Exhibit 10.19
GROSS LEASE
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇
and
Startech Environmental Corporation
a Colorado corporation
Tenant
Dated: December 4, 2006
Building:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
OFFICE BUILDING LEASE - STARTECH ENVIRONMENTAL CORPORATION
TABLE OF CONTENTS
PAGE
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1. LEASE OF PREMISES...................................................3
2. DEFINITIONS.........................................................3
3. TERM................................................................4
4. USE OF PREMISES.....................................................4
5. RENT................................................................6
6. CONSTRUCTION........................................................6
7. INCREASES IN OPERATING EXPENSES.....................................7
8. INCREASE IN REAL ESTATE TAXES.......................................9
9. ALTERATIONS, IMPROVEMENTS, ETC......................................9
10. REPAIRS............................................................10
11. PARKING............................................................11
12. UTILITIES AND SERVICES.............................................11
13. INSURANCE..........................................................13
14. SUBORDINATION......................................................14
15. DESTRUCTION, FIRE OR OTHER CAUSES..................................15
16. EMINENT DOMAIN.....................................................16
17. ASSIGNMENT AND SUBLETTING, MORTGAGE, ETC...........................16
18. FEES AND EXPENSES..................................................18
19. NO REPRESENTATIONS BY LANDLORD; INDEMNITY..........................18
20. QUIET ENJOYMENT....................................................19
21. DEFAULT............................................................19
22. REMEDIES OF LANDLORD...............................................20
23. RIGHT TO EXHIBIT PREMISES AND ACCESS TO PREMISES...................21
24. RULES AND REGULATIONS..............................................21
25. BROKERAGE..........................................................22
26. UNAVOIDABLE DELAY..................................................22
27. SECURITY DEPOSIT...................................................22
28. LEASE STATUS AND NOTICE............................................23
Landlord's Initials: ______
Tenant's Initials: ______
29. ASSIGNS............................................................25
30. OPTION TO EXTEND...................................................25
31. RIGHT OF FIRST REFUSAL.............................................26
32. SURRENDER OF PREMISES..............................................26
33. MISCELLANEOUS......................................................27
EXHIBITS
A Description of Premises
B Real Property Description
C Tenant's Installations
D Operating Expenses
E Cleaning Specifications
F Rules and Regulations
G Warrant Agreement
Landlord's Initials: ______
Tenant's Initials: ______
LEASE dated the fourth day of December 2006, by and between ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ LLC
("Landlord"), a Connecticut limited liability company with an office at ▇▇▇▇▇
Properties, LLC, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and
STARTECH ENVIRONMENTAL CORPORATION ("Tenant") a Colorado corporation with an
office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WITNESSETH:
1. PREMISES.
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Landlord hereby leases to Tenant, for the term and upon the rentals hereinafter
specified, the following premises: approximately 5,612 rentable square feet (the
"Premises") on the second floor, Suite "A" in the building known as ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the "Town"). The Premises are shown on Exhibit A
attached hereto and made a part hereof. Said building and the land described on
Exhibit B hereto (the "Land") are herein collectively referred to as the
"Building". Tenant shall have the right to use, in common with other tenants of
the Building, all Common Areas (hereinafter defined). Landlord shall maintain,
operate and repair the Common Areas regularly in accordance with standards then
applicable for comparable office buildings located in Fairfield County,
Connecticut.
2. DEFINITIONS.
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Terms used in this Lease shall have the following meanings:
(i) Base Rent: Months 1-24: $134,688.00 per-year ($11,224.00 per-month)
(ii) Base Year: 2007 Tax Base Year: 2007
(iii) Tenant's Proportionate Share: 13.42 %
(iv) Number of parking spaces available for Tenant's use:
Seventeen (17) nonexclusive spaces at a ratio of 3/1,000 rsf.
(v) Electrical Factor: $2.00 per annum per rentable square foot of the
Premises, plus any applicable taxes or
$11,224.00 - annually ($935.33 monthly)
(vi) The Brokers:
Landlord's Broker: CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Tenant's Broker: Same
(vii) Lease Year: Twelve (12) full consecutive month periods during the
Term, with the first Lease Year commencing on the first day of the
first full month in which the Commencement Date falls.
3. TERM.
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TO HAVE AND TO HOLD the Premises for a term (the "Term"), commencing on January
1, 2007 (the "Commencement Date") and ending on December 31, 2008 (the
"Expiration Date,"), unless the Term shall otherwise terminate pursuant to any
of the terms, covenants or conditions of this Lease or pursuant to law. Anything
herein to the contrary notwithstanding, the first monthly installment of Base
Rent shall be payable on the execution hereof. Landlord shall not be subject to
any liability if Landlord does not deliver possession of the Premises to Tenant
on the Commencement Date for any reason and the validity of this Lease shall not
be impaired, but Rent (as defined below in Section 5) shall be abated until
delivery of possession and both the Lease Commencement Date and Lease Expiration
Date will be amended.
4. USE OF PREMISES.
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(a) Tenant shall use the Premises only for executive and administrative
offices and any ancillary use to Tenant's business, and for no other purpose. No
signs of any kind shall be installed or maintained on the exterior of the
Building, or in the Premises which shall be visible from outside the Building,
without the prior written consent of Landlord and without conforming said sign
to local ordinances. Prior to the commencement Date, Landlord will provide
initial directory listings for Tenant in the main (first floor) lobby at
Tenant's expense. Tenant will not interfere with the conduct of business by
other tenants or occupants of the Building or create any private nuisances,
including, without limitation, the occupation by Tenant or its employees,
agents, subtenants or invitees (collectively, "Tenant's Representatives") of
more than the number of parking places allocated to Tenant.
(b) Tenant, at its expense, shall comply with all laws, orders and
regulations of Federal, State and municipal authorities and with any direction
of any public officer or officers, pursuant to law, which shall impose any
violation, order or duty upon Landlord or Tenant with respect to Tenant's
specific manner of use of the Premises (as opposed to mere office use),
including without limitation the Americans With Disabilities Act, (as amended
from time to time and as may be superseded from time to time, the "Act") and any
Environmental Laws (collectively, the "Legal Requirements"). Anything in the
preceding sentence to the contrary notwithstanding, if alterations to the
Premises are required under the Act because of alterations to the common areas
of the Building (the "Common Areas") made by Landlord, then Landlord shall, at
its expense, make the alterations to the Premises required under the Act. If
alterations to the Common Areas are required under the Act because of the nature
of Tenant's business or because of the particular use by its employees or
alterations made by or on behalf of Tenant within the Premises, then Landlord
shall make same and Tenant shall, within 20 days after receipt of a ▇▇▇▇ from
time to time, reimburse Landlord for the cost of such alterations. To the best
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of Landlord's knowledge, Tenant's proposed use of the Premises, with minimal
alterations to the Premises, shall not require any alterations to the Common
Areas under the Act.
(c) Tenant, at its expense, shall, in its use of the Premises, comply
with all rules, orders, regulations and requirements of the Board of Fire
Underwriters or other similar body or authority having jurisdiction and all
insurance policies affecting the Premises (collectively, the "Insurance
Requirements" and shall not do or permit anything to be done, in or upon the
Premises, or bring or keep anything therein, which is prohibited by any
Insurance Requirements, or which would increase the rate of fire insurance
applicable to the Building over that in effect on the date hereof. Tenant shall
comply with the Legal Requirements and the Insurance Requirements, whether or
not such compliance shall require extraordinary or unforeseen repairs,
replacements or additions, and whether or not the Premises currently comply with
same.
(d) Following Tenant's initial occupancy of the Premises, Tenant shall,
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at Tenant's expense, keep and maintain the Premises in compliance with all
local, state and Federal environmental laws, ordinances and regulations,
including without limitation ▇▇.▇▇. 22a-448 through 22a-457 of the Connecticut
General Statutes, 42 U.S.C. ss.960t et seq., 42 U.S.C. ss.6901 et seq., 49
U.S.C. ss.1801 et seq., 15 U.S.C. ss.2601 et seq., and the regulations
promulgated thereunder, (all of the foregoing being referred to collectively as
the "Environmental Laws"). During the Lease term, Tenant shall permit no spills,
discharges, or releases of any hazardous, radioactive or polluting substances,
including without limitation any oil or petroleum products or any chemical
liquids or solids (all of the foregoing being referred to collectively as
"Hazardous Materials" in violation of any Environmental Laws. Notwithstanding
the preceding sentence, Tenant may store and use cleaning office supplies
containing Hazardous Substances so long as such supplies are (A) of a type and
chemical composition commonly associated with general office uses (and not used
solely as an incident to Tenant's particular business or use of the Premises),
and (B) are stored and used only in such quantities as are reasonably incidental
to general office use and in compliance with any manufacturer's directions or
warnings and all applicable laws. Tenant shall indemnify, defend and hold
harmless Landlord, its successors and assigns from and against any claim,
liability, cost, damage, expense, response or remedial action costs (including
without limitation reasonable attorneys' fees, and costs of investigation or
audit) relating to: (i) the presence, use, or storage on the Premises, or any
spill, discharge or release from the Premises, of any Hazardous Material during
the Lease term in violation of any Environmental Laws, unless such spill,
discharge or release results from the conduct of Landlord, its agents,
employees, contractors, invitees or licensees; (ii) any failure of the Premises
to comply with any applicable Environmental Law, unless such non-compliance
results from the conduct of Landlord, its agents, employees, contractors,
invitees; or (iii) any loss of value of the Premises, including without
limitation any loss of value arising from the imposition of any lien against the
Premises, unless such loss of value results from the conduct of Landlord, its
agents, employees, contractors, invitees or licensees. The foregoing indemnity
shall survive the expiration or termination of this Lease.
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5. RENT.
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Commencing on the Commencement Date, Tenant shall pay to Landlord the Base Rent
without demand and without setoff or deductions of any kind, in equal monthly
installments of Base Rent and electric as follows: All monthly installments are
to be paid in advance, on the first day of each calendar' month of the Term at
the address of Landlord stated above or such other place as Landlord may
designate in writing from time to time, with payment in advance of appropriate
fractions of a monthly payment for any portion of a month at the expiration or
prior termination of the Term. Every amount payable by Tenant hereunder in
addition to Base Rent shall be deemed Additional Rent. Base Rent and Additional
Rent are herein collectively referred to as the "Rent". Any Rent not paid by
Tenant on or before the fifth day following the due date thereof shall
thereafter be payable with a late charge equal to 10 % of the unpaid
installment, payable as Additional Rent.
On or before the Commencement Date, Tenant will deliver to Landlord a five (5)
year Warrant Agreement (Exhibit G) with rights to purchase 200,000 shares of
Tenant's common stock at an exercise price per-share of Three Dollars and no
cents ($3.00). The number of shares of Warrant Stock to be issued and the
Warrant Price are subject to adjustments in certain events as set forth on the
Warrant Agreement.
Notwithstanding anything to the contrary contained in this Lease, all payments
of non-recurring Additional Rent shall be paid by Tenant within thirty (30) days
after receipt of invoice.
6. CONSTRUCTION OF TENANT IMPROVEMENTS
-----------------------------------
Promptly after execution of this Lease, Landlord shall designate a design
consultant to work with Tenant to develop plans and specifications for
construction of Tenant's leasehold improvements. Landlord's designated design
consultant will meet and consult with Tenant in order to ascertain Tenant's
desires with respect to such leasehold improvements. Following such
consultation, Landlord will prepare and submit to Tenant, for its approval,
plans and specifications showing, in reasonable detail, the design and
appearance of the Tenant's leasehold improvements, the materials to be used in
the construction thereof, and such other detail or description as may be
necessary to adequately define the scope of the work to be performed by Landlord
in construction of the Tenant's leasehold improvements as provided below.
Tenant, upon receipt of such plans and specifications, shall examine the same
and as soon thereafter as is reasonably possible shall inform Landlord, in
writing, of any objections to such plans and specifications or comments with
respect to requested changes in such plans and specifications. In such event,
Landlord shall promptly thereafter propose, in writing, corrective amendments as
may be necessary to secure the approval of Tenant and resubmit the same for
Tenant's acceptance. Tenant shall not unreasonably withhold its approval of the
plans and specifications and Landlord and Tenant agree to act in a reasonable
manner and with the utmost diligence with respect to the preparation and
approval of the plans and specifications and each agrees to refrain from any
arbitrary or capricious action in the preparation or approval of such plans and
specifications and to act promptly and with all due diligence in the
preparation, review and decision-making process.
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Upon the approval by Landlord and Tenant of the plans and specifications for
Tenant's leasehold improvements, Landlord shall promptly commence the
construction of such improvements using Landlord's standard materials and
finishes. Notwithstanding Landlord's agreement to construct the Tenant's
leasehold improvements as provided herein, Tenant shall be responsible for all
costs and expenses relating to the construction of the Tenant's leasehold
improvements, less any allowance provided by Landlord as set forth below.
Landlord shall provide an allowance in the amount of Twenty-five dollars and
no/cents ($25.00) per rentable square foot or One Hundred Forty Thousand Three
Hundred dollars and no/cents ($140,300.00) plus one-half the total overages
which are estimated to be Eighteen Thousand Dollars ($18,000.00) which equates
to Tenant's share being Nine Thousand Dollars ($9,000.00), "Tenant's Improvement
Allowance", to be applied to the costs and expenses of Tenant's leasehold
improvements. Once the construction drawings have been completed, Landlord will
competitively bid the construction utilizing the services of W&M Construction
and ▇▇▇▇▇ ▇▇▇▇▇▇ Construction. Landlord and Tenant will mutually accept one of
these contractors as the general contractor to construct Tenant's Improvements.
In the event that the costs and expenses relating to the construction of the
leasehold improvements requested by Tenant exceed the Tenant's Improvement
Allowance, Landlord shall inform Tenant of the additional cost to Tenant setting
forth, in reasonable detail, the items occasioning any excess costs over and
above the Tenant's Improvement Allowance and Tenant shall pay one-half the
amount thereof to Landlord prior to the commencement of construction of the
Tenant Improvements. The overages are estimated to be approximately Eighteen
Thousand Dollars ($18,000.00); therefore Tenant shall pay to Landlord Nine
Thousand Dollars ($9,000.00) prior to the commencement of construction of the
Tenant Improvements and the balance due for change orders when the Premises are
ready for occupancy by Tenant. No changes, modifications or alterations in the
approved plans and specifications shall be made without the written consent of
Landlord. Any additional changes, expenses or costs arising by reason of any
change, modification or alteration in the approved plans and specifications made
at the request of Tenant, including architect's and design consultant's fees,
shall be at the sole cost and expense of Tenant and Landlord shall have the
right to demand payment for such change, modification or alteration prior to
Landlord's performance of any work in the Premises.
Provided there are no delays in the approval of the plans and specifications or
the completion of Tenant's leasehold improvements, Tenant's obligation to pay
Rent hereunder shall commence January 1, 2007; however, rent shall be abated on
a day for day basis until delivery of possession.
7. INCREASES IN OPERATING EXPENSES.
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(a) After the expiration of the Base Year and of each succeeding
calendar year ("Operating Year"), Landlord shall furnish Tenant a written
statement prepared by Landlord of the Operating Expenses of the Building, as
defined in Exhibit D attached hereto, incurred for such year. During the period
of 60 days after receipt of Landlord's statement, Tenant's independent certified
public accountant or Tenant's designee may inspect the records of the material
reflected in said Landlord's statement at a reasonable time mutually agreeable
to Landlord and Tenant. If any dispute arises as to the amount of Tenant's
Proportionate Share of Excess Expenses due hereunder, Tenant shall have the
right after reasonable written notice to Landlord and at reasonable times to
inspect Landlord's accounting records at Landlord's accounting office; provided
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however, that Tenant shall not be entitled to copy any of Landlord's records and
Tenant's review of Landlord's records shall be limited to those records relating
to the Project Operating Costs, and, if after such inspection Tenant still
disputes the amount of Tenant's Proportionate Share of Excess Expenses owed, a
certification as to the proper amount shall be made by an independent certified
public accountant mutually selected by the parties, which certification shall be
final and conclusive. Tenant agrees to pay the cost of such certification unless
it is determined that Landlord's original statement overstated Project Operating
Costs by more than five percent (5%). Failure of Tenant to challenge any item in
such statement within 60 days after receipt shall be a waiver of Tenant's right
to challenge such item for such year. Within 30 days after receipt of such
statement for any Operating Year setting forth any increase of Operating
Expenses during such Operating Year over the Operating Expenses in the Base Year
(said increase being referred to herein as the "Cost Increase"), Tenant shall
pay Tenant's Proportionate Share of the Cost Increase (less the amount of
Tenant's projected share paid by Tenant on account thereof) to Landlord as
Additional Rent. Operating Expenses shall be determined as if the Building were
95 % occupied during the Base Year and each Operating Year in which actual
occupancy shall be less than 95 %.
(b) Commencing with the first Operating Year, Tenant shall pay to
Landlord, as Additional Rent, Tenant's projected share. Such projected share
shall be equal to Landlord's reasonable written estimate of Tenant's
Proportionate Share of the Cost Increase for the following Operating Year. On
the first day of each month of each Operating Year during the Term, and within
30 days after Tenant's receipt of Landlord's written estimate, Tenant shall pay
to Landlord one-twelfth of its projected share of the estimated Cost Increase
for such Operating Year. If Landlord's statement after the end of an Operating
Year shall indicate that Tenant's projected share exceeded Tenant's
Proportionate Share of Cost Increase, Landlord shall forthwith, at Landlord's
option (except at the conclusion of the last year of the Term, at which time
Landlord shall make the payment described in (i) of this subsection) either (i)
pay the amount of excess directly to Tenant concurrently with the notice or (ii)
permit Tenant to credit the amount of such excess against the subsequent
payments of Additional Rent due hereunder. If Landlord's statement shall
indicate that Tenant's Proportionate Share of Cost Increase exceeded Tenant's
projected share for the completed Operating Year, Tenant shall, subject to the
provisions of subsection 7(a) herein, forthwith within thirty (30) days after
receipt of such notice pay the amount of such excess to Landlord. If said
Landlord's statement is furnished to Tenant after the commencement of a
subsequent Operating Year, there shall be promptly paid by Tenant to Landlord or
vice versa, as the case may be, an amount equal to the portion of such payment
or credit allocable to the part of such Operating Year which shall have elapsed
prior to the first day of the calendar month next succeeding the calendar month
in which said Landlord's statement is furnished to Tenant. Payments of Tenant's
projected share under this paragraph shall be made as and when the Rent is due
and payable under the Lease.
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(c) Landlord's failure to render Landlord's statement with respect to
any Operating Year or Tax Year, or Landlord's delay in rendering said statement
beyond a date specified herein but in no event more than one (1) year after same
is due, shall not prejudice Landlord's right to render a Landlord's statement
with respect to that or any subsequent Operating Year or Tax Year. The
obligations of Landlord and Tenant under the provisions of this Section with
respect to any Additional Rent, which obligations have accrued prior to the
expiration or sooner termination of the Term, shall survive the expiration or
any sooner termination of the Term unless such failure by Landlord to render a
statement continues for more than one (1) year after the expiration of the Lease
Term.
8. INCREASE IN REAL ESTATE TAXES
-----------------------------
If Real Estate Taxes with respect to the Building are increased, during any year
subsequent to the Tax Base Year, over Real Estate Taxes paid by Landlord during
the Tax Base Year, then Tenant shall pay to Landlord, without setoff or
deductions of any kind, as Additional Rent, an amount equal to Tenant's
Proportionate Share of such increase. Payment of such increase shall be made in
the installments provided required by the taxing authority within 30 days after
Tenant receives from Landlord notice of such tax increase and a ▇▇▇▇ for
Tenant's Proportionate Share thereof, together with a copy of the applicable
▇▇▇▇ received by Landlord from the taxing authority. "Real Estate Taxes" shall
mean all taxes or assessments and governmental charges, whether Federal, State
or municipal, which are levied or charged against real estate, personal property
or rents, or on the right or privilege of leasing real estate or collecting
rents thereon and any other taxes and assessments attributable to the Building
or its operation, excluding, Federal, State or other general income or franchise
taxes not limited to real property and al estate, death, inheritance and
succession taxes. If Landlord shall be required under a mortgage or other
creditor arrangement to make real estate tax deposits monthly or otherwise,
Tenant shall make the same installment payments to Landlord of its share of
same. If Landlord receives a refund of any portion of Real Estate Taxes that
were included in the Real Estate Taxes paid by Tenant, then Landlord shall
reimburse Tenant its Proportionate Share of the net refunded taxes, less any
expenses that Landlord reasonably incurred to obtain the refund. If, as a result
of any application or proceeding brought by or on behalf of Landlord for review
of the assessed valuation of the Building for the Tax Base Year, there shall be
a decrease in the Real Estate Taxes payable by Landlord for such year, the
reduced amount shall be used for future calculations under this Section.
9. ALTERATIONS, IMPROVEMENTS, ETC.
------------------------------
(a) All alterations, improvements or additions made by Landlord or
Tenant, upon in the Premises or in or on the Building but outside the Premises,
except furniture, light fixtures, equipment, or movable partitions or trade
fixtures installed at the expense of Tenant, shall be the property of Landlord
and shall remain and be surrendered with the Premises as a part thereof at the
termination of this Lease, without compensation to Tenant, unless Landlord shall
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require Tenant to remove same (by written notice to Tenant at the time Landlord
approves the same), in which event Tenant shall remove same prior to the
termination of this Lease.
(b) Tenant shall not make any alterations, installations or
improvements in the Premises without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed. Tenant may, without
Landlord's prior consent, make minor non-structural alterations, additions or
improvements to the Premises, so long as such improvements do not exceed the
cost of $5,000.00, either singularly or in the aggregate, during any Operating
Year, otherwise, the consent of the Landlord shall be required but such consent
shall not be unreasonably withheld or delayed. In addition, items such as paint,
carpeting, telephones, pictures, and the like, maybe installed by Tenant without
the necessity of first obtaining Landlord's consent.
(c) Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with any work by Tenant under this Lease which shall be
issued by any public authority having or asserting jurisdiction. Landlord does
not consent to be liable for any improvements or alterations made to the
Premises by Tenant, its employees, agents or contractors. Tenant shall defend,
indemnify, and save harmless Landlord against any and all mechanics and other
liens in connection with Tenant 's work, repairs or installations, including but
not limited to the liens of any conditional sale, of, or chattel mortgages upon,
any materials, fixtures, or articles so installed in and constituting part of
the Premises and against all costs, reasonable counsel fees, fines, expenses and
liabilities reasonably incurred in connection with any such lien, conditional
sale or chattel mortgage or any action or proceeding brought thereon. Landlord
shall not be obligated to pay for any materials or labor ordered by Tenant.
Tenant will not be ordering any materials or labor in connection with the
initial improvements to the Premises.
(d) Tenant, at its expense, shall procure the satisfaction or
discharge, by bonding or otherwise, of all such mechanics and other liens within
45 days after notice to Tenant of the filing of such lien against the Building.
If Tenant shall fail to cause such lien to be discharged within the period
aforesaid, then, in addition to any other right or remedy, Landlord may, but
shall not be obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit or by
bonding proceedings; and in any such event Landlord shall be entitled, if
Landlord so elects, to compel the prosecution of an action for the foreclosure
of such lien by the lienor and to pay the amount of the judgment in favor of the
lienor with interest, costs and allowances. Any amount so paid by Landlord and
all costs and expenses incurred by Landlord, in connection therewith shall
constitute Additional Rent payable by Tenant under this Lease and shall be paid
by Tenant on demand.
10. REPAIR
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(a) Except as provided in (b) below, the roof, exterior walls
(excluding windows), structural parts and foundation of the Building and all
parts of the heating, plumbing, electrical and air conditioning systems in the
Building and all utility lines which serve the Premises shall be maintained and
repaired by Landlord at its expense, except if necessitated by the negligence or
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willful act of Tenant, its agents, employees, contractors, invitees or
licensees, in which event Tenant shall promptly reimburse Landlord for the costs
incurred in effecting such repair or replacement as necessary to the extent not
reimbursed from proceeds of insurance maintained by Landlord. Landlord shall
also be responsible for all repairs to the Premises and/or the Building to the
extent such are required by reason of Landlord's omissions, default or
negligence. The fact that any such repairs are Landlord's responsibility does
not preclude the cost of same being included as Operating Expenses.
(b) Except as provided in 10(a) above, Tenant, at its expense, shall
repair, maintain in good order and condition and replace, if necessary, the
non-structural portions of the interior of the Premises. Tenant shall keep the
Premises clean and orderly in accordance with Landlord's reasonable standards
for the Building.
11. PARKING.
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Landlord shall maintain the Building's parking lot to be used by Tenant
in common with other tenants of the Building in a condition similar to parking
facilities of other comparable office buildings in the Town of Wilton. Tenant
shall have the right to use the number of unreserved parking spaces specified in
Section 2 hereof. Landlord shall have the right, at any time and from time to
time during the Term, to designate the parking spaces to be used by Tenant, in
which event Tenant shall limit its employee and invitee parking to its assigned
spaces, and in such event Landlord will post markings designating its spaces.
Landlord shall have no liability to Tenant if others park in Tenant's assigned
spaces. Landlord shall maintain the parking lot and sidewalks in good and
orderly condition, including but not limited to reasonably prompt snow removal.
Landlord shall employ such methods as are commercially reasonable to ensure that
parking spaces are always available to Tenant.
12. UTILITIES AND SERVICES.
----------------------
(a) HVAC. Monday through Friday (except the days observed by the
Federal or the Connecticut state governments as legal holidays) from 8:00 a.m.
to 6:00 p.m., Landlord shall furnish and distribute to the Premises air
conditioning and heat with a system designed to maintain an indoor condition of
78 degrees F dry bulb when the, outdoor condition is 100 degrees F dry bulb and
an indoor condition of 68 degrees F dry bulb when the outdoor condition is zero
degrees F dry bulb. If Tenant shall require air conditioning or heat at any
other time, Landlord shall furnish after-hours air conditioning and heat upon
reasonable advance notice from Tenant, and Tenant shall pay Landlord's then
established charges therefore on Landlord's demand. Landlord's current charges
for overtime HVAC are Seventy Five Dollars ($75.00) per hour.
(b) Water. Landlord shall supply reasonably adequate quantities of hot
and cold water to the Premises for ordinary lavatory and drinking purposes and
for Tenant's pantry..
(c) Electricity. (i) Landlord shall cause electric service to be
supplied for lighting the Premises and for the operation of ordinary office
equipment 24 hours per-day, 7 days per-week, 365(6) days per-year. Subject to
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adjustment as provided in subsection 12(c-)(iii) Tenant shall pay Landlord as
Additional Rent for such office use electricity the Electrical Factor in equal
monthly installments beginning on the Commencement Date and monthly thereafter
on the first day of each month, unless the Premises have been separately metered
or submetered.
(ii) Landlord shall have the exclusive right, at Tenant's
expense, to make any replacement of lamps, fluorescent tubes and lamp ballasts
in the Premises. Landlord may adopt a system of relamping and ballast
replacement periodically on a group basis in accordance with good management
practice, and the charges for same shall be reasonable.
(iii) If, at any time or times after the Commencement Date, the
rates at which Landlord purchases electrical energy from the public utility
corporation supplying electrical service to the Building, or any charges
incurred or taxes payable by Landlord in connection therewith (other than
penalties resulting from Landlord's late payments), shall be increased or
decreased, or Tenant's use of electricity shall materially increase or decrease,
the Electrical Factor shall be increased or decreased, as the case may be, upon
demand of either party, in an annual amount which shall fairly reflect the
estimated increase or decrease in the annual cost to Landlord of furnishing
electrical service to Tenant under the provisions of this Section. If within ten
days after any such demand Landlord and Tenant shall fail to agree upon the
amount of such increase or decrease in the Electrical Factor then, in lieu of
such agreement, the estimated increase or decrease in the annual cost to
Landlord of furnishing electrical service to Tenant under the provisions of this
Section shall be finally determined by a reputable, independent electrical
engineer selected by Landlord subject to the reasonable approval of Tenant, who
shall certify such determination in writing to Landlord and Tenant. If Landlord
and Tenant are unable to agree upon an independent electrical engineer within
thirty (30) days after Landlord shall have first given Tenant written notice of
an independent electrical engineer selected by Landlord, then, in such event,
the selection of an independent electrical engineer shall be made by the
employment of a single arbitrator in accordance with the American Arbitrators
Association rules then in effect in the State of Connecticut, and the
determination of such independent electrical engineer, as selected, shall be
final. The cost of such arbitration proceeding and any fees charged by such
independent electrical engineer shall be paid equally between Landlord and
Tenant. The cost of such consultant shall be paid by the party which fails to
prevail in the subsequent determination of the annual Electrical Factor.
Following any such agreement or determination, Landlord and Tenant shall enter
into a written supplementary agreement, in form satisfactory to Landlord and
Tenant, modifying this Lease by increasing or decreasing, as the case may be,
the Electrical Factor for the remainder of the Term in an annual cost to
Landlord of furnishing electrical service to Tenant, as so agreed or determined.
Any such increase or decrease in the Electrical Factor shall be effective as of
the date of such demand and/or inspection and survey and shall be retroactive to
such date if necessary.
(iv) If Tenant shall consume more electricity than customary for
office use in the Building (more than 6 ▇▇▇▇▇ per usable square foot), then
Landlord shall have the right to install a submeter at Tenant's expense,
measuring Tenant's consumption for lighting, office equipment and HVAC. In such
event, from the date of installation of the submeter, Tenant shall pay based on
the consumption shown on the meter from time to time, multiplied by the rate for
the Building, either directly to the utility company or to Landlord, as directed
by Landlord at which time the Electrical Factor as shown in section 2(v) shall
not be charged.
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(d) Cleaning. Landlord shall cause the Premises to be cleaned,
including the exterior and the interior of the windows thereof (subject to
Tenant maintaining unrestricted access to such windows), but excluding any
portions of the Premises used for the storage, preparation, service or
consumption of food or beverages. Tenant shall pay to Landlord on demand
Landlord's reasonable charges for any special or unusual cleaning work in the
Premises, including without limitation, the cleaning of private baths, interior
glass (other than the inside of the exterior windows of the Building), pantries,
kitchens (other than sinks, floors and countertops, lounge areas, paneled and
fabric walls, and wood floors. Exhibit E describes the cleaning services to be
provided by Landlord under this Section.
(e) Security. In no event shall Landlord be required to provide any
security services to the Building. Tenant shall supply such security services to
the Premises as Tenant requires, subject to Landlord's prior approval of plans
which approval shall not be unreasonably withheld or delayed. If Landlord shall,
at its discretion, supply any security services to the Building, the same shall
not guarantee the safety of Tenant's employees, invitees or property.
(f) Interruption of Services. Landlord does not warrant that any of the
services referred to above, or any other services which Landlord may supply,
will be free from interruption, and Tenant acknowledges that any one or more
such services may be suspended by reason of accident, necessary repairs,
inspections, alterations or improvements necessary to be made, or by Unavoidable
Delays (as hereinafter defined). Any such interruption or discontinuance of
service shall not be deemed an eviction or disturbance of Tenant's use and
possession of the Premises, or any part thereof, nor render Landlord liable to
Tenant for damages by abatement of the Rent or otherwise, nor relieve Tenant
from performance of Tenant's obligations under this Lease. Landlord shall,
however, exercise reasonable diligence to restore any service so interrupted to
avoid interference with Tenant's use of the Premises or Tenant's business
therein. Landlord shall (except in an emergency) provide Tenant with prior
notice of any interruption in services.
13. INSURANCE.
---------
(a) Tenant shall, at its expense, secure and maintain general liability
insurance written on a so-called "comprehensive" general liability form with
combined single limit coverage (for personal injury, property damage or death
arising out of any one occurrence) of at least $3,000,000, with a deductible not
to exceed $10,000.00, naming Landlord and Landlord's designees as additional
insured under the policy. Tenant shall deliver to Landlord duplicate
certificates of such insurance prior to taking occupancy of the Premises and
shall deliver new certificates at least 30 days prior to the expiration of the
existing coverage. Such certificates shall provide that in the event of
termination or material change in coverage, Landlord shall be given 30 days
advance notice in writing sent by certified mail to the address of Landlord.
Such insurance shall insure Tenant's contractual liability hereunder. Said
coverage limit shall be increased if, in Landlord's reasonable judgment,
increased limits are required to protect Landlord and Tenant against claims
covered thereby and if such increased limits are being required by other
landlords of other first-class buildings in the Town of Wilton, but not more
often than once every three (3) years. If Tenant shall voluntarily carry any
liability insurance in an amount greater than required hereunder, such insurance
shall comply with the requirements of this Section.
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(b) Tenant shall maintain all risk casualty insurance covering Tenant's
furniture, fixtures, equipment and other personal effects within the Premises,
with replacement value coverage subject to a reasonable deductible.
(c) Any insurance which Tenant is required to carry hereunder may be
effected by a policy or policies of blanket insurance, or under so-called "all
risk" or "multi-peril" insurance policies, provided that the amount of the total
insurance allocated to the Premises shall be such as to furnish in protection
the equivalent of separate policies in the amounts herein required, and provided
further that in all other respects any such policy or policies shall comply with
the other provisions of this Lease. An increased coverage or "umbrella policy"
may be provided and utilized by Tenant to increase the coverage provided by
individual or blanket policies in lower amounts, provided that they comply with
the provisions of this Lease.
(d) Landlord shall cause the Building to be insured under a
comprehensive general public liability policy against claims for bodily injury,
death or property damage occurring on, in or about the Building in amounts at
least equal to that required of Tenant hereunder with respect to the Premises.
Landlord shall procure and maintain during the Lease Term general liability
insurance with respect to the Building, providing bodily injury, broad form
property damage with a commercially reasonable deductible.
(e) Landlord and Tenant hereby waive all rights to recover against each
other for any loss or damage covered by any casualty insurance required under
this Lease, or otherwise actually carried by each of them. Landlord and Tenant
will diligently attempt to cause their respective insurers to issue appropriate
waiver of subrogation endorsements to all policies and insurance carried in
connection with the Premises or the contents of either of them. Anything in this
Lease to the contrary notwithstanding, Landlord and Tenant shall look first to
the proceeds of their respective insurance policies before proceeding against
each other in connection with any claim relating to any matter covered by the
Lease.
14. SUBORDINATION.
-------------
a) This Lease is and shall be subject and subordinate to (i) any and
all mortgages now or hereafter affecting the fee title of the Building, and to
any and all present and future extensions, modifications, renewals, replacements
and amendments thereof; and (ii) any and all ground leases now or hereafter
affecting the Building or any part thereof and to any and all extensions,
modifications, renewals, replacements and amendments thereof. Tenant will
execute and deliver promptly to Landlord any reasonable certificate or
instrument which Landlord, from time to time, may request for confirmation of
the provisions of this Section.
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(b) Neither the foreclosure of a superior mortgage nor the termination
of a superior ground lease, nor the institution of any suit, action, summary or
other proceedings by Landlord or any successor landlord under such ground lease
or by the holder of any such mortgage, shall, by operation of law, result in the
cancellation or termination of the obligations of Tenant hereunder, and Tenant
agrees to attorn to under the terms of this Lease and recognize Landlord and any
successor landlord under such ground lease or the holder of any such mortgage,
or the purchaser of the Building in foreclosure or any subsequent owner of the
fee, as the case may be, as Tenant's landlord hereunder in the event that any of
them shall succeed to Landlord's interest in the Premises.
(c) The subordination of this Lease described in (a) above shall be
conditioned upon Tenant receiving from the holder of each current and future
ground lease and mortgage affecting the Building a nondisturbance and attornment
agreement on the holder's standard form (a "Nondisturbance Agreement")
providing, in essence, that if such holder succeeds to the rights of Landlord
hereunder, such holder shall not disturb Tenant's possession of the Premises so
long as Tenant is not in default hereunder beyond any applicable cure period,
except that such holder (or the purchaser at a foreclosure sale) will not be
bound by or liable, for (i) any advance payment of Rent; (ii) any modification
to or amendment of this Lease made without such holder's written consent; or
(iii) any defenses, claims, or offsets that Tenant may have against Landlord or
any successor Landlord arising before the date such holder acquires Landlord's
interest in this Lease.
15. DESTRUCTION, FIRE OR OTHER CAUSES.
---------------------------------
(a) If the Premises or the Building shall be partially damaged by fire
or other casualty so that the damage can reasonably be repaired by Landlord
within 150 days from the date of the damage (90 days in the case of damage
within the last year of the Term) to the condition existing prior to such fire
or other casualty, then the damage shall be diligently repaired by and at the
expense of Landlord (to the extent of net insurance proceeds received by
Landlord for restoration), subject to applicable Legal Requirements and
Insurance Requirements, and the Rent until such repairs shall be made shall be
apportioned according to the part of the Premises which is tenantable.
(b) If the Building is destroyed or rendered wholly untenantable by
fire or other cause, or if the Building shall be so damaged that it cannot
reasonably be repaired by Landlord within said 150 or 90 day period, as
applicable, or if Landlord shall elect not to restore the same but to demolish
it or rebuild it, then in any of such events Landlord may, within 60 days after
such casualty, give Tenant a notice in writing of intention to terminate this
Lease but only if Landlord is terminating all other leases in the Building, and
thereupon the Term shall expire, effective the date of the casualty, and Tenant
shall vacate the Premises and surrender the same to Landlord within ten thirty
(30) days after receipt of Landlord's notice. If Landlord does not elect to
terminate this Lease, the provisions of this subsection shall govern.
(c) Except to the extent due to Landlord's negligence or willful acts,
Landlord shall not be liable for any damage to, or be required (under any
provision of this Lease or otherwise) to repair, restore or replace, any
15
property in the Premises or be liable to Tenant for damage arising from rain or
snow or from the bursting, overflowing or leakage of water, steam or gas pipes
or defect in the plumbing, HVAC, mechanical or electrical systems of the
Building or from any act or neglect of any other tenant or occupant in the
Building.
16. EMINENT DOMAIN.
--------------
(a) If the whole or any substantial part of the Land and/or the
Building or any portion of the Premises or access thereto shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, or if
Landlord elects not to restore the Building but to demolish or rebuild it, then
and in that event, the Term shall cease and terminate from the date of taking.
Tenant shall have no claim against Landlord or the condemning authority for the
value of the unexpired Term, nor any claim to any part of the award in such
proceeding, and Rent shall be adjusted and paid to the date of such termination
but Tenant shall not be prohibited from making a separate claim against the
condemning authority for moving and other expenses directly incurred by Tenant..
(b) In the event of any other condemnation of a part of the Building
other than the Premises or access thereto, this Lease shall remain in effect,
but the Rent shall be prorated based on that portion of the Premises which
remains tenantable and Landlord shall diligently repair the damage to the
Building (to the extent of net condemnation proceeds received by Landlord for
restoration), subject to applicable Legal Requirements and Insurance
Requirements. Tenant shall have no claim against Landlord or the condemning
authority to any part of the award in such proceeding but Tenant shall not be
prohibited from making a separate claim against the condemning authority for
moving and other expenses directly incurred by Tenant.
17. ASSIGNMENT, SUBLET, MQRTGAGE, ETC.
---------------------------------
a) Tenant shall not assign, sublet, mortgage or encumber this Lease,
nor sublease all or any part of the Premises, or suffer or permit the Premises
or any part thereof to be subleased to or used by others, without the prior
written consent of Landlord in each instance, which consent may shall not be
unreasonably withheld or delayed by Landlord in its sole, absolute and
non-reversible discretion. The transfer (or transfers in the aggregate) of more
than a 49% interest in Tenant, by stock transfer or otherwise, shall be deemed
an assignment of this Lease for the purposes of this Section. If this Lease
should be assigned, or if the Premises or any part thereof be sublet to or
occupied by anybody other than Tenant, Landlord may, at Landlord's option,
collect rent from the assignee, subtenant or occupant, and apply the net amount
collected to the Rent herein reserved (and any sublease shall confirm such
option by Landlord), but no such assignment, subletting, occupancy or collection
16
shall be deemed a waiver of this covenant, or the acceptance of the assignee,
subtenant or occupants, or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained. The consent by
Landlord to an assignment or subletting shall not be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or subletting.
(b) Except as otherwise set forthin in 17(d) below, if Tenant desires
to assign this Lease or sublease all of the Premises, Tenant shall first give
notice to Landlord of the proposed transaction and the term thereof, and
Landlord shall have the right, by notice to Tenant within 30 ten (10) business
days after receipt of Tenant's notice, to terminate this Lease. If Tenant
desires to sublease less than all of the Premises, Tenant shall first give
notice to Landlord as aforesaid, and Landlord shall have the right by notice to
Tenant within five (5) business days after receipt of Tenant's notice, to
terminate this Lease with respect to the portion of the Premises proposed to be
subleased, as of the effective date of the proposed sublease. If Landlord
exercises its right to terminate this Lease with respect to such portion of the
Premises, then (i) the Base Rent and Tenant's Proportionate Share shall be
proportionally reduced, and an adjustment shall be made for amounts, if any,
paid in advance and applicable to the portion of the Premises no longer leased
by Tenant; and (ii) the number of parking spaces available for Tenant's use
pursuant to Section 11 hereof shall be proportionally reduced, as reasonably
designated by Landlord.
(c) If Landlord elects not to so terminate this Lease, then Landlord
shall not unreasonably withhold or delay its consent to the proposed subletting
or assignment. Landlord shall not unreasonably withhold or delay its consent to,
any assignment of this Lease or a sublease of all or a portion of the Premises
provided that (i) in an assignment, the assignee assumes in writing the
performance of all the covenants of Tenant to be performed and observed
hereunder; (ii) a copy of the proposed assignment and assumption agreement or
the subletting agreement (as the case may be) is delivered to Landlord prior to
execution; and (iii) in the case of a subletting, the sublessee shall assume in
writing for the duration of its subtenancy, the performance of all the covenants
of this Lease on the part of Tenant to be performed, other than payment of Rent;
and (iv) no assignment or subletting shall release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant to pay the
Rent and to perform all obligations of Tenant hereunder. Tenant shall pay to
Landlord as Additional Rent, within ten days after receipt of payments from a
subtenant or assignee, 50% of any "profit" net of reasonable construction,
marketing, brokerage, legal costs, all pre-approved by Landlord, on a subletting
or assignment, i.e., the excess of consideration of any type received by Tenant
from the subtenant or assignee, over (in the case of a sublease only) a pro rata
portion of the Rent payable by Tenant hereunder.
(d) Notwithstanding the foregoing, without Landlord's consent and
without being subject to Landlord's rights under subsection 12(b) above but upon
ten days prior notice to Landlord, this Lease may be assigned, or the Premises
or a portion thereof may be sublet:
(i) to any corporation or entity which is either a wholly-owned
subsidiary or an affiliate of Tenant, requiring the same use
of the Premises, and the original Tenant at all times
remains primarily obligated for payment and performance
under the Lease;
17
(ii) any corporation resulting from a merger with or
consolidation of Tenant or to any entity which acquires
substantially all of Tenant's assets as a going concern, as
long as the assignee or sublessee is a bonafide entity and
assumes the obligations of the Tenant and provided that
their net worth is equal to or greater than that of the
Tenant as of the date of this Lease; and provided that their
credit rating is equal to or greater than that of the Tenant
as of the date of this Lease;
(iii) if the assignment or sublease does not meet the conditions
of this subparagraph, Landlord may withhold its consent and
such consent shall not be considered unreasonably withheld.
18. FEES AND EXPENSES.
-----------------
If Tenant shall default in the observance or performance of any term or
covenant of this Lease beyond any applicable notice or cure period, Landlord
may, after ten days written notice to Tenant requesting Tenant to cure the
default and failure of Tenant to cure the same within such period, or at any
time thereafter without notice in event of emergency, perform the same for the
account of Tenant. If Landlord makes any expenditures or incurs any obligations
in connection with a default by Tenant, including, but not limited to,
reasonable attorneys' fees in instituting, prosecuting or defending any
successful action or proceeding against Tenant, such sums paid or obligations
incurred, with interest (as provided below) and costs, shall be deemed to be
Additional Rent hereunder and shall be paid by Tenant to Landlord within ten
days of rendition of any ▇▇▇▇ or statement to Tenant hereunder.
19. NO REPRESENTATIONS BY LANDLORD: INDEMNITY.
-----------------------------------------
(a) Landlord and Landlord's agents have made no representations or
promises with respect to the Building or the Premises, including the uses
permitted under applicable law, except for representations herein expressly set
forth.
(b) Landlord represents that at the time the Premises are delivered to
Tenant the elevator and the heating, air conditioning, ventilating, hot water,
plumbing and electrical systems which service the Premises, shall be in good
working order and condition, failing which, Landlord shall promptly, at its
expense, perform all work necessary to put said systems in such condition as of
on the Commencement Date.
(c) Landlord represents that it is a duly formed and validly existing
limited liability company under the laws of the State of Connecticut and has
full right and authority to enter into, execute and perform this Lease and that
there are no restrictive covenants which shall adversely affect Tenant's rights
under this Lease.
(d) Landlord represents that, to it's knowledge, the Building and the
Premises are currently in compliance with all Environmental Laws and shall be on
the Commencement Date.
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(e) Except as otherwise herein specified, neither Landlord, nor any
employee, agent or contractor of Landlord, shall be liable to Tenant, its
employees, agents or contractors, (i) for any damage to or loss of any property
of Tenant or such other person, irrespective of the cause of such damage or
loss; or (ii) except when resulting from the negligence of Landlord, its
employees, agents or contractors, for any personal injury to Tenant or such
other person from any cause.
(f) Subject to subsection 13(c) herein, Tenant shall defend, indemnify
and hold harmless Landlord, its employees, agents and contractors against and
from all liabilities, including reasonable attorneys' fees, which may be imposed
upon or incurred by or asserted against Landlord or such other persons by reason
of any of the following occurring during the Term or prior thereto when Tenant
has been given access to the Premises: (i) any work, or thing done in the
Premises by or at the request of Tenant, its employees or agents; (ii) any
negligence or wrongful act or omission of Tenant, its employees or agents; (iii)
any accident, injury, loss or damage to any person or property occurring in the
Premises (unless caused by the Landlord, its agents, employees, contractors,
invitees or licensees); and (iv) any failure on the part of Tenant to comply
with any of the terms of this Lease.
20. QUIET ENJOYMENT.
---------------
(a) Upon Tenant paying the Rent and observing and performing all the
terms, covenants and conditions on Tenant's part to be observed and performed,
Tenant may peaceably and quietly enjoy the Premises hereby demised, free from
any interference, molestation or acts of Landlord or of anyone claiming by,
through or under Landlord, subject, nevertheless, to the terms and conditions of
this Lease and to any ground lease and mortgages as herein before provided.
(b) If Tenant retains possession of the Premises or any part thereof
after the Expiration Date or earlier termination date without the written
consent of Landlord, Tenant's occupancy shall be under all of the terms and
conditions of this Lease, except that (i) the tenancy shall be at will,
terminable by either party on ten days written notice; (ii) the Base Rent per
month shall be 200 % of that specified herein for the month preceding the
termination; and (iii) Tenant shall indemnify and hold Landlord harmless for all
damages sustained and liabilities incurred by Landlord as a result of Tenant's
continued occupancy beyond ten days after Landlord's notice to Tenant under this
subsection.
21. DEFAULT.
-------
(a) If (i) Tenant defaults in the payment when due of any installment
of Rent and Tenant fails to remedy such default within five days after notice
from Landlord; or (ii) Tenant defaults in fulfilling any other covenant of this
Lease and Tenant fails to remedy such default within 20 days after notice by
Landlord to Tenant specifying the nature of such default (or if the said default
cannot be completely cured or remedied within said 20-day period and Tenant
shall not have diligently commenced curing such default within such 20-day
period and shall not thereafter diligently remedy or cure such default within 60
days after notice from Landlord), then Landlord may, by notice to Tenant, cancel
19
this Lease, and this Lease and the Term hereunder shall end and expire as fully
and completely as if the date of cancellation were the day herein definitely
fixed for the end and expiration of this Lease and the Term hereof. Tenant shall
then quit and surrender the Premises to Landlord, but Tenant shall remain liable
as hereinafter provided.
(b) If (i) a notice provided for in subsection (a) above shall have
been given and the Term shall expire as aforesaid, or (ii) any execution shall
be issued against Tenant or any of Tenant's property, whereupon the Premises
shall be taken or occupied or attempted to be taken or occupied by someone other
than Tenant, then and in any of such events, Landlord may, without notice,
re-enter the Premises, and dispossess Tenant, and the legal representative of
Tenant or other occupant of the Premises, by summary proceedings or otherwise,
and remove their effects and hold the Premises as if this Lease had not been
made. Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end, but Tenant shall remain liable for
damages as hereinafter provided.
22. REMEDIES OF LANDLORD.
--------------------
In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise:
(a) the Rent for the period preceding such default shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, together with such expenses as Landlord may reasonably incur for
counsel fees, brokerage and/or putting the Premises in good order, or for
preparing the same for relet;
(b) Landlord may re-let the Premises or any part or parts thereof,
either in the name of Landlord or otherwise, for a term or terms, which may at
Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the Term, and may grant concessions of free rent;
and/or
(c) Tenant or the legal representatives of Tenant shall also pay
Landlord any deficiency between (i) the Rent hereby reserved and/or covenanted
to be paid, and (ii) the net amount, if any, of the rents collected on account
of the lease or leases of the Premises for each month of the period which would
otherwise have constituted the balance of the Term. There shall be added to such
deficiency such expenses as Landlord may incur in connection with re-letting the
Premises, including without limitation, reasonable counsel fees, brokerage
commissions and reasonable expenses incurred in maintaining the Premises in good
order and in connection with renovating and preparing the same for re-letting.
Any such rent deficiency shall be paid in monthly installments by Tenant on the
rent day specified in this Lease, and any suit brought to collect the amount of
the deficiency for any month shall not prejudice in any way the rights of
Landlord to collect the deficiency for any subsequent month or months by a
similar proceeding. In addition, Landlord shall have the alternative of
commencing suit against Tenant at any time for an amount equal to the Rent
reserved for the balance of the Term less the fair rental value of the Premises
for the same period. Any Rent not paid by Tenant within five (5) days after the
due date thereof, shall thereafter be payable with interest at the rate of 5 %
per annum in excess of the prime or base rate of Fleet Bank (or its successor)
in effect from time to time or 18% per annum, whichever rate is greater, from
20
the due date to the date of payment. Landlord, at its option, may make such
alterations, repairs, replacements and/or decorations in the Premises as
Landlord considers advisable for the purpose of re- letting the Premises; and
the making of such alterations and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. The failure
of Landlord to re-let the Premises or any part thereof shall not release or
affect Tenant's liability for continued rent or damages hereunder nor shall
Landlord in any event be liable in any way whatsoever for failure to re-let the
Premises, except that Landlord shall make commercially reasonable efforts to
re-let the Premises, without giving any priority to the Premises over other
vacant space in the Building. In the event of a breach by Tenant of any of the
covenants or provisions hereof, Landlord shall, have the right of injunction and
the right to invoke any remedy allowed at law or in equity, as if re-entry,
summary proceedings and other remedies were not herein provided for. Mention in
this Lease of any particular remedy shall not preclude Landlord from any other
remedy, in law or in equity.
23. RIGHT TO EXHIBIT PREMISES AND ACCESS TO PREMISES.
------------------------------------------------
(a) Landlord reserves the right to enter the Premises and exhibit same
at any reasonable time (i) to prospective mortgagees, purchasers and ground
lessees and (ii) to prospective tenants, at any time within 180 days prior to
the expiration of the Term.
(b) Landlord reserves the right to have its employees and agents enter
the Premises at any reasonable time (and at any time in case of emergency) in
order to gain access to any utility area, which utility area contains equipment
and systems for the Building, and in order to effect necessary repairs and
replacements. Such agents may bring necessary tools and equipment with them and
may store same within the Premises so long as such storage does not interfere
with Tenant's use of the Premises.
(c) Landlord shall exercise all access rights to the Premises available
under this Lease, in each instance, upon reasonable advance notice to Tenant
(except in any event in cases of emergency) in a manner consistent with Tenant's
reasonable security requirements and in a manner which does not unreasonably
interfere with Tenant's business operations.
(d) At no additional cost or expense to Tenant, but subject to security
requirements, Tenant shall have access to the Premises three hundred sixty-five
(365) days a year, on a twenty-four (24) hour a day basis.
24. RULES AND REGULATIONS.
---------------------
Tenant and Tenant's employees, agents and invitees shall observe
faithfully and comply strictly with the Rules and Regulations attached hereto as
Exhibit F and such additional or modified written reasonable Rules and
Regulations as Landlord or Landlord's agents may, from time to time, adopt.
Landlord shall enforce all rules and regulations governing the use and occupancy
of space in the Building in an equal and nondiscriminatory manner among all
21
tenants and other occupants in the Building. In the event of any conflict
between the terms of this Lease and the Rules and Regulations, the terms of this
Lease shall prevail.
25. BROKERAGE.
---------
Landlord and Tenant each warrants and represents it has not had or
dealt with any realtor, broker or agent in connection with the negotiation of
this Lease, except for the Brokers as shown in section 2(vi), and Landlord and
Tenant shall each pay and hold Landlord the other harmless from any cost,
expense or liability (including costs of suit and attorneys' fees) for any
compensation, commission or charges claimed by any realtor, broker or agent with
respect to this Lease and the negotiation thereof, other than a claim of the
Brokers and a claim based upon any written agreement between such person and
Landlord. Landlord represents that it has not entered into a written agreement
with any broker other than the Brokers, with respect to the leasing of the
Building and which is in effect this date. Landlord shall compensate the Brokers
pursuant to separate agreement.
26. UNAVOIDABLE DELAY.
-----------------
Landlord and Tenant, respectively, shall not be in default hereunder if
such party is unable to fulfill or is delayed in fulfilling any of its
obligations hereunder, including, without limitation, any obligations to supply
any service hereunder, or any obligation to make repairs or replacements
hereunder, if such party is prevented from fulfilling or is delayed in
fulfilling such obligations by reason of fire or other casualty, strikes or
labor troubles, governmental pre-emption in connection with a national
emergency, shortage of supplies or materials, or by reason of any rule, order or
regulation of any governmental authority, or by reason of the condition of
supply and demand affected by war or other emergency, or any other cause beyond
its reasonable control (collectively, "Unavoidable Delay"). Such inability or
delay by Landlord or Tenant in fulfilling any of their respective obligations
hereunder shall not affect, impair or excuse the other party hereto from the
performance of any of the terms, covenants, conditions, limitations, provisions
or agreements hereunder on its part to be performed, nor result in any abatement
of rents or Additional Rents payable hereunder. Tenant shall not, however, be
excused hereunder from the prompt and full payment of Base Rent or Additional
Rent, by Unavoidable Delay.
27. SECURITY DEPOSIT.
----------------
(a) Tenant has deposited with Landlord the sum of **Forty-four Thousand
Eight Hundred Ninety-six dollars and 00/100** ($44,896.00)** (the "Security
Deposit") as security for the performance by Tenant of the provisions of this
Lease. If Tenant defaults with respect to any provision of this Lease, including
payment of the Rent or the failure to exercise any one of the options to extend
as provided in Section 6 hereof. Landlord may, after expiration of any
applicable notice and cure period, use, apply, draw upon or retain all or any
part of the Security Deposit to the extent necessary for the payment of any
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Rent, or to compensate Landlord for any other loss, cost or damage which
Landlord may suffer by reason of Tenant's default. If any portion of the
Security Deposit is so used, applied, or drawn upon, Tenant shall, within ten
days after notice thereof, deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount. Tenant's failure to do so
after notice from Landlord to Tenant, shall be a breach of this Lease. If Tenant
shall fully and faithfully perform every provision of this Lease to be performed
by it, the Security Deposit or any balance thereof shall be returned to Tenant
(or to the last transferee of Tenant's interest hereunder) within 30 days after
the expiration of the Term (or sooner termination of this Lease) and upon
Tenant's vacation of the Premises in accordance with this Lease. If the Building
is sold, the Security Deposit shall be transferred to the new owner, and
thereupon Landlord shall be discharged from further liability with respect
thereto.
28. LEASE STATUS AND NOTICE.
-----------------------
(a) Within ten days after request of Landlord from time to time, Tenant
will execute and deliver to Landlord an instrument prepared by Landlord stating,
if the same be true, that this Lease is a true and exact copy of the Lease
between the parties hereto, that there are no amendments hereof (or stating what
amendments there may be), that the same is then in full force and effect and
that, to the best of Tenant's knowledge, there are then no offsets, defenses or
counterclaims with respect to the payment of rent reserved hereunder or in the
performance of the other terms, covenants and conditions hereof on the part of
the Tenant to be performed, and that as of such date no default has been
declared hereunder by either party hereto and that Tenant at the time has no
knowledge of any facts or circumstances which it might reasonably believe would
give rise to a default by either party. Such estoppel certificate required by
any party with whom Landlord is dealing may be in somewhat altered form from the
above terms.
(b) Within ten (10) business days after request of Tenant from time to
time, Landlord will execute and deliver to Tenant an instrument prepared by
Tenant stating, if the same be true, that this Lease is a true and exact copy of
the Lease between the parties hereto, that there are no amendments hereof (or
stating what amendments there may be), that the same is then in full force and
effect and that, to the best of Landlord's knowledge, there are then no offsets,
defenses or counterclaims with respect to the payment of rent reserved hereunder
or in the performance of the other terms, covenants and conditions hereof on the
part of the Landlord to be performed (or stating what offsets, defenses or
counterclaims Landlord alleges), and that as of such date no default has been
declared hereunder by either party hereto and that Landlord at the time has no
knowledge of any facts or circumstances which it might reasonably believe would
give rise to a default by either party. Such estoppel certificate required by
any party with whom Tenant is dealing may be in somewhat altered form from the
above terms.
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(c) Any notice, demand, consent, approval, direction, agreement or
other communication required or permitted hereunder or under any other documents
in connection herewith shall be in writing and shall be directed as follows: If
to Landlord:
c/o Furst Properties, LLC
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
c/o ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Tenant:
Startech Environmental Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Startech Environmental Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
or to such changed address or facsimile number as a party hereto shall designate
to the other parties hereto from time to time in writing. Subsequent to the
Commencement Date, all notices to Tenant shall be sent to the Premises. Notices
shall be (i) personally delivered (including delivery by Federal Express, United
Parcel Service or other comparable nation-wide overnight courier service) to the
offices set forth above, in which case they shall be deemed delivered on the
date of delivery (or first business day thereafter if delivered other than on a
business day or after 5:00 p.m. New York City time to said offices); (ii) sent
by certified mail, return receipt requested, in which case they shall be deemed
delivered on the date shown on the receipt unless delivery is refused or delayed
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by the addressee in which event they shall be deemed delivered on the third day
after the date of deposit in the U.S. Mail; or (iii) sent by means of a
facsimile transmittal machine, in which case they shall be deemed delivered at
the time and on the date of receipt thereof confirmed by telephonic
acknowledgment or first business day thereafter if received other than on a
business day or after 5:00 p.m. New York City time.
29. ASSIGNS.
-------
(a) The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, executors, administrators, successors and, except as
otherwise provided in this Lease, their assigns.
(b) The word Landlord as used in this Lease means only the owner for
the time being of Landlord's interest in this Lease. In the event of any
assignment of Landlord's interest in this Lease, the assignor in each case shall
no longer be liable for the performance or observance of any agreements or
conditions on the part of the Landlord to be performed or observed.
30. OPTION TO EXTEND.
----------------
(a) Provided that Tenant is not then in default under any term or
provision of the Lease, and with respect to non-monetary issues, beyond any
applicable cure period, and provided Tenant has not made late payments of Rents
more than two (2) times in the initial Lease Term without consideration of
applicable cure periods, Tenant shall have an option to extend the Term for an
additional, period of three (3) years upon all of the terms and conditions of
this Lease, except that (i) the Base Rent during the extension Term shall be the
greater of (x) the Base Rent payable during the Lease Year immediately preceding
the extension Term, and (y) the fair rental value of the Premises at the date
six months prior to the commencement of the extension Term; (ii) Landlord shall
have no obligation to do any work in the Premises or give any work allowance;
and (iii) there shall be no further option to extend beyond the expiration of
such extension Term.
(b) Tenant's option may be exercised only by notice of exercise
given by Tenant to Landlord at least nine months prior to the expiration of the
then current Term. Failure to so exercise within such period shall render any
subsequent attempted exercise void and of no effect, any principles of law to
the contrary notwithstanding. Tenant shall have no right to exercise its option
to extend the Term, and any attempted exercise shall be void and of no effect,
if: (i) the named Tenant has assigned this Lease or has at any time subleased,
in the aggregate, more than 50 % of the Premises except if such assignment or
subletting was permitted under Paragraph 17(d) hereof; or (ii) Tenant shall be
in default hereunder beyond applicable notice or cure periods and such default
shall not have been cured at the time of the attempted exercise or, if such
default occurs after Tenant's attempted exercise of the option, at the time of
the proposed commencement of the extension Term.
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31. RIGHT OF FIRST REFUSAL.
----------------------
Intentionally Deleted.
32. SURRENDER OF PREMISES.
---------------------
At the expiration of the Term, Tenant will peacefully yield up to
Landlord the Premises, broom clean, in as good order and repair as when
delivered to Tenant, damage by fire, casualty and ordinary wear and tear
excepted. Any property left by Tenant in the Premises shall be deemed abandoned
by Tenant.
33. MISCELLANEOUS.
-------------
(a) Each covenant and agreement in this Lease shall be construed to be
a separate and independent covenant and agreement, and the breach of any such
covenant or agreement by Landlord shall not discharge or relieve Tenant from
Tenant's obligations to perform every covenant and agreement of this Lease to be
performed by Tenant. If any term or provision of this Lease or any application
thereof shall be invalid or unenforceable, the remainder of this Lease and any
other application of such term shall not be affected thereby. The use of the
term "herein" shall mean "in this Lease" unless the context clearly indicates
otherwise.
(b) This Lease shall be governed in all respects by the laws of the
State of Connecticut.
(c) Any provision of this Lease which requires Landlord not to
unreasonably withhold its consent shall never be the basis for an award of
damages or give rise to a right of setoff or termination to Tenant, but may be
the basis for a declaratory judgment or specific injunction with respect to the
matter in question.
(d) Tenant shall look solely to the estate and interest of Landlord,
its successors and assigns, in the Building for the collection of a judgment in
the event of a default by Landlord hereunder, and no other property or assets of
Landlord or any officer, director or partner of Landlord shall be subject to
levy, execution or other enforcement procedure for the satisfaction of Tenant's
remedies.
(e) The failure of Landlord to insist in any one or more instances upon
the strict performance of any one or more of the agreements, terms, covenants,
conditions or obligations of this Lease, or to exercise any right, remedy or
election herein contained, shall not be construed as a waiver or relinquishment
for the future of the performance of such one or more obligations of this Lease
or of the right to exercise such election, but the same shall continue and
remain in full force and effect with respect to any subsequent breach, act or
omission, whether of a similar nature or otherwise.
26
(f) Except as otherwise set forth in this Lease, Tenant's obligations
under this Lease shall survive the Expiration Date or sooner termination of the
Term, as same may be extended hereunder.
(g) The Building, may be designated and known by any name Landlord may
choose, and such name or designation may be changed from time to time in
Landlord's sole discretion.
(h) If any action, suit or proceeding is commenced under or in
connection with this Lease, the losing party shall pay to the prevailing party,
and the prevailing party shall be entitled to an award for, reasonable
attorneys' fees, court costs and other litigation expenses incurred by the
prevailing party in connection with such action, suit or proceeding.
27
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the year and day first above written.
LANDLORD:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ LLC
By ▇▇▇▇▇ Properties, Managing Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Landlord's Authorized Representative
TENANT:
STARTECH ENVIRONMENTAL CORP.
A Colorado corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Its: CFO
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