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STANDARD FORM OFFICE LEASE
BETWEEN
EOP-CANTERBURY GREEN, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("LANDLORD"),
AND
TRENWICK AMERICA CORPORATION, A DELAWARE CORPORATION ("TENANT")
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TABLE OF CONTENTS
I. BASIC LEASE INFORMATION; DEFINITIONS.......................................................1
II. LEASE GRANT................................................................................6
III. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION.................................................6
IV. RENT.......................................................................................7
V. USE.......................................................................................13
VI. SECURITY DEPOSIT..........................................................................13
VII. SERVICES TO BE FURNISHED BY LANDLORD......................................................13
VIII. LEASEHOLD IMPROVEMENTS....................................................................16
IX. GRAPHICS..................................................................................16
X. REPAIRS AND ALTERATIONS...................................................................17
XI. USE OF ELECTRICAL SERVICES BY TENANT......................................................18
XII. ENTRY BY LANDLORD.........................................................................19
XIII. ASSIGNMENT AND SUBLETTING.................................................................19
XIV. LIENS.....................................................................................21
XV. INDEMNITY AND WAIVER OF CLAIMS............................................................22
XVI. TENANT'S INSURANCE........................................................................23
XVII. SUBROGATION...............................................................................24
XVIII. LANDLORD'S INSURANCE......................................................................24
XIX. CASUALTY DAMAGE...........................................................................25
XX. DEMOLITION................................................................................26
XXI. CONDEMNATION..............................................................................26
XXII. EVENTS OF DEFAULT.........................................................................26
XXIII. REMEDIES..................................................................................27
XXIV. LIMITATION OF LIABILITY...................................................................29
XXV. NO WAIVER.................................................................................29
XXVI. EVENT OF BANKRUPTCY.......................................................................30
XXVII. WAIVER OF JURY TRIAL......................................................................31
XXVIII. RELOCATION................................................................................31
XXIX. HOLDING OVER..............................................................................31
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE..........................................31
XXXI. ATTORNEYS' FEES...........................................................................32
XXXII. NOTICE....................................................................................33
XXXIII. LANDLORD'S LIEN...........................................................................33
XXXIV. EXCEPTED RIGHTS...........................................................................33
XXXV. SURRENDER OF PREMISES.....................................................................34
XXXVI. MISCELLANEOUS.............................................................................34
XXXVII. ENTIRE AGREEMENT..........................................................................36
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OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as
of the ____ day of __________, 1998, by and between EOP-CANTERBURY GREEN,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and TRENWICK AMERICA
CORPORATION, A DELAWARE CORPORATION ("Tenant").
I. BASIC LEASE INFORMATION; DEFINITIONS.
A. The following are some of the basic lease information and
defined terms used in this Lease.
1. "Additional Base Rental" shall mean Tenant's Pro Rata
Share of Basic Costs and any other sums (exclusive of
Base Rental) that are required to be paid by Tenant
to Landlord hereunder, which sums are deemed to be
additional rent under this Lease. Additional Base
Rental and Base Rental are sometimes collectively
referred to herein as "Rent".
2. "Base Rental" shall mean the sums that Tenant is
required to pay to Landlord in accordance with the
following schedule. The aggregate amount of Base
Rental that Tenant is required to pay to Landlord
during the initial Lease Term is ten million seven
hundred twenty-eight thousand two hundred fifty-five
and 60/100 dollars ($10,728,255.60), plus the amount
of any Base Rental payable with respect to any
partial month in which the Commencement Date occurs.
Such Base Rental shall be payable by Tenant to
Landlord as follows:
a. sixty (60) equal installments of eighty-nine
thousand four hundred two and 13/100 Dollars
($89,402.13), each payable on or before the
first day of each month during the period
beginning on the Commencement Date
(hereinafter defined) and ending on the last
day of the sixtieth (60th) full calendar
month of the Lease Term, provided that the
installment of Base Rental for the third
(3rd) full calendar month of the Lease Term
shall be payable upon the execution of this
Lease by Tenant. In the event that the
Commencement Date does not occur on the
first day of a calendar month, Tenant shall
pay Base Rental for such initial partial
calendar month at the rate of two thousand
nine hundred thirty-nine and 25/100 dollars
($2,939.25) per day. Notwithstanding the
foregoing to the contrary, provided Tenant
is not in default after the expiration of
applicable cure periods, Tenant shall be
entitled to receive a full abatement of Base
Rental with respect to the first sixty (60)
days of the Lease Term (the "Abatement
Period"). In addition to performing Initial
Alterations (hereinafter defined) during the
Abatement Period, Tenant shall be entitled
to use the Premises for the Permitted Use
during the Abatement Period without any
obligation to pay Base Rental.
b. sixty (60) equal installments of
ninety-eight thousand twenty-six and 13/100
Dollars ($98,026.13), each payable on or
before the first day of each month during
the period beginning on the first day of the
sixty-first (61st) full calendar month of
the Lease Term and ending on the Termination
Date (hereinafter defined).
3. "Building" shall mean the office building located at
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Connecticut, commonly known as Canterbury Green.
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4. The "Commencement Date," "Lease Term" and
"Termination Date" shall have the meanings set forth
in subsection I.A.4.a. below or subsection I.A.4.b.
below (delete one):
a. The "Lease Term" shall mean a period of one
hundred twenty (120) months commencing on
the Commencement Date, provided if the
Commencement Date does not occur on the
first day of a calendar month, the Lease
Term shall automatically be extended by the
number of days in the period beginning on
the Commencement Date and ending on the last
day of the month in which the Commencement
Date occurs. For purposes hereof, the
Commencement Date shall mean the date on
which Landlord delivers the Premises to
Tenant free from occupancy by NationsCredit
Commercial Corporation ("Nations"), the
existing tenant in the Premises, or any
other party. The "Termination Date" shall,
unless sooner terminated as provided herein,
mean the last day of the Lease Term. Tenant
acknowledges that Nations is currently
leasing the Premises, exclusive of the
Stamford Atlanta Space (hereinafter defined)
pursuant to the terms of a lease (the
"Nations Lease") that is currently scheduled
to expire on September 16, 1998. Landlord
agrees to use good faith efforts to
negotiate an agreement with Nations pursuant
to which the Nations Lease would terminate
prior to its scheduled expiration date. In
the event Landlord and Nations enter into an
agreement accelerating the expiration date
of the Nations Lease, Landlord shall provide
Tenant with written notice (the "Early
Commencement Notice") setting forth the new
expiration date of the Nations Lease and the
date on which Landlord intends to provide
Tenant with possession of the Premises (i.e.
the targeted Commencement Date). Such Early
Commencement Notice shall be delivered to
Tenant not less than fifteen (15) days prior
to the date on which Landlord intends to
provide Tenant with possession of the
Premises. Notwithstanding the foregoing, in
no event shall the Commencement Date occur
prior to May 1, 1998 without the written
consent of Tenant.
Notwithstanding the foregoing to the
contrary, Tenant acknowledges that a 2,741
rentable square foot portion of the fourth
floor (the "Stamford Atlanta Space") is
currently leased to Stamford Atlanta Capital
("Stamford Atlanta") for a lease term that
is currently scheduled to expire on October
31, 1998. In the event that Tenant has not
exercised its Substitution Option
(hereinafter defined) and Landlord is unable
to deliver the Stamford Atlanta Space on or
before the date on which is delivers the
remainder of the Premises, the Commencement
Date with respect to the Stamford Atlanta
Space only shall be postponed, and all Rent
with respect to the Stamford Atlanta Space
abated, until the date on which the Stamford
Atlanta Space is delivered. The Commencement
Date for the remainder of the Premises shall
commence in accordance with the terms and
conditions hereof. In addition, if Landlord
fails to provide Tenant with possession of
the Stamford Atlanta Space on or before
November 1, 1998 (the "Outside Delivery
Date"), Tenant shall be entitled to a rent
abatement following the delivery of the
Stamford Atlanta Space in the amount of two
hundred thirty-three and 55/100 dollars
($233.55) per day for every day in the
period beginning on the Outside Delivery
Date and ending on the day prior to the date
on which Landlord provides Tenant with
possession of the Stamford Atlanta Space.
For example, if Landlord provides Tenant
with possession of the Stamford Atlanta
Space on November 15, 1998,
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Tenant shall not be obligated to pay Rent
with respect to the Stamford Atlanta Space
with respect to the period prior to November
15, 1998 and, in addition, Tenant shall be
entitled to receive an abatement of Rent in
the amount of $3,269.70 (i.e. 14 x $233.55 =
$3,269.70).
b. Intentionally Omitted.
5. "Premises" shall mean the area located on the second
(2nd) and fourth (4th) floors of the Building, as
outlined on Exhibits A and A-1 attached hereto.
Landlord and Tenant hereby stipulate and agree that
the "Rentable Area of the Premises" shall mean 34,496
square feet, consisting of 22,797 square feet on the
2nd floor as shown on Exhibit A and 11,699 square
feet on the fourth (4th) floor as shown on Exhibit
A-1 (the "Fourth Floor Space"). The "Rentable Area of
the Building" shall mean 217,500 square feet. If the
Premises being leased to Tenant hereunder include one
or more floors within the Building in their entirety,
the definition of Premises with respect to such full
floor(s) shall include all corridors and restroom
facilities located on such floor(s). Unless
specifically provided herein to the contrary, the
Premises shall not include any telephone closets,
electrical closets, janitorial closets, equipment
rooms or similar areas on any full or partial floor
that are used by Landlord for the operation of the
Building.
Notwithstanding anything herein to the contrary,
Landlord and Tenant acknowledge that the Third Floor
Space (hereinafter defined) is currently leased by
Coopers & ▇▇▇▇▇▇▇ ("Coopers") for a term that is
currently scheduled to expire on November 17, 1998.
Such expiration, however, is subject to Coopers right
to extend the term of its lease for up to two (2)
additional periods of five (5) years each. In the
event that Coopers does not elect to extend the term
of its Lease, pursuant to an exercise of its renewal
option, Landlord shall provide Tenant with written
notice (the "Substitution Notice") of the fact that
the Coopers lease will not be extended. Upon receipt
of a Substitution Notice from Landlord, Tenant, by
written notice that is delivered to Landlord within
ten (10) days after Tenant's receipt of the
Substitution Notice, shall have the right (the
"Substitution Option") to elect to substitute the
Third Floor Space for the Fourth Floor Space as
Premises hereunder. For purposes hereof, the Third
Floor Space shall mean the 13,936 square feet of
space shown on Exhibit A-2 attached hereto. In the
event Tenant exercises its Substitution Option,
Landlord and Tenant shall promptly enter into an
amendment to this Lease to modify (i) the total
square footage, (ii) the definition of the Premises,
(iii) Tenant's Pro Rata Share, (iv) the aggregate
amount of Base Rental and the amount of the monthly
installments thereof, and (v) the amount of the
Allowance. Landlord and Tenant acknowledge and agree
that, if Tenant is entitled to and appropriately
exercises its Substitution Option, the Third Floor
Space shall be leased upon the same terms and
conditions as a set forth herein with respect to the
remainder of the Premises, including, without
limitation, the same rate per square foot for Base
Rental and Allowance. Notwithstanding the foregoing,
the Commencement Date for the Third Floor Space shall
mean the date on which Landlord delivers the Third
Floor Space to Tenant free from occupancy by Coopers
or any other party, provided that, without the
written consent of Tenant, in no event shall the
Commencement Date for the Third Floor Space occur
prior to the Commencement Date for the remainder of
the Premises. The Commencement Date for the remainder
of the Premises shall be as set forth in Section
I.A.4. above. In the event the Commencement Date for
the Third Floor Space occurs subsequent to the
Commencement Date for the remainder of the Premises,
the Lease Term shall be determined based upon the
initial Commencement Date, it being agreed that
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the Lease Term for the Third Floor Space and the
remainder of the Premises shall expire coterminously.
6. "Permitted Use" shall mean general office use.
7. "Security Deposit" shall mean the sum of Zero Dollars
($0).
8. "Tenant's Pro Rata Share" shall mean FIFTEEN AND
EIGHTY-SIX ONE HUNDREDTHS PERCENT (15.86%), which is
the quotient (expressed as a percentage), derived by
dividing the Rentable Area of the Premises by the
Rentable Area of the Building.
9. "Guarantor(s)" shall mean any party that agrees in
writing to guarantee the Lease.
10. "Notice Addresses" shall mean the following addresses
for Tenant and Landlord, respectively:
Tenant:
On and after the Commencement Date, notices shall be
sent to Tenant at the Premises.
Prior to the Commencement Date, notices shall be sent
to Tenant at the following address:
Trenwick America Corporation
Metro Center
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Landlord:
EOP - Canterbury Green, L.L.C.
c/o Equity Office Properties
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Attention: Building Manager
With a copy to:
Equity Office Properties
Two ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: General Counsel for Property Operations
Payments of Rent only shall be made payable to the
order of:
EQUITY OFFICE PROPERTIES
at the following address:
Equity Office Properties
dba Canterbury Green
Dept. 0426
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B. The following are additional definitions of some of the
defined terms used in the Lease.
1. "Base Year" shall mean the calendar year 1999. Tenant
acknowledges that Taxes are billed to Landlord based
upon a fiscal year of July 1st through June 30th.
Tenant further acknowledges that Taxes for the Base
Year shall be the average
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of the Taxes payable by Landlord for the fiscal year
of July 1, 1998 to June 30, 1999 and the fiscal year
of July 1, 1999 to June 30, 2000. Likewise, Taxes for
any subsequent calendar year after the Base Year
shall reflect the average of Taxes for the two (2)
fiscal years that fall within such calendar year.
2. "Basic Costs" shall mean Taxes (hereinafter defined)
and all costs and expenses paid or incurred in
connection with operating, maintaining, repairing and
managing the Building and the Property, as further
described in Article IV hereof. Notwithstanding the
foregoing, for the purpose of determining Tenant's
Pro Rata Share of Basic Costs, Basic Costs shall
include only Taxes and Expenses attributable to the
Rentable Area of the Office Portions of the Building
(i.e. 217,500 square feet), it being understood that
the Building includes residential, office and retail
portions. The Taxes and Expenses attributable only to
the Rentable Area of the Office Portions of the
Building and Property are determined as follows: (i)
Taxes are split between the residential portion of
the Building and the Commercial Portion of the
Building (hereinafter defined) on a 30/70 basis, with
30% of Taxes being allocated to the residential
portions and 70% being allocated to the Commercial
Portion. For purposes hereof, the "Commercial Portion
of the Building" shall consist collectively of the
office and retail portions and shall exclude the
residential portions; (ii) Expenses that are common
to the entire Building and Property (e.g.
landscaping) are split between the residential
portion of the Building and the Commercial Portion of
the Building on a 30/70 basis, with 30% of common
Expenses being allocated to the residential portions
and 70% being allocated to the Commercial Portion;
(iii) any Expenses that are contracted only for or
separately for either the residential portion of the
Building or the Commercial Portion of the Building
(e.g. elevator maintenance) shall be included in
Basic Costs only if such Expenses are contracted for
with respect to the Commercial Portion of the
Building; and (iv) once Basic Costs (i.e. Taxes and
Expenses) for the Commercial Portions of the Building
have been determined, such Basic Costs are allocated
on a 95/5 basis, with 95% of Basic Costs being
attributable to the office portions of the Building
and 5% being attributed to the Rentable Area of the
Retail Portions of the Building.
3. "Broker" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Inc..
4. "Building Standard" shall mean the type, grade,
brand, quality and/or quantity of materials Landlord
designates from time to time to be the minimum
quality and/or quantity to be used in the Building.
5. "Business Day(s)" shall mean Mondays through Fridays
exclusive of the normal business holidays
("Holidays") of New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and
Christmas Day. Landlord, from time to time during the
Lease Term, shall have the right to designate
additional Holidays, provided that such additional
Holidays are commonly recognized by other office
buildings in the area where the Building is located.
6. "Common Areas" shall mean those areas provided for
the common use or benefit of all tenants generally
and/or the public, such as corridors, elevator
foyers, common mail rooms, restrooms, vending areas,
lobby areas (whether at ground level or otherwise)
and other similar facilities.
7. Intentionally Omitted.
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8. "Maximum Rate" shall mean the greatest per annum rate
of interest permitted from time to time under
applicable law.
9. "Normal Business Hours" for the Building shall mean
8:00 A.M. to 6:00 P.M. Mondays through Fridays,
exclusive of Holidays.
10. "Prime Rate" shall mean the per annum interest rate
publicly announced by The First National Bank of
Chicago or any successor thereof from time to time
(whether or not charged in each instance) as its
prime or base rate in Chicago, Illinois.
11. "Property" shall mean the Building and the parcel(s)
of land on which it is located and the Building
garage and all other improvements owned by Landlord
and serving the Building and the tenants thereof and
the parcel(s) of land on which they are located.
II. LEASE GRANT.
Subject to and upon the terms herein set forth, Landlord leases to
Tenant and Tenant leases from Landlord the Premises, together with the right, in
common with others, to use the Common Areas.
III. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION.
A. Promptly after the determination of the Commencement Date,
Landlord and Tenant shall enter into a letter agreement (the
"Commencement Letter") on the form attached hereto as Exhibit
C setting forth the Commencement Date, the Termination Date
and any other dates that are affected by the adjustment of the
Commencement Date. Tenant, within five (5) days after receipt
thereof from Landlord, shall execute the Commencement Letter
and return the same to Landlord.
B. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good
order and satisfactory condition, with no representation or
warranty by Landlord as to the condition of the Premises or
the Building or suitability thereof for Tenant's use.
Notwithstanding the foregoing, Landlord hereby represents to
Tenant that the Premises, as currently demised, is in a
condition and configuration that can be occupied by Tenant for
the Permitted Use in accordance with any applicable building
codes and zoning ordinances.
C. Notwithstanding anything to the contrary contained in the
Lease, Landlord shall not be obligated to tender possession of
any portion of the Premises or other space leased by Tenant
from time to time hereunder that, on the date possession is to
be delivered, is occupied by a tenant or other occupant or
that is subject to the rights of any other tenant or occupant,
nor shall Landlord have any other obligations to Tenant under
this Lease with respect to such space until the date Landlord:
(1) recaptures such space from such existing tenant or
occupant; and (2) regains the legal right to possession
thereof. This Lease shall not be affected by any such failure
to deliver possession and Tenant shall have no claim for
damages against Landlord as a result thereof, all of which are
hereby waived and released by Tenant. Notwithstanding the
foregoing, if Landlord is unable to deliver possession of the
Premises, or applicable portion thereof, within sixty (60)
days after the date on which possession of such space is to
delivered in accordance with the terms hereof and the existing
occupant thereof is not actively engaged in the process of
vacating such space, Landlord shall thereafter proceed in good
faith and with due diligence to commence and pursue such
actions as are reasonably necessary to obtain possession of
such space for the benefit of Tenant, including the
commencement of necessary eviction and forcible detainer
proceedings. In addition, if Landlord is unable to obtain
possession of the Premises within ninety (90) days after the
date on which possession of such space
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is to be delivered in accordance with the terms hereof,
Tenant, as its sole remedy, shall have the right to terminate
this Lease by written notice to Landlord given on or before
the date on which Landlord obtains possession of the Premises.
Notwithstanding the foregoing, Tenant shall not have the right
to terminate this Lease due solely to Landlord's failure to
deliver the Stamford Atlanta Space within the time periods
described above.
D. If Tenant takes possession of the Premises prior to the
Commencement Date, such possession shall be subject to all the
terms and conditions of the Lease and Tenant shall pay Base
Rental and Additional Base Rental to Landlord for each day of
occupancy prior to the Commencement Date. Notwithstanding the
foregoing, if Tenant, with Landlord's prior approval, takes
possession of the Premises prior to the Commencement Date for
the sole purpose of performing any Landlord-approved
improvements therein or installing furniture, equipment or
other personal property of Tenant, such possession shall be
subject to all of the terms and conditions of the Lease,
except that Tenant shall not be required to pay Base Rental or
Additional Base Rental with respect to the period of time
prior to the Commencement Date during which Tenant performs
such work. Tenant shall, however, be liable for the cost of
any services (e.g. electricity, HVAC, freight elevators) that
are provided to Tenant or the Premises during the period of
Tenant's possession prior to the Commencement Date. Nothing
herein shall be construed as granting Tenant the right to take
possession of the Premises prior to the Commencement Date,
whether for construction, fixturing or any other purpose,
without the prior consent of Landlord.
IV. RENT.
A. During each calendar year, or portion thereof, falling within
the Lease Term, Tenant shall pay to Landlord as Additional
Base Rental hereunder the sum of (1) Tenant's Pro Rata Share
of the amount, if any, by which Taxes (hereinafter defined)
for the applicable calendar year (determined in accordance
with Section I.B.1. above) exceed Taxes for the Base Year plus
(2) Tenant's Pro Rata Share of the amount, if any, by which
Expenses (hereinafter defined) for the applicable calendar
year exceed Expenses for the Base Year. For purposes hereof,
"Expenses" shall mean all Basic Costs with the exception of
Taxes. Tenant's Pro Rata Share of increases in Taxes and
Tenant's Pro Rata Share of increases in Expenses shall be
computed separately and independently of each other prior to
being added together to determine the "Excess." In the event
that Taxes and/or Expenses, as the case may be, in any
calendar year decrease below the amount of Taxes or Expenses
for the Base Year, Tenant's Pro Rata Share of Taxes and/or
Expenses, as the case may be, for such calendar year shall be
deemed to be $0, it being understood that Tenant shall not be
entitled to any credit or offset if Taxes and/or Expenses
decrease below the corresponding amount for the Base Year.
Prior to January 1, 2000 and prior to January 1 of each
calendar year during the Lease Term, or as soon thereafter as
practical, Landlord shall make a good faith estimate of the
Excess for the applicable calendar year and Tenant's Pro Rata
Share thereof. On or before the first day of each month during
such calendar year, Tenant shall pay to Landlord, as
Additional Base Rental, a monthly installment equal to
one-twelfth of Tenant's Pro Rata Share of Landlord's estimate
of the Excess. Landlord shall have the right from time to time
during any such calendar year (but not more than once in any
calendar year) to revise the estimate of Basic Costs and the
Excess for such year and provide Tenant with a revised
statement therefor, and thereafter the amount Tenant shall pay
each month shall be based upon such revised estimate. If
Landlord does not provide Tenant with an estimate of the Basic
Costs and the Excess by July 1 of any calendar year, Tenant
shall continue to pay a monthly installment based on the
previous year's estimate until such time as Landlord provides
Tenant with an estimate of Basic Costs and the Excess for the
current year. Upon receipt of such current year's estimate, an
adjustment shall be made for any month
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during the current calendar year with respect to which Tenant
paid monthly installments of Additional Base Rental based on
the previous year's estimate. Tenant shall pay Landlord for
any underpayment within thirty (30) days after demand. Any
overpayment shall, at Landlord's option, be refunded to Tenant
or credited against the installment of Base Rental and
Additional Base Rental due for the months immediately
following the furnishing of such estimate. Any amounts paid by
Tenant based on any estimate shall be subject to adjustment
pursuant to the immediately following paragraph when actual
Basic Costs are determined for such calendar year.
As soon as is practical following the end of each calendar
year during the Lease Term, Landlord shall furnish to Tenant a
statement of Landlord's actual Basic Costs and the actual
Excess for the previous calendar year. If the estimated Excess
actually paid by Tenant for the prior year is in excess of
Tenant's actual Pro Rata Share of the Excess for such prior
year, then Landlord shall apply such overpayment against Base
Rental and Additional Base Rental due or to become due
hereunder, provided if the Lease Term expires prior to the
determination of such overpayment, Landlord, simultaneously
with the delivery of such statement to Tenant, shall refund
such overpayment to Tenant after first deducting the amount of
any Rent due hereunder. Likewise, Tenant shall pay to
Landlord, within thirty (30) days after demand, any
underpayment with respect to the prior calendar year, whether
or not the Lease has terminated prior to receipt by Tenant of
a statement for such underpayment, it being understood that
this clause shall survive the expiration of the Lease.
B. "Basic Costs" as defined in Section I.B.2. above shall
include, without limitation, the following:
1. All labor costs for all persons performing services
required or utilized in connection with the
operation, repair, replacement and maintenance of and
control of access to the Building and the Property,
including but not limited to amounts incurred for
wages, salaries and other compensation for services,
payroll, social security, unemployment and other
similar taxes, workers' compensation insurance,
uniforms, training, disability benefits, pensions,
hospitalization, retirement plans, group insurance or
any other similar or like expenses or benefits.
2. All management fees, the cost of equipping and
maintaining a management office at the Building,
accounting services, legal fees not attributable to
leasing and collection activity, and all other
administrative costs relating to the Building and the
Property. If management services are not provided by
a third party, Landlord shall be entitled to a
management fee comparable to that due and payable to
third parties provided Landlord or management
companies owned by, or management divisions of,
Landlord perform actual management services of a
comparable nature and type as normally would be
performed by third parties. In the event that any of
the Building's management and administrative
personnel perform material services in connection
with the operation and management of buildings other
than the Building, including, without limitation, the
building located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, the labor costs
in connection with such personnel shall be equitably
apportioned between the Building and such other
buildings. Likewise, if the Building management
office serves as a management office for buildings in
addition to the Building, the costs of equipping and
maintaining such management office shall be equitably
apportioned between the Building and such other
buildings.
3. All rental and/or purchase costs of materials,
supplies, tools and equipment used in the operation,
repair, replacement and
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maintenance and the control of access to the Building
and the Property.
4. All amounts charged to Landlord by contractors and/or
suppliers for services, replacement parts,
components, materials, equipment and supplies
furnished in connection with the operation, repair,
maintenance, replacement of and control of access to
any part of the Building, or the Property generally,
including the heating, air conditioning, ventilating,
plumbing, electrical, elevator and other systems and
equipment. At Landlord's option, major repair items
may be amortized over a period of up to five (5)
years. Notwithstanding the foregoing, except to the
extent set forth in Subsection IV.B.11 below, it is
hereby agreed that any costs in connection with
replacements that would properly be considered to be
capital improvements under generally accepted
accounting principles shall be excluded from Basic
Costs.
5. All premiums and deductibles paid by Landlord for
fire and extended coverage insurance, earthquake and
extended coverage insurance, liability and extended
coverage insurance, rental loss insurance, elevator
insurance, boiler insurance and other insurance
customarily carried from time to time by landlords of
comparable office buildings or required to be carried
by Landlord's Mortgagee.
6. Charges for water, gas, steam and sewer, but
excluding those charges for which Landlord is
otherwise reimbursed by tenants, and charges for
Electrical Costs. For purposes hereof, the term
"Electrical Costs" shall mean: (i) all charges paid
by Landlord for electricity supplied to the Building,
Property and Premises, regardless of whether such
charges are characterized as distribution charges,
transmission charges, generation charges, public good
charges, disconnection charges, competitive
transaction charges, stranded cost recoveries or
otherwise; (ii) except to the extent otherwise
included in Basic Costs, any costs incurred in
connection with the energy management program for the
Building, Property and Premises, including any costs
incurred for the replacement of lights and ballasts
and the purchase and installation of sensors and
other energy saving equipment; and (iii) if and to
the extent permitted by law, a reasonable fee for the
services provided by Landlord in connection with the
selection of utility companies and the negotiation
and administration of contracts for the generation of
electricity. Notwithstanding the foregoing,
Electrical Costs shall be adjusted as follows: (a)
any amounts received by Landlord as reimbursement for
above standard electrical consumption shall be
deducted from Electrical Costs, (b) any amounts
received by Landlord as a rebate from the utility
provider with respect to the period of time for which
Electrical Costs are being determined shall be
deducted from Electrical Costs, (c) the cost of
electricity incurred in providing overtime HVAC to
specific tenants shall be deducted from Electrical
Costs, it being agreed that the electrical component
of overtime HVAC Costs shall be calculated as a
reasonable percentage of the total HVAC costs charged
to such tenants, and (d) if Tenant is billed directly
for the cost of electricity to the Premises as a
separate charge in addition to Base Rental and Basic
Costs, the cost of electricity to individual tenant
spaces in the Building shall be deducted from
Electrical Costs (whether collected by Landlord
through a fixed electrical charge, submetered charge
or otherwise). In the event that the total amount
received by Landlord pursuant to subsections (a),
(b), (c) and (d) of the foregoing sentence with
respect to any given calendar year is in excess of
Landlord's actual electrical ▇▇▇▇ for the Building
with respect to such calendar year, any such excess
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amount received by Landlord shall be credited against
Basic Costs for the applicable calendar year.
7. "Taxes", which for purposes hereof, shall mean: (a)
all real estate taxes and assessments on the
Property, the Building or the Premises, and taxes and
assessments levied in substitution or supplementation
in whole or in part of such taxes, (b) all personal
property taxes for the Building's personal property,
including license expenses, (c) all taxes imposed on
services of Landlord's agents and employees, (d) all
other taxes, fees or assessments now or hereafter
levied by any governmental authority on the Property,
the Building or its contents or on the operation and
use thereof (except as relate to specific tenants),
and (e) all costs and fees incurred in connection
with seeking reductions in or refunds in Taxes
including, without limitation, any costs incurred by
Landlord to challenge the tax valuation of the
Building, but excluding income taxes. For the purpose
of determining real estate taxes and assessments for
any given calendar year, the amount to be included in
Taxes for such year shall be as follows: (1) with
respect to any special assessment that is payable in
installments, Taxes for such year shall include the
amount of the installment (and any interest) due and
payable during such year; and (2) with respect to all
other real estate taxes, Taxes for such year shall,
at Landlord's election, include either the amount
accrued, assessed or otherwise imposed for such year
or the amount due and payable for such year, provided
that Landlord's election shall be applied
consistently throughout the Lease Term. If a
reduction in Taxes is obtained for any year of the
Lease Term during which Tenant paid its Pro Rata
Share of Basic Costs, then Basic Costs for such year
will be retroactively adjusted and Landlord shall
provide Tenant with a credit, if any, based on such
adjustment. Likewise, if a reduction is subsequently
obtained for Taxes for the Base Year (if Tenant's Pro
Rata Share is based upon increases in Basic Costs
over a Base Year), Basic Costs for the Base Year
shall be restated and the Excess for all subsequent
years recomputed. Tenant shall pay to Landlord
Tenant's Pro Rata Share of any such increase in the
Excess within thirty (30) days after Tenant's receipt
of a statement therefor from Landlord.
8. All landscape expenses and costs of maintaining,
repairing, resurfacing and striping of the parking
areas and garages of the Property, if any.
9. Cost of all maintenance service agreements, including
those for equipment, alarm service, window cleaning,
drapery or venetian blind cleaning, janitorial
services, pest control, uniform supply, plant
maintenance, landscaping, and any parking equipment.
10. Cost of all other repairs, replacements and general
maintenance of the Property and Building neither
specified above nor directly billed to tenants.
11. The amortized cost of capital improvements made to
the Building or the Property which are: (a) primarily
for the purpose of reducing operating expense costs
or otherwise improving the operating efficiency of
the Property or Building; or (b) required to comply
with any laws, rules or regulations of any
governmental authority or a requirement of Landlord's
insurance carrier. The cost of such capital
improvements shall be amortized over a period equal
to the lesser of ten (10) years or the useful life of
such capital improvement and shall, at Landlord's
option, include interest at a rate that is reasonably
equivalent to the interest rate that Landlord would
be required to pay to finance the cost of the capital
improvement in question as of the date such capital
improvement is performed, provided if the payback
period for any
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capital improvement is less than the amortization
period provided above, Landlord may amortize the cost
of such capital improvement over the payback period.
Notwithstanding the foregoing, the portion of the
annual amortized costs to be included in Basic Costs
in any calendar year with respect to a capital
improvement which is intended to reduce expenses or
improve the operating efficiency of the Property or
Building shall equal the lesser of: a) such annual
amortized costs; and b) the actual annual amortized
reduction in expenses (as reasonably determined by
Landlord) for that portion of the amortization period
of the capital improvement which falls within the
Lease Term.
12. Any other expense or charge of any nature whatsoever
which, in accordance with general industry practice
with respect to the operation of a first-class office
building, would be construed as an operating expense.
Basic Costs shall not include (i) the cost of capital
improvements (except as set forth above and as distinguished
from replacement parts or components purchased and installed
in the ordinary course), (ii) depreciation, (iii) interest
(except as provided above with respect to the amortization of
capital improvements), (iv) the cost of maintaining and
operating a leasing office, (v) leasing commissions,
brochures, marketing supplies, attorney's fees, costs, and
disbursements and other expenses incurred in connection with
negotiation of leases with prospective tenants, (vi) principal
payments on mortgage and other non-operating debts of
Landlord, and (vii) expenses incurred by Landlord to the
extent the same are reimbursed to Landlord by other tenants or
occupants of the Building or by other third parties. If the
Building is not at least ninety-five percent (95%) occupied
during any calendar year of the Lease Term or if Landlord is
not supplying services to at least ninety-five percent (95%)
of the total Rentable Area of the Building at any time during
any calendar year of the Lease Term, actual Basic Costs for
purposes hereof shall be determined as if the Building had
been ninety-five percent (95%) occupied and Landlord had been
supplying services to ninety-five percent (95%) of the
Rentable Area of the Building during such year. If Tenant pays
for its Pro Rata Share of Basic Costs based on increases over
a "Base Year" and Basic Costs for any calendar year during the
Lease Term are determined as provided in the foregoing
sentence, Basic Costs for such Base Year shall also be
determined as if the Building had been ninety-five percent
(95%) occupied and Landlord had been supplying services to
ninety-five percent (95%) of the Rentable Area of the
Building. Any necessary extrapolation of Basic Costs under
this Article shall be performed by adjusting the cost of those
components of Basic Costs that are impacted by changes in the
occupancy of the Building (including, at Landlord's option,
Taxes) to the cost that would have been incurred if the
Building had been ninety-five percent (95%) occupied and
Landlord had been supplying services to ninety-five percent
(95%) of the Rentable Area of the Building. In addition, if
Tenant's Pro Rata Share of Basic Costs is determined based
upon increases over a Base Year and Basic Costs for the Base
Year include exit and disconnection fees, stranded cost
charges and/or competitive transaction charges, such fees and
charges may, at Landlord's option, be imputed as a Basic Cost
for subsequent years in which such fees and charges are not
incurred. In no event, however, shall the amount of such
imputed fees and charges exceed the actual amount of exit and
disconnection fees, stranded cost charges and/or competitive
transaction charges that were actually included in Basic Costs
for the Base Year.
C. Tenant, within ninety (90) days after receiving Landlord's
statement of actual Basic Costs for a particular calendar
year, shall have the right to provide Landlord with written
notice (the "Review Notice") of its intent to review
Landlord's books and records relating to the Basic Costs for
such calendar year. Within a reasonable time after receipt of
a timely Review
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Notice, Landlord shall make such books and records available
to Tenant or Tenant's agent for its review at either
Landlord's home office or at the office of the Building,
provided that if Tenant retains an agent to review Landlord's
books and records for any calendar year, such agent must be
CPA firm licensed to do business in the state in which the
Building is located. Tenant shall be solely responsible for
any and all costs, expenses and fees incurred by Tenant or
Tenant's agent in connection with such review. If Tenant
elects to review Landlord's books and records, within sixty
(60) days after such books and records are made available to
Tenant, Tenant shall have the right to give Landlord written
notice stating in reasonable detail any objection to
Landlord's statement of actual Basic Costs for such calendar
year. If Tenant fails to give Landlord written notice of
objection within such sixty (60) day period or fails to
provide Landlord with a Review Notice within the ninety (90)
day period provided above, Tenant shall be deemed to have
approved Landlord's statement of Basic Costs in all respects
and shall thereafter be barred from raising any claims with
respect thereto. Notwithstanding the foregoing, if a
subsequent review of Expenses in accordance with the terms
hereof discloses that a particular material item of Expenses
has been overstated by more than two and one half percent
(2.5%) and there is a reasonable basis to assume such item was
similarly overstated in any prior year, Landlord shall allow
Tenant to perform a review of Landlord's books and records
with respect to such particular item(s) for any previous
calendar year in which Tenant elected not to review Landlord's
books and records. In addition, if Landlord's statement of
Basic Costs for any calendar year was fraudulently prepared by
Landlord (as evidenced by Landlord's admission or a judgment
against Landlord by a court of proper jurisdiction), Tenant
shall not be barred from raising claims with respect to the
statement for such calendar year. Upon Landlord's receipt of a
timely objection notice from Tenant, Landlord and Tenant shall
work together in good faith to resolve the discrepancy between
Landlord's statement and Tenant's review. If Landlord and
Tenant determine that Basic Costs for the calendar year in
question are less than reported, Landlord shall provide Tenant
with a credit against future Base Rental and Additional Base
Rental in the amount of any overpayment by Tenant. Likewise,
if Landlord and Tenant determine that Basic Costs for the
calendar year in question are greater than reported, Tenant
shall forthwith pay to Landlord the amount of underpayment by
Tenant. Any information obtained by Tenant pursuant to the
provisions of this Section shall be treated as confidential.
Notwithstanding anything herein to the contrary, Tenant shall
not be permitted to examine Landlord's books and records or to
dispute any statement of Basic Costs unless Tenant has paid to
Landlord the amount due as shown on Landlord's statement of
actual Basic Costs, said payment being a condition precedent
to Tenant's right to examine Landlord's books and records.
D. Tenant covenants and agrees to pay to Landlord during the
Lease Term, without any setoff or deduction whatsoever, the
full amount of all Base Rental and Additional Base Rental due
hereunder. In addition, Tenant shall pay and be liable for, as
additional rent, all rental, sales and use taxes (but
excluding income taxes) imposed upon or measured by the Rent
payable by Tenant, provided that Tenant is the party
responsible for paying such tax under the provisions of the
applicable law, order, rule or regulation (regardless of
whether Landlord is the party responsible for collecting such
amounts from Tenant). Any such payments shall be paid
concurrently with the payments of the Rent on which the tax is
based. The Base Rental, Tenant's Pro Rata Share of Basic Costs
and any recurring monthly charges due hereunder shall be due
and payable in advance on the first day of each calendar month
during the Lease Term without demand, provided that the
installment of Base Rental for the third (3rd) full calendar
month of the Lease Term shall be payable upon the execution of
this Lease by Tenant. All other items of Rent shall be due and
payable by Tenant on or before thirty (30) days after billing
by Landlord. If the Lease Term commences on a day other than
the first day of a calendar month or terminates on a day other
than the last day
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of a calendar month, then the monthly Base Rental and Tenant's
Pro Rata Share of Basic Costs for such month shall be prorated
for the number of days in such month occurring within the
Lease Term based on a fraction, the numerator of which is the
number of days of the Lease Term that fell within such
calendar month and the denominator of which is thirty (30).
All such payments shall be by a good and sufficient check. No
payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct amount of Rent due under this
Lease shall be deemed to be other than a payment on account of
the earliest Rent due hereunder, nor shall any endorsement or
statement on any check or any letter accompanying any check or
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 or pursue any other available
remedy. The acceptance by Landlord of any Rent on a date after
the due date of such payment shall not be construed to be a
waiver of Landlord's right to declare a default for any other
late payment. Tenant's covenant to pay Rent shall be
independent of every other covenant set forth in this Lease.
E. All Rent not paid when due and payable shall bear interest
from the date due until paid at the lesser of: (1) the Prime
Rate plus five percent (5%) per annum; or (2) the Maximum
Rate. In addition, if Tenant fails to pay any installment of
Rent when due and payable hereunder and such failure continues
for ten (10) days after written notice from Landlord, a
service fee equal to five percent (5%) of such unpaid amount
will be due and payable immediately by Tenant to Landlord.
V. USE.
The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's reasonable opinion, creates a nuisance or which would increase the
cost of insurance coverage with respect to the Building. Tenant shall conduct
its business and control its agents, servants, contractors, employees,
customers, licensees, and invitees in such a manner as not to interfere with,
annoy or disturb other tenants, or in any way interfere with Landlord in the
management and operation of the Building. Tenant will maintain the Premises in a
clean and healthful condition, and comply with all laws, ordinances, orders,
rules and regulations of any governmental entity with reference to the operation
of Tenant's business and to the use, condition, configuration or occupancy of
the Premises, including without limitation, the Americans with Disabilities Act
(collectively referred to as "Laws"). Tenant, within ten (10) days after receipt
thereof, shall provide Landlord with copies of any notices it receives with
respect to a violation or alleged violation of any Laws. Tenant will comply with
the rules and regulations of the Building attached hereto as Exhibit B and such
other rules and regulations adopted and altered by Landlord from time to time
and will cause all of its agents, servants, contractors, employees, customers,
licensees and invitees to do so. Notwithstanding the foregoing, Tenant shall not
be required to comply with any rules and regulations or revisions to rules and
regulations not listed on Exhibit B until such time as a copy of such new rules
or revisions have been delivered to Tenant. All changes to such rules and
regulations will be reasonable and shall be sent by Landlord to Tenant in
writing.
VI. SECURITY DEPOSIT.
Intentionally Omitted.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord, as part of Basic Costs (except as otherwise
provided), agrees to furnish Tenant the following services:
1. Hot and cold water for use in the lavatories on the
floor(s) on which the Premises is located. If Tenant
desires water in the Premises for any approved
reason, including a private lavatory or kitchen, cold
water shall be supplied, at Tenant's sole cost and
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expense, from the Building water main through a line
and fixtures installed at Tenant's sole cost and
expense with the prior reasonable consent of
Landlord. If Tenant desires hot water in the
Premises, Tenant, at its sole cost and expense and
subject to the prior reasonable consent of Landlord,
may install a hot water heater in the Premises.
Tenant shall be solely responsible for maintenance
and repair of any such hot water heater.
2. Central heat and air conditioning in season during
Normal Business Hours in accordance with the
specifications attached hereto as Exhibit G, or as
required by governmental authority, provided that
Landlord shall not be liable for any failure to
maintain the temperatures ranges set forth on Exhibit
G to the extent that such failure arises directly out
of any of the foregoing circumstances: (a) an excess
density or electrical load within the Premises beyond
any density or load limits specified in this Lease,
or (b) alterations performed to the HVAC system by
Tenant or any contractors retained by Tenant where
the performance or design of such alterations is the
direct cause of the failure of the HVAC system to
meet the specifications set forth on Exhibit G, or
(c) Tenant's failure to keep the window covering in
the Premises closed during periods when the Premises
are exposed to direct sunlight. In the event that
Tenant requires central heat, ventilation or air
conditioning at hours other than Normal Business
Hours, such central heat, ventilation or air
conditioning shall be furnished only upon the written
request of Tenant delivered to Landlord at the office
of the Building prior to 3:00 P.M. at least one
Business Day in advance of the date for which such
usage is requested. Tenant shall pay Landlord, as
Additional Base Rental, the entire cost of additional
service as such costs are determined by Landlord from
time to time. As of the date hereof, the cost of
after hours HVAC service is fifty dollars ($50.00)
per hour. In the event Tenant requires heat or air
conditioning during hours other than Normal Business
Hours, charges for such services will be prorated by
Landlord between each requesting user-tenant (if more
than one tenant in the same service zone requests
additional heating or air conditioning at the same
time) and the proration shall be based on the area of
the Building leased to such tenants and their
respective periods of use.
3. Maintenance and repair of all Common Areas in the
manner and to the extent standard for buildings of
similar class, size, age and location.
4. Janitor service on Business Days in accordance with
the specifications attached hereto as Exhibit H (or
such reasonably comparable specifications as Landlord
may designate from time to time); provided, however,
if Tenant's use, floor covering or other improvements
require special services, Tenant shall pay the
additional cost reasonably attributable thereto as
Additional Base Rental.
5. Passenger elevator service in common with other
tenants of the Building. Subject to Force Majeure, at
least two (2) passenger elevators shall be available
to serve the Premises during Normal Business Hours
and at least one (1) passenger elevator shall be
available to serve the Premises twenty-four (24)
hours per day, seven (7) days per week.
6. Electricity to the Premises for general office use,
in accordance with and subject to the terms and
conditions set forth in Article XI of this Lease.
7. Tenant, without additional charge, shall have the
right to use the loading dock for the Building in
common with other tenants of the
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Building and other parties that are permitted by
Landlord to use such loading dock. Any usage of the
loading dock for a period in excess of one hour must
be scheduled in advance with Landlord.
8. Security service at a level reasonably comparable to
the average level of security service provided at
other first class buildings in Stamford, Connecticut.
B. The failure by Landlord to any extent to furnish, or the
interruption or termination of, any services in whole or in
part, resulting from adherence to laws, regulations and
administrative orders, wear, use, repairs, improvements,
alterations or any causes beyond the reasonable control of
Landlord shall not render Landlord liable in any respect nor
be construed as a constructive eviction of Tenant, nor give
rise to an abatement of Rent, nor relieve Tenant from the
obligation to fulfill any covenant or agreement hereof. In
such event, Landlord, to the extent the restoration of such
service is reasonably within its control, shall use reasonable
diligence to repair such equipment or machinery or to
otherwise take such steps as are reasonably necessary to
restore the service in question. In the event any such
interruption of services renders the Premises untenantable for
a period in excess of two (2) Business Days, Landlord, as soon
as reasonably possible thereafter, shall provide Tenant with a
written estimate (the "Restoration Estimate") of the date on
which such service will be restored so as to return the
Premises to a tenantable condition. If the interruption of the
service in question involves a building system, building
contract (e.g. janitorial service) or other agency that is
reasonably within the control of Landlord, such Restoration
Estimate shall be based upon the reasonable judgment of
Landlord or Landlord's contractors. If the interruption of
service is outside of Landlord's reasonable control to restore
(e.g. electrical service to the Building), such Restoration
Estimate shall be based upon the reasonable estimate of the
party providing such service to the Building (e.g. the utility
company). If the Restoration Estimate indicates that the
Premises cannot be made tenantable within nine (9) months
after the date the Premises were first rendered untenantable,
Tenant shall have the right to terminate this Lease by giving
written notice to Landlord of such election within ten (10)
days after its receipt of the Restoration Estimate. Tenant,
however, shall not have the right to terminate this Lease in
the event that the interruption of service in question was
caused by the negligence or intentional misconduct of Tenant
or any Tenant Related Parties. If the Restoration Estimate
indicates that the Premises can be made tenantable within nine
(9) months, Landlord, to the extent the same is within its
control, shall proceed with reasonable promptness to restore
the service in question so as to return the Premises to a
tenantable condition. Notwithstanding the foregoing, if the
service in question is not restored within nine (9) months
following the date on which the Premises are rendered
untenantable, Tenant may terminate this Lease by written
notice to Landlord prior to the date on which the service in
question is restored and the Premises returned to a tenantable
condition. Landlord and Tenant acknowledge that in the event
any service is interrupted as a result of a fire or other
casualty to the Building, Tenant's rights and remedies shall
be controlled by Article XIX.
C. Tenant expressly acknowledges that Landlord shall not be
deemed to have warranted the efficiency of any security
personnel, service, procedures or equipment and Landlord shall
not be liable in any manner for the failure of any such
security personnel, services, procedures or equipment to
prevent or control, or apprehend anyone suspected of personal
injury, property damage or any criminal conduct in, on or
around the Property.
VIII. LEASEHOLD IMPROVEMENTS.
A. Any trade fixtures, unattached and movable equipment or
furniture, or other personalty brought into the Premises by
Tenant ("Tenant's
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Property") shall be owned and insured by Tenant. Tenant shall
remove all such Tenant's Property from the Premises in
accordance with the terms of Article XXXV hereof. Any and all
alterations, additions and improvements to the Premises,
including any built-in furniture (collectively, "Leasehold
Improvements") shall be owned and insured by Landlord and
shall remain upon the Premises, all without compensation,
allowance or credit to Tenant. Landlord may, nonetheless, at
any time prior to, or within six (6) months after, the
expiration or earlier termination of this Lease or Tenant's
right to possession, require Tenant to remove any Leasehold
Improvements performed by or for the benefit of Tenant and all
electronic, phone and data cabling as are designated by
Landlord (the "Required Removables") at Tenant's sole cost. In
the event that Landlord so elects, Tenant shall remove such
Required Removables within twenty (20) days after notice from
Landlord, provided that in no event shall Tenant be required
to remove such Required Removables prior to the expiration or
earlier termination of this Lease or Tenant's right to
possession. In addition to Tenant's obligation to remove the
Required Removables, Tenant shall repair any damage caused by
such removal and perform such other work as is reasonably
necessary to restore the Premises to a "move in" condition. If
Tenant fails to remove any specified Required Removables or to
perform any required repairs and restoration within the time
period specified above, Landlord, at Tenant's sole cost and
expense, may remove, store, sell and/or dispose of the
Required Removables and perform such required repairs and
restoration work. Tenant, within five (5) days after demand
from Landlord, shall reimburse Landlord for any and all
reasonable costs incurred by Landlord in connection with the
Required Removables.
B. Notwithstanding Section VIII.A. above to the contrary, Tenant
shall not be obligated to remove any portion of the Initial
Alterations unless Landlord, within five (5) days after its
approval of the final plans for the Initial Alterations,
advises Tenant that such removal will be required. With
respect to any subsequent alterations, additions or
improvements performed by Tenant, Tenant may request in
writing at the time it submits its plans and specifications
for an alteration, addition or improvement, that Landlord
advise Tenant whether Landlord will require Tenant to remove,
at the termination of this Lease or Tenant's right to
possession hereunder, such alteration, addition or
improvement, or any particular portion thereof. Landlord,
within ten (10) days after receipt of Tenant's request, shall
advise Tenant in writing as to whether Landlord will require
removal of such alteration, addition or improvement, or any
particular portion thereof. Landlord shall not require Tenant
to remove any usual office improvements such as gypsum board,
partitions, ceiling grids and tiles, Building Standard
fluorescent lighting panels, building standard doors and
non-glued down carpeting.
IX. GRAPHICS.
Landlord shall provide and install, at Tenant's cost, any suite numbers
and Tenant identification on the exterior of the Premises using the standard
graphics for the Building. Notwithstanding the foregoing, Tenant, at its sole
cost and expense (subject to the Allowance), shall have the right to install
additional custom signage identifying Tenant on any full floors leased by
Tenant, provided that such signage is not visible from outside the Building.
Tenant shall also be entitled to ___ lines on the building directory. Tenant
shall not be charged a fee for the initial installation of any names on the
Building directory. Tenant shall, however, be required to pay Landlord's then
standard fee (which fee must be reasonable) for any additional names to be added
to the Building directory or any replacement of previously existing names.
Tenant shall not be permitted to install any signs or other identification
without Landlord's prior written consent, which consent shall not be
unreasonably withheld with respect to the placement of Tenant's name or logo on
any entry door to the Premises.
X. REPAIRS AND ALTERATIONS.
A. Except to the extent such obligations are imposed upon
Landlord hereunder, Tenant, at its sole cost and expense,
shall perform all
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maintenance and repairs to the Premises as are necessary to
keep the same in good condition and repair throughout the
entire Lease Term, reasonable wear and tear excepted. Tenant's
repair and maintenance obligations with respect to the
Premises shall include, without limitation, any necessary
repairs with respect to: (1) any carpet or other floor
covering, (2) any interior partitions, (3) any doors, (4) the
interior side of any demising walls, (5) any telephone and
computer cabling that serves Tenant's equipment exclusively,
(6) any supplemental air conditioning units, private showers
and kitchens, including any plumbing in connection therewith,
and similar facilities serving Tenant exclusively, and (7)
alterations, additions or improvements performed by
contractors retained by Tenant, provided if alterations,
additions or improvements are made to the Building systems
with Landlord's approval, Tenant shall only be responsible for
the repairs of those portions of the Building systems that
were altered, improved or added to by Tenant if and to the
extent that the need for any such repairs results from work
that was improperly performed or designed by Tenant or its
contractors. All such work shall be performed in accordance
with section X.B. below and the rules, policies and procedures
reasonably enacted by Landlord from time to time for the
performance of work in the Building. If Tenant fails to make
any necessary repairs to the Premises, Landlord may, at its
option, make such repairs, and Tenant shall pay the cost
thereof to the Landlord on demand as Additional Base Rental,
together with an administrative charge in an amount equal to
ten percent (10%) of the cost of such repairs. Landlord shall,
at its expense (except as included in Basic Costs), keep and
maintain in good repair and working order and make all repairs
to and perform necessary maintenance upon: (a) all structural
elements of the Building; and (b) all mechanical, electrical
and plumbing systems that serve the Building and Premises,
except to the extent such repair and maintenance is the
responsibility of Tenant pursuant to subsections (6) and (7)
above; and (c) the Building facilities common to all tenants
including, but not limited to, the ceilings, walls and floors
in the Common Areas.
B. Tenant shall not make or allow to be made any alterations,
additions or improvements to the Premises without first
obtaining the written consent of Landlord in each such
instance, which approval or disapproval shall not be
unreasonably withheld or delayed. Notwithstanding the
foregoing, Landlord's consent shall not be required for any
alteration, addition or improvement that satisfies all of the
following criteria: 1) costs less than $25,000.00; 2) is of a
cosmetic nature such as painting, wallpapering, moving
partitions, hanging pictures and installing carpeting; 3) is
not visible from the exterior of the Premises or Building; and
4) will not affect the systems or structure of the Building
and does not require work to be performed inside the walls or
above the ceiling of the Premises; provided that even if
consent is not required, Tenant shall still comply with all
the other provisions of this Section X.B. Prior to commencing
any such work and as a condition to obtaining Landlord's
consent, Tenant must furnish Landlord with plans and
specifications reasonably acceptable to Landlord; names and
addresses of contractors reasonably acceptable to Landlord;
copies of contracts; necessary permits and approvals; and
evidence of contractor's and subcontractor's insurance in
accordance with Article XVI section B. hereof. All such
improvements, alterations or additions shall be constructed in
a good and workmanlike manner using new or like new materials
of first class quality. Landlord, to the extent reasonably
necessary to avoid any disruption to the tenants and occupants
of the Building, shall have the right to designate the time
when any such alterations, additions and improvements may be
performed and to otherwise designate reasonable rules,
regulations and procedures for the performance of work in the
Building. Upon completion, Tenant shall furnish "as-built"
plans, contractor's affidavits and full and final waivers of
lien and receipted bills covering all labor and materials. All
improvements, alterations and additions shall comply with all
insurance requirements, codes, ordinances, laws and
regulations, including without limitation, the Americans with
Disabilities Act. Tenant shall reimburse Landlord upon demand
as Additional Base Rental for all
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sums, if any, expended by Landlord for third party examination
of the architectural, mechanical, electric and plumbing plans
for any alterations, additions or improvements, provided that
Tenant shall not be required to reimburse Landlord for any
such costs in connection with the Initial Alterations. In
addition, if Landlord so requests, Landlord shall be entitled
to oversee the construction of any alterations, additions or
improvements that may affect the structure of the Building or
any of the mechanical, electrical, plumbing or life safety
systems of the Building. Landlord's approval of Tenant's plans
and specifications for any work performed for or on behalf of
Tenant shall not be deemed to be a representation by Landlord
that such plans and specifications comply with applicable
insurance requirements, building codes, ordinances, laws or
regulations or that the alterations, additions and
improvements constructed in accordance with such plans and
specifications will be adequate for Tenant's use.
XI. USE OF ELECTRICAL SERVICES BY TENANT.
A. Tenant, at its sole cost and expense, shall submeter
electrical consumption in the Premises as part of the Initial
Alterations. Tenant, as Additional Base Rental, shall pay to
Landlord within ten (10) days after receipt of an invoice from
Landlord, the sum of (a) an amount computed by applying
Tenant's consumption and demand for the billing period in
question (as measured by the submeter(s) installed in the
Premises) to Landlord's Monthly Cost Rate, as such term is
hereinafter defined, plus, (b) three percent (3%) of the
amount determined in (a). As used herein, the term "Landlord's
Monthly Cost Rate" shall mean an amount equal to Landlord's
average monthly cost of purchasing electricity from the
utility provider(s) servicing the Building for the relevant
monthly billing period by the total kilowatt hours consumed by
the Building for such monthly period carried to six decimal
places. If any tax is imposed on Landlord's receipt from the
sale or resale of electric energy to Tenant by any federal,
state or municipal authority, Tenant covenants and agrees that
where permitted by law, Tenant's pro rata share of such taxes
shall be passed on to, and included in the ▇▇▇▇ of, and paid
by, Tenant to Landlord.
B. Tenant's use of electrical service in the Premises shall not
exceed, either in voltage, rated capacity, use beyond Normal
Business Hours or overall load, that which Landlord deems to
be standard for the Building. Landlord hereby represents that
the standard electrical usage for the Building is five (5)
▇▇▇▇▇ per square foot for lighting and power. In the event
Tenant shall consume (or request that it be allowed to
consume) electrical service in excess of the standard for the
Building, Landlord may refuse to consent to such excess usage
or may condition its consent to such excess usage upon such
conditions as Landlord reasonably elects (including the
installation of utility service upgrades, submeters, air
handlers or cooling units), and all such additional usage (to
the extent permitted by law), installation and maintenance
thereof shall be paid for by Tenant as Additional Base Rental.
Landlord, at any time during the Lease Term, shall have the
right to separately meter electrical usage for the Premises or
to measure electrical usage by survey or any other method that
Landlord, in its reasonable judgment, deems to be appropriate.
C. Notwithstanding Section A. above to the contrary, if Landlord
permits Tenant to purchase electrical power for the Premises
from a provider other than Landlord's designated company(ies),
such provider shall be considered to be a contractor of Tenant
and Tenant shall indemnify and hold Landlord harmless from
such provider's acts and omissions while in, or in connection
with their services to, the Building or Premises in accordance
with the terms and conditions of Article XV. In addition, at
the request of Landlord, Tenant shall allow Landlord to
purchase electricity from Tenant's provider at Tenant's rate
or at such lower rate as
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can be negotiated by the aggregation of Landlord's and
Tenant's requirements for electricity power.
XII. ENTRY BY LANDLORD.
Landlord and its agents or representatives shall have the right to
enter the Premises to inspect the same, or to show the Premises to prospective
purchasers, mortgagees, tenants (during the last twelve months of the Lease Term
or earlier in connection with a potential relocation) or insurers, or to clean
or make repairs, alterations or additions thereto, including any work that
Landlord deems necessary for the safety, protection or preservation of the
Building or any occupants thereof, or to facilitate repairs, alterations or
additions to the Building or any other tenants' premises. Except for any entry
by Landlord in an emergency situation or to provide normal cleaning and
janitorial service, Landlord shall provide Tenant with reasonable prior notice
of any entry into the Premises, which notice may be given verbally. If
reasonably necessary for the protection and safety of Tenant and its employees,
Landlord shall have the right to temporarily close the Premises to perform
repairs, alterations or additions in the Premises, provided that Landlord shall
use reasonable efforts to perform all such work on weekends and after Normal
Business Hours. Entry by Landlord hereunder shall not constitute a constructive
eviction or entitle Tenant to any abatement or reduction of Rent by reason
thereof.
XIII. ASSIGNMENT AND SUBLETTING.
A. Restrictions against Transfers. Tenant shall not assign,
sublease, transfer or encumber this Lease or any interest
therein or grant any license, concession or other right of
occupancy of the Premises or any portion thereof or otherwise
permit the use of the Premises or any portion thereof by any
party other than Tenant (any of which events is hereinafter
called a "Transfer") without the prior written consent of
Landlord, which consent shall not be unreasonably withheld
with respect to any proposed assignment or subletting.
Landlord's consent shall not be considered unreasonably
withheld if: (1) in connection with a proposed assignment of
this Lease by Tenant, the proposed transferee's financial
responsibility does not meet the same criteria Landlord uses
to select Building tenants; (2) the proposed transferee's
business is not suitable for the Building considering the
business of the other tenants and the Building's prestige or
would result in a violation of an exclusive right granted to
another tenant in the Building; (3) the proposed use is
different than the Permitted Use; (4) the proposed transferee
is a government agency or, subject to the limitations
described below, the proposed transferee is an occupant of the
Building; (5) Tenant is in default; or (6) any portion of the
Building or Premises would become subject to additional or
different governmental laws or regulations as a consequence of
the proposed Transfer and/or the proposed transferee's use and
occupancy of the Premises. Notwithstanding subsection (4)
above to the contrary, if: (i) Landlord, pursuant to a Prior
Notice (defined below), elected not to recapture any
particular space that Tenant intended to sublet or assign, and
(ii) Tenant proposes to sublet or assign such space to an
occupant of the Building within six (6) months following
Landlord's election, Landlord shall not be entitled to
withhold its consent to such proposed Transfer solely because
the proposed transferee is an occupant of the Building. Tenant
acknowledges that the foregoing is not intended to be an
exclusive list of the reasons for which Landlord may
reasonably withhold its consent to a proposed Transfer. Any
attempted Transfer in violation of the terms of this Article
shall, at Landlord's option, be void. Consent by Landlord to
one or more Transfers shall not operate as a waiver of
Landlord's rights as to any subsequent Transfers. In addition,
Tenant shall not, without Landlord's consent, publicly
advertise the proposed rental rate for any Transfer, provided
that Tenant shall be entitled to distribute customary direct
broker mailings containing the proposed rental rate for a
Transfer.
B. Permitted Transfers. Notwithstanding anything to the contrary
contained herein or in Section XIII.D., Tenant may assign its
entire interest under this Lease or sublet the Premises to a
wholly owned corporation,
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partnership or other legal entity or controlled subsidiary or
parent of Tenant or to any successor to Tenant by purchase,
merger, consolidation or reorganization (hereinafter,
collectively, referred to as "Permitted Transfer") without the
consent of Landlord, provided: (i) Tenant is not in default
under this Lease; (ii) if such proposed transferee is a
successor to Tenant by purchase, merger, consolidation or
reorganization, the continuing or surviving entity shall own
all or substantially all of the assets of Tenant and shall
have a net worth which is at least equal to the greater of
Tenant's net worth at the date of this Lease or Tenant's net
worth at the date of the Transfer; (iii) such proposed
transferee operates the business in the Premises for the
Permitted Use and no other purpose; and (iv) in no event shall
any Transfer release or relieve Tenant from any of its
obligations under this Lease. Tenant shall give Landlord
written notice at least thirty (30) days prior to the
effective date of such Permitted Transfer. As used herein: (a)
'parent' shall mean a company which owns a majority of
Tenant's voting equity; (b) "controlled" or "subsidiary" shall
mean a entity wholly owned by Tenant or at least fifty-one
percent (51%) of whose voting equity is owned by Tenant; and
(c) 'affiliate' shall mean an entity controlled, controlling
or under common control with Tenant. Notwithstanding the
foregoing, sale of the shares of equity of any affiliate or
subsidiary to which this Lease has been assigned or
transferred other than to another parent, subsidiary or
affiliate of the original Tenant named hereunder shall be
deemed to be an assignment requiring the consent of Landlord
hereunder. In no event shall Landlord have the right to
terminate this Lease with respect to any space that Tenant
assigns or sublets pursuant to a Permitted Transfer.
C.. Procedure for Obtaining Consent to Transfer. Tenant, prior to
entering into a sublease or assignment (except pursuant to a
Permitted Transfer), shall have the obligation to advise
Landlord (the "Prior Notice") of its intention to sublet the
Premises or assign this Lease. Such Prior Notice shall
describe the space Tenant intends to sublet or assign and the
effective date thereof. Landlord, within sixty (60) days after
receipt of the Prior Notice, shall have the right to terminate
this Lease with respect to the space that Tenant intends to
sublet or assign as of the effective date set forth in the
Prior Notice. If Landlord fails to exercise its right to
terminate within sixty (60) days after the Prior Notice, for
the next six (6) months thereafter Landlord shall not have the
right to recapture the space that was described in Tenant's
Prior Notice and Tenant shall have the right to sublet or
assign such space subject only to Landlord's right to
reasonably grant or withhold consent to the proposed Transfer
as described below. If Tenant requests Landlord's consent to a
Transfer, Tenant, together with such request for consent,
shall provide Landlord with the name of the proposed
transferee and the nature of the business of the proposed
transferee, the term, use, rental rate and all other material
terms and conditions of the proposed Transfer, including,
without limitation, a copy of the proposed assignment,
sublease or other contractual documents and evidence
satisfactory to Landlord that the proposed transferee is
financially responsible. Landlord, within thirty (30) days
after its receipt of all information and documentation
required herein, shall either consent to or reasonably refuse
to consent to such Transfer in writing. Notwithstanding the
foregoing, if (i) the proposed Transfer is not a Permitted
Transfer, and (ii) Tenant failed to provide Landlord with a
Prior Notice, Landlord, within sixty (60) days after its
receipt of all information and documentation required herein,
may either reasonably grant or refuse to grant consent to the
proposed transfer or may cancel and terminate this Lease with
respect to the space and the portion of the Lease Term that
Tenant proposes to Transfer. In the event Landlord fails to
respond to any request for consent within the thirty (30) day
or sixty (60) day period set forth above, as applicable,
Tenant shall have the right to provide Landlord with a second
request for consent. If Landlord's failure to respond
continues for ten (10) days after its receipt of such second
request for consent, the Transfer for which Tenant has
requested consent shall be deemed to have been approved by
Landlord. Tenant's second request for consent shall state that
Landlord's failure to
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respond within a period of ten (10) days shall be deemed to be
an approval by Landlord. In the event Landlord consents to any
such Transfer, the Transfer and consent thereto shall be in a
form approved by Landlord, and Tenant shall bear all actual
costs and expenses reasonably incurred by Landlord in
connection with the review and approval of such documentation.
D. Proceeds of Transfer. In addition to the Rent hereunder,
Tenant hereby covenants and agrees to pay to Landlord sixty
percent (60%) of all rent and other consideration which it
receives which is in excess of the Rent payable hereunder
(without regard to any rent credits and abatements herein
granted to Tenant) within ten (10) days following receipt
thereof by Tenant. In determining excess rent in connection
with an assignment or subletting, Tenant may deduct all of its
reasonable expenses in connection with such subletting or
assignment, including the following expenditures resulting
from such subletting or assignment: 1) brokerage and marketing
fees; 2) legal fees; 3) construction costs, including, without
limitation, design fees; and 4) financial concessions granted
in such sublease or assignment. In addition to any other
rights Landlord may have in connection with an uncured event
of default by Tenant, Landlord shall have the right to contact
any transferee and require that all payments made pursuant to
the Transfer shall be made directly to Landlord.
E. Change of Ownership. If Tenant is a corporation, limited
liability company or similar entity, and if at any time during
the Lease Term the entity or entities who own the voting
shares at the time of the execution of this Lease cease for
any reason (including but not limited to merger, consolidation
or other reorganization involving another corporation) to own
a majority of such shares, or if Tenant is a partnership and
if at any time during the Lease Term the general partner or
partners who own the general partnership interests in the
partnership at the time of the execution of this Lease, cease
for any reason to own a majority of such interests (except as
the result of transfers by gift, bequest or inheritance to or
for the benefit of members of the immediate family of such
original shareholder[s] or partner[s]), such an event shall be
deemed to be a Transfer. The preceding sentence shall not
apply whenever Tenant is a corporation, the outstanding stock
of which is listed on a recognized security exchange, or if at
least eighty percent (80%) of its voting stock is owned by
another corporation, the voting stock of which is so listed.
F. No Release. Any Transfer consented to by Landlord in
accordance with this Article XIII shall be only for the
Permitted Use and for no other purpose. In no event shall any
Transfer release or relieve Tenant or any Guarantors from any
obligations under this Lease.
XIV. LIENS.
Tenant will not permit any mechanic's liens or other liens to be placed
upon the Premises or Tenant's leasehold interest therein, the Building, or the
Property. Landlord's title to the Building and Property is and always shall be
paramount to the interest of Tenant, and nothing herein contained shall empower
Tenant to do any act that can, shall or may encumber Landlord's title. In the
event any such lien does attach, Tenant shall, within five (5) days of notice of
the filing of said lien, either discharge or bond over such lien to the
satisfaction of Landlord and Landlord's Mortgagee (as hereinafter defined), and
in such a manner as to remove the lien as an encumbrance against the Building
and Property. If Tenant shall fail to so discharge or bond over such lien, then,
in addition to any other right or remedy of Landlord, Landlord may, but shall
not be obligated to bond over or discharge the same. Any amount paid by Landlord
for any of the aforesaid purposes, including reasonable attorneys' fees (if and
to the extent permitted by law) shall be paid by Tenant to Landlord on demand as
Additional Base Rental. Landlord shall have the right to post and keep posted on
the Premises any notices that may be provided by law or which Landlord may deem
to be proper for the protection of Landlord, the Premises and the Building from
such liens.
XV. INDEMNITY AND WAIVER OF CLAIMS.
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A. Tenant shall indemnify, defend and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
employees, Mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively the
"Landlord Related Parties") harmless against and from all
liabilities, obligations, damages, penalties, claims, costs,
charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and
to the extent permitted by law), which may be imposed upon,
incurred by, or asserted against Landlord or any of the
Landlord Related Parties and arising, directly or indirectly,
out of or in connection with the use, occupancy or maintenance
of the Premises by, through or under Tenant including, without
limitation, any of the following: (1) any work or thing done
in, on or about the Premises or any part thereof by Tenant or
any of its transferees, agents, servants, contractors,
employees, customers, licensees or invitees; (2) any use,
non-use, possession, occupation, condition, operation or
maintenance of the Premises or any part thereof; (3) any act
or omission of Tenant or any of its transferees, agents,
servants, contractors, employees, customers, licensees or
invitees, regardless of whether such act or omission occurred
within the Premises; (4) any injury or damage to any person or
property occurring in, on or about the Premises or any part
thereof; or (5) any failure on the part of Tenant to perform
or comply with any of the covenants, agreements, terms or
conditions contained in this Lease with which Tenant must
comply or perform. In case any action or proceeding is brought
against Landlord or any of the Landlord Related Parties by
reason of any of the foregoing, Tenant shall, at Tenant's sole
cost and expense, resist and defend such action or proceeding
with counsel approved by Landlord or, at Landlord's option,
reimburse Landlord for the cost of any counsel retained
directly by Landlord to defend and resist such action or
proceeding.
B. Landlord and the Landlord Related Parties shall not be liable
for, and Tenant hereby waives, all claims for loss or damage
to Tenant's business or damage to person or property sustained
by Tenant or any person claiming by, through or under Tenant
[including Tenant's principals, agents and employees
(collectively, the "Tenant Related Parties")] resulting from
any accident or occurrence in, on or about the Premises, the
Building or the Property, including, without limitation,
claims for loss, theft or damage resulting from: (1) the
Premises, Building, or Property, or any equipment or
appurtenances becoming out of repair; (2) wind or weather; (3)
any defect in or failure to operate, for whatever reason, any
sprinkler, heating or air-conditioning equipment, electric
wiring, gas, water or steam pipes; (4) broken glass; (5) the
backing up of any sewer pipe or downspout; (6) the bursting,
leaking or running of any tank, water closet, drain or other
pipe; (7) the escape of steam or water; (8) water, snow or ice
being upon or coming through the roof, skylight, stairs,
doorways, windows, walks or any other place upon or near the
Building; (9) the falling of any fixture, plaster, tile or
other material; or (10) any act, omission or negligence of
other tenants, licensees or any other persons or occupants of
the Building or of adjoining or contiguous buildings, or
owners of adjacent or contiguous property or the public, or by
construction of any private, public or quasi-public work.
Notwithstanding the foregoing, except as provided in Article
XVII to the contrary, Tenant shall not be required to waive
any claims against Landlord (other than for loss or damage to
Tenant's business) where such loss or damage is due to
Landlord's negligence or willful misconduct or Landlord's
failure to make repairs within a reasonable period after
receiving notice from Tenant of the need for such repairs.
Nothing herein shall be construed as to diminish the repair
and maintenance obligations of Landlord contained elsewhere in
this Lease. To the maximum extent permitted by law, Tenant
agrees to use and occupy the Premises, and to use such other
portions of the Building as Tenant is herein given the right
to use, at Tenant's own risk.
XVI. TENANT'S INSURANCE.
A. At all times commencing on and after the earlier of the
Commencement Date and the date Tenant or its agents, employees
or contractors enters
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the Premises for any purpose, Tenant shall carry and maintain,
at its sole cost and expense:
1. Commercial General Liability Insurance applicable to
the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of
Two Million Dollars ($2,000,000.00), with a
contractual liability endorsement covering Tenant's
indemnity obligations under this Lease.
2. All Risks of Physical Loss Insurance written at
replacement cost value and with a replacement cost
endorsement covering all of Tenant's Property in the
Premises.
3. Workers' Compensation Insurance as required by the
state in which the Premises is located and in amounts
as may be required by applicable statute, and
Employers' Liability Coverage of One Million Dollars
($1,000,000.00) per occurrence.
4. Whenever good business practice, in Landlord's
reasonable judgment, indicates the need of additional
insurance coverage or different types of insurance in
connection with the Premises or Tenant's use and
occupancy thereof, Tenant shall, upon request, obtain
such insurance at Tenant's expense and provide
Landlord with evidence thereof.
B. Except for items for which Landlord is responsible under the
Work Letter Agreement, before any repairs, alterations,
additions, improvements, or construction are undertaken by or
on behalf of Tenant, Tenant shall carry and maintain, at its
expense, or Tenant shall require any contractor performing
work on the Premises to carry and maintain, at no expense to
Landlord, in addition to Workers' Compensation Insurance as
required by the jurisdiction in which the Building is located,
All Risk Builder's Risk Insurance in the amount of the
replacement cost of any alterations, additions or improvements
(or such other amount reasonably required by Landlord) and
Commercial General Liability Insurance (including, without
limitation, Contractor's Liability coverage, Contractual
Liability coverage and Completed Operations coverage,) written
on an occurrence basis with a minimum combined single limit of
Two Million Dollars ($2,000,000.00) and adding "the named
Landlord hereunder (or any successor thereto), Equity Office
Properties Trust, a Maryland real estate investment trust, EOP
Operating Limited Partnership, a Delaware limited partnership,
and their respective members, principals, beneficiaries,
partners, officers, directors, employees, agents and any
Mortgagee(s)", and other designees of Landlord as the interest
of such designees shall appear, as additional insureds
(collectively referred to as the "Additional Insureds").
C. Any company writing any insurance which Tenant is required to
maintain or cause to be maintained pursuant to the terms of
this Lease (all such insurance as well as any other insurance
pertaining to the Premises or the operation of Tenant's
business therein being referred to as "Tenant's Insurance"),
as well as the form of such insurance, shall at all times be
subject to Landlord's reasonable approval, and each such
insurance company shall have an A.M. Best rating of "A-" or
better and shall be licensed and qualified to do business in
the state in which the Premises is located. All policies
evidencing Tenant's Insurance (except for Workers'
Compensation Insurance) shall specify Tenant as named insured
and the Additional Insureds as additional insureds. Provided
that the coverage afforded Landlord and any designees of
Landlord shall not be reduced or otherwise adversely affected,
all of Tenant's Insurance may be carried under a blanket
policy covering the Premises and any other of Tenant's
locations. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) will give to Landlord and its
designees at least thirty (30) days' advance written notice of
any change, cancellation, termination or lapse of said
insurance. Tenant shall be solely responsible for payment of
premiums for all of Tenant's Insurance. Tenant shall deliver
to Landlord at least fifteen (15) days prior to the time
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Tenant's Insurance is first required to be carried by Tenant,
and upon renewals at least fifteen (15) days prior to the
expiration of any such insurance coverage, a certificate of
insurance of all policies procured by Tenant in compliance
with its obligations under this Lease. The limits of Tenant's
Insurance shall in no event limit Tenant's liability under
this Lease.
D. Tenant shall not do or fail to do anything in, upon or about
the Premises which will: (1) violate the terms of any of
Landlord's insurance policies; (2) prevent Landlord from
obtaining policies of insurance acceptable to Landlord or any
Mortgagees; or (3) result in an increase in the rate of any
insurance on the Premises, the Building, any other property of
Landlord or of others within the Building. In the event of the
occurrence of any of the events set forth in this Section,
Tenant shall pay Landlord upon demand, as Additional Base
Rental, the cost of the amount of any increase in any such
insurance premium, provided that the acceptance by Landlord of
such payment shall not be construed to be a waiver of any
rights by Landlord in connection with a default by Tenant
under the Lease. If Tenant fails to obtain the insurance
coverage required by this Lease, Landlord may, at its option,
obtain such insurance for Tenant, and Tenant shall pay, as
Additional Base Rental, the cost of all premiums thereon and
all of Landlord's costs associated therewith.
XVII. SUBROGATION.
Notwithstanding anything set forth in this Lease to the contrary,
Landlord and Tenant do hereby waive any and all right of recovery, claim, action
or cause of action against the other, their respective principals,
beneficiaries, partners, officers, directors, agents, and employees, and, with
respect to Landlord, its Mortgagee(s), for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to their respective property, the
Building, the Property or the Premises or any addition or improvements thereto,
or any contents therein, by reason of fire, the elements or any other cause,
regardless of cause or origin, including the negligence of Landlord or Tenant,
or their respective principals, beneficiaries, partners, officers, directors,
agents and employees and, with respect to Landlord, its Mortgagee(s), which loss
or damage is (or would have been, had the insurance required by this Lease been
carried) covered by insurance. Since this mutual waiver will preclude the
assignment of any such claim by subrogation (or otherwise) to an insurance
company (or any other person), Landlord and Tenant each agree to give each
insurance company which has issued, or in the future may issue, policies of
insurance, with respect to the items covered by this waiver, written notice of
the terms of this mutual waiver, and to have such insurance policies properly
endorsed, if necessary, to prevent the invalidation of any of the coverage
provided by such insurance policies by reason of such mutual waiver. For the
purpose of the foregoing waiver, the amount of any deductible applicable to any
loss or damage shall be deemed covered by, and recoverable by the insured under
the insurance policy to which such deductible relates. In the event that Tenant
is permitted to and self-insures any risk which would have been covered by the
insurance required to be carried by Tenant pursuant to Article XVI of the Lease,
or if Tenant fails to carry any insurance required to be carried by Tenant
pursuant to Article XVI of this Lease, then all loss or damage to Tenant, its
leasehold interest, its business, its property, the Premises or any additions or
improvements thereto or contents thereof shall be deemed covered by and
recoverable by Tenant under valid and collectible policies of insurance.
XVIII. LANDLORD'S INSURANCE.
Landlord shall maintain liability insurance as well as property
insurance on the Building in such amounts as Landlord reasonably elects,
provided that during the Lease Term Landlord shall maintain standard so-called
"all risk" property insurance covering the Building in an amount equal to the
replacement cost thereof (excluding the core and foundation) at the time in
question. The cost of such insurance shall be included as a part of the Basic
Costs, and payments for losses and recoveries thereunder shall be made solely to
Landlord or the Mortgagees of Landlord as their interests shall appear.
XIX. CASUALTY DAMAGE.
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A. If the Premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be so damaged
that in Landlord's reasonable judgment, substantial alteration
or reconstruction of the Building shall be required (whether
or not the Premises has been damaged by such casualty) or in
the event Landlord will not be permitted by applicable law to
rebuild the Building in substantially the same form as existed
prior to the fire or casualty or in the event the Premises has
been materially damaged and there is less than two (2) years
of the Lease Term remaining on the date of such casualty or in
the event any Mortgagee should require that the insurance
proceeds payable as a result of a casualty be applied to the
payment of the mortgage debt or in the event of any material
uninsured loss to the Building, Landlord may, at its option,
terminate this Lease by notifying Tenant in writing of such
termination within ninety (90) days after the date of such
casualty. Such termination shall be effective as of the date
of fire or casualty, with respect to any portion of the
Premises that was rendered untenantable, and the effective
date of termination specified in Landlord's notice, with
respect to any portion of the Premises that remained
tenantable. If Landlord does not elect to terminate this
Lease, Landlord shall commence and proceed with reasonable
diligence to restore the Building (provided that Landlord
shall not be required to restore any unleased premises in the
Building) and the Leasehold Improvements (but excluding any
improvements, alterations or additions made by Tenant in
violation of this Lease) located within the Premises to
substantially the same condition they were in immediately
prior to the happening of the casualty. Notwithstanding the
foregoing, Landlord's obligation to restore the Building, and
the Leasehold Improvements, if any, shall not require Landlord
to expend for such repair and restoration work more than the
insurance proceeds actually received by the Landlord as a
result of the casualty. When repairs to the Premises have been
completed by Landlord, Tenant shall complete the restoration
or replacement of all Tenant's Property necessary to permit
Tenant's reoccupancy of the Premises, and Tenant shall present
Landlord with evidence satisfactory to Landlord of Tenant's
ability to pay such costs prior to Landlord's commencement of
repair and restoration of the Premises. Landlord shall not be
liable for any inconvenience or annoyance to Tenant or injury
to the business of Tenant resulting in any way from such
damage or the repair thereof, except that, subject to the
provisions of the next sentence, Landlord shall allow Tenant a
fair diminution of Rent on a per diem basis during the time
and to the extent any damage to the Premises causes the
Premises to be rendered untenantable and not used by Tenant.
If the Premises or any other portion of the Building is
damaged by fire or other casualty resulting from the
negligence of Tenant or any Tenant Related Parties, the Rent
hereunder shall not be diminished during any period during
which the Premises, or any portion thereof, is untenantable
(except to the extent Landlord is entitled to be reimbursed by
the proceeds of any rental interruption insurance), and Tenant
shall be liable to Landlord for the cost of the repair and
restoration of the Building caused thereby to the extent such
cost and expense is not covered by insurance proceeds.
Landlord and Tenant hereby waive the provisions of any law
from time to time in effect during the Lease Term relating to
the effect upon leases of partial or total destruction of
leased property. Landlord and Tenant agree that their
respective rights in the event of any damage to or destruction
of the Premises shall be those specifically set forth herein.
B. Notwithstanding anything in this Article XIX to the contrary,
if all or any portion of the Premises shall be made
untenantable by a fire or other casualty, Landlord shall with
reasonable promptness, cause an architect or general
contractor selected by Landlord to estimate the amount of time
required to substantially complete repair and restoration of
the Premises and make the Premises tenantable again, using
standard working methods (the "Completion Estimate"). If the
Completion Estimate indicates that the Premises cannot be made
tenantable within
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nine (9) months after the date of the casualty, either party
shall have the right to terminate this Lease by giving written
notice to the other of such election within ten (10) days
after its receipt of the Completion Estimate. Tenant, however,
shall not have the right to terminate this Lease in the event
that the fire or casualty in question was caused by the
negligence or intention misconduct of Tenant or any Tenant
Related Parties. If the Completion Estimate indicates that the
Premises can be made tenantable within nine (9) months after
the date of the casualty and Landlord has not otherwise
exercised its right to terminate the Lease pursuant to the
terms hereof, or if the Completion Estimate indicates that the
Premises cannot be made tenantable within nine (9) months but
neither party terminates this Lease pursuant to this Article
XIX, Landlord shall proceed with reasonable promptness to
repair and restore the Premises. Notwithstanding the
foregoing, if Tenant was entitled to but elected not to
exercise its right to terminate the Lease and Landlord does
not substantially complete the repair and restoration the
Premises within two (2) months after the expiration of the
estimated period of time set forth in the Completion Estimate,
which period shall be extended to the extent of any
Reconstruction Delays, then Tenant may terminate this Lease by
written notice to Landlord within fifteen (15) days after the
expiration of such period, as the same may be extended. For
purposes of this Lease, the term "Reconstruction Delays" shall
mean: (i) any delays caused by Tenant; and (ii) any delays
caused by events of Force Majeure.
XX. DEMOLITION.
Intentionally Omitted.
XXI. CONDEMNATION.
If (a) the whole or any substantial part of the Premises or (b) any
portion of the Building or Property which would leave the remainder of the
Building unsuitable for use as an office building comparable to its use on the
Commencement Date, shall be taken or condemned for any public or quasi-public
use under governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, then Landlord may, at its
option, terminate this Lease effective as of the date the physical taking of
said Premises or said portion of the Building or Property shall occur. In the
event this Lease is not terminated, the Rentable Area of the Building, the
Rentable Area of the Premises and Tenant's Pro Rata Share shall be appropriately
adjusted. In addition, Rent for any portion of the Premises so taken or
condemned shall be abated during the unexpired term of this Lease effective when
the physical taking of said portion of the Premises shall occur. All
compensation awarded for any such taking or condemnation, or sale proceeds in
lieu thereof, shall be the property of Landlord, and Tenant shall have no claim
thereto, the same being hereby expressly waived by Tenant, except for any
portions of such award or proceeds which are specifically allocated by the
condemning or purchasing party for the taking of or damage to trade fixtures of
Tenant, which Tenant specifically reserves to itself.
XXII. EVENTS OF DEFAULT.
The following events shall be deemed to be events of default under this
Lease:
A. Tenant shall fail to pay when due any Base Rental, Additional
Base Rental or other Rent under this Lease and such failure
shall continue for three (3) days after written notice from
Landlord (hereinafter sometimes referred to as a "Monetary
Default").
B. Any failure by Tenant (other than a Monetary Default) to
comply with any term, provision or covenant of this Lease,
including, without limitation, the rules and regulations,
which failure is not cured within ten (10) days after delivery
to Tenant of notice of the occurrence of such failure (or such
longer period of time as may be reasonably necessary to cure
(not to exceed 60 days), provided that Tenant commences to
cure such default within ten (10) days after notice from
Landlord and, from time to time upon request of Landlord,
furnishes Landlord with evidence that
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demonstrates, in Landlord's reasonable judgment, that Tenant
is diligently pursuing a course that will remedy such
failure), provided that if any such failure creates a
hazardous condition, the hazardous condition must be cured
immediately. Notwithstanding the foregoing, if Tenant fails to
comply with any particular provision or covenant of this
Lease, including, without limitation, Tenant's obligation to
pay Rent when due, on three (3) occasions during any twelve
(12) month period, any subsequent violation of such provision
or covenant shall be considered to be an incurable default by
Tenant.
C. Tenant or any Guarantor shall become insolvent, or shall make
a transfer in fraud of creditors, or shall commit an act of
bankruptcy or shall make an assignment for the benefit of
creditors, or Tenant or any Guarantor shall admit in writing
its inability to pay its debts as they become due.
D. Tenant or any Guarantor shall file a petition under any
section or chapter of the United States Bankruptcy Code, as
amended, pertaining to bankruptcy, or under any similar law or
statute of the United States or any State thereof, or Tenant
or any Guarantor shall be adjudged bankrupt or insolvent in
proceedings filed against Tenant or any Guarantor thereunder;
or a petition or answer proposing the adjudication of Tenant
or any Guarantor as a debtor or its reorganization under any
present or future federal or state bankruptcy or similar law
shall be filed in any court and such petition or answer shall
not be discharged or denied within sixty (60) days after the
filing thereof.
E. A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any Guarantor or
of the Premises or of any of Tenant's Property located thereon
in any proceeding brought by Tenant or any Guarantor, or any
such receiver or trustee shall be appointed in any proceeding
brought against Tenant or any Guarantor and shall not be
discharged within sixty (60) days after such appointment or
Tenant or such Guarantor shall consent to or acquiesce in such
appointment.
F. The leasehold estate hereunder shall be taken on execution or
other process of law or equity in any action against Tenant.
G. The liquidation, termination, dissolution, forfeiture of right
to do business, or death of Tenant or any Guarantor.
H. Tenant is in default beyond any notice and cure period under
any other lease with Landlord.
XXIII. REMEDIES.
A. Upon the occurrence of any event or events of default under
this Lease, Landlord shall have the option to pursue any one
or more of the following remedies without any notice (except
as expressly prescribed in Article XXII above) or demand
whatsoever (and without limiting the generality of the
foregoing, Tenant hereby specifically waives notice and demand
for payment of Rent or other obligations due [except as
expressly prescribed in Article XXII above] and waives any and
all other notices or demand requirements imposed by applicable
law):
1. Terminate this Lease or Tenant's right to possession,
in which event Tenant shall immediately surrender the
Premises to Landlord. If Tenant fails to surrender
the Premises upon termination of the Lease or
Tenant's right to possession, Landlord may without
prejudice to any other remedy which it may have,
enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may
be occupying said Premises, or any part thereof, and
Tenant hereby agrees to pay to Landlord on demand the
amount of all loss and damage, including
consequential damage, which Landlord may suffer by
reason of such termination, whether through inability
to relet the
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Premises on satisfactory terms or otherwise,
specifically including but not limited to all Costs
of Reletting (hereinafter defined) and any deficiency
that may arise by reason of any reletting or failure
to relet. Any reletting by Landlord shall be on such
conditions (which may include concessions, free rent
and alterations of the Premises) and for such uses as
Landlord in its absolute discretion may determine,
and Landlord may collect and receive any rents
payable by reason of such reletting. Landlord agrees
to use reasonable efforts to mitigate damages,
provided that such reasonable efforts shall not
require Landlord to relet the Premises in preference
to any other space in the Building or to relet the
Premises to any party that Landlord could reasonably
reject as a transferee pursuant to Article XIII
hereof.
2. Intentionally Omitted.
3. Enter upon the Premises without having any civil or
criminal liability therefor, and do whatever Tenant
is obligated to do under the terms of this Lease, and
Tenant agrees to reimburse Landlord on demand for any
expense which Landlord may incur in thus affecting
compliance with Tenant's obligations under this Lease
together with interest at the lesser of a per annum
rate equal to: (a) the Maximum Rate, or (b) the Prime
Rate plus five percent (5%).
4. In order to regain possession of the Premises and to
deny Tenant access thereto in any instance in which
Landlord has terminated this Lease or Tenant's right
to possession, or to limit access to the Premises in
accordance with local law in the event of a default
by Tenant, Landlord or its agent may, at the expense
and liability of the Tenant, alter or change any or
all locks or other security devices controlling
access to the Premises without posting or giving
notice of any kind to Tenant. Landlord shall have no
obligation to provide Tenant a key or grant Tenant
access to the Premises so long as Tenant is in
default under this Lease. Tenant shall not be
entitled to recover possession of the Premises,
terminate this Lease, or recover any actual,
incidental, consequential, punitive, statutory or
other damages or award of attorneys' fees, by reason
of Landlord's alteration or change of any lock or
other security device. Landlord may, without notice,
remove and either dispose of or store, at Tenant's
expense, any property belonging to Tenant that
remains in the Premises after Landlord has regained
possession thereof.
5. Terminate this Lease, in which event, Tenant shall
immediately surrender the Premises to Landlord and
pay to Landlord the sum of: (a) all Rent accrued
hereunder through the date of termination, and, upon
Landlord's determination thereof, (b) an amount equal
to: the total Rent that Tenant would have been
required to pay for the remainder of the Lease Term
discounted to present value at the Prime Rate then in
effect, minus the then present fair rental value of
the Premises for the remainder of the Lease Term,
similarly discounted, after deducting all anticipated
Costs of Reletting (as defined below).
B. For purposes of this Lease, the term "Costs of Reletting"
shall mean all costs and expenses incurred by Landlord in
connection with the reletting of the Premises, including
without limitation, the cost of cleaning, renovation, repairs,
decoration and alteration of the Premises for a new tenant or
tenants, advertisement, marketing, brokerage and legal fees
(if and to the extent permitted by law), the cost of
protecting or caring for the Premises while vacant, the cost
of removing and storing any property located on the Premises,
any increase in insurance premiums caused by the vacancy of
the Premises and any other out-of-pocket expenses incurred by
Landlord including tenant incentives, allowances and
inducements.
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C. Except as otherwise herein provided, no repossession or
re-entering of the Premises or any part thereof pursuant to
Article XXIII hereof or otherwise shall relieve Tenant or any
Guarantor of its liabilities and obligations hereunder, all of
which shall survive such repossession or re-entering.
Notwithstanding any such repossession or re-entering by reason
of the occurrence of an event of default, Tenant will pay to
Landlord the Rent required to be paid by Tenant pursuant to
this Lease. In no event, however, shall Landlord be entitled
to a double recovery of damages in connection with Landlord's
exercise of one or more of the remedies provided herein.
D. No right or remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other right or
remedy, and each and every right and remedy shall be
cumulative and in addition to any other right or remedy given
hereunder or now or hereafter existing by agreement,
applicable law or in equity. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the
extent permitted by applicable law, to injunctive relief, or
to a decree compelling performance of any of the covenants,
agreements, conditions or provisions of this Lease, or to any
other remedy allowed to Landlord at law or in equity.
Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed
or construed to constitute a waiver of such default. In no
event, however, shall Landlord be entitled to a double
recovery of damages in connection with Landlord's exercise of
one or more of the remedies provided herein.
E. This Article XXIII shall be enforceable to the maximum extent
such enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby
render unenforceable any other portion.
XXIV. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO
LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD
NOR ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE
PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO CURE SUCH ALLEGED
DEFAULT BY LANDLORD.
XXV. NO WAIVER.
Failure of Landlord to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of default
shall not constitute a waiver of such default, nor shall it constitute an
estoppel against Landlord, but Landlord shall have the right to declare the
default at any time and take such action as is lawful or authorized under this
Lease. Failure by Landlord to enforce its rights with respect to any one default
shall not constitute a waiver of its rights with respect to any subsequent
default. Receipt by Landlord of Tenant's keys to the Premises shall not
constitute an acceptance or surrender of the Premises.
XXVI. EVENT OF BANKRUPTCY.
In addition to, and in no way limiting the other remedies set forth
herein, Landlord and Tenant agree that if Tenant ever becomes the subject of a
voluntary or involuntary bankruptcy, reorganization, composition, or other
similar type proceeding under the federal bankruptcy laws, as now enacted or
hereinafter amended, then:
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A. "Adequate protection" of Landlord's interest in the Premises
pursuant to the provisions of Section 361 and 363 (or their
successor sections) of the Bankruptcy Code, 11 U.S.C. Section
101 et seq., (such Bankruptcy Code as amended from time to
time being herein referred to as the "Bankruptcy Code"), prior
to assumption and/or assignment of the Lease by Tenant shall
include, but not be limited to all (or any part) of the
following:
1. the continued payment by Tenant of the Base Rental
and all other Rent due and owing hereunder and the
performance of all other covenants and obligations
hereunder by Tenant;
2. the furnishing of an additional/new security deposit
by Tenant in the amount of three (3) times the then
current monthly Base Rental.
B. "Adequate assurance of future performance" by Tenant and/or
any assignee of Tenant pursuant to Bankruptcy Code Section 365
will include (but not be limited to) payment of an
additional/new Security Deposit in the amount of three (3)
times the then current monthly Base Rental payable hereunder.
C. Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code, shall be deemed
without further act or deed to have assumed all of the
obligations of Tenant arising under this Lease on and after
the effective date of such assignment. Any such assignee
shall, upon demand by Landlord, execute and deliver to
Landlord an instrument confirming such assumption of
liability.
D. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of the Landlord
under this Lease, whether or not expressly denominated as
"Rent," shall constitute "rent" for the purposes of Section
502(b) (6) of the Bankruptcy Code.
E. If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, any and all monies or
other considerations payable or otherwise to be delivered to
Landlord (including Base Rentals and other Rent hereunder),
shall be and remain the exclusive property of Landlord and
shall not constitute property of Tenant or of the bankruptcy
estate of Tenant. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence
not paid or delivered to Landlord shall be held in trust by
Tenant or Tenant's bankruptcy estate for the benefit of
Landlord and shall be promptly paid to or turned over to
Landlord.
F. If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any
person or entity who shall have made a bona fide offer to
accept an assignment of this Lease on terms acceptable to the
Tenant, then notice of such proposed offer/assignment, setting
forth: (1) the name and address of such person or entity, (2)
all of the terms and conditions of such offer, and (3) the
adequate assurance to be provided Landlord to assure such
person's or entity's future performance under the Lease, shall
be given to Landlord by Tenant no later than twenty (20) days
after receipt by Tenant, but in any event no later than ten
(10) days prior to the date that Tenant shall make application
to a court of competent jurisdiction for authority and
approval to enter into such assumption and assignment, and
Landlord shall thereupon have the prior right and option, to
be exercised by notice to Tenant given at any time prior to
the effective date of such proposed assignment, to accept an
assignment of this Lease upon the same terms and conditions
and for the same consideration, if any, as the bona fide offer
made by such persons or entity, less any brokerage commission
which may be payable out of the consideration to be paid by
such person for the assignment of this Lease.
G. To the extent permitted by law, Landlord and Tenant agree that
this Lease is a contract under which applicable law excuses
Landlord from accepting performance from (or rendering
performance to) any person or
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entity other than Tenant within the meaning of Sections 365(c)
and 365(e) (2) of the Bankruptcy Code.
XXVII. WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive any right to a trial by jury in any
action or proceeding based upon, or related to, the subject matter of this
Lease. This waiver is knowingly, intentionally, and voluntarily made by Tenant,
and Tenant acknowledges that neither Landlord nor any person acting on behalf of
Landlord has made any representations of fact to induce this waiver of trial by
jury or in any way to modify or nullify its effect. Tenant further acknowledges
that it has been represented (or has had the opportunity to be represented) in
the signing of this Lease and in the making of this waiver by independent legal
counsel, selected of its own free will, and that it has had the opportunity to
discuss this waiver with counsel.
XXVIII. RELOCATION.
Intentionally Omitted.
XXIX. HOLDING OVER.
In the event of holding over by Tenant after expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Articles XXII and XXIII hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy at sufferance and in no
event for month-to-month or year-to-year. Tenant shall, throughout the entire
holdover period, be subject to all the terms and provisions of this Lease and
shall pay for its use and occupancy an amount (on a per month basis without
reduction for any partial months during any such holdover) equal to one hundred
fifty percent (150%) of the sum of the Base Rental and Additional Base Rental
due for the period immediately preceding such holding over, provided that in no
event shall Base Rental and Additional Base Rental during the holdover period be
less than the fair market rental for the Premises. Notwithstanding the
foregoing, if such holding over continues for more than sixty (60) days,
effective as of the sixty-first (61st) day, holdover rent shall increase to 200%
of the sum of the Base Rental and Additional Base Rental due for the period
immediately preceding such holding over. No holding over by Tenant or payments
of money by Tenant to Landlord after the expiration of the term of this Lease
shall be construed to extend the Lease Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or otherwise. In
addition to the obligation to pay the amounts set forth above during any such
holdover period, Tenant also shall be liable to Landlord for all damage,
including any consequential damage, which Landlord may suffer by reason of any
holding over by Tenant, and Tenant shall indemnify Landlord against any and all
claims made by any other tenant or prospective tenant against Landlord for delay
by Landlord in delivering possession of the Premises to such other tenant or
prospective tenant. Notwithstanding the foregoing, Tenant shall not be liable
for consequential damages unless: (1) Landlord notifies Tenant that it has
entered into a lease for the Premises; and (2) Tenant fails to vacate the
Premises within thirty (30) days after the later to occur of the date of
Landlord's notice or the termination date of the Lease. Landlord agrees to use
reasonable efforts to mitigate any consequential damages.
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
A. Tenant accepts this Lease subject and subordinate to any
mortgage, deed of trust, ground lease or other lien presently
existing or hereafter arising upon the Premises, or upon the
Building and/or the Property and to any renewals,
modifications, refinancings and extensions thereof (any such
mortgage, deed of trust, lease or other lien being hereinafter
referred to as a "Mortgage", and the person or entity having
the benefit of same being referred to hereinafter as a
"Mortgagee"), but Tenant agrees that any such Mortgagee shall
have the right at any time to subordinate such Mortgage to
this Lease on such terms and subject to such conditions as
such Mortgagee may deem appropriate in its discretion. This
clause shall be self-operative and no further instrument of
subordination shall be required. However, Landlord is hereby
irrevocably vested with full power and authority to
subordinate this Lease
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to any Mortgage, and Tenant agrees upon demand to execute such
further instruments subordinating this Lease, acknowledging
the subordination of this Lease or attorning to the holder of
any such Mortgage as Landlord may request. If any person shall
succeed to all or part of Landlord's interests in the Premises
whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease or otherwise, and if and
as so requested or required by such successor-in-interest,
Tenant shall, without charge, attorn to such
successor-in-interest. Tenant agrees that it will from time to
time upon request by Landlord and, within five (5) days of the
date of such request, execute and deliver to such persons as
Landlord shall request an estoppel certificate or other
similar statement in recordable form certifying that this
Lease is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and
effect as so modified), stating the dates to which Rent and
other charges payable under this Lease have been paid, stating
that Landlord is not in default hereunder (or if Tenant
alleges a default stating the nature of such alleged default)
and further stating such other matters as Landlord shall
reasonably require.
B. Notwithstanding Section XXX.A. above to the contrary, this
agreement shall be contingent upon the execution of a
subordination, non-disturbance and attornment agreement by
Tenant and Landlord's current Mortgagee on the form attached
hereto as Exhibit I. In addition, Landlord will obtain a
non-disturbance, subordination and attornment agreement from
any future Mortgagee on such future Mortgagee's then current
standard form of agreement. Landlord's failure to obtain a
non-disturbance, subordination and attornment agreement for
Tenant shall have no effect on the rights, obligations and
liabilities of Landlord and Tenant or be considered to be a
default by Landlord hereunder. Landlord's failure to obtain a
non-disturbance, subordination and attornment agreement for
Tenant from any future Mortgagee shall have no effect on the
rights, obligations and liabilities of Landlord and Tenant or
be considered to be a default by Landlord hereunder, provided
that if such future Mortgagee is unwilling to enter into a
non-disturbance, subordination and attornment agreement with
Tenant on its then current standard form, Tenant shall not be
required to subordinate its leasehold interest to the interest
of such future Mortgagee. If, however, Tenant is unwilling to
enter into a non-disturbance, subordination and attornment
agreement on such future Mortgagee's standard form of
agreement, such refusal shall be considered to be a default
hereunder by Tenant and this Lease shall automatically be
subordinated to the interest of such future Mortgagee.
XXXI. ATTORNEYS' FEES.
In the event that Landlord should retain counsel and/or institute any
suit against Tenant for violation of or to enforce any of the covenants or
conditions of this Lease, or should Tenant institute any suit against Landlord
for violation of any of the covenants or conditions of this Lease, or should
either party intervene in any suit in which the other is a party to enforce or
protect its interest or rights hereunder, the prevailing party in any such suit
shall be entitled to all of its costs, expenses and reasonable fees of its
attorney(s) (if and to the extent permitted by law) in connection therewith.
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XXXII. NOTICE.
Whenever any demand, request, approval, consent or notice ("Notice")
shall or may be given to either of the parties by the other, each such Notice
shall be in writing and shall be sent by registered or certified mail with
return receipt requested, or sent by overnight courier service (such as Federal
Express) at the respective addresses of the parties for notices as set forth in
Section I.A.10. of this Lease, provided that if Tenant has vacated the Premises
or is in default of this Lease Landlord may serve Notice by any manner permitted
by law. Any Notice under this Lease delivered by registered or certified mail
shall be deemed to have been given, delivered, received and effective on the
earlier of (a) the third day following the day on which the same shall have been
mailed with sufficient postage prepaid or (b) the delivery date indicated on the
return receipt. Notice sent by overnight courier service shall be deemed given,
delivered, received and effective upon the day after such notice is delivered to
or picked up by the overnight courier service. Either party may, at any time,
change its Notice Address by giving the other party Notice stating the change
and setting forth the new address.
XXXIII. LANDLORD'S LIEN.
INTENTIONALLY OMITTED, provided that the deletion of this Article shall not be
construed to be a waiver of Landlord's lien rights as provided by law.
XXXIV. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord specifically excepts and reserves to itself the use of any
roofs, the exterior portions of the Premises, all rights to the land and
improvements below the improved floor level of the Premises, the improvements
and air rights above the Premises and the improvements and air rights located
outside the demising walls of the Premises, and such areas within the Premises
as are required for installation of utility lines and other installations
required to serve any occupants of the Building and the right to maintain and
repair the same, and no rights with respect thereto are conferred upon Tenant
unless otherwise specifically provided herein. If Landlord needs to perform work
in the Premises in connection with the performance of alterations, additions or
improvements for another tenant in the Building, Landlord agrees (i) to perform
such work so that, following the completion thereof, there will not be any
change to the appearance or use of the Premises, and (ii) to perform such work
in a manner that will not materially interfere with Tenant's ability to use the
Premises for the Permitted Use during Tenant's normal hours of operation.
Without limiting the foregoing, any lines or cables that Landlord desires to run
through the Premises shall be located above the ceiling or within the walls.
Landlord further reserves to itself the right from time to time: (a) to change
the Building's name or street address; (b) to install, fix and maintain signs on
the exterior and interior of the Building; (c) to designate and approve window
coverings; (d) to make any decorations, alterations, additions, improvements to
the Building, or any part thereof (including the Premises) which Landlord shall
desire, or deem necessary for the safety, protection, preservation or
improvement of the Building, or as Landlord may be required to do by law; (e) to
have access to the Premises to perform its duties and obligations and to
exercise its rights under this Lease; (f) to retain at all times and to use
pass-keys to all locks within and into the Premises; (g) to approve the weight,
size, or location of heavy equipment, or articles in and about the Premises; (h)
to close or restrict access to the Building at all times other than Normal
Business Hours subject to Tenant's right to admittance at all times under such
regulations as Landlord may prescribe from time to time, or to close
(temporarily or permanently) any of the entrances to the Building; (i) to change
the arrangement and/or location of entrances of passageways, doors and doorways,
corridors, elevators, stairs, toilets and public parts of the Building; (j) if
Tenant has vacated the Premises during the last six (6) months of the Lease
Term, to perform additions, alterations and improvements to the Premises in
connection with a reletting or anticipated reletting thereof without being
responsible or liable for the value or preservation of any then existing
improvements to the Premises; and (k) to grant to anyone the exclusive right to
conduct any business or undertaking in the Building. Landlord, in accordance
with Article XII hereof, shall have the right to enter the Premises in
connection with the exercise of any of the rights set forth herein and such
entry into the Premises and the performance of any work therein shall not
constitute a constructive eviction or entitle Tenant to any abatement or
reduction of Rent by reason thereof.
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XXXV. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's
right of possession hereunder, Tenant shall remove all Tenant's Property from
the Premises, remove all Required Removables designated by Landlord and quit and
surrender the Premises to Landlord, broom clean, and in good order, condition
and repair, ordinary wear and tear excepted. If Tenant fails to remove any of
Tenant's Property within one (1) day after the termination of this Lease or
Tenant's right to possession hereunder, Landlord, at Tenant's sole cost and
expense, shall be entitled to remove and/or store such Tenant's Property and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay Landlord, upon demand, any and all
expenses caused by such removal and all storage charges against such property so
long as the same shall be in the possession of Landlord or under the control of
Landlord. In addition, if Tenant fails to remove any Tenant's Property from the
Premises or storage, as the case may be, within ten (10) days after written
notice from Landlord, Landlord, at its option, may deem all or any part of such
Tenant's Property to have been abandoned by Tenant and title thereof shall
immediately pass to Landlord.
XXXVI. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application
thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or
circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and enforced to the
fullest extent permitted by law. This Lease represents the
result of negotiations between Landlord and Tenant, each of
which has been (or has had opportunity to be) represented by
counsel of its own selection, and neither of which has acted
under duress or compulsion, whether legal, economic or
otherwise. Consequently, Landlord and Tenant agree that the
language in all parts of the Lease shall in all cases be
construed as a whole according to its fair meaning and neither
strictly for nor against Landlord or Tenant.
B. Tenant agrees not to record this Lease without Landlord's
prior written consent; provided, however, Landlord agrees to
consent to the recordation or registration of a memorandum or
notice of this Lease, at Tenant's cost and expense (and in
form reasonably satisfactory to Landlord). If this Lease is
terminated before the Lease Term expires, than upon Landlord's
request that parties shall execute, deliver and record an
instrument acknowledging such fact and the date of termination
of this Lease, and Tenant hereby appoints Landlord as its
attorney-in-fact in its name and behalf to execute such
instrument if Tenant shall fail to execute and deliver such
instrument after Landlord's request therefor within ten (10)
days.
C. This Lease and the rights and obligations of the parties
hereto shall be interpreted, construed, and enforced in
accordance with the laws of the state in which the Building is
located.
D. Events of "Force Majeure" shall mean strikes, riots, acts of
God, shortages of labor or materials (unless any such shortage
of materials was reasonably anticipatable and alternate
sources of materials were available), war, and changes in
governmental law, regulations or restrictions. Whenever a
period of time is herein prescribed for the taking of any
action by Landlord or Tenant, such party shall not be liable
or responsible for, and there shall be excluded from the
computation of such period of time, any delays due to events
of Force Majeure. In no event, however, shall Landlord's or
Tenant's obligation to pay any Rent or other sums due
hereunder be postponed or delayed as a result of events of
Force Majeure. In addition, in no event shall Landlord's or
Tenant's economic or financial difficulties or hardship ever
be considered to be an event of Force Majeure.
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E. Landlord shall have the right to transfer and assign, in whole
or in part, all of its rights and obligations hereunder and in
the Building and Property referred to herein, and in such
event and upon such transfer Landlord shall be released from
any further obligations hereunder, and Tenant agrees to look
solely to such successor in interest of Landlord for the
performance of such obligations.
F. Tenant hereby represents to Landlord that it has dealt
directly with and only with the Broker as a broker in
connection with this Lease. Tenant agrees to indemnify and
hold Landlord and the Landlord Related Parties harmless from
all claims of any brokers claiming to have represented Tenant
in connection with this Lease. Landlord agrees to indemnify
and hold Tenant and the Tenant Related Parties harmless from
all claims of any brokers claiming to have represented
Landlord in connection with this Lease.
G. If there is more than one Tenant, or if the Tenant is
comprised of more than one person or entity, the obligations
hereunder imposed upon Tenant shall be joint and several
obligations of all such parties. All notices, payments, and
agreements given or made by, with or to any one of such
persons or entities shall be deemed to have been given or made
by, with or to all of them.
H. In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited),
or other form of organization other than an individual (each
such entity is individually referred to herein as an
"Organizational Entity"), then Tenant hereby covenants,
warrants and represents: (1) that such individual is duly
authorized to execute or attest and deliver this Lease on
behalf of Tenant in accordance with the organizational
documents of Tenant; (2) that this Lease is binding upon
Tenant; (3) that Tenant is duly organized and legally existing
in the state of its organization, and is qualified to do
business in the state in which the Premises is located; and
(4) that the execution and delivery of this Lease by Tenant
will not result in any breach of, or constitute a default
under any mortgage, deed of trust, lease, loan, credit
agreement, partnership agreement or other contract or
instrument to which Tenant is a party or by which Tenant may
be bound. If Tenant is an Organizational Entity, upon request,
Tenant will, prior to the Commencement Date, deliver to
Landlord true and correct copies of all organizational
documents of Tenant, including, without limitation, copies of
an appropriate resolution or consent of Tenant's board of
directors or other appropriate governing body of Tenant
authorizing or ratifying the execution and delivery of this
Lease, which resolution or consent will be duly certified to
Landlord's satisfaction by an appropriate individual with
authority to certify such documents, such as the secretary or
assistant secretary or the managing general partner of Tenant.
I. Tenant acknowledges that the financial capability of Tenant to
perform its obligations hereunder is material to Landlord and
that Landlord would not enter into this Lease but for its
belief, based on its review of Tenant's financial statements,
that Tenant is capable of performing such financial
obligations. Tenant hereby represents, warrants and certifies
to Landlord that its financial statements previously furnished
to Landlord were at the time given true and correct in all
material respects and that there have been no material
subsequent changes thereto as of the date of this Lease.
J. Except as expressly otherwise herein provided, with respect to
all required acts of Tenant, time is of the essence of this
Lease. This Lease shall create the relationship of Landlord
and Tenant between the parties hereto.
K. This Lease and the covenants and conditions herein contained
shall inure to the benefit of and be binding upon Landlord and
Tenant and their respective permitted successors and assigns.
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L. Notwithstanding anything to the contrary contained in this
Lease, the expiration of the Lease Term, whether by lapse of
time or otherwise, shall not relieve Landlord or Tenant from
it's obligations accruing prior to the expiration of the Lease
Term, and such obligations shall survive any such expiration
or other termination of the Lease Term.
M. The headings and titles to the paragraphs of this Lease are
for convenience only and shall have no affect upon the
construction or interpretation of any part hereof.
N. LANDLORD HAS DELIVERED A COPY OF THIS LEASE TO TENANT FOR
TENANT'S REVIEW ONLY, AND THE DELIVERY HEREOF DOES NOT
CONSTITUTE AN OFFER TO TENANT OR OPTION. THIS LEASE SHALL NOT
BE EFFECTIVE UNTIL AN ORIGINAL OF THIS LEASE EXECUTED BY BOTH
LANDLORD AND TENANT AND AN ORIGINAL GUARANTY, IF ANY, EXECUTED
BY EACH GUARANTOR IS DELIVERED TO AND ACCEPTED BY LANDLORD.
O. Quiet Enjoyment. Tenant shall, and may peacefully have, hold,
and enjoy the Premises, subject to the other terms of this
Lease (including, without limitation, Article XXX hereof),
provided that Tenant pays the Rent herein recited to be paid
by Tenant and performs all of Tenant's covenants and
agreements herein contained. This covenant and any and all
other covenants of Landlord shall be binding upon Landlord and
its successors only during its or their respective periods of
ownership of the Landlord's interest hereunder.
XXXVII. ENTIRE AGREEMENT.
This Lease Agreement, including the following Exhibits:
Exhibit A - Outline and Location of 2nd Floor Premises
Exhibit A-1 - Outline and Location of Fourth Floor Space
Exhibit A-2 - Outline and Location of Third Floor Space
Exhibit B - Rules and Regulations
Exhibit C - Commencement Letter
Exhibit D - Initial Alterations
Exhibit E - Additional Provisions
Exhibit F - Location of Reserved Parking Spaces
Exhibit G - HVAC Specifications
Exhibit H - Cleaning Specifications
Exhibit I - Form of Non-Disturbance Agreement
constitutes the entire agreement between the parties hereto with
respect to the subject matter of this Lease and supersedes all prior
agreements and understandings between the parties related to the
Premises, including all lease proposals, letters of intent and similar
documents. TENANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT LANDLORD HAS
NOT MADE AND IS NOT MAKING, AND TENANT, IN EXECUTING AND DELIVERING
THIS LEASE, IS NOT RELYING UPON, ANY WARRANTIES, REPRESENTATIONS,
PROMISES OR STATEMENTS, EXCEPT TO THE EXTENT THAT THE SAME ARE
EXPRESSLY SET FORTH IN THIS LEASE. ALL UNDERSTANDINGS AND AGREEMENTS
HERETOFORE MADE BETWEEN THE PARTIES ARE MERGED IN THIS LEASE WHICH
ALONE FULLY AND COMPLETELY EXPRESSES THE AGREEMENT OF THE PARTIES,
NEITHER PARTY RELYING UPON ANY STATEMENT OR REPRESENTATION NOT EMBODIED
IN THIS LEASE. THIS LEASE MAY BE MODIFIED ONLY BY A WRITTEN AGREEMENT
SIGNED BY LANDLORD AND TENANT. LANDLORD AND TENANT EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY
OTHER KIND ARISING OUT OF THIS LEASE, ALL OF WHICH ARE HEREBY WAIVED BY
TENANT, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE
EXPRESSLY SET FORTH IN THIS LEASE.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
WITNESS/ATTEST: LANDLORD: EOP-CANTERBURY GREEN,
L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited
partnership, its
managing member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
-----------------------------
Name (print): By:
-------------------------------------
Name:
----------------------------- -----------------------------------
Name (print): Title:
---------------- ----------------------------------
WITNESS/ATTEST: TENANT: TRENWICK AMERICA
CORPORATION, A DELAWARE
CORPORATION
-----------------------------
By:
-------------------------------------
Name (print):
----------------
Name:
-----------------------------------
Title:
----------------------------------
Name (print):
----------------
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EXHIBIT A
PREMISES
This Exhibit is attached to and made a part of the Lease dated
_____________, 1998, by and between EOP-CANTERBURY GREEN, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY ("Landlord") and TRENWICK AMERICA CORPORATION, A
DELAWARE CORPORATION ("Tenant") for space in the Building commonly known as One
Canterbury Green.
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EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage associated therewith (if any),
the Property and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material of any nature shall be placed,
emptied, or thrown in those areas. At no time shall Tenant permit
Tenant's employees to loiter in common areas or elsewhere in or about
the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any
such fixtures or appliances from misuse by Tenant or its agents,
employees or invitees, shall be paid for by Tenant, and Landlord shall
not in any case be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or
to any windows, doors or other parts of the Building, except those of
such color, size, style and in such places as shall be first approved
in writing by Landlord. Except in connection with the hanging of
lightweight pictures, wall hanging and decorations, no nails, hooks or
screws shall be driven or inserted into any part of the Premises or
Building except by the Building maintenance personnel, nor shall any
part of the Building be defaced by Tenant.
4. Landlord may provide and maintain in the first floor (main lobby) of
the Building an alphabetical directory board listing all Tenants, and
no other directory shall be permitted unless previously consented to by
Landlord in writing.
5. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises
shall be furnished by Landlord to Tenant at the cost of Tenant, and
Tenant shall not have any duplicate keys made. All keys shall be
returned to Landlord at the expiration or earlier termination of this
Lease.
6. All contractors, contractor's representatives, and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with
Landlord's standard rules, regulations, policies and procedures, as the
same may be revised from time to time. Tenant shall be solely
responsible for complying with all applicable laws, codes and
ordinances pursuant to which said work shall be performed.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which
require the use of elevators, stairways, lobby areas, or loading dock
areas, shall be restricted to hours reasonably designated by Landlord,
provided that Tenant shall not be required to schedule use of the
loading dock for periods of less than one hour. Tenant must seek
Landlord's prior approval by providing in writing a detailed listing of
any such activity, which approval shall not be unreasonably withheld or
delayed. Landlord may prohibit any article, equipment or any other item
from being brought into the Building if, in Landlord's reasonable
judgment, the bringing of such article, equipment or other item into
the Building would create a dangerous condition. Tenant is to assume
all risk for damage to articles moved and injury to any persons
resulting from such activity. If any equipment, property, and/or
personnel of Landlord or of any other tenant is damaged or injured as a
result of or in connection with such activity, Tenant shall be solely
liable for any and all damage or loss resulting therefrom.
8. Landlord shall have the power to prescribe the weight and position of
safes and other heavy equipment or items, which in all cases shall not
in the opinion of
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Landlord exceed acceptable floor loading and weight distribution
requirements. All damage done to the Building by the installation,
maintenance, operation, existence or removal of any property of Tenant
shall be repaired at the expense of Tenant.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in
any way with other tenants or persons having business with them; (2)
solicit business or distribute, or cause to be distributed, in any
portion of the Building any handbills, promotional materials or other
advertising; or (3) conduct or permit any other activities in the
Building that might constitute a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept in,
on or about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be used
or kept by Tenant in the Premises or Building. Tenant shall not,
without Landlord's prior written consent, use, store, install, spill,
remove, release or dispose of within or about the Premises or any other
portion of the Property, any asbestos- containing materials or any
solid, liquid or gaseous material now or hereafter considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any
other applicable environmental law which may now or hereafter be in
effect. If Landlord does give written consent to Tenant pursuant to the
foregoing sentence, Tenant shall comply with all applicable laws, rules
and regulations pertaining to and governing such use by Tenant, and
shall remain liable for all costs of cleanup or removal in connection
therewith.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or
future value of the Premises or the Building; without limiting the
foregoing, Tenant shall not use or permit the Premises or any portion
thereof to be used for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work
stoppage, picketing, labor disruption or dispute, or any interference
with the business of Landlord or any other tenant or occupant of the
Building or with the rights and privileges of any person lawfully in
the Building. Tenant shall take any actions necessary to resolve any
such work stoppage, picketing, labor disruption, dispute or
interference and shall have pickets removed and, at the request of
Landlord, immediately terminate at any time any construction work being
performed in the Premises giving rise to such labor problems, until
such time as Landlord shall have given its written consent for such
work to resume. Tenant shall have no claim for damages of any nature
against Landlord or any of the Landlord Related Parties in connection
therewith, nor shall the date of the commencement of the Term be
extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service
designated by Landlord to control termites and pests in the Premises.
Except as included in Basic Costs, Tenant shall bear the cost and
expense of such extermination services.
16. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not
bear the U/L (Underwriters Laboratories) seal of approval, or which
would overload the electrical system or any part thereof beyond its
capacity for proper, efficient and safe operation as determined by
Landlord, taking into consideration the overall electrical system and
the present and future requirements therefor in the Building. Tenant
shall not furnish any cooling or heating to the Premises, including,
without limitation, the use of any electronic or gas heating devices,
without Landlord's prior written consent. Tenant shall not use more
than its proportionate share of telephone lines available to service
the Building.
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17. Tenant shall not operate or permit to be operated on the Premises any
coin or token operated vending machine or similar device (including,
without limitation, telephones, lockers, toilets, scales, amusement
devices and machines for sale of beverages, foods, candy, cigarettes or
other goods), except for those vending machines or similar devices
which are for the sole and exclusive use of Tenant's employees, and
then only if such operation does not violate the lease of any other
tenant of the Building.
18. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
19. Landlord may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, its occupants, entry and
use, or its contents. Tenant, Tenant's agents, employees, contractors,
guests and invitees shall comply with Landlord's reasonable
requirements relative thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion
may tend to impair the reputation of the Building or its desirability
for Landlord or other tenants. Upon written notice from Landlord,
Tenant will refrain from and/or discontinue such publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance,
alterations, and improvements in the Premises only during times agreed
to in advance by Landlord and in a manner which will not interfere with
the rights of other tenants in the Building.
22. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant shall cooperate and use its reasonable efforts to
prevent the same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the
Building, unless such common area has been declared a designated
smoking area by Landlord, or to allow any smoke from the Premises to
emanate into the common areas or any other tenant's premises. Landlord
shall have the right at any time to designate the Building as a
non-smoking building.
24. Tenant shall observe Landlord's rules with respect to maintaining
standard window coverings at all windows in the Premises so that the
Building presents a uniform exterior appearance. Tenant shall ensure
that to the extent reasonably practicable, window coverings are closed
on all windows in the Premises while they are exposed to the direct
rays of the sun.
25. All deliveries to or from the Premises shall be made only at such
times, in the areas and through the entrances and exits designated for
such purposes by Landlord. Tenant shall not permit the process of
receiving deliveries to or from the Premises outside of said areas or
in a manner which may interfere with the use by any other tenant of its
premises or of any common areas, any pedestrian use of such area, or
any use which is inconsistent with good business practice.
26. The work of cleaning personnel shall not be hindered by Tenant after
6:00 P.M., and such cleaning work may be done at any time when the
offices are vacant. Windows, doors and fixtures may be cleaned at any
time. Tenant shall provide adequate waste and rubbish receptacles
necessary to prevent unreasonable hardship to Landlord regarding
cleaning service.
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EXHIBIT C
COMMENCEMENT LETTER
Date
------------------------------
Tenant
----------------------------
----------------------------------
Address
---------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Re: Commencement Letter with respect to that certain Lease dated
_______________ by and between
_________________________________________, as Landlord, and
______________________________________________________, as
Tenant, for __________________ square feet of Rentable Area on the
___________ floor of the Building located at
______________________________________________.
Dear
-------------------------:
In accordance with the terms and conditions of the above referenced Lease,
Tenant hereby accepts possession of the Premises and agrees as follows:
1. The Commencement Date of the Lease is
-----------------------------------------;
2. The Termination Date of the Lease is
--------------------------------------------.
Please acknowledge your acceptance of possession and agreement to the terms set
forth above by signing all three (3) copies of this Commencement Letter in the
space provided and returning two (2) fully executed copies of the same to my
attention.
Sincerely,
-------------------------------------
Property Manager
Agreed and Accepted:
Tenant:
------------------------------------------
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
Date:
--------------------------------------------
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EXHIBIT D
INITIAL ALTERATIONS
This Exhibit is attached to and made a part of the Lease dated
_________________________, 1998, by and between EOP-CANTERBURY GREEN, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and TRENWICK AMERICA
CORPORATION, A DELAWARE CORPORATION ("Tenant") for space in the Building
commonly known as Canterbury Green.
I. ALTERATIONS AND ALLOWANCE.
A. Tenant, upon the Commencement Date, shall have the right to
perform alterations and improvements in the Premises (the
"Initial Alterations"). Notwithstanding the foregoing, Tenant
and its contractors shall not have the right to perform
Initial Alterations in the Premises unless and until Tenant
has complied with all of the terms and conditions of Article
X.B. of this Lease, including, without limitation, approval by
Landlord of the final plans for the Initial Alterations and
the contractors to be retained by Tenant to perform such
Initial Alterations. Landlord's approval of the contractors to
perform the Initial Alterations shall not be unreasonably
withheld. The parties agree that Landlord's approval of the
general contractor to perform the Initial Alterations shall
not be considered to be unreasonably withheld if any such
general contractor (i) does not have trade references
reasonably acceptable to Landlord, (ii) does not maintain
insurance as required pursuant to the terms of this Lease,
(iii) does not have the ability to be bonded for the work to
be performed, (iv) does not provide current financial
statements reasonably acceptable to Landlord, or (v) is not
licensed as a contractor in the state/municipality in which
the Premises is located. Tenant acknowledges the foregoing is
not intended to be an exclusive list of the reasons why
Landlord may reasonably withhold its consent to a general
contractor.
B. Provided Tenant is not in default, Landlord agrees to
contribute the sum of three hundred forty-four thousand nine
hundred sixty and 00/100 dollars ($344,960.00) (the
"Allowance") toward the cost of performing the Initial
Alterations in preparation of Tenant's occupancy of the
Premises. The amount of such Allowance, however, shall be
adjusted in the event Landlord exercises its Substitution
Option. The Allowance, less a 10% retainage (which retainage
shall be payable as part of the final draw), shall be paid to
Tenant or, at Landlord's option, to the order of the general
contractor that performs the Initial Alterations, in periodic
disbursements within thirty (30) days after receipt of the
following documentation: (i) an application for payment and
sworn statement of contractor substantially in the form of AIA
Document G-702 covering all work for which disbursement is to
be made to a date specified therein; (ii) a certification from
an AIA architect substantially in the form of the Architect's
Certificate for Payment which is located on AIA Document G702,
Application and Certificate of Payment; (iii) Contractor's,
subcontractor's and material supplier's waivers of liens which
shall cover all Initial Alterations for which disbursement is
being requested and all other statements and forms required
for compliance with the mechanics' lien laws of the State of
Connecticut, together with all such invoices, contracts, or
other supporting data as Landlord or Landlord's Mortgagee may
reasonably require; (iv) a cost breakdown for each trade or
subcontractor performing the Initial Alterations; (v) plans
and specifications for the Initial Alterations, together with
a certificate from an AIA architect that such plans and
specifications comply in all material respects with all laws
affecting the Building, Property and Premises; (vi) copies of
all construction contracts for the Initial Alterations,
together with copies of all change orders, if any; and (vii) a
request to disburse from Tenant containing an approval by
Tenant of the work done and a good faith estimate of the cost
to complete the Initial Alterations. Upon completion of the
Initial Alterations, and prior to final disbursement of the
Allowance, Tenant shall furnish Landlord with: (1) general
contractor and architect's completion affidavits, (2) full and
final waivers of lien, (3) receipted bills covering all labor
and materials expended and used, (4) as-built plans of the
Initial Alterations, and (5) the certification of Tenant and
its architect that the Initial Alterations have been installed
in a good
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and workmanlike manner in accordance with the approved plans,
and in accordance with applicable laws, codes and ordinances.
In no event shall Landlord be required to disburse the
Allowance more than one time per month. If the Initial
Alterations exceed the Allowance, Tenant shall be entitled to
the Allowance in accordance with the terms hereof, but each
individual disbursement of the Allowance shall be disbursed in
the proportion that the Allowance bears to the total cost for
the Initial Alterations, less the 10% retainage referenced
above. Notwithstanding anything herein to the contrary,
Landlord shall not be obligated to disburse any portion of the
Allowance during the continuance of an uncured default under
the Lease, and Landlord's obligation to disburse shall only
resume when and if such default is cured.
C. In no event shall the Allowance be used for the purchase of
equipment, furniture or other items of personal property of
Tenant. In the event Tenant does not use the entire Allowance
in connection with the performance of the Initial Alterations,
any unused amount shall accrue to the sole benefit of
Landlord, it being understood that Tenant shall not be
entitled to any credit, abatement or other concession in
connection therewith.
D. Except as provided in Section III.B. of the Lease to the
contrary, Tenant agrees to accept the Premises in its "as-is"
condition and configuration, it being agreed that Landlord
shall not be required to perform any work or, except as
provided above with respect to the Allowance, incur any costs
in connection with the construction or demolition of any
improvements in the Premises. The foregoing, however, shall
not be construed to be a waiver or modification of Landlord's
repair and maintenance obligations as set forth in this Lease
or of Landlord's obligation to provide heating or
air-conditioning in accordance with Exhibit G. Landlord shall
be entitled to receive a fee of one thousand dollars
($1,000.00) for its review of Tenant's plans for the Initial
Alterations. Landlord shall be entitled to deduct such fee
directly from the Allowance.
E. This Exhibit shall not be deemed applicable to any additional
space added to the original Premises at any time or from time
to time, whether by any options under the Lease or otherwise,
or to any portion of the original Premises or any additions to
the Premises in the event of a renewal or extension of the
original Term of this Lease, whether by any options under the
Lease or otherwise, unless expressly so provided in the Lease
or any amendment or supplement to the Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of the day
and year first above written.
WITNESS/ATTEST: LANDLORD: EOP-CANTERBURY GREEN,
L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited
partnership, its
managing member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
-----------------------------
Name (print): By:
-------------------------------------
Name:
----------------------------- -----------------------------------
Name (print): Title:
---------------- ----------------------------------
WITNESS/ATTEST: TENANT: TRENWICK AMERICA
CORPORATION, A DELAWARE
CORPORATION
-----------------------------
By:
-------------------------------------
Name (print):
----------------
Name:
-----------------------------------
Title:
----------------------------------
Name (print):
----------------
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EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease dated
______________________________, 1998, by and between EOP-CANTERBURY GREEN,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and TRENWICK AMERICA
CORPORATION, A DELAWARE CORPORATION ("Tenant") for space in the Building
commonly known as Canterbury Green.
1) PARKING
A. Tenant shall be obligated to lease seventy-eight (78) non-reserved
parking spaces and two (2) reserved parking spaces in the Building parking
garage (the "Garage"). The location of such reserved parking spaces is shown on
Exhibit F attached hereto. In addition to the foregoing, Tenant shall have the
right to lease additional non-reserved spaces at the rate of 2.18 spaces for
each 1,000 rentable square feet leased by Tenant over and above the initial
Premises, including any increase in square footage as a result of Tenant's
exercise of its Substitution Option. If Landlord master leases the Garage to a
third party operator (the "Operator"), Tenant shall lease any such spaces
directly from the Operator and, upon request, enter into such Operator's
standard form parking agreement. Except for particular spaces and areas
designated by Landlord for reserved parking, all parking in the Garage shall be
on an unreserved, first-come, first-served basis. Tenant acknowledges that
Landlord shall have the right to operate the Garage through the use of valet
parking.
B. Tenant shall pay Landlord (or, at Landlord's option, the Operator) Rent
for each non-reserved parking space as follows: (i) sixty-five dollars ($65.00)
per space per month with respect to the first sixty-eight (68) spaces, plus any
applicable tax imposed thereon; and (ii) seventy-five dollars ($75.00) per space
per month with respect to the next ten (10) spaces, plus any applicable tax
imposed thereon. Tenant shall pay Rent for the two (2) reserved spaces at the
rate of one hundred fifty dollars ($150.00) per space per month, plus any
applicable tax imposed thereon. Such monthly rate shall be subject to increase
from time to time to reflect the prevailing market rate for parking in the
Garage.
C. Landlord shall not be responsible for money, jewelry, automobiles or
other personal property lost in or stolen from the Garage regardless of whether
such loss or theft occurs when the Garage or other areas therein are locked or
otherwise secured against entry. Except as caused by the negligence or willful
misconduct of Landlord, Landlord shall not be liable for any loss, injury or
damage to persons using the Garage or automobiles or other property therein, it
being agreed that the use of the Garage and the parking spaces shall be at the
sole risk of Tenant and its employees.
D. Landlord shall have the right from time to time to promulgate reasonable
rules and regulations regarding the Garage, the parking spaces and the use
thereof, including, but not limited to, rules and regulations controlling the
flow of traffic to and from various parking areas, the angle and direction of
parking and the like. Tenant shall comply with and cause its employees to comply
with all such rules and regulations as well as all reasonable additions and
amendments thereto.
E. Tenant shall not store or permit its employees to store any automobiles
in the Garage without the prior written consent of Landlord, which consent shall
not be unreasonably conditioned, withheld or delayed in emergency circumstances.
Except for emergency repairs, Tenant and its employees shall not perform any
work on any automobiles while located in the Garage or on the Property. If it is
necessary for Tenant or its employees to leave an automobile in the Garage for a
period of seven (7) or more days, Tenant shall provide Landlord with prior
notice thereof designating the license plate number and model of such
automobile.
F. Landlord shall have the right to temporarily close the Garage or certain
areas therein in order to perform necessary repairs, maintenance and
improvements to the Garage. Landlord agrees to use reasonable efforts to provide
Tenant with reasonable
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advance notice of any such closure. In the event that the Garage is closed for
three (3) or more consecutive Business Days, Tenant shall be entitled to receive
an abatement of Rent for the Spaces leased by Tenant hereunder beginning on the
fourth (4th) consecutive Business Day of such closure, which abatement shall
continue until such time as the Garage is once again open and available for use
by Tenant and its employees. In the event that a closure relates to only a
portion of the Building, such abatement shall be prorated based upon the number
of Spaces that are unavailable for use (and not actually used) by Tenant and its
employees.
G. Except in connection with an assignment of this Lease or a subletting of
a portion of the Premises, Tenant shall not assign or sublease any of the
parking spaces. Landlord shall have the right to terminate Tenant' parking
rights with respect to any parking spaces that Tenant desires to sublet or
assign in violation of the foregoing sentence.
H. Landlord may elect to provide parking cards or keys to control
access to the Garage. In such event, Landlord shall provide Tenant with one card
or key for each Space that Tenant is leasing hereunder, provided that Landlord
shall have the right to require Tenant or its employees to place a reasonable
deposit on such access cards or keys and to pay a fee for any lost or damaged
cards or keys.
2) RIGHT OF FIRST OFFER.
A. Tenant shall have the right of first offer with respect to any space
that becomes Available for Lease (hereinafter defined) on the remaining balance
of the fourth (4th) floor (the "Offering Space"), provided if Tenant exercises
its Substitution Option, the Offering Space shall consist of the remaining
balance of the third (3rd) floor. Offering Space shall be deemed to be
"Available for Lease" when Landlord has determined that the then current tenant
in the Offering Space, or portion thereof, will not extend or renew the term of
its lease for the Offering Space pursuant to either (a) a contractual right to
extend or renew in such tenant's lease, or (b) pursuant to a negotiated
extension or renewal that is executed prior to the expiration of any option to
extend or renew in such tenant's lease. Any renewal or extension pursuant to
(b), however, must be for substantially the same length of term that such party
was entitled to extend or renew pursuant to the contractual right contained in
its lease. Within a reasonable time after Landlord has determined that a
particular portion of the Offering Space is Available for Lease (but prior to
leasing such portion of the Offering Space to a third party), Landlord shall
advise Tenant (the "Advice") of the square footage and location of such portion
of the Offering Space and the terms (i.e. Base Rental and Additional Base
Rental) under which Landlord is prepared to lease such Offering Space to Tenant
for the remainder of the Lease Term, which terms shall reflect the Prevailing
Market (hereinafter defined) rate for such Offering Space as reasonably
determined by Landlord. Tenant may lease such portion of the Offering Space in
its entirety only, under such terms, by delivering written notice of exercise to
Landlord ("Notice of Exercise") within twenty (20) days after the date of the
Advice, except that Tenant shall have no such Right of First Offer and Landlord
need not provide Tenant with an Advice, if:
1. Tenant is in default under the Lease at the time Landlord would
otherwise deliver the Advice; or
2. more than twenty-five percent (25%) of the Premises is sublet at the
time Landlord would otherwise deliver the Advice (except in connection
with a Permitted Transfer); or
3. the Lease has been assigned prior to the date Landlord would
otherwise deliver the Advice (except in connection with a Permitted
Transfer); or
4. the Offering Space is not intended for the exclusive use of Tenant
during the Lease Term; or
5. the Offering Space is defined as the remaining balance of the third
(3rd) floor and ▇▇▇▇▇▇ Systems is the prospect that is interested in
leasing such Offering Space, it being agreed that Landlord, without
offering such space to Tenant, shall have the right to enter into a
lease with ▇▇▇▇▇▇ Systems for a term of not more than six (6) years.
Notwithstanding subsection 6 above to the
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contrary, Tenant's Right of First Offer shall be superior to any rights
of ▇▇▇▇▇▇ Systems to extend the term of its lease, or
6. Tenant's Renewal Option has lapsed for failure by Tenant to exercise
the same or as a result of a condition precedent for the exercise of
such Renewal Option. In addition, it is hereby agreed that if (i) there
is less than thirty-six (36) months remaining in the initial Lease
Term, and (ii) Tenant's Renewal Option has not lapsed for failure of
Tenant to exercise the same or as a result of a condition precedent for
the exercise of such Renewal Option, Tenant's Notice of Exercise shall
be contingent upon Tenant's simultaneous exercise of its Renewal
Option, or
7. there is less thirty-six (36) months remaining in the Renewal Term
at the time Landlord would otherwise provide Tenant with an Advice.
B.1 The term for the Offering Space shall commence upon the
commencement date stated in the Advice and thereupon such Offering
Space shall be considered a part of the Premises, provided that all of
the terms stated in the Advice shall govern Tenant's leasing of the
Offering Space and only to the extent that they do not conflict with
the Advice, the terms and conditions of this Lease shall apply to the
Offering Space.
2. Tenant shall pay Base Rental and Additional Base Rental for the
Offering Space in accordance with the terms and conditions of the
Advice, which terms and conditions shall reflect the Prevailing Market
rate for the Offering Space as determined in Landlord's reasonable
judgment.
3. The Offering Space (including improvements and personalty, if any)
shall be accepted by Tenant in its condition and as-built configuration
existing on the earlier of the date Tenant takes possession of the
Offering Space or as of the date the term for such Offering Space
commences, provided that such Offering Space shall be delivered to
Tenant vacant, broom clean and free of claims and possession of third
parties.
C. The rights of Tenant hereunder with respect to any portion of the
Offering Space for which Landlord provides Tenant with an Advice shall terminate
on the earlier to occur of: (i) Tenant's failure to exercise its Right of First
Offer within the twenty (20) day period provided in paragraph A above, and (ii)
the date Landlord would have provided Tenant an Advice if Tenant had not been in
violation of one or more of the conditions set forth in Paragraph A above. In
addition, if Landlord provides Tenant with an Advice that contains expansion
rights (whether such rights are described as an expansion option, right of first
refusal, right to first offer or otherwise) and Tenant does not exercise its
Right of First Offer to lease the Offering Space described in the Advice,
Tenant's Right of First Offer shall be subject and subordinate to all such
expansion rights contained in the Advice. Notwithstanding the foregoing, if (i)
Tenant was entitled to exercise its Right of First Offer, but failed to provide
Landlord with a Notice of Exercise within the twenty (20) day period provided in
paragraph A above, and (ii) Landlord does not enter into a lease for such
portion of the Offering Space within a period of six (6) months following the
date of the Advice, Tenant shall once again have a Right of First Offer with
respect to such portion of the Offering Space. In addition, if Landlord does
enter into a lease for such portion of the Offering Space, Tenant shall have a
Right of First Offer on such Offering Space (subject to the terms and conditions
set forth herein) upon the expiration of the lease with the prospect.
D. If Tenant exercises its Right of First Offer, Landlord shall prepare
an amendment (the "Offering Amendment") adding the Offering Space to the
Premises on the terms set forth in the Advice and reflecting the changes in the
Base Rental, Rentable Area of the Premises, Tenant's Pro Rata Share and other
appropriate terms. A copy of the Offering Amendment shall be (i) sent to Tenant
within a reasonable time after receipt of the Notice of Exercise executed by
Tenant, and (ii) revised by Landlord to address any requested changes by Tenant
that are necessary to accurately reflect the terms and conditions hereof; (iii)
executed by Tenant and returned to Landlord within fifteen (15) days thereafter.
E. For purposes hereof, "Prevailing Market" shall mean the arms length
fair
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market annual rental rate per rentable square foot under leases and amendments
entered into on or about the date on which the Prevailing Market is being
determined hereunder for space comparable to the Offering Space in the Building
and office buildings comparable to the Building in Stamford, Connecticut. The
determination of Prevailing Market shall take into account any material economic
differences between the terms of this Lease and any comparison lease, such as
rent abatements, construction costs and other concessions and the manner, if
any, in which the landlord under any such lease is reimbursed for operating
expenses and taxes.
F. In the event that: (i) any existing tenant in the Offering Space
desires to sublet or assign all or a portion of such Offering Space, and (ii)
Landlord, in its reasonable judgment, believes that it has the right to
recapture such space pursuant to the terms and conditions of its lease with such
tenant, Landlord, prior to consenting to such proposed subletting or assignment,
shall provide Tenant with an Advice that is contingent upon Landlord's
successful recapture of the Offering Space, or applicable portion thereof. In
such event, however, (a) Tenant's Notice of Exercise shall be due within five
(5) days after Tenant's receipt of the Advice, and (b) the Base Rental for the
Offering Space shall be the greater of the Prevailing Market rate or the rental
rate (including scheduled increases) under the existing lease for the Offering
Space, or portion thereof, to be recaptured. In the event Tenant exercises its
right to first offer with respect to such Offering Space, Landlord shall
recapture the Offering Space in question. Notwithstanding the foregoing, in the
event the tenant in the Offering Space contests Landlord's legal right to
recapture the Offering Space in question, Landlord shall have the right to
withdraw its Advice and, if previously delivered by Tenant, to declare Tenant's
Notice of Exercise to be null and void.
3) RENEWAL OPTION
A. Tenant shall have the right to extend the Lease Term (the "Renewal
Option") for one additional period of five (5) years commencing on the day
following the Termination Date of the initial Lease Term and ending on the fifth
(5th) anniversary of the Termination Date (the "Renewal Term"), if:
1. Landlord receives notice of exercise ("Initial Renewal Notice") not
less then twelve (12) full calendar months prior to the expiration of
the initial Lease Term and not more than fifteen (15) full calendar
months prior to the expiration of the initial Lease Term; and
2. Tenant is not in default under the Lease beyond any applicable cure
periods at the time that Tenant delivers its Initial Renewal Notice or
at the time Tenant delivers its Binding Notice; and
3. No more than fifty percent (50%) of the Premises is sublet (except
in connection with a Permitted Transfer) for a term that extends beyond
the date of Tenant's Initial Renewal Notice; and
4. The Lease has not been assigned (except in connection with a
Permitted Transfer) prior to the date that Tenant delivers its Initial
Renewal Notice or prior to the date Tenant delivers its Binding Notice.
B. The initial Base Rental rate per rentable square foot for the
Premises during the Renewal Term shall equal the Prevailing Market (hereinafter
defined) rate per rentable square foot for the Premises.
C. Tenant shall pay Additional Base Rental (i.e. Basic Costs) for the
Premises during the Renewal Term in accordance with the terms and conditions of
the Lease. In addition, if such is standard in the market at the time, the Base
Year shall be adjusted to a current Base Year. Such new Base Year, however,
shall be given appropriate consideration in the determination of the Prevailing
Market rate.
D. Within thirty (30) days after receipt of Tenant's Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base Rental rate for the
Premises for the Renewal Term. Tenant, within fifteen (15) days after the date
on which Landlord advises Tenant of the applicable Base Rental rate for the
Renewal Term, shall either (i) give Landlord final binding written notice
("Binding Notice") of Tenant's exercise of its
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option, or (ii) if Tenant disagrees with Landlord's determination, provide
Landlord with written notice of rejection (the "Rejection Notice"). If Tenant
fails to provide Landlord with either a Binding Notice or Rejection Notice
within such fifteen (15) day period, Tenant's Renewal Option shall be null and
void and of no further force and effect. If Tenant provides Landlord with a
Binding Notice, Landlord and Tenant shall enter into the Renewal Amendment upon
the terms and conditions set forth herein. If Tenant provides Landlord with a
Rejection Notice, Landlord and Tenant shall work together in good faith to agree
upon the Prevailing Market Base Rental rate for the Premises during the Renewal
Term. Upon agreement Tenant shall provide Landlord with Binding Notice and
Landlord and Tenant shall enter into the Renewal Amendment in accordance with
the terms and conditions hereof. Notwithstanding the foregoing, if Landlord and
Tenant are unable to agree upon the Prevailing Market Base Rental rate for the
Premises within thirty (30) days after the date on which Tenant provides
Landlord with a Rejection Notice, Tenant's Renewal Option shall be null and void
and of no force and effect.
E. If Tenant is entitled to and properly exercises its Renewal Option,
Landlord shall prepare an amendment (the "Renewal Amendment") to reflect changes
in the Base Rental, Lease Term, Termination Date and other appropriate terms.
The Renewal Amendment shall be:
1. sent to Tenant within a reasonable time after receipt of the Binding
Notice; and
2. revised by Landlord to the extent necessary to address any requested
revisions by Tenant that are reasonably necessary to accurately reflect
the terms and conditions hereof; and
2. executed by Tenant and returned to Landlord within fifteen (15) days
after receipt by Tenant.
F. For purposes hereof, "Prevailing Market" shall mean the arms length
fair market annual rental rate per rentable square foot under renewal leases and
amendments entered into on or about the date on which the Prevailing Market is
being determined hereunder for space comparable to the Premises in the Building
and office buildings comparable to the Building in Stamford, Connecticut. The
determination of Prevailing Market shall take into account any material economic
differences between the terms of this Lease and any comparison lease, such as
rent abatements, construction costs and other concessions and the manner, if
any, in which the landlord under any such lease is reimbursed for operating
expenses and taxes. The determination of Prevailing Market shall also take into
consideration any reasonably anticipated changes in the Prevailing Market rate
from the time such Prevailing Market rate is being determined and the time such
Prevailing Market rate will become effective under this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of the day
and year first above written.
WITNESS/ATTEST: LANDLORD: EOP-CANTERBURY GREEN,
L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited
partnership, its
managing member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
-----------------------------
Name (print): By:
-------------------------------------
Name:
----------------------------- -----------------------------------
Name (print): Title:
---------------- ----------------------------------
WITNESS/ATTEST: TENANT: TRENWICK AMERICA
CORPORATION, A DELAWARE
CORPORATION
-----------------------------
By:
-------------------------------------
Name (print):
----------------
Name:
-----------------------------------
Title:
----------------------------------
Name (print):
----------------
51
