concession
or other agreement shall be absolutely void and ineffective as a conveyance of
any right or interest in the possession, use, occupancy or utilization of any
part of the Premises.
ARTICLE VII
CASUALTY AND TAKING
7.1 Casualty and Taking. If, during the Term, all or any substantial part of the
Premises, the Building or the Property is damaged materially by fire or other
casualty or taken by eminent domain or by action of public or other authority in
consequence thereof, or Landlord receives compensable damage by reason of
anything lawfully done in pursuance of public or other authority, this Lease
shall terminate at Landlord's election, which may be made notwithstanding
Landlord's entire interest may have been divested, by notice given to Tenant
within thirty-seven (37) days after such casualty or taking specifying the
effective date of termination which shall not be less than thirty (30) nor more
than sixty (60) days after the date of notice of such termination.
If in any such case the Premises, the Building or the Property are
rendered unfit for use and occupancy and this Lease is not terminated, Landlord
shall use due diligence to restore the same or, in case of taking, what may
remain thereof (excluding in each case any items installed or paid for by Tenant
which Tenant may be required or permitted to remove) to substantially the same
condition as existed immediately prior to such fire or other casualty or taking
to the extent permitted by laws and ordinances then in effect and by the net
award of insurance or damages actually received by Landlord, and a just
proportion of the rent, according to the nature and extent to which the Premises
have been rendered untenantable, shall be abated until the substantial
completion of such work.
7.2 Reservation of Award. Landlord reserves to itself any and all rights to
receive awards made for damages to the Premises, the Building, the Property and
the leasehold hereby created, or any one or more of them, accruing by reason of
exercise of eminent domain or by anything lawfully done pursuant to public or
other authority. Tenant hereby releases and assigns to Landlord all Tenant's
rights to such awards, and covenants to deliver such further assignments and
assurances thereof as Landlord may from time to time request. It is agreed and
understood, however, that Landlord does not reserve to itself, and Tenant does
not assign to Landlord, any damages payable for movable trade fixtures installed
by Tenant or anybody claiming under Tenant at its own expense or relocation
expenses recoverable by Tenant from such authority in a separate action,
provided said award does not diminish Landlord's award in any way.
7.3 Tenant's Termination Rights.
(a) If the Premises or any portion thereof are damaged by fire or other
casualty or taking, Landlord shall notify Tenant (the "Damage Notice") in
writing within thirty-seven (37) days of the occurrence of the damage as to
whether (i) the repair of such damage is susceptible of being substantially
completed within one hundred eighty (180) days after the occurrence (Landlord
hereby agreeing to submit to Tenant with the Damage Notice an engineering
estimate as to the length of time necessary to substantially complete the repair
of such damage, such estimated repair period being hereinafter referred to as
the "Estimated Repair Period"), (ii) sufficient insurance proceeds or
condemnation awards (together with other funds which Landlord may commit) will
be available for the repair of such damage, and (iii) in the case of damage by
fire or other casualty (and not by taking), less than ninety percent (90%) of
the rentable area of the Premises existing immediately prior to the damage will
be available for Tenant's use and occupation after the repair of such damage is
completed. If (x) the damage to the Premises or any portion thereof shall
materially adversely interfere with the conduct of Tenant's business in the
Premises in the ordinary course as reasonably determined by Tenant, and the
Estimated Repair Period is in excess of one hundred eighty (180) days after the
occurrence of such damage, or (y) the Damage Notice states that there will not
be sufficient insurance proceeds or condemnation awards (together with other
funds which Landlord may commit) available for the repair of such damage, or (z)
in the case of damage by fire or other casualty (and not by taking), the Damage
Notice states that less than ninety percent (90%) of the rentable area of the
Premises existing immediately prior to the damage will be available for Tenant's
use and occupation after the repair of such damage is completed, then Tenant
may, by written notice to Landlord within fifteen (15) days after the giving of
the Damage Notice to Tenant, terminate this Lease as of the date of occurrence
of such damage. If such damage can be repaired within one hundred eighty (180)
days from the date of occurrence of the damage, this Lease is not terminated,
and Landlord fails to substantially complete the repairs within such period
without fault or neglect of Tenant or its agents, employees or contractors, then
Tenant may terminate this Lease by giving written notice to Landlord, in which
case this Lease shall terminate thirty (30) days after the giving of such
termination notice unless within such thirty (30) day period Landlord
substantially completes said repairs. If the Estimated Repair Period is in
excess of one hundred eighty (180) days from the date of occurrence of the
damage, this Lease is not terminated, and Landlord fails to substantially
complete the repairs within the Estimated Repair Period without fault or neglect
of Tenant or its agents, employees or contractors, then Tenant may terminate
this Lease by giving written notice to Landlord, in which case this Lease shall
terminate thirty (30) days after the giving of such termination notice unless
within such thirty (30) day period Landlord substantially completes said
repairs.
(b) If, during the Term, all or any part of the Premises or the Garage
or access thereto are taken by eminent domain or by action of public or other
authority in consequence thereof, and such taking materially adversely
interferes with Tenant's business operations in the Premises in the ordinary
course, then Tenant shall have the right to terminate this Lease by notice given
to Landlord within thirty-seven (37) days after such taking specifying the
effective date of termination which shall not be less than thirty (30) nor more
than sixty (60) days after the date of notice of such termination.
ARTICLE VIII
DEFAULTS; EVENTS; REMEDIES
8.1 Events of Default. The occurrence of any one of the following events
shall constitute a default of this Lease by Tenant:
8.1.1 Failure of Tenant to make any payment of rent or other required
payment (including parking charges) when due, and such failure continues for a
period of ten (10) days after receipt by Tenant of written notice from Landlord;
8.1.2 Failure of Tenant to comply with any provision of this Lease,
other than payment of rent, and such failure shall continue for thirty (30) days
after receipt by Tenant of written notice from Landlord; provided, however, that
if the nature of Tenant's default is such that more than thirty (30) days are
reasonably required for its cure, Tenant shall not be in default if Tenant
commences such cure within thirty (30) days and diligently pursues such cure to
completion;
8.1.3 The making of an assignment or general arrangement for the
benefit of creditors by Tenant or any guarantor of Tenant's obligations
hereunder, or the appointment of a receiver or trustee for all or substantially
all the assets of Tenant or any guarantor of Tenant's obligations hereunder and
such receivership shall not have been terminated or stayed within ninety (90)
days, or the attachment, execution or other judicial seizure of substantially
all of Tenant's assets located in the Premises or Tenant's interest in this
Lease where such seizure is not discharged within thirty (30) days;
8.1.4 The filing by Tenant or any guarantor of Tenant's obligations
hereunder of petition under any bankruptcy or insolvency Law; or the filing of
such a petition against Tenant or such guarantor which is not dismissed within
ninety (90) days; or
8.1.5 Using the Premises for other than the Permitted Use,
if such use continues for a period of seven (7) days after receipt by Tenant
of written notice from Landlord.
8.2 Remedies in Event of Default. Landlord or its servants and agents may, in
addition to and not in derogation of any remedies for any preceding breach of
any covenant, immediately or at any time thereafter while such default continues
and without further notice, at Landlord's election, do any one or more of the
following: (1) give Tenant written notice stating that the Lease is terminated
effective upon the giving of such notice or upon a date stated in such notice,
as Landlord may elect, in which event the Lease shall be irrevocably
extinguished and terminated as stated in such notice without any further action
or (2) with or without process of law, in a lawful manner, enter and repossess
the Premises, and expel Tenant and those claiming through or under Tenant, and
remove its and their effects, without being guilty of trespass, in which event
this Lease shall be irrevocably extinguished and terminated at the time of such
entry, or (3) pursue any other rights or remedies permitted by law. Any such
termination of this Lease shall be without prejudice to any remedies which might
otherwise be used for arrears of rent or prior breach of any covenant and in the
event of such termination, Tenant shall remain liable under this Lease as
hereinafter provided. Tenant hereby waives all statutory rights (including,
without limitation, rights of redemption, if any) to the extent such rights may
be lawfully waived, and Landlord without notice to Tenant may store Tenant's
effects and those of any person claiming through or under Tenant at the expense
and risk of Tenant and, if Landlord so elects, may sell such effects at public
auction or private sale and apply the net proceeds to the payment of all sums
due to Landlord from Tenant, if any, and pay over the balance if any, to Tenant.
8.3 Tenant's Obligations After Termination. In the event that this Lease is
terminated for breach of any obligation of Tenant, Tenant covenants to pay
forthwith to Landlord, as compensation, the excess (discounted to present value
at the prime rate then being offered by the largest commercial bank in the
United States) of the total rent due for the residue of the Term over the fair
market rental value of the Premises for said residue of the Term. Tenant further
covenants to pay punctually to Landlord all the sums and perform all the
obligations which Tenant covenants in this Lease to pay and to perform in the
same manner and to the same extent and at the same time as if this Lease had not
been terminated; however, Tenant shall be credited with any amount paid to
Landlord as compensation as provided in the first sentence of this Section 8.3
and also with the net proceeds of any rents obtained by Landlord by reletting
the Premises, after deducting all Landlord's expenses in connection with such
reletting, including, without implied limitation, all repossession costs,
brokerage commissions, fees for legal services and expenses of preparing the
Premises for such reletting, it being agreed by Tenant that Landlord may relet
the Premises or any part or parts thereof on such terms as Landlord seems fit,
and make such alterations or repairs in the Premises as Landlord in its sole
judgment considers necessary to relet the same and no action of Landlord in
accordance with the foregoing or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant's liability
as aforesaid.
ARTICLE IX
RIGHTS OF MORTGAGEE/GROUND LESSOR
9.1 Subordination and Attornment.
(a) This Lease and the rights of Tenant hereunder are subject and
subordinate in all respects to all mortgages and ground leases which may now or
hereafter be placed on or affect all or any part of the real property of which
the Premises are a part and/or Landlord's interest or estate in such real
property or ground leases, and to each advance made and/or hereafter to be made
under any such mortgages, and to all renewals, modifications, consolidations,
replacements and extensions thereof and all substitutions therefor.
Notwithstanding anything to the contrary in this Article IX contained, as to any
future mortgages or ground leases, the herein provided subordination and
attornment shall be effective only if the mortgagee or ground lessor therein, as
the case may be, agrees, by a written instrument in recordable form and
otherwise in a form reasonably acceptable to Tenant and such mortgagee or ground
lessor, that, as long as Tenant shall not be in terminable default of the
obligations on its part to be kept and performed under the terms of this Lease,
this Lease will not be affected and Tenant's possession hereunder will not be
disturbed by any default under and/or foreclosure or termination of such
mortgage or ground lease. Tenant acknowledges and agrees that the form of
subordination, non-disturbance and attornment agreement attached hereto as
Exhibit D is acceptable to Tenant for future mortgages and ground leases.
(b) The term "mortgage" as used in this Lease shall include any
mortgage or deed of trust. The term "mortgagee" as used in this Lease shall
include any mortgagee or any trustee and beneficiary under a deed of trust or
receiver appointed under a mortgage or deed of trust, including, without
limitation, all persons or entities which may acquire Landlord's interest in the
Property or any part thereof by purchase at foreclosure or deed or acquisition
in lieu thereof, and all successors in title to such persons or entities.
9.2 No Prepayment of Rent. Tenant acknowledges that this Lease has been or may
be assigned from time to time by Landlord as collateral security for Landlord's
obligations under one or more mortgages. No fixed rent, additional rent or any
other charge shall be paid more than thirty (30) days prior to the due date
thereof and payments made in violation of this provision shall (except to the
extent that such payments are actually received by a mortgagee) be a nullity as
against any mortgagee and Tenant shall be liable for the amount of such payments
to such mortgagee taking possession of the Building.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Title. The titles of the Articles are for convenience and are not
to be considered in construing this Lease.
10.2 Notices. Whenever, by the terms of this Lease, notice shall or may be given
either to Landlord or to Tenant, such notice shall be in writing, addressed, if
to Landlord, at Landlord's address in Section 1.1 or, if to Tenant, at Tenant's
address in Section 1.1, or such other address as last designated in writing by
either Landlord or Tenant, and shall be deemed duly given if deposited with or
picked up by an overnight delivery service or deposited with the U.S. Postal
Service by registered or certified mail, postage prepaid. Any notice given by an
agent or attorney of Landlord shall be deemed notice given by Landlord.
In the event a notice mailed with sufficient postage as above provided
shall not be received upon attempted delivery thereof to the proper address and
shall be returned by the Postal Service to the sender because of a refusal of
receipt, the absence of a person to receive, or otherwise, the time of the
giving of such notice shall be the time of such attempted delivery.
10.3 Bind and Inure. The obligations of this Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Landlord named herein and each successive owner of the
Premises shall be liable only for the obligations accruing during the period of
its ownership. Whenever the Premises are owned by a trustee or trustees, the
obligations of Landlord shall be binding upon Landlord's trust estate, but not
upon any trustee, beneficiary or shareholder of the trust individually.
10.4 Partial Invalidity. If any term of this Lease, or the application thereof
to any person or circumstances, shall to any extent be invalid or unenforceable,
the remainder of this Lease, or the application of such term to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
10.5 No Waiver. No provisions of this Lease shall be deemed to have been waived
by Landlord or Tenant unless such waiver is in writing signed by the applicable
party waiving its rights. The failure of Landlord or Tenant to seek redress for
violation of, or to insist upon the strict performance of, any covenant,
condition or rule of this Lease, or in the case of Landlord, failure to enforce
any Rules or Regulation against Tenant or any other tenant, shall not be deemed
a waiver of such breach or prevent a subsequent act, which would have originally
constituted a breach, from having the effect of any original breach. Landlord's
receipt of rent with knowledge of a breach by Tenant of any term or condition of
this Lease shall not be deemed a waiver of such breach.
10.6 No Surrender. No act or thing done by Landlord, its agents or employees
during the term of this Lease shall be deemed an acceptance of a surrender of
the Premises or shall be valid unless in writing signed by Landlord. The
delivery of keys to any of Landlord's agents or employees shall not operate as a
termination of this Lease or a surrender of the Premises.
10.7 No Accord and Satisfaction. No payment by Tenant, or receipt by Landlord,
of a lesser amount than the rent due shall be deemed to be other than on account
and as allocated in Landlord's sole discretion, nor shall any endorsement or
statement on any check or any letter accompanying or such payment be deemed an
accord and satisfaction and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy available to Landlord.
10.8 Intentionally Deleted.
10.9 Self-Help.
(a) Landlord may, but shall not be obligated to, cure, at any time,
without notice in case of emergency, or on reasonable notice in cases other than
an emergency, any failure of Tenant to fully comply with any of its obligations
or duties under this Lease, and/or any default or breach by Tenant under this
Lease beyond the expiration of applicable notice and cure periods; and whenever
Landlord so elects, all costs and expenses incurred by Landlord, including,
without limitation reasonable attorney's fees, together with interest on the
amount of costs and expenses so incurred at the rate of twelve percent (12%) per
annum, shall be paid by Tenant to Landlord forthwith on demand, and shall be
recoverable as additional rent.
(b) If Landlord shall fail to make any repair required to be made by
Landlord under this Lease, and such failure shall continue for thirty (30) days
after receipt by Landlord of written notice from Tenant (or such additional time
as is reasonably required to make such repair if Landlord commences such repair
within such thirty (30) day period and diligently pursues such repair to
completion), Tenant may, but shall not be obligated to, upon prior written
notice to Landlord, perform such repair on Landlord's behalf. If Tenant
exercises such right, Landlord shall reimburse Tenant for the reasonable costs
and expenses incurred by Tenant in making such repair. If Landlord fails to
reimburse Tenant for such reasonable costs and expenses within thirty (30) days
after written notice from Tenant to Landlord, Tenant shall have the right to
offset against rent such reasonable costs and expenses so incurred by Tenant.
Any sum so reimbursed by Landlord to Tenant or offset against rent may be
included in Operating Costs to the extent the cost of the repair would have been
included in Operating Costs if the repair were performed by Landlord itself.
10.10 Estoppel Certificates. Tenant shall, without charge, at any time and from
time to time (but no more than five (5) times per calendar year), within ten
(10) days after written request by Landlord, certify by written instrument (in
recordable form if requested) duly executed, acknowledged and delivered to
Landlord, or to any mortgagee or proposed mortgagee, or any purchaser or
proposed purchaser, or to any other entity reasonably specified by Landlord:
(1) The Term Commencement Date, the original expiration date, the
present expiration date, and the existence, number, and term of any option
periods.
(2) Whether or not, to Tenant's actual knowledge, Landlord is in
default, in any way, in the performance of any of the covenants, conditions and
agreements to be performed by Landlord in accordance with this Lease and if
there is any such default alleged, specifying the nature of same.
(3) What the amount of rent is pursuant to the terms of this Lease, and
the dates, if any, to which the rental and other charges hereunder have been
paid in advance.
(4) That this Lease is unmodified and in full force and effect, or in
the event that there have been modifications, that the same is in full force and
effect as modified and setting forth the modifications.
(5) Whether or not, to Tenant's actual knowledge, there are then
existing any claims, setoffs or defenses against the enforcement of any of the
agreements, terms, covenants or conditions hereof upon the part of Tenant to be
performed or complied with, and if so, specifying the same.
(6) The status of any other matter relative to this Lease or the
relation of the parties, reasonably requested. 10.11 Waiver of Subrogation.
Property insurance carried by either party with respect to the Premises and
property therein or occurrences thereon shall include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of injury or
loss. Each party, notwithstanding any provisions of this Lease to the contrary,
hereby waives any rights of recovery against the other for injury or loss due to
hazards covered by property insurance containing such clause or endorsement
carried (or required hereunder to be carried, without regard to rights of
self-insurance) by such party.
10.12 Governing Law. This Lease shall be governed exclusively by the provisions
hereof and by the laws of the State in which the Premises are located, as said
laws may from time to time exist.
10.13 Acts of God. In any case where either party is required to do any act,
delays caused by or resulting from Acts of God, war, civil commotion, fire,
flood or other casualty, labor difficulties, shortages of labor or materials or
equipment in the ordinary course of trade, government regulations or other
causes not reasonably within such party's control shall not be counted in
determining the time during which such act shall be completed, whether such time
be designated by fixed date, a fixed time or "a reasonable time", and such time
shall be deemed to be extended by the period of such delay. Financial inability
of either party shall not be considered to be a circumstance or cause beyond the
reasonable control of such party.
10.14 Consent. Unless otherwise specifically provided herein, whenever consent
or approval of Landlord or Tenant is required under the terms of this Lease,
such consent or approval shall not be unreasonably withheld or delayed. Each
party's sole remedy if the other party unreasonably withholds or delays consent
or approval shall be an action for specific performance and such other party
shall not be liable for damages. If either party withholds any consent or
approval, such party shall on written request deliver to the other party a
written statement giving the reasons therefor.
10.15 Brokerage Commissions. Each party warrants that it has had no dealings
with any broker or agent in connection with the negotiation or execution of this
Lease other than the broker named in Section 1.1. Each party agrees to indemnify
the other and hold the other harmless from and against any and all costs,
expenses, claims or liability arising in breach of the foregoing warranty.
Landlord agrees to pay the broker named in Section 1.1.
10.16 Intentionally Deleted.
10.17 Limitation of Liability. In the event Landlord shall default in the
performance of its obligations hereunder, Tenant agrees to look only to
Landlord's then equity interest in the Building for the satisfaction of any
judgment. In no event shall Landlord be liable for any lost profits or indirect
or consequential damages, and if Landlord is a partnership or trust, no general
or limited partner of such partnership nor any trustee or beneficiary of any
Trust shall be liable but Landlord alone shall be liable and then as limited
hereby to Landlord's then equity interest in the Building.
10.18 Intentionally Deleted.
10.19 Recording. Neither party shall record this Lease but each party shall, at
the request of the other made at any time after the Term Commencement Date is
known, execute a memorandum or notice thereof in recordable form satisfactory to
both Landlord and Tenant specifying the Term Commencement Date and Expiration
Date of the term of this Lease and other information required by statute. The
requesting party may then record said memorandum or notice of lease.
10.20 Intentionally Deleted.
10.21 Term Commencement Date. For purposes of this Lease, the "Term Commencement
Date" shall be defined as the earlier of (A) the first date on which Tenant
occupies all or any part of the Premises for the conduct of business, or (B)
fourteen (14) days after the date on which both of the following shall occur:
(i) Landlord's Work shall be (or be deemed to be) substantially completed
(notwithstanding the incompleteness of (x) so-called "punch list" items, (y)
work to be undertaken by Landlord which does not materially impair Tenant's use
of the Premises for the purposes allowed herein, and (z) finishes and exterior
landscaping to the Property), and (ii) a certificate of occupancy has been (or
is deemed to have been) issued with respect to the Premises (or the building
inspector has (or is deemed to have) provided a verbal "sign off" on Landlord's
Work and indicated that a certificate of occupancy will issue in due course). If
Tenant (or any agent, employee or contractor of Tenant) causes any delay in the
performance or substantial completion of Landlord's Work (including, without
limitation, by failing to timely prepare the Construction Drawings), then
Landlord's Work shall be deemed to have been substantially completed on the date
that Landlord's Work would have been substantially completed but for such delay,
and the certificate of occupancy for the Premises (or building inspector "sign
off" as aforesaid) shall be deemed to have been issued (or provided) on the date
it would have been issued (or provided) but for such delay. Landlord shall use
reasonable efforts to substantially complete Landlord's Work by the date (as the
same may be modified by Landlord at or prior to the time of its approval of the
Construction Drawings as provided in the second paragraph of Section 10.22, the
"Estimated Substantial Completion Date") which is ninety (90) days after
Landlord's final approval of the Construction Drawings, but Tenant shall not
have any claim against Landlord, and Landlord shall have no liability to Tenant,
if Landlord's Work is not substantially completed by the Estimated Substantial
Completion Date. Notwithstanding the foregoing, if Landlord fails to
substantially complete Landlord's Work on or before the date which is sixty (60)
days after the Estimated Substantial Completion Date due to Landlord's fault or
neglect, then Tenant shall be entitled to a credit (offset) against Base Rent
due and payable as of the Term Commencement Date in the amount of one (1) day of
Base Rent for each day after the Estimated Substantial Completion Date that
Landlord's Work shall not have been substantially completed.
10.22 Improvements. Landlord agrees to perform, at Landlord's expense (except as
hereinafter provided), the work ("Landlord's Work") within the Premises
described in or shown on, and substantially in accordance with, the Construction
Drawings.
Tenant shall, at its expense (except as provided in the next sentence),
prepare the construction drawings (the "Construction Drawings") for Landlord's
Work. Provided that Tenant is not in default under this Lease beyond the
expiration of applicable notice and cure periods and shall have taken occupancy
of the Premises for business, Landlord shall reimburse Tenant up to $55,908.17
(the "Plan Allowance") for the architectural and engineering fees incurred by
Tenant in preparing the Construction Drawings, such reimbursement to be made
within thirty (30) days of Landlord's receipt of a reasonably detailed invoice
from Tenant describing such fees. The Construction Drawings shall be subject to
Landlord's approval; and Landlord shall have the right, by notice to Tenant at
or prior to the time of its approval of the Construction Drawings, to modify the
Estimated Substantial Completion Date based upon the nature of the work shown on
the Construction Drawings. Tenant agrees that the Construction Drawings shall be
prepared in a diligent and efficient manner so that Landlord's final approval
thereof is obtained by March 15, 1998.
Tenant acknowledges and agrees that the general contractor for
Landlord's Work shall be Xxxxxxxx Xxxxxxxx & Xxxxxx Inc. ("BB&E"). The general
contractor's fee to be charged by BB&E shall not exceed three (3%) percent of
the aggregate costs of Landlord's Work; and the general conditions component of
the costs of Landlord's Work shall not comprise more than six (6%) percent of
the aggregate costs of Landlord's Work. Landlord agrees to require BB&E to
obtain, to the extent reasonably obtainable, bids from no more than five (5) and
no less than three (3) subcontractors for all trades necessary to complete
Landlord's Work. All subcontractor bids shall be subject to Tenant's approval.
If Tenant fails to respond to a request for approval of a subcontractor bid
within three (3) business days of Landlord's request therefor, such approval
shall be deemed given.
Landlord agrees to undertake construction of the Premises in accordance
with the provisions hereof in a good and workmanlike fashion and in compliance
with applicable codes. Without limiting the foregoing, Landlord shall, at its
expense (in addition to the Plan Allowance and Landlord's Contribution, as
hereinafter defined), cause the restrooms on each floor of the Premises to
comply with the ADA as in effect on the date hereof.
Tenant's vendors and contractors shall be permitted entry to the
Premises prior to the Term Commencement Date for the installation of Tenant's
equipment and furnishings (including cabling and wiring) and the performance of
such other work as Tenant may desire (subject to the provisions of Section 5.5
hereof), provided that such installation and other work shall not unreasonably
interfere with the performance of Landlord's Work. Landlord shall use reasonable
efforts to coordinate and schedule Landlord's Work so that Tenant may perform
its work on a floor-by-floor basis.
In the event that Tenant shall request and Landlord shall approve
supplementary plans or specifications or work or changes to the Construction
Drawings, then Landlord shall render to Tenant an estimate of the additional
cost of such plans or specifications, work or changes and (unless such cost,
when added to the other costs of Landlord's Work, will not exceed Landlord's
Contribution) Tenant shall pay such amount to Landlord prior to Landlord having
any obligation to undertake any such work; provided, however, that Tenant shall
be responsible for any delays in the performance or substantial completion of
Landlord's Work on account of any such supplementary plans or specifications,
work or changes requested by Tenant. Landlord shall notify Tenant of any such
delays, and of any delays caused by any change order requests initiated by
Landlord, promptly upon Landlord becoming aware of the same. The costs and
expenses to prepare any supplementary plans or specifications or to make any
changes to the Construction Drawings shall be Tenant's responsibility. Landlord
shall respond to any request for approval under this paragraph within three (3)
business days of Tenant's written request therefor; and if Landlord fails to
respond within such three (3) business day period, Landlord's approval of the
supplementary plans or specifications or work or the changes to the Construction
Drawings shall be deemed given.
Landlord shall contribute $17.50 per square foot of rentable area of
the Premises ("Landlord's Contribution") towards the costs of Landlord's Work,
which costs shall include, without limitation, demolition costs and the costs,
if any, incurred by Landlord to engage an architect or engineer to review the
Construction Drawings to determine their compliance with the ADA. Tenant shall
reimburse Landlord for all costs of Landlord's Work in excess of Landlord's
Contribution within thirty (30) days of billing(s) from time to time (whether
before or after the Term Commencement Date) therefor (accompanied by
documentation supporting such excess costs). If Landlord's Contribution exceeds
the costs of Landlord's Work and Tenant is not in default under this Lease
beyond the expiration of applicable notice and cure periods, such excess shall,
at Tenant's election, be paid by Landlord to Tenant within thirty (30) days of
Tenant's notice to Landlord of such election or be credited against Tenant's
obligation to pay Base Rent until such excess is reduced to zero.
10.23 Electricity.
(a) Except as provided in this Section 10.23, Landlord shall furnish to
Tenant, as an incident of this Lease, electric current for normal office
equipment comprising a combined lighting and standard electrical load not to
exceed 6 xxxxx per square foot.
(b) In the event that Landlord shall in its reasonable discretion
determine that Tenant is at any time using or proposing to use equipment which
is other than normal office equipment of the type described in subsection
10.23(a) or is, on a regular basis, using electric current during other than
Normal Building Operating Hours, Landlord may at its option either (i) install
at Tenant's expense or require Tenant to install separate electric metering for
such equipment in which event Tenant shall pay the cost of such separately
metered electricity or (ii) reasonably and equitably charge to Tenant a fair
increment specially allocable to Tenant's use in which event the increment
charged to Tenant shall not be includable as an Operating Cost under Article
III. Without limiting the foregoing, Landlord reserves the right, at Tenant's
expense, to submeter for electricity and/or chilled water any computer or other
room(s) in the Premises using or requiring special heating or cooling equipment,
and Tenant shall pay for all electricity and chilled water so submetered and
subsequently billed by Landlord to Tenant from time to time.
(c) If Tenant shall require electric current for use in the Premises in
excess of the quantity to be furnished for such use as hereinabove provided and
if (i) in Landlord's reasonable judgment Landlord's facilities are inadequate
for such excess requirements or (ii) such excess use shall result in an
additional burden on the Building heating/air conditioning system or electrical
system and additional cost to Landlord on account thereof then, as the case may
be, (x) Landlord, upon written request and at the sole cost and expense of
Tenant, will furnish and install such additional wire, conduits, feeders,
switchboards and appurtenances as reasonably may be required to supply such
additional requirements of Tenant if current therefor be available to Landlord,
provided that the same shall be permitted by applicable laws and insurance
regulations and shall not cause damage or injury to the Building or the Premises
or cause a dangerous or hazardous condition or entail excessive or unreasonable
alterations or repairs or interfere with or disturb other tenants or occupants
of the Building, or (y) Tenant shall reimburse Landlord for such additional
cost, as aforesaid.
(d) Tenant agrees that it will not make any material alteration or
material addition to the electrical equipment and/or appliances in the Premises
without the prior written consent of Landlord in each instance first obtained,
which consent will not be unreasonably withheld.
(e) Notwithstanding the provision of Section 10.23(a) through (d), in
the event a separate meter or meters is (are) installed which measure(s)
electric current, Tenant agrees to pay for all such electricity so metered and
subsequently billed. An amount equal to seventy-five cents ($.75) per square
foot of the Premises shall be deducted from Tenant's Base Rent specified in
Article I, beginning with the date Tenant's electric liability is separately
metered and charged to Tenant hereunder.
10.24 Option To Extend. Tenant shall have the option to extend the Term of this
Lease for two (2) successive terms of five (5) years each (each being referred
to as an "extended term"). The option shall be exercised only by notice no more
than twelve (l2) months and no less than nine (9) months prior to the expiration
of the original Term or the first extended term, as the case may be. Said notice
shall be effective only if given in the timely manner described; however,
Tenant's exercise of its option may be deemed void in Landlord's sole discretion
if Tenant is not occupying the Premises for the Permitted Use, is in default
under the terms of this Lease either on the date of the notice or on the date of
the expiration of the original Term or of the first extended term, as the case
may be, or has assigned this Lease or sublet more than fifty percent (50%) of
the Premises (other than to an Affiliated Entity). The demise of the Premises
for each extended term shall be on the same terms and conditions as the original
Term or the first extended term, as the case may be, except that Landlord shall
have no obligation to construct or renovate the Premises or to provide any
allowance or contribution with respect thereto and the charge for all parking
passes to be used during the extended term shall be at the then current
prevailing rate in the Garage, as such rate may vary from time to time (but not
less than the highest rate being charged to Tenant for its parking passes as of
the expiration of the then current Term of this Lease), and except that the Base
Rent, the Operating Costs for the Base Calendar Year and the Real Estate Taxes
for the Base Calendar Year during such extended term shall be as set forth
hereinafter. All other items of additional rent shall be the same. Once the Term
is duly extended, any reference in this Lease to the "term" or "Term" of this
Lease shall mean the Term as so extended. If Tenant fails to give timely notice,
as aforesaid, Tenant shall have no further right to extend the Term of this
Lease, time being of the essence in respect of this Section 10.24. Tenant shall
have no option to extend the Term of this Lease other than the two (2)
additional five (5) year terms herein provided for. Notwithstanding the fact
that, upon Tenant's exercise of the herein option to extend the Term of this
Lease, such extension(s) shall be self-executing, as aforesaid, the parties
shall promptly execute a lease amendment reflecting such extended term after
Tenant exercises the option in question and the Base Rent, Operating Costs for
the Base Calendar Year and Real Estate Taxes for the Base Calendar Year during
such extended term are determined.
The Base Rent for each extended term shall be 95% of the fair market
rental value (as hereinafter defined) of the Premises as of the commencement
date of such extended term. However, in no event shall the sum of the Base Rent
and amounts required to be paid by Tenant on account of Operating Costs and
Landlord's Tax Expense for any twelve (12) month period during such extended
term be less than the sum of the Base Rent and amounts required to be paid by
Tenant on account of Operating Costs and Landlord's Tax Expense for the twelve
(12) month period immediately preceding the commencement of such extended term.
"Fair market rental value" shall be computed as of the date in question
at the then current annual rental charge (i.e., the sum of Base Rent plus
escalation and other charges), including provisions for subsequent increases and
other adjustments, for leases or agreements to lease then currently being
negotiated or executed for comparable space located in first-class buildings
(including the Building) in downtown Hartford. In determining fair market rental
value, the following factors, among others, shall be taken into account and
given effect: size, location of premises, lease term, building amenities,
finishes and condition of building, tenant improvement allowances,
creditworthiness of the landlord and the tenant, availability of exterior
signage, and services provided by the landlord.
Notwithstanding anything to the contrary herein contained, the parties
hereby agree that, upon the determination of any fair market rental value,
Operating Costs for the Base Calendar Year and Real Estate Taxes for the Base
Calendar Year shall be changed from that stated in Section 1.1 above to an
amount equal to the actual amount of Operating Costs and Landlord's Tax Expense,
respectively, for the calendar year immediately preceding the calendar year in
which the commencement date of the extended term occurs. In such event, the
amount of Base Rent payable hereunder shall be commensurately adjusted to
reflect such change in such base years.
Landlord shall initially designate fair market rental value and
Landlord shall furnish data in support of such designation. If Tenant disagrees
with Landlord's designation of a fair market rental value, Tenant shall have the
right, by written notice given within thirty (30) days after Tenant has been
notified of Landlord's designation, to submit such fair market rental value to
appraisal. Fair market rental value shall be submitted to appraisal as follows:
fair market rental value shall be determined by impartial MAI appraisers, one to
be chosen by Landlord, one to be chosen by Tenant, and a third to be selected,
if necessary, as below provided. The unanimous written decision of the two first
chosen, without selection and participation of a third appraiser, or otherwise,
the written decision of a majority of three appraisers chosen and selected as
aforesaid, shall be conclusive and binding upon Landlord and Tenant. Landlord
and Tenant shall each notify the other of its chosen appraiser within ten (10)
days following the call for appraisal and, unless such two appraisers shall have
reached a unanimous decision within thirty (30) days after their designation,
they shall so notify the President of the Hartford Bar Association (or such
organization as may succeed to said Hartford Bar Association) and request him or
her to select an impartial third MAI appraiser to determine fair market rental
value as herein defined. Such third appraiser and the first two chosen shall
hear the parties and their evidence and render their decision within thirty (30)
days following the conclusion of such hearing and notify Landlord and Tenant
thereof. Landlord and Tenant shall bear the expense of the third appraiser (if
any) equally. The decision of the appraisers shall be binding and conclusive,
and judgment upon the award or decision of the arbitrators may be entered in the
appropriate court of law; and the parties consent to the jurisdiction of such
court and further agree that any process or notice of motion or other
application to such court or a Judge thereof may be served outside the State of
Connecticut by registered mail or by personal service, provided a reasonable
time for appearance is allowed. If the dispute between the parties as to a fair
market rental value has not been resolved before the commencement of Tenant's
obligation to pay rent based upon such fair market rental value, then Tenant
shall pay Base Rent and other charges under this Lease in respect of the
premises in question based upon the fair market rental value designated by
Landlord until either the agreement of the parties as to the fair market rental
value, or the decision of the appraisers, as the case may be, at which time
Tenant shall pay any underpayment of rent and other charges to Landlord, or
Landlord shall refund any overpayment of rent and other charges to Tenant.
10.25 Hazardous Materials. Tenant shall not (either with or without negligence)
cause or permit the escape, disposal or release of any biologically or
chemically active or other hazardous substances or materials. Tenant shall not
allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Premises or Building or land on which the Building is located any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such substances or materials. Without limitation, hazardous
substances and materials shall include those described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws and
the regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
release of hazardous materials and such testing concludes that Tenant or its
agents, employees, contractors, invitees or others claiming by, through or under
Tenant caused such release, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges. In addition,
Tenant shall execute affidavits, representations and the like from time to time
at Landlord's request concerning Tenant's best knowledge and belief regarding
the presence of hazardous substances or materials on the Premises. In all
events, Tenant shall indemnify Landlord and its agents and employees in the
manner elsewhere provided in this Lease from any release of hazardous materials
on the Premises occurring while Tenant is in possession, or elsewhere if caused
by Tenant or persons acting under Tenant. The within covenants shall survive the
expiration or earlier termination of the term of this Lease. Landlord represents
and warrants that, to Landlord's knowledge, the Building is free of any material
concentrations of hazardous substances or materials. Landlord shall indemnify
Tenant against any liability incurred by Tenant arising as a result of (i) a
breach of the representation and warranty contained in the preceding sentence,
or (ii) the presence of hazardous substances or materials in the Building not
caused by Tenant or its agents, employees, contractors, invitees or others
claiming by, through or under Tenant.
10.26 Right of First Offer. On the conditions (which conditions Landlord may
waive, at its election, by written notice to Tenant at any time) that Tenant is
not in default of its covenants and obligations under this Lease and that The
Lincoln National Life Insurance Company, itself, or an Affiliated Entity is
occupying at least fifty percent (50%) of the Premises then demised to Tenant,
both at the time that Landlord is required to give Landlord's Notice, as
hereinafter defined, and as of the Term Commencement Date in respect of the RFO
Premises, as hereinafter defined, Tenant shall have the following right to lease
the RFO Premises, as hereinafter defined, when the RFO Premises become available
for lease to Tenant, as hereinafter defined.
"RFO Premises" shall be defined as any separately demised area on the
sixth (6th) floor of the Building which is not leased by Tenant pursuant to
Section 10.27 below and becomes available for lease to Tenant during the Term of
this Lease; provided, however, that if Tenant shall have exercised its right to
reduce the size of the Premises pursuant to Section 10.28 below, RFO Premises
shall be defined as the Give-Back Premises (as hereinafter defined) and any
other separately demised area on the floor of the Building below the lowest
floor of the Building on which any portion of the Premises is located, when the
Give-Back Premises or such other area becomes available for lease to Tenant
during the initial Term of this Lease. For the purposes of this Section 10.26,
an RFO Premises shall be deemed to be "available for lease to Tenant" if the
existing tenant of such RFO Premises has vacated or will vacate the same and
when Landlord intends to offer such RFO Premises for lease (it being understood
and agreed that in no event shall Tenant have any right to lease RFO Premises
pursuant to this Section 10.26 unless and until Landlord leases such RFO
Premises to another tenant and such tenant has vacated or will vacate the same
and Landlord intends to offer such RFO Premises for lease). Notwithstanding
anything to the contrary herein contained, (a) in no event shall Tenant have any
rights under this Section 10.26 after the date which is nine (9) months prior to
the expiration of the Term of this Lease (i.e., Landlord shall have no
obligation to give Landlord's Notice to Tenant after the date which is nine (9)
months prior to the expiration of the Term of this Lease), and (b) Tenant's
rights to lease RFO Premises shall be subject and subordinate to the rights of
then existing tenants of the Building to lease such RFO Premises.
Landlord shall give Tenant written notice ("Landlord's Notice") at the
time that Landlord determines that an RFO Premises will become available for
lease to Tenant. Landlord's Notice shall set forth the terms upon which Landlord
intends to offer such RFO Premises for lease, including (i) the size and exact
location of such RFO Premises, (ii) the Base Rent applicable to such RFO
Premises, which shall be based upon the delivery of such RFO Premises to Tenant
in "as-is" condition, but shall be subject to adjustment as provided in clause
(2) below, and (iii) the estimated date of delivery of such RFO Premises to
Tenant in such condition. Tenant shall have the right, exercisable upon written
notice ("Tenant's Exercise Notice") given to Landlord within fifteen (15)
business days after the receipt of Landlord's Notice, to lease the RFO Premises.
If Tenant fails timely to give Tenant's Exercise Notice, Tenant shall have no
further right to lease such RFO Premises pursuant to this Section 10.26;
provided, however, that the failure to give Tenant's Exercise Notice as to such
RFO Premises shall not waive Tenant's right to lease, pursuant to the provisions
of this Section 10.26, any other RFO Premises which thereafter become available
for lease to Tenant during the initial Term of this Lease until Tenant's right
to lease RFO Premises has lapsed.
Upon the timely giving of Tenant's Exercise Notice, Landlord shall
lease and demise to Tenant, and Tenant shall hire and take from Landlord, the
RFO Premises in question, upon the terms set forth in Landlord's Notice and
otherwise upon all of the same terms and conditions of this Lease, except as
follows:
(1) Term Commencement Date
The Term Commencement Date in respect of such RFO Premises
shall be the date that Landlord delivers such RFO Premises to Tenant (x) in the
"as-is" condition described in Landlord's Notice, or (y) if within the fifteen
(15) business day period referred to above Landlord and Tenant shall have agreed
upon work to be performed by Landlord to prepare such RFO Premises for Tenant's
occupancy, substantially in accordance with the plans and specifications for
such work, as the case may be. If Landlord and Tenant shall not have agreed upon
the scope of any such work to be performed by Landlord within the fifteen (15)
business day period referred to above, then Tenant shall accept such RFO
Premises in "as-is" condition unless Tenant rescinds Tenant's Exercise Notice
within two (2) business days after the expiration of such fifteen (15) business
day period, in which event Tenant shall have no right to lease such RFO Premises
from Landlord, and Landlord shall be free to lease such RFO Premises to another
party.
(2) Base Rent
The Base Rent rental rate in respect of such RFO Premises
shall be the Base Rent rental rate set forth in Landlord's Notice, which shall
be based upon Landlord's determination of the fair market rental value of such
RFO Premises, which determination shall take into account, among other things,
the condition in which such RFO Premises shall be delivered to Tenant, including
the cost of the work, if any, to be performed by Landlord with respect thereto.
(3) Tenant's Proportionate Share
Tenant's Proportionate Share in respect of such RFO Premises
shall be determined by dividing the rentable area of such RFO Premises by the
total rentable area of the Building.
(4) Parking
The charge for parking passes in respect of such RFO Premises
(which shall be provided at the same ratio as then being offered to prospective
tenants of the Building) shall be at the then current prevailing rate in the
Garage, as such rate may vary from time to time. Tenant shall have no right to
additional reserved (i.e., as opposed to unassigned) parking spaces by reason of
the demise of such RFO Premises.
Notwithstanding the fact that Tenant's exercise of the above-described
option to lease RFO Premises shall be self-executing, as aforesaid, the parties
hereby agree to execute a lease amendment reflecting the addition of an RFO
Premises promptly after the exercise by Tenant of its right to lease the same.
The execution of such lease amendment shall not be deemed to waive any of the
conditions to Tenant's exercise of the herein option to lease RFO Premises,
unless otherwise specifically provided in such lease amendment.
10.27 Right of First Refusal. If, within the first twelve (12) months of the
initial Term of this Lease, Landlord is in, or is about to enter into,
negotiations to lease space on the sixth (6th) floor of the Building and Tenant
is not then in default of its covenants and obligations under this Lease and The
Lincoln National Life Insurance Company, itself, or an Affiliated Entity is
occupying at least fifty percent (50%) of the Premises then demised to Tenant,
Landlord shall provide written notice to Tenant of such negotiations, such
notice to be directed to Xxxxxxx Xxxxxx, Vice President-Director of Facilities,
Lincoln National Corporation, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000.
Tenant shall have the right to lease such space by written notice to Landlord
within seven (7) business days after Tenant's receipt of such notice from
Landlord. If Tenant fails to timely exercise such right (time being of the
essence in respect of this Section 10.27), Landlord shall have no obligation to
lease such space to Tenant pursuant to the terms of this Section 10.27. If
Tenant timely exercises such right, then Landlord shall lease such space to
Tenant upon the same terms and conditions of this Lease (including, without
limitation, the Expiration Date, the Base Rent rental rate then (and from time
to time) applicable to the other premises demised to Tenant under this Lease,
the right to parking passes at the same ratio provided for the other premises
then demised to Tenant under this Lease, and the obligation to pay charges for
parking passes at the rate then (and from time to time) applicable to the other
parking passes provided to Tenant under this Lease). Notwithstanding the
foregoing, (a) Landlord shall contribute towards the cost of the build-out of
such space and Tenant's costs to prepare the Construction Drawings for such
space an amount equal to $17.50 per rentable square foot and $.43 per usable
square foot (respectively) of such space, in each case multiplied by a fraction,
the numerator of which is the number of full calendar months remaining in the
initial Term of this Lease after the commencement date of the leasing of such
space, and the denominator of which is one hundred twenty (120), (b) Tenant
shall prepare the Construction Drawings for the build-out of such space in a
diligent and efficient manner so that Landlord's final approval thereof is
obtained no later than forty-five (45) days after the giving to Landlord of
Tenant's notice exercising its right to lease such space, and (c) Tenant shall
have no right to additional reserved (i.e., as opposed to unassigned) parking
spaces by reason of the demise of such space. Notwithstanding the fact that
Tenant's exercise of the above-described right to lease such space shall be
self-executing, as aforesaid, the parties hereby agree to execute a lease
amendment reflecting the addition of such space promptly after the exercise by
Tenant of its right to lease the same. The execution of such lease amendment
shall not be deemed to waive any of the conditions to Tenant's exercise of the
herein right to lease such space, unless otherwise specifically provided in such
lease amendment. Notwithstanding anything to the contrary herein contained, in
no event shall Tenant have any rights under this Section 10.27 if Tenant shall
have previously exercised its right to reduce the size of the Premises pursuant
to Section 10.28 below.
10.28 Right to Reduce Space.
(a) On the condition (which condition Landlord may waive, at its
election, by written notice to Tenant at any time) that Tenant is not in default
of its covenants and obligations under this Lease, Tenant shall have the right
to reduce the size of the Premises by up to ten percent (10%) of the rentable
area thereof by written notice to Landlord prior to the commencement of
Landlord's Work. The portion of the Premises which Tenant elects to give back to
Landlord (the "Give-Back Premises") and the remaining portion of the Premises on
the floor(s) of the Building where the Give-Back Premises are located shall be
of a marketable configuration (as determined by Landlord in its sole and
absolute discretion) and otherwise in a location reasonably acceptable to
Landlord. If Tenant shall timely exercise such right, (i) Tenant shall, within
thirty (30) days of billing(s) therefor (accompanied by supporting
documentation), reimburse Landlord for the costs and expenses incurred by
Landlord in connection with the proposed preparation of the Give-Back Premises
for Tenant's occupancy, and (ii) the parties shall promptly execute and deliver
an amendment to this Lease confirming the location of the Give-Back Premises and
making any changes to the terms and provisions of this Lease required as a
result of the Give-Back Premises no longer being part of the Premises (e.g.,
modification to Tenant's Proportionate Share). If Tenant fails to timely
exercise its right under this Section 10.28(a), Tenant shall have no right to
reduce the size of the Premises pursuant to this Section 10.28(a), time being of
the essence in respect of this Section 10.28(a).
(b) On the condition (which condition Landlord may waive, at its
election, by written notice to Tenant at any time) that Tenant is not in default
of its covenants and obligations under this Lease, and provided that Tenant
shall not have exercised its rights under Section 10.28(a) above, Tenant shall
have the right to reduce the size of the Premises by up to ten percent (10%) of
the rentable area thereof by written notice to Landlord on or before the date
which is nine (9) months after the Term Commencement Date. The portion of the
Premises which Tenant elects to give back to Landlord (the "Give-Back Premises")
and the remaining portion of the Premises on the floor(s) of the Building where
the Give-Back Premises are located shall be of a marketable configuration (as
determined by Landlord in its sole and absolute discretion) and otherwise in a
location reasonably acceptable to Landlord. If Tenant shall timely exercise such
right, Tenant shall vacate and surrender the Give-Back Premises to Landlord as
of the date (the "Give-Back Premises Termination Date") which is ninety (90)
days after the giving of such notice to Landlord in the condition required by
the terms and provisions of this Lease (including, without limitation, Section
5.2 hereof), and Tenant shall pay to Landlord, not later than thirty (30) days
prior to the Give-Back Premises Termination Date, the Termination Fee (as
hereinafter defined) and the costs and expenses (to be) incurred by Landlord to
separate the Give-Back Premises from the remainder of the Premises. Base Rent
and other charges in respect of the Give-Back Premises shall be apportioned as
of the Give-Back Premises Termination Date. For purposes hereof, the
"Termination Fee" shall be equal to the product of (i) Landlord's Transaction
Costs (as hereinafter defined) multiplied by (ii) a fraction, the numerator of
which is the number of months (or portion thereof) from the Give-Back Premises
Termination Date to the Expiration Date, and the denominator of which is one
hundred twenty (120). "Landlord's Transaction Costs" shall be the aggregate
amount of all costs and expenses incurred by Landlord in entering into this
Lease, including, without limitation, the amount of the Plan Allowance and
Landlord's Contribution and all brokerage commissions and legal fees. Landlord
shall, upon written request of Tenant, promptly after Landlord's Transaction
Costs have been determined, advise Tenant of the amount thereof. Promptly after
the exercise of Tenant's right to reduce the size of the Premises pursuant to
this Section 10.28(b), the parties shall execute and deliver an amendment to
this Lease confirming the location of the Give-Back Premises and making any
changes to the terms and provisions of this Lease required as a result of the
Give-Back Premises no longer being part of the Premises (e.g., modification to
Tenant's Proportionate Share). If Tenant fails to timely exercise its right
under this Section 10.28(b), Tenant shall have no right to reduce the size of
the Premises pursuant to this Section 10.28(b), time being of the essence in
respect of this Section 10.28(b).
(c) Notwithstanding anything to the contrary herein contained, Tenant
shall have no right to reduce the size of the Premises pursuant to Section
10.28(a) or 10.28(b) if Tenant shall have previously leased other space on the
sixth (6th) floor of the Building pursuant to Section 10.27 above.
10.29 Storage Premises. Landlord hereby demises and leases to Tenant and Tenant
hereby hires and takes from Landlord storage premises ("Storage Premises")
containing approximately 6,145 square feet of usable area. The Storage Premises
are located in the lower level of the Building and are substantially as shown on
Exhibit E hereto. Said demise of the Storage Premises shall be upon all of the
same terms and conditions of this Lease except:
(1) The Term Commencement Date in respect of the Storage Premises shall
be the Term Commencement Date in respect of the original Premises demised to
Tenant under this Lease.
(2) The Base Rent payable in respect of the Storage Premises shall be
$9.00 per usable square foot of the Storage Premises per year for the first five
(5) years of the Term, and $10.00 per usable square foot of the Storage Premises
per year for the remainder of the initial Term. The Base Rent payable in respect
of the Storage Premises during any extended term shall be based upon the fair
market rental value of the Storage Premises as of the commencement date of such
extended term, as determined by Landlord.
(3) The Storage Premises shall be leased by Tenant "as-is", in the
condition in which the Storage Premises are in as of the Term Commencement Date
in respect of the Storage Premises, without any obligation on the part of
Landlord to prepare or construct the Storage Premises for Tenant or to provide
any allowance or contribution with respect thereto. Notwithstanding the
foregoing, Landlord shall, at its expense, (a) deliver the Storage Premises in
broom-clean condition, (b) touch-up the interior walls of the Storage Premises
with paint, as needed, and (c) if not previously installed, install demising
partitions to separate the Storage Premises from the remainder of the space on
the lower level of the Building.
(4) Tenant shall have no obligation to make payments on account of
Operating Costs or Landlord's Tax Expense in respect of the Storage Premises.
(5) Landlord shall have no obligation to provide any services to the
Storage Premises other than heat and air conditioning appropriate for storage
space (which Tenant acknowledges may be at a level below the specifications set
forth in paragraph 1(a) of Exhibit B hereto) and electricity for the electric
lighting fixture in the Storage Premises.
(6) Tenant shall have no right to additional parking spaces or passes
by reason of the demise of the Storage Premises.
(7) Tenant shall use the Storage Premises for storage purposes in
connection with its use of the Premises demised under this Lease and for no
other purposes whatsoever.
10.30 Antenna Installation. Subject to the following provisions of this Section
10.30, Landlord grants Tenant the right, in common with Landlord and other
tenants, to install, operate and maintain, at Tenant's expense and risk, a
lawfully permitted antenna(e), satellite dish and associated equipment (the
"Antenna Equipment") required for the proper conduct of Tenant's business in the
Premises at a location on the roof of the Building mutually acceptable to
Landlord and Tenant (the "Antenna Premises"):
(a) Tenant shall submit to Landlord, for its approval, a full set of
engineering plans and specifications for the proposed Antenna Equipment
installation. The installation of the proposed Antenna Equipment shall be
designed so as to be removable without damage to the roof of the Building. The
parties hereby acknowledge and agree, by way of illustration and not limitation,
that Landlord shall have the right to withhold its approval of Tenant's plans
and specifications hereunder, and shall not be deemed to be unreasonable in
doing so, if Tenant's intended placement or method of installation or operation
of the Antenna Equipment (i) may subject other then existing licensees, tenants
or occupants of the Building, or other surrounding or neighboring landowners or
their then existing occupants, to signal interference, Tenant hereby
acknowledging that a shield may be required in order to prevent such
interference, (ii) does not minimize to the fullest extent practicable the
obstruction of the views from the windows of the Building or such adjoining
building that are adjacent to the Antenna Equipment, if any, (iii) does not
complement (in Landlord's sole judgment, which shall not, however, require
Tenant to incur unreasonable expense) the design and finish of the Building,
(iv) may damage the structural integrity of the Building or the roof thereof, or
(v) may constitute a violation of any consent, approval, permit or authorization
necessary for the lawful installation of the Antenna Equipment.
(b) Tenant shall make all required conduit or cable connections between
Tenant's equipment in the Premises and the Antenna Equipment utilizing Building
services, subject to (i) Tenant's payment of reasonable costs for such services,
and (ii) approval of such connections by Landlord.
(c) Any Antenna Equipment installed by Tenant shall not interfere with
the operation of any previously erected antenna(e), satellite dish(es) or the
like.
(d) Tenant shall obtain and maintain (and submit copies to Landlord of)
all necessary municipal, state and federal permits and authorizations required
to install, maintain, use and operate the Antenna Equipment and shall pay any
charges levied by government agencies which are the result of Tenant having the
Antenna Equipment. Landlord agrees to fully cooperate with Tenant in obtaining
all such permits and authorizations, at no cost or expense to Landlord.
(e) Tenant agrees to maintain the Antenna Equipment and Antenna
Premises in a good state of repair and to save Landlord and its agents and
employees harmless from any claims, liability, loss, damage or expenses
resulting from the erection, maintenance, existence, operation, use or removal
of the Antenna Equipment, except to the extent such claims, liability, loss,
damage or expenses are due to the negligence or willful misconduct of Landlord
or its agents, employees or contractors.
(f) At the conclusion of the Term, Tenant shall remove the Antenna
Equipment and surrender the Antenna Premises to Landlord in the same condition
as delivered to Tenant, except for loss or damage resulting from casualty,
condemnation, act of God or ordinary wear and tear.
(g) The liability and property insurance to be carried by Tenant
pursuant to the provisions of this Lease shall include coverage for Tenant's
activity on the Antenna Premises and the Antenna Equipment.
(h) Notwithstanding anything to the contrary contained in this Section
10.30, if Landlord, in its sole judgment, determines that the presence of the
Antenna Equipment creates or poses a health risk or other danger to persons or
property, Landlord shall have the right to require Tenant to remove the Antenna
Equipment from the roof of the Building by giving written notice to Tenant. Upon
the giving of such notice, Tenant shall remove the Antenna Equipment from the
roof of the Building and surrender the Antenna Premises to Landlord in the
condition required by clause (f) above.
(i) The frequency and transmission power at which the Antenna Equipment
shall operate shall be subject to Landlord's prior written approval and may not
be changed or modified at any time.
(j) Except for electricity, Landlord shall have no obligation to
provide any services to the Antenna Premises. Any services required by Tenant in
connection with Tenant's use of the Antenna Premises or the Antenna Equipment
shall be installed by Tenant, at Tenant's expense, subject to Landlord's prior
approval. Without limiting the foregoing, Tenant shall, at its expense, submeter
the Antenna Premises and pay for all electricity so submetered and subsequently
billed by Landlord.
(k) Tenant shall have no right to make any changes, alterations or
other improvements to the Antenna Premises or to the Antenna Equipment without
Landlord's prior written consent, except for routine maintenance.
(l) Landlord shall provide Tenant with 24-hour access to the Antenna
Premises, subject to Landlord's reasonable security procedures and restrictions
based on emergency conditions and to force majeure. Tenant shall give Landlord
reasonable advance written notice of the need for access to the Antenna Premises
(except that such notice may be oral in an emergency), and a representative of
Landlord must be present during any entry by Tenant onto the Antenna Premises.
Each notice for access shall either (as the case may be) (A) state the date
access is needed and that routine maintenance is to be performed, or (B) if
other than routine maintenance is to be performed, describe, as applicable, the
date access is needed, the name of the contractor or other personnel requiring
access, the areas to which access is required, the common areas (if any) of the
Building to be impacted (risers, electrical rooms, etc.) and evidence of
Landlord's approval of any work to be done in the Antenna Premises, if and to
the extent such consent is required. In the event of an emergency, such notice
shall follow within five (5) days after access to the Antenna Premises.
(m) Tenant shall be responsible for the cost of repairing any damage to
the roof of the Building caused by the installation, maintenance or removal of
the Antenna Equipment by or on behalf of Tenant.
(n) Tenant shall have no right to sublet the Antenna Premises.
(o) Except for Tenant, no person, firm or entity (including, without
limitation, other tenants, licensees or occupants of the Building) shall have
the right to benefit from the services provided by the Antenna Equipment.
(p) In the event that Landlord performs repairs to or replacement of
the roof, and the removal of the Antenna Equipment is necessary to effect such
repair or replacement, Tenant shall, at Tenant's cost, remove the Antenna
Equipment until such time as Landlord has completed such repairs or replacement.
(q) Tenant shall take the Antenna Premises "as-is" without any
obligation of Landlord to prepare or construct the same for Tenant's use or to
provide any allowance or contribution with respect thereto.
(r) Tenant shall comply with all applicable laws, ordinances and
regulations relating to Tenant's use, maintenance and operation of the Antenna
Premises and the Antenna Equipment.
(s) Landlord shall have the right, upon at least thirty (30) days
notice to Tenant, to require Tenant to relocate the Antenna Premises to another
area ("Relocation Antenna Premises") on the roof of the Building suitable for
the use of the Antenna Equipment. In such event, Tenant shall, at Landlord's
sole cost and expense, on or before the date set forth in Landlord's notice,
relocate all of its Antenna Equipment from the Antenna Premises to the
Relocation Antenna Premises.
(t) Tenant's use of the Antenna Premises shall otherwise be upon and
subject to the terms and provisions of this Lease, except to the extent
inconsistent with the state of facts contemplated by the use of the Antenna
Premises. Without limiting the foregoing, Tenant shall have no obligation to pay
rent for its use of the Antenna Premises.
10.31 Exterior Signage.
(a) Tenant shall have the right, at its sole cost and expense, to
provide and install two (2) signs bearing Tenant's name and/or logo on the
exterior of the Building below the roof-line thereof. The size, design and
location of such signs shall be subject to the prior written consent of
Landlord, and Tenant agrees to obtain and present to Landlord, prior to the
installation thereof, any and all permits and approvals required by regulatory
authorities having jurisdiction with respect to such signs. Landlord agrees to
reasonably cooperate with Tenant to obtain such permits and approvals, but at no
cost to Landlord. Tenant shall, at its expense, maintain such signs in good
order and condition throughout the Term of this Lease (Tenant hereby assuming
all risk and liability with respect thereto) and remove such signs upon the
expiration or sooner termination of the Term of this Lease and restore the
facade(s) of the Building to the condition existing prior to the installation
thereof. For so long as this Lease is in full force and effect, Landlord agrees
not to permit the installation of a sign on the exterior of the Building at a
height parallel to or above the location of Tenant's exterior signs. Provided
that The Lincoln National Life Insurance Company, itself, or an Affiliated
Entity is occupying at least fifty percent (50%) of the Building and is not in
default under this Lease, Landlord agrees not to permit the installation of a
sign on the exterior of the Building which is proportionately larger (based upon
the amount of space occupied by the tenant in question as compared to the amount
of space occupied by Tenant and the size of Tenant's signs) than any of Tenant's
exterior signs.
(b) Landlord shall, at its expense, install a monument sign (of a size
and design determined by Landlord in its sole discretion) at the entrance to the
Property and shall install Tenant's name (but not logo) in a prominent position
on such sign. Tenant shall, within thirty (30) days of billing therefor,
reimburse Landlord for the costs and expenses to obtain and install Tenant's
name on such sign.
10.32 Food Service Facility. Landlord shall operate, or cause to be operated,
throughout the Term of this Lease a full-service food service facility (which
shall include capacity for seating of at least 150 persons) serving the tenants
of the Building. The hours of operation of such food service facility shall be
at least 7:00 a.m. to 9:00 a.m. and 11:00 a.m. to 2:00 p.m., Monday through
Friday, legal holidays excepted. Tenant agrees that the Premises shall not
contain a food service facility in any form, except for a reasonable number of
vending machines serving products reasonably acceptable to Landlord.
10.33 Exercise Facility. Landlord shall operate, or cause to be operated,
throughout the Term of this Lease an exercise facility (which may or may not be
staffed, at Landlord's sole election) for use by employees of all tenants of the
Building containing exercise equipment, men's and women's showers and locker
facilities. Notwithstanding the foregoing, such exercise facility shall be
available for use on a temporary basis by visiting employees of Tenant's
affiliates. Employees of Tenant and its affiliates shall not be separately
charged for the use of such exercise facility. Such exercise facility shall be
available for use by employees of Tenant and its affiliates during Normal
Building Operating Hours, legal holidays excepted. As a condition to the use of
such exercise facility, each employee shall be required to execute and deliver
to the Building management office prior to the first such use the Metro Center
Fitness Club Usage Agreement in the form attached hereto as Exhibit F.
10.34 Temporary Premises. Tenant desires to lease temporary premises in the
Building until the Term Commencement Date of this Lease. Therefore, Landlord
hereby demises and leases to Tenant, and Tenant hereby hires and takes from
Landlord, the Temporary Premises, as hereinafter defined. The demise of the
Temporary Premises shall be upon the terms and conditions hereinafter set forth.
(a) The "Temporary Premises" shall be comprised of up to a full floor
of the Building (other than any floor which is a part of the Premises) as
designated by Landlord, but subject to change by Landlord from time to time.
(b) The demise of the Temporary Premises shall be upon all of the same
terms and conditions of this Lease, except as follows:
(1) The Term Commencement Date in respect of the Temporary
Premises shall be the date on which this Lease has been fully executed and
delivered by Landlord and Tenant.
(2) The Term of this Lease in respect of the Temporary
Premises shall expire on the day immediately preceding the Term Commencement
Date of this Lease (the "Temporary Premises Termination Date").
(3) The Temporary Premises shall be leased by Tenant "as-is",
in the condition in which the Temporary Premises are in as of the Term
Commencement Date in respect of the Temporary Premises, without any obligation
on the part of Landlord to prepare or construct the Temporary Premises for
Tenant or to provide any allowance or contribution with respect thereto.
(4) Tenant shall have no obligation to pay Base Rent or to
make any payments on account of Operating Costs or Landlord's Tax Expense in
respect of the Temporary Premises.
(5) Landlord shall have no obligation to provide any services
to the Temporary Premises.
(6) Tenant shall have no right to additional parking spaces
or passes by reason of the demise of the Temporary Premises.
(7) Tenant shall use the Temporary Premises for oversight of
construction, employee orientation, interviews or any other use permitted by law
and approved by Landlord.
(c) As of the Temporary Premises Termination Date, Tenant shall vacate
the Temporary Premises and deliver the Temporary Premises to Landlord in the
condition in which the Temporary Premises were delivered to Tenant.
10.35 Testing of Building HVAC System. Within a reasonable period of time after
the execution and delivery of this Lease and prior to the commencement of
Landlord's Work, Landlord shall cause an environmental consulting firm
reasonably satisfactory to Tenant to test the indoor air on each floor of the
Premises to determine whether elevated levels of fungus or mold are emanating
from the Building HVAC system. Air samples shall also be collected from outside
of the Building as a control. If, in the reasonable opinion of a certified
industrial hygienist employed by said consulting firm (the "CIH"), such testing
indicates that no response actions related to elevated levels of mold or fungus
emanating from the Building HVAC system are necessary, Landlord shall be deemed
to have satisfied its obligations under this Section 10.35 and Tenant shall
reimburse Landlord for the costs and expenses incurred by Landlord in performing
such testing within thirty (30) days after receipt of an invoice from Landlord
therefor. If, in the reasonable opinion of the CIH, such testing indicates that
response actions are necessary in order to address elevated levels of fungus or
mold emanating from the Building HVAC system, Landlord shall pay for such
testing and shall use reasonable efforts to eliminate such elevated mold and/or
fungus emissions. Tenant acknowledges and agrees that Xxxxx Associates, Inc. is
an acceptable environmental consulting firm.
Submission of this instrument for examination or signature does not
constitute a reservation of or option to lease, and it is not effective as a
lease or otherwise until execution and delivery by both Landlord and Tenant.
This Lease contains all of the agreements of the parties with respect
to the subject matter thereof and supersedes all prior dealings between them
with respect to such subject matters.
No representations, inducements, promises or agreements, oral or
otherwise, between Landlord and Tenant or any of their respective brokers,
employees or agents, not embodied herein, shall be of any force or effect.
IN WITNESS THEREOF the parties hereto have set their hands and seals in
multiple counterpart copies, each of which counterpart copy shall be deemed an
original for all purposes, as of the date and year first above written.
LANDLORD: NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP
BY: Northland Metro Partners Limited Partnership,
its General Partner
BY: Northland Metro Partners Incorporated,
its General Partner
BY:
Name:
Title:
TENANT: THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
BY:
Name:
Title:
EXHIBIT A
PLAN OF PREMISES
EXHIBIT B
LANDLORD SERVICES
1) Heating, Ventilating and Air Conditioning
a) Landlord will furnish the foregoing as required to provide
comfortable temperatures in compliance with applicable codes and ordinances,
government or quasi-governmental regulations, during Normal Building Operating
Hours and on Saturdays from 8:00 a.m. to 1:00 p.m. (collectively, "Standard HVAC
Hours"). "Comfortable temperatures" shall mean a maximum inside temperature of
76 F, provided the outside temperature is no more than 88 F dry bulb/72 F wet
bulb, and a minimum inside temperature of 72 F, provided the outside temperature
is no less than 6 F dry bulb. Landlord will maintain the base Building heating,
ventilating and air conditioning equipment, the cost of which shall be billed to
tenants pursuant to Article III hereof.
b) The air conditioning system is designed to provide cooling for
normal office occupancy, one person per 208 square feet, and normal office
equipment comprising a combined lighting and standard electrical load not to
exceed 6 xxxxx per square foot. If special occupancy requirements or special
equipment require additional cooling or if Tenant otherwise exceeds those
conditions or introduces onto the Premises equipment which overloads the systems
and/or in any other way causes the systems not adequately to perform their
proper functions, then at Landlord's option reasonable supplementary or
alternative systems may be installed by Landlord and the acquisition,
installation, maintenance and operating cost of such equipment will be at
Tenant's expense.
c) Tenant may request heating and/or air conditioning during other
periods in addition to Standard HVAC Hours by submitting its request in writing
to the Building Manager's office no later than 2:00 p.m. the preceding workday
(Monday through Friday) on forms available from the Building Manager. The
request shall clearly state the start and stop hours of the "off-hour" service.
Tenant shall submit to the Building Manager a list of personnel who are
authorized to make such requests. Charges are to be determined by the Building
Manager on the additional hours of operations and shall be fair and reasonable
and reflect the additional operating costs involved without profit to Landlord.
2) Electrical Service
Landlord shall furnish electricity service to the Premises in accordance with
Section 10.23 of the Lease.
3) Water
Landlord shall furnish water for ordinary cleaning, toilet, lavatory and
drinking purposes only. If Tenant requires, uses or consumes water for any
purpose other than the aforesaid, Landlord may (i) assess a reasonable charge
for the additional water so used or consumed by Tenant, or (ii) install a water
meter at Tenant's expense and thereby measure Tenant's water consumption for all
purposes. In the latter event, Tenant agrees to pay for water consumed, as shown
on said meter, together with the sewer charge based on said meter charges, as
and when bills are rendered.
4) Elevator
There shall be an elevator for the use of all tenants and the general public for
access to and from all floors of the Building.
5) Relamping of Light Fixtures
Landlord shall replace all lamps, ballasts and starters within the Premises upon
Tenant's request from time to time, the cost of which shall be reimbursed by
Tenant to Landlord upon Landlord's request therefor from time to time.
6) Office Cleaning and Janitorial Service
Office cleaning and janitorial service in accordance with the Cleaning
Specifications attached hereto as Exhibit B-1.
7) Security
Landlord shall provide security for the Building similar to the security
provided in other first-class office buildings in downtown Hartford, although
Landlord makes no representation, warranty or guaranty of the efficacy of its
efforts in this regard.
8) Parking Attendant
Landlord shall cause a parking attendant to be located in the Garage.
EXHIBIT B-1
CLEANING SPECIFICATIONS FOR
METRO CENTER, 000 XXXXXX XXXXXX, XXXXXXXX, XX
FREQUENCY: Five nights per week, Monday through Friday, between the hours
of 5:30 p.m. and 9:30 p.m., excluding holidays.
GENERAL OFFICE AREA
DAILY:
1. Spot vacuum all traffic lanes and obviously soiled carpeted surfaces.
2. Inspect carpet for spots and stains, removing where possible.
3. Dust mop or sweep hard surface floor areas thoroughly.
4. Dust all horizontal surfaces of desks, chairs, tables and office
equipment.
5. Dust all exposed filing cabinets, bookcases and shelves.
6. Dust to hand height all horizontal surfaces of equipment, ledges,
xxxxx, shelves, radiators, frames, and partitions.
7. Dust all telephones.
8. Empty all waste receptacles and remove trash to handling area.
9. Clean and sanitize all drinking fountains.
10. Turn out lights and lock tenant building doors.
WEEKLY:
1. Vacuum clean all exposed carpeting including difficult areas such as
under desks, tables, counters. 2. Replace plastic liners in
wastebaskets.
3. Wash glass in tenant doors, sidelights and interior partitions.
4. Damp mop and spray buff floors.
5. Spot clean by damp wiping fingerprints, smears and smudges on walls,
doors, frames, kick and push plates, handles, light switches and glass
surfaces.
MONTHLY:
1. Dust vertical blinds.
2. Detail vacuum corners and edges.
3. Vacuum all fabric office furniture, including chairs and couches.
QUARTERLY:
1. Dust above hand height all horizontal surfaces including shelving,
moldings, ledges, partitions, pipes, etc.
2. Vacuum clean or dust all air-conditioning and heating grilles.
SEMI ANNUALLY:
1. Machine strip clean and refinish all floor surfaces as required but
not less than once per year.
2. Damp wipe and clean light fixtures.
LOBBY AND COMMON AREAS
DAILY:
1. Dust walls up to normal reach in lobby.
2. Spot clean by damp wiping fingerprints, smears and smudges on walls,
doors, frames, kick and push plates, handles, light switches, glass
surfaces, directory and tenant signage and elevator call buttons, etc.
3. Vacuum clean all carpeting and inspect for spots and stains, removing
where possible.
4. Sweep and police all exterior plaza and sidewalk areas.
5. Clean all lobby glass, including revolving door.
QUARTERLY:
1. Dust walls from ceiling to floor.
2. Vacuum all fabric-covered walls.
RESTROOMS
DAILY:
1. Clean and polish all chrome fittings and brightwork, including shelves,
flushometers and metal dispensers.
2. Clean and sanitize both sides of every toilet seat with a germicidal
solution.
3. Clean, sanitize and polish all vitreous fixtures, including toilet
bowls, urinals and sinks, using a germicidal detergent solution.
4. Clean and polish all mirrors and glass.
5. Dust and spot clean all toilet partitions, tile walls, dispensers and
receptacles.
6. Empty all disposal receptacles, inserting liners as needed.
7. Refill all dispensers, including napkin, soap, tissue, towels, cups,
liners, etc.
8. Remove spots, stains and splashes from wall areas.
9. Wash and rinse all floors thoroughly, using a germicidal detergent
solution.
10. Spot clean by damp wiping fingerprints, smears and smudges on walls,
doors, frames, kick and push plates, handles, light switches and glass
surfaces.
MONTHLY:
1. Wash and sanitize all partitions, tile walls and enamel surfaces.
2. Dust or vacuum clean all heating and air-conditioning ceiling vents.
QUARTERLY:
1. Machine scrub and rinse all floor surfaces.
STAIRWELLS
DAILY:
1. Spot clean by damp wiping fingerprints, smears, and smudges on walls,
doors, frames, kick and push plates, and handles.
MONTHLY:
1. Vacuum and/or dry mop using a chemically treated dry mop all
stairwells.
2. Dust all handrails.
ELEVATORS
DAILY:
1. Sweep or vacuum floors.
2. Inspect carpet for spots and stains, removing where possible.
3. Clean elevator tracks.
4. Clean walls and polish brightwork.
5. Wipe down all surfaces in freight elevator.
MONTHLY:
1. Wash light fixtures.
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or used for any purpose
other than for ingress to and egress from the Premises and for delivery of
merchandise and equipment in a prompt and efficient manner, using elevators and
passageways designated for such delivery by Landlord. There shall not be used in
any space, or in public hall of the Building, either by any Tenant or by jobbers
or others in the delivery or receipt of merchandise, any hand trucks, except
those equipped with rubber tires and sideguards.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No Tenant shall sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the Building, and
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,
other than seeing eye dogs, be kept in or about the Building. Smoking or
carrying lighted cigars or cigarettes in the Building is prohibited.
4. No awnings, antennae, or other projections shall be attached to the outside
walls of the Building.
5. No curtains, blinds, shades, or screens other than those furnished by
Landlord shall be attached to, hung in or used in connection with any window or
door of the Premises without the prior written consent of Landlord.
6. No advertisement, notice or other lettering shall be exhibited, inscribed,
painted or affixed by any Tenant on any part of the outside of the Premises or
the Building or on the inside of the Premises if the same is visible from the
outside of the Premises without the prior written consent of Landlord, except
that the name of Tenant may appear on the entrance door of the Premises. In the
event of the violation of the foregoing by any Tenant, Landlord may remove same
without any liability, and may charge the expense incurred by such removal to
Tenant or Tenants violating this rule. Interior signs on doors and directory
tablet shall be inscribed, painted or affixed for each Tenant by Landlord at the
expense of such Tenant, and shall be of a size, color and style acceptable to
Landlord.
7. No Tenant shall xxxx, paint, drill into, or in any way deface any part of the
Premises or the Building of which they form a part. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
Landlord, and as Landlord may direct. No Tenant shall lay linoleum, or other
similar floor covering, so that the same shall come in direct contact with the
floor of the Premises, and, if linoleum or other similar floor covering is
desired to be used in interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
8. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his tenancy,
restore to Landlord all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Landlord the cost
thereof.
9. Freight, furniture, business equipment, safes, merchandise and bulky matter
of any description shall be delivered to and removed from the Premises only on
the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Landlord. Landlord reserves the right
to inspect all freight to be brought into the Building and to exclude from the
Building all freight which violates any of these Rules and Regulations of the
Lease of which these Rules and Regulations are a part.
10. Canvassing, soliciting and peddling in the Building is prohibited and each
Tenant shall cooperate to prevent the same.
11. 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 Building for offices, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising. 12. Tenant shall not
bring or permit to be brought or kept in or on the Premises, any flammable,
combustible or explosive fluid, material, chemical or substance or cause or
permit any odors of cooking or other processes, or any unusual or other
objectionable odors to permeate in or emanate from the Premises. Without
limiting the foregoing, Tenant shall not permit any cooking within the Premises,
except that a coffee bar and microwave may be used by Tenant's employees in the
Premises.
13. Tenant shall comply with all security measures from time to time established
by Landlord for the Building.
14. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and any other means
of entry to the Premises closed and secured.
15. Tenant shall comply with all applicable federal, state and municipal laws,
ordinances and regulations and Building rules and shall not, directly or
indirectly, make any use of the Premises which may be prohibited by any thereof
or which shall be dangerous to person or property or shall increase the cost of
insurance or require additional insurance coverage.
16. Tenant shall not waste electricity, water, heat or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air conditioning, and shall refrain from
attempting to adjust any controls other than room thermostats installed for
Tenant's use.
17. Tenant shall not install and operate machinery or any mechanical devices of
a nature not directly related to Tenant's ordinary use of the Premises without
the written permission of Landlord.
18. No person or contractor not employed or approved by Landlord shall be used
to perform window washing, cleaning, repair or other work in the Premises.
19. No vending machines other than those furnished by the Landlord are to be
placed in any hallways or Building common areas.
20. No parking in front of the main entrance of the Building is permitted.
21. Tenant shall comply with the Building's recycling program, as the same may
be established or changed by Landlord from time to time.
EXHIBIT D
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT is made
as of this _____ day of ____________, 1998, by and among NOMURA ASSET CAPITAL
CORPORATION, a Delaware corporation, (together with its successors and assigns,
"Mortgagee"), THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, an Indiana
corporation ("Tenant"), and NORTHLAND METRO PORTFOLIO LIMITED PARTNERSHIP, a
Massachusetts limited partnership ("Landlord").
RECITALS
A. Landlord is the owner of those certain premises commonly known
as Metro Center, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx, more particularly
described in Exhibit A attached hereto as (the "Real Estate");
B. Mortgagee is now or will be the owner and holder of a note
(the "Note") evidencing a loan (the "Loan") made by Mortgagee to Landlord, and a
mortgage (the "Mortgage")securing the Loan, in each case executed by Landlord to
Mortgagee;
C. The Mortgage constitutes or will constitute a first lien upon,
among other things, the Real Estate and the current and future improvements (the
"Improvements") situated thereon (collectively, the "Property");
D. Under the terms of a certain Lease (the "Lease") dated on or
about the date hereof, Landlord leased to Tenant the Real Estate and the
Improvements, or a portion thereof, as more particularly described in the Lease;
and
E. The parties are entering into this Agreement as a condition of
Mortgagee's agreement to make the Loan evidenced by the Note.
AGREEMENTS
1. Subordination. The Lease is and at all times shall be
subordinate to the Mortgage and to all substitutions, renewals, modifications
and amendments of and to the Mortgage (including, without limitation, any of the
foregoing which increase the indebtedness secured thereby).
2. Non-Disturbance. In the event of foreclosure of the Mortgage
(by judicial process, power of sale or otherwise) or conveyance in lieu of
foreclosure, which foreclosure, power of sale, or conveyance occurs prior to the
expiration date of the Lease, including any extensions and renewals of the lease
now provided thereunder, and so long as Tenant is not in default under any of
the terms, covenants and conditions of the lease beyond any applicable grace or
cure period, Mortgagee agrees on behalf of itself, its successors and assigns,
and on behalf of any purchaser at such foreclosure ("Purchaser") that Tenant
shall not be disturbed in the quiet and peaceful possession of the premises
demised under the Lease, subject to the terms and conditions of the Lease.
3. Attornment. In the event of foreclosure of or other execution
on the Mortgage or conveyance in lieu of foreclosure, which foreclosure,
execution or conveyance occurs prior to the expiration date of the Lease,
including any extensions and renewals of the lease now provided thereunder,
Tenant shall attorn to Mortgagee or Purchaser and recognize Mortgagee or
Purchaser as Tenant's landlord under the Lease, and so long as Tenant is not in
default under any of the terms, covenants and conditions of the Lease beyond any
applicable grace or cure period, Mortgagee or Purchaser shall recognize and
accept Tenant as its tenant thereunder, whereupon the Lease shall continue,
without further agreement, in full force and effect as a direct lease between
Mortgagee or Purchaser and Tenant for the remaining term thereof, together with
all extensions and renewals now provided thereunder, upon the same terms,
covenants and conditions as therein provided, and Mortgagee or Purchaser shall
thereafter assume and perform all of Landlord's subsequent obligations, as
landlord under the Lease, and Tenant shall thereafter make all rent payments
directly to either Mortgagee or Purchaser, as the case may be, subject to the
limitations contained in Section 4 and Section 8 below.
4. Limitation of Liability. Notwithstanding anything to the
contrary contained herein or in the Lease, in the event of foreclosure of or
other execution on the Mortgage (by judicial process, power of sale or
otherwise) or conveyance in lieu of foreclosure, which foreclosure, power of
sale or conveyance occurs prior to the expiration date of the Lease, including
any extensions and renewals of the Lease now provided thereunder, the liability
of Mortgagee or Purchaser, as the case may be, shall be limited as set forth
below in Section 8 below, provided, however, that Mortgagee or Purchaser, as the
case may be, shall in no event or to any extent:
(a) be liable to Tenant for any past act, omission or default on the
part of the original or any other landlord under the Lease and
Tenant shall have no right to assert the same or any damages arising
therefrom as an offset, claim, defense or deficiency against
Mortgagee, Purchaser, or the successors or assigns of any of them;
provided, however, that if notice of such act, omission or default
is given to Mortgagee and Mortgagee or any Purchaser succeeds to the
interest of Landlord under the Lease, then Mortgagee or such
Purchaser shall be subject to any abatement or offset right to which
Tenant may be entitled under the Lease on account of such act,
omission or default;
(b) be liable to Tenant for any payment of rent more than thirty (30)
days in advance or any deposit, rental security or any other sums
deposited with the original or any other landlord under the Lease
and not delivered to Mortgagee;
(c) be bound by any cancellation, surrender, amendment or modification
of the Lease entered into by Tenant unless:
(i) Tenant is allowed to take such action as a matter of right
under the Lease;
(ii) Such action does not affect the monetary obligations of the
Tenant with respect to the Property; or
(iii) Mortgagee provides its prior written consent to such action,
which consent shall not be unreasonably withheld or delayed.
(d) be liable to Tenant for construction, or delays in construction, of
the Improvements or the portion thereof leased to Tenant; or
(e) be bound by any option or right of first refusal to purchase the
Real Estate granted to Tenant under the Lease.
5. Further Documents. The foregoing provisions shall be self-
operative and effective without the execution of any further instruments on the
part of any party hereto. Each party agrees, however, to execute and deliver to
the other or to any person to whom Tenant herein agrees to attorn such other
instruments as either shall reasonably request in order to confirm said
provisions.
6. Notice and Cure. Tenant agrees that if there occurs a default by
Landlord under the Lease:
(a) Tenant shall use best efforts to give a copy of each default notice
given to Landlord pursuant to the Lease to Mortgagee; and
(b) Mortgagee shall have the right, but not the obligation, to cure the
default within the time prescribed by the Lease or, if such default
cannot reasonably be cured within that time, then such additional
time not to exceed forty-five (45) days as may be necessary if
Mortgagee shall have commenced and shall be diligently pursuing the
remedies necessary to cure such default.
7. Notices. All notices, demands and requests given or required to be
given hereunder shall be in writing and shall be deemed to have been properly
given when personally served or if sent by U. S. registered or certified mail,
postage prepaid, addressed as follows:
Mortgagee: Nomura Asset Capital Corporation
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tenant: The Lincoln National Life Insurance Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Vice President
Financial Reporting & Pricing
Landlord: c/o Northland Investment Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
8. Limitation of Personal Liability. At any time before or after
Mortgagee or Purchaser succeeds to the interest of Landlord, Tenant agrees to
look only to such Mortgagee's or Purchaser's interest in the Property to satisfy
any of the respective obligations of Mortgagee or Purchaser to Tenant.
9. Payment of Rent. Tenant hereby acknowledges that the Lease and
the rents and all other sums due thereunder have been assigned to Mortgagee as
security for the Loan evidenced by the Note and secured by the Mortgage. If
Mortgagee notifies Tenant of the occurrence of a default under the Note,
Mortgage or any other document, instrument or agreement evidencing or securing
the indebtedness and/or demands that Tenant pay rents and all other sums due or
to be become due under the Lease directly to Mortgagee, Tenant shall pay rent
and all other sums due under the Lease directly to Mortgagee or as otherwise
directed in writing by Mortgagee without the need on the part of Mortgagee to
document or otherwise establish any default. Landlord hereby irrevocably
authorizes and directs Tenant to make the foregoing payments to Mortgagee upon
such notice and demand without the need to inquire of Landlord as to the
validity of such notice or any contrary notice or direction from Landlord and
Landlord agrees not to seek payment from Tenant of any such payments made to
Mortgagee.
10. Binding Effect. The terms, covenants and conditions hereof shall
inure to the benefit of and be binding upon the parties hereto, and their
respective heirs, executors, administrators, successors and assigns.
11. Modification. This Agreement may not be modified orally or in a
manner other than by an agreement signed by the parties hereto or their
respective successors in interest.
12. Choice of Law. This Agreement shall be governed by the internal
law (and not the law of conflicts) of the State in which the Property is
located.
13. Counterparts. This Agreement may be executed in two or more
counterparts which, when taken together, shall constitute one and the same
original.
[Signatures commence on following page]
WITNESS the due execution of this instrument by the parties hereto the day
and year first above written.
MORTGAGEE:
NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation
Signed, sealed and delivered
in the presence of:
_____________________________
_____________________________ By:____________________________________
Name:
Title:
TENANT:
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY,
an Indiana corporation
Signed, sealed and delivered
in the presence of:
_____________________________
_____________________________ By:____________________________________
Name:
Title:
LANDLORD:
NORTHLAND METRO PORTFOLIO LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
By: Northland Metro Partners Limited
Partnership, its General Partner
By: Northland Metro Partners
Incorporated, its General
Signed, sealed and delivered Partner
in the presence of:
_____________________________
_____________________________ By:_______________________
Name:
Title:
STATE OF ____________)
COUNTY OF ___________)
The foregoing instrument was acknowledged before me this ______ day of
____________, 1998 by _______________________________________, a ______________
of Nomura Asset Capital Corporation, a Delaware corporation.
WITNESS my hand and official seal.
Signature _________________________ (Seal)
Notary Public
My commission expires:
STATE OF ____________)
COUNTY OF ___________)
The foregoing instrument was acknowledged before me this ______ day of
____________, 1998 by _______________________________________, a ______________
of The Lincoln National Life Insurance Company, an Indiana corporation.
WITNESS my hand and official seal.
Signature _________________________ (Seal)
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____ day of
____________, 1998 by ____________________________________, the ______________
of (Northland Metro Partners Incorporated as General Partner for Northland Metro
Partners Limited Partnership, as General Partner for Northland Metro Portfolio
Limited Partnership, a Massachusetts limited partnership).
WITNESS my hand and official seal.
Signature _________________________ (Seal)
Notary Public
My commission expires:
Record and Return to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxx, Esquire
EXHIBIT E
PLAN OF STORAGE PREMISES
EXHIBIT F
METRO CENTER FITNESS CLUB
USAGE AGREEMENT
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FIRST NAME MIDDLE NAME LAST NAME
__________________________________________________________________________
COMPANY NAME SUITE #
--------------------------------------------------------------------------
HOME PHONE WORK PHONE
IN AN EMERGENCY, PLEASE NOTIFY:
--------------------------------------------------------------------------
NAME WORK PHONE/HOME PHONE
The undersigned wishes to use the equipment and/or services of the Metro Center
Fitness Club. The undersigned understands that his/her application is subject to
review and approval of the Metro Center Fitness Club.
Usage may be immediately terminated or suspended by the building owner (the
"Owner") if the undersigned, in the judgment of the Owner, violated any rules,
regulations or policies of the Metro Center Fitness Club or if the undersigned,
or any guest of the undersigned, in the judgment of the Owner, conducts
himself/herself in a manner detrimental to the Owner or its participants or in
any manner that the Metro Center Fitness Club deems inappropriate or disruptive.
As a participant, the undersigned agrees to conform to and be bound by the
rules, regulations and policies of the Metro Center Fitness Club, as they may be
amended from time to time.
HEALTH WARRANTY AND WAIVER OF LIABILITY
The undersigned hereby represents and warrants that he/she has consulted with a
physician and has no disability, impairment or ailment that will prevent him/her
from safely engaging in exercise or that will be detrimental or dangerous to
his/her health, safety or physical condition if he/she does participate in
exercising or the use of any of the facilities and services provided by the
Metro Center Fitness Club to the maximum extent provided by law. The undersigned
assumes any and all risks of injury, damage or property loss associated with the
use of the Metro Center Fitness Club's facilities and equipment, and releases
the Owner and its agents, employees and contractors from any claims, damages or
loss which arises as a result of any injury, property loss or other damage
sustained in or about the Metro Center Fitness Club facilities.
The undersigned acknowledges that the Metro Center Fitness Club is an unattended
facility and assumes all risks arising from such fact.
The undersigned represents to the Owner that he/she is familiar with all the
equipment in the Metro Center Fitness Club and is experienced in the safe and
proper usage of said equipment.
Signature___________________________________________________________
Name:
Date______________________________________
METRO CENTER FITNESS CLUB
Rules and Policies
The following rules and policies are subject to change at any time. The Metro
Center Fitness Club shall have complete charge of its facilities at all time.
If you have questions or concerns, please contact the Management Office.
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The Metro Center Fitness Club shall not be held responsible or liable by any
participant for personal injury, damage or loss of property for any reason.
Anyone using the Club facilities does so at their own risk.
Participants must be at least eighteen (18) years of age.
A fitness consultation with your physician must be performed prior to Club
participation.
Free temporary lockers are available in the dressing rooms during club usage.
Any articles left in temporary lockers overnight will be removed by Management.
Wipe off equipment after use.
When using free weights, return to rack and bend knees when setting weights
down. (Do not drop weights.)
PARTICIPANTS ARE URGED TO AVOID BRINGING VALUABLES INTO CLUB PREMISES. THE METRO
CENTER FITNESS CLUB AND ITS OWNERS, AGENTS, EMPLOYEES AND CONTRACTORS SHALL NOT
BE LIABLE FOR THE LOSS OR THEFT OF, OR DAMAGE TO, THE PERSONAL PROPERTY OF CLUB
PARTICIPANTS.
Report damaged or loose machine parts to Management.
Report any incident or accident to Management immediately.
Pets are not allowed in the Club.
No smoking is permitted anywhere in the Club.
No alcoholic beverages or illegal substances of any kind may be brought into the
Club. Violation of this rule will result in immediate termination of usage.
No food is to be eaten in the Club.
Be considerate of others. Loud or abusive language will not be tolerated.
Personal radios anywhere in the Club are limited to headphone use.
Proper attire, including shoes and shirt, must be worn at all times.
Workout at a safe intensity level (not your neighbor's intensity level).
THE METRO CENTER FITNESS CLUB RESERVES THE RIGHT TO ESTABLISH AND CHANGE HOURS
OF OPERATION AND CLUB AVAILABILITY.
