Exhibit 10.52
HIGH RIDGE PARK ASSOCIATES
LANDLORD
and
NewSub Services, Inc.
TENANT
▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
_______________
LEASE
_______________
Dated: August 30, 1995
TABLE OF CONTENTS
Article Page
1. Demised, Premises, Term, Rents.................................... 1
2. Use............................................................... 2
3. Preparation of the Demised Premises............................... 4
4. When Demised Premises Ready for Occupancy......................... 4
5. Security Deposit.................................................. 5
6. Adjustments of Rent for Changes in Real Estate Taxes.............. 5
7. Adjustment of Rent for Changes in Operating Costs................. 7
8. Subordination, Attornment, Notice to Lessor and Mortgagees........ 9
9. Quiet Enjoyment................................................... 10
10. Assignment, Mortgaging, Subletting................................ 10
11. Compliance with Laws and Requirements of Public Authorities....... 10
12. Insurance......................................................... 14
13. Rules and Regulations............................................. 14
14. Alterations and Tenant's Property................................. 16
15. Repairs and Maintenance........................................... 16
16. Electrical Energy................................................. 18
17. Heat, Ventilation and Air Conditioning............................ 18
18. Landlord's Other Services......................................... 19
19. Access, Changes in Building Facilities, Name...................... 21
20. Shoring, Notice of Accidents, etc................................. 22
21. Non-Liability and Indemnification................................. 22
22. Destruction or Damage............................................. 23
23. Eminent Domain.................................................... 23
24. Surrender......................................................... 25
25. Conditions of Limitation.......................................... 25
26. Re-entry by Landlord - Default Provisions......................... 26
27. Damages........................................................... 26
28. Waivers........................................................... 27
29. No Other Waivers or Modifications................................. 28
30. Curing Tenant's Defaults.......................................... 30
31. Consents - Broker................................................. 30
32. Notices........................................................... 30
33. Arbitration....................................................... 30
34. Estoppel Certificate, Memorandum.................................. 32
35. No Other Representations, Construction, Governing Law............. 32
36. Parties Bound..................................................... 33
37. Certain Definitions and Constructions............................. 33
38. Subordination and Miscellaneous................................... 36
40. Rider............................................................. 36
i
Exhibit
A. Floor Plan(s)
B. Cleaning Schedule
C. Rules and Regulations
D. Work Letter
E. Electricity Schedule
F. Site Plan
G. Limited Guarantee
ii
LEASE
Lease dated August 30, 1995 between HIGH RIDGE PARK ASSOCIATES, a general
partnership, organized under the laws of the State of Connecticut, acting herein
by Winter Realty Corp., its general partner, and having its office at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Landlord"), and NewSub
Services, Inc. a Connecticut Corporation a having its principal office at ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Tenant").
ARTICLE 1
Demised, Premises, Term, Rents
1.01 Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
that certain space in the premises hereinafter described, in the building
(referred to herein as the "Building") known as Building No. Four in High Ridge
Park in the City of Stamford, Connecticut (the "City"), for the term hereinafter
stated, for the rents hereinafter reserved and upon and subject to the
conditions (including limitations, restrictions and reservations) and covenants
hereinafter provided. Each party hereto expressly covenants and agrees to
observe and perform all of the conditions and covenants herein contained on its
part to be observed and performed.
1.02 Landlord and Tenant hereby agree and stipulate that for purposes of this
Lease, the space consists of a total of 14,358 rentable square feet on the third
(3rd) floor in the Building which are outlined on the floor plan(s) annexed
hereto as "A" and hereby made a part hereof. Said premises constitute and are
hereinafter called the "Demised Premises" or "Premises".
1.03 The term of this Lease, for which the Demised Premises are hereby leased,
shall commence on a date (the "Commencement Date"), which shall be the earlier
of (i) the day on which the Demised Premises are ready for occupancy (as defined
in Article 4), or (ii) the day Tenant or anyone claiming under or through Tenant
shall take possession of any part of the Demised Premises, for purposes of
conducting business, however no later than one hundred (100) days after the
Landlord provides the Lease Amendment referred to in Article 40(a) of the Rider
to the Lease to the Tenant and shall end at noon of the last day of the calendar
month in which occurs the end of a ten (10) year period from the Commencement
Date (the "Expiration Date") or shall end on such earlier date upon which the
term may expire or be cancelled or terminated pursuant to any of the conditions
or covenants of this Lease or pursuant to law. Promptly following the
Commencement Date, Landlord shall send to Tenant a notice fixing the
Commencement Date.
1.04 Tenant shall pay to Landlord without notice or demand and without
abatement, deduction or setoff, in lawful money of the United States of America,
at the office of the Landlord or at such other place as Landlord may designate,
the fixed rent and additional rent reserved under this Lease for each year of
the term thereof which payments shall consist of:
(a) Fixed rent (the "fixed rent") as follows:
Annual Fixed Monthly Fixed
Lease Years Rent Amount Rent Amount
12/6/95-12/6/00
1-5 $287,160.00 $23,930.00
6-9 $301,518.00 $25,126.00
9 & 10 $315,876.00 $26,232.00
payable in equal monthly installments in advance on the first day
of each and every calendar month during the term of this Lease, and
-1-
(b) Additional rent (the "additional rent") consisting of all other sums
of money as shall become due from and payable by Tenant to Landlord
hereunder (for default in payment of which Landlord shall have the
same remedies as for a default in payment of fixed rent).
(c) Tenant's first nine months of fixed base rental only shall be waived
during the first lease year. Said free rent shall commence as of the
Commencement Date of this Lease.
1.05 Tenant shall pay to Landlord as additional rent the real estate taxes
attributable to the value of improvements made to the Demised Premises by or on
behalf of Tenant in excess of building standard improvements in connection with
the construction of the alterations required for Tenants initial occupancy of
the Demised Premises. For purposes of this Section, the amount of the per square
foot assessment attributable to the excess improvements shall be the amount in
excess of average square foot assessment then being used by the tax assessors
office for the initial alteration or fit-up, of space within the Building or, if
that is not applicable, to fit-up of similar space in a similar building in
Stamford, Connecticut. The real estate taxes resulting from such assessment(s)
shall be computed separately and billed to Tenant, and shall be payable by
Tenant as additional rent within ten (10) days of the rendition of the ▇▇▇▇, at
each time that real estate taxes are payable by Landlord with respect to the
Demised Premises during the term of this Lease.
If Tenant substantially renovates or alters the Demised Premises or any
part thereof after the initial fit-up, Tenant shall pay Landlord the real estate
taxes attributable to the increased assessment resulting from such renovation or
alteration, in excess of the then assessment for building standard. The real
estate taxes resulting from such excess assessment shall be computed separately
and billed to Tenant and shall be payable by Tenant as additional rent within
ten (10) days of the rendition of a ▇▇▇▇ at each time that real estate taxes are
payable by Landlord with respect to the Demised Premises during the term of the
Lease.
1.06 Tenant shall pay the fixed rent and additional rent herein reserved
promptly as and when the same shall become due and payable. If the Commencement
Date shall occur on a day other than the first day of a calendar month, the
fixed rent for such calendar month shall be prorated for the period from the
Commencement Date to the last day of the calendar month and shall be due and
payable on the Commencement Date. Notwithstanding the provisions of the next
preceding sentence or of Section 4.01(a), Tenant shall pay the first full
calendar monthly installment of fixed rent on the execution of this Lease. If
Tenant shall fail to pay within ten (10) days after the same is due any fixed
rent or additional rent, such unpaid amounts shall bear interest at the annual
rate equal to two percentage points (2%) above the Prime Rate of Citibank, N.A.,
New York, New York.
ARTICLE 2
Use
2.01 Tenant shall use and occupy the Demised Premises for executive offices,
sales offices and/or general offices for the conduct of any lawful and reputable
business not prohibited by Section 2.02, or any rule or regulation of
governmental authority, and for no other purposes.
2.02 The use of the Demised Premises for the purposes specified in this
Article shall not in any event be deemed to include, and Tenant shall not use,
or permit the use of, the Demised Premises or any part thereof for:
(a) sale of, or traffic in, any spirituous liquors, wines, ale or beer
kept in the Demised Premises;
(b) sale to the public at retail of any other products or materials kept
in the Demised Premises, by vending machines or otherwise, or
demonstrations to the public, except as may be specifically agreed
to by Landlord in writing;
(c) manufacturing, printing or electronic data processing, except for
the operation of normal business office reproducing or printing
equipment, electronic data processing equipment and other business
machines for Tenant's own requirements at the Demised Premises;
provided only
-2-
that such use shall not exceed that portion of the mechanical or
electrical capabilities of the Building equipment allocable to the
Demised Premises;
(d) the rendition of medical, dental or other diagnostic or therapeutic
services;
(e) the conduct of a public auction of any kind;
(f) a restaurant, bar, or the sale of confectionery, tobacco,
newspapers, magazines, soda, beverages, sandwiches, ice cream, baked
goods or similar items. The preparation, and consumption of food and
beverages in the manner which is customary in offices shall be
permitted.
2.03 Tenant shall not suffer or permit the Demised Premises or any part
thereof to be used in any manner, or anything to be done therein, or suffer or
permit anything to be brought into or kept therein, which would in any way (i)
violate any of the provisions of any grant, lease or mortgage to which this
Lease is subordinate, (ii) violate any laws or requirements of public
authorities, (iii) make void or voidable any fire or liability insurance policy
then in force with respect to the Building, (iv) make unobtainable from
reputable insurance companies authorized to do business in the State of
Connecticut at standard rates any fire insurance with extended coverage, or
liability, elevator or boiler or other insurance required to be furnished by
Landlord under the terms of any lease or mortgage to which this Lease is
subordinate, (v) cause, or in Landlord's opinion (based on reasonable and
objective factors) be likely to cause, physical damage to the Building or any
part thereof, (vi) constitute a public or private nuisance, (vii) impair in the
opinion (based on reasonable and objective factors) of the Landlord the
appearance, character or reputation of the Building, (vii) discharge
objectionable fumes, vapors or odors into the Building air conditioning system
or into Building flues or vents not designed to receive them or otherwise in
such manner as may unreasonably offend other occupants, (ix) materially impair
or interfere with any of the Building services or the proper and economic
heating, cleaning, air conditioning or other servicing of the Building or the
Demised Premises or materially impair or interfere with or tend to impair or
interfere with the use of any of the other areas of the Building by, occasion of
discomfort, annoyance or inconvenience to, Landlord or any of the other tenants
or occupants of the Building, or (x) cause Tenant to default in any of its other
obligations under this Lease. The provisions of this Section, and application
thereof, shall not be deemed to be limited in any way to or by the provisions of
the following Sections of this Article or any of the Rules and Regulations
referred to in Article 13 or Exhibit "C" attached hereto, except as may therein
be expressly otherwise provided.
2.04 If any government license or permit, other than a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises, or any part thereof and if failure to secure
such license or permit would in any materially adverse way affect Landlord, then
Tenant, at its expense, shall duly procure and thereafter maintain such license
or permit and submit the same to inspection by Landlord. Tenant shall at all
times comply with the terms and conditions of each such license or permit, but
in no event shall failure to procure and maintain same by Tenant affect Tenant's
obligations hereunder.
2.05 Tenant shall not at any time use or occupy or suffer or permit anyone to
use or occupy the Demised Premises, or to permit anything to be done in the
Demised Premises, in violation of the Certificate of Occupancy for the Demised
Premises or for the Building.
2.06 Tenant shall not place a load upon any floor of the Demised Premises
exceeding the floor load per square foot which such floor was designed to carry
and which is allowed by certificate, rule, regulation, permit or law. Landlord
reserves the right to prescribe the weight and position of all safes and vaults,
which must be placed by Tenant, at Tenant's expense. Business machines and
mechanical equipment shall be placed and maintained by Tenant, at Tenant's
expense, in such manner as shall be sufficient in Landlord's judgment to absorb
and prevent vibration, noise and annoyance.
-3-
ARTICLE 3
Preparation of the Demised Premises
3.01 Prior to the Commencement Date, Tenant's contractor will substantially
perform all the work in the Demised Premises as set forth in the attached
Exhibit "D" (the "Work Letter") (Plans and Specifications) (as hereinafter
defined), upon the terms and conditions specified in the Work Letter.
3.02 Should the Landlord agree to do the work in the Demised Premises such
work shall not require it to incur overtime costs and expenses and shall be
subject to unavoidable delays due to acts of God, governmental restrictions,
strikes, labor disturbances, shortage of materials and supplies and for any
other causes or events beyond Landlord's reasonable control.
3.03 Landlord shall afford Tenant and its employees, agents and contractors
access to the Demised Premises, at reasonable times prior to the Commencement
Date and at Tenant's sole risk and expense, for the purposes of performing
construction work, furnishing the Premises and making preparations for Tenant's
occupancy. Access for such purposes shall not be deemed to constitute possession
or occupancy accelerating the Commencement Date or Tenant's obligation to pay
fixed rent under this Lease.
3.04 If Tenant employs or uses any contractor or subcontractor other than
Landlord in the performance of any work in connection with Tenant's initial
occupancy, all of Tenant's duties and obligations set forth in Sections 14.05
and 14.06 (relating to Tenant's duties and obligations in making alterations)
shall be applicable to and binding upon Tenant with respect to any such work.
ARTICLE 4
When Demised Premises Ready for Occupancy
4.01 The Demised Premises shall be deemed ready for occupancy on the earliest
date on which all of the following conditions have been met or one hundred (100)
days after Landlord provides the Lease Amendment referred to in Article 40 of
the Rider to the Lease to the Tenant, whichever occurs first:
(a) A Certificate of Occupancy (temporary or final or a permission to
occupy) has been issued not inconsistent with Tenant's use of the
Demised Premises as permitted under Section 2.01 hereof.
(b) The Work described in the Work Letter (Plans and Specifications) to
be performed by the Tenant's contractor has been substantially
completed.
(c) Adequate means of access have been provided, and the use, without
material interference, of the facilities necessary to Tenant's
occupancy of the Demised Premises, including corridors, elevators
and stairways and heating, ventilating, air conditioning, sanitary,
water, and electrical lighting and power facilities, are available
to Tenant.
4.02 If the occurrence of any of the conditions listed in Section 4.01, and
thereby the making of the Demised Premises ready for occupancy, shall be delayed
due to any unreasonable act or omission of Tenant or any of its employees,
agents or contractors, including but not limited to failure by Tenant to act
promptly when any consent or approval may be requested by Landlord, or to plan
or execute work to be performed by Tenant diligently and expeditiously, the
Demised Premises shall be deemed ready for occupancy on the date when it would
have been ready but for any such delay.
4.03 The Commencement Date of this Lease is scheduled to occur one hundred
(100) days after Landlord provides the Lease Amendment referred to in Article
40a to the Tenant and Tenant's contractor shall attempt to have the Demised
Premises ready for Tenant's occupancy on or before such date. If the Demised
Premises are not ready for Tenants occupancy on or before said date, this Lease
shall remain in full force and effect and the Commencement Date shall occur as
scheduled above.
-4-
4.04 If the whole of the Demised Premises shall not be ready for occupancy at
approximately the same time, Tenant may, with the written consent of Landlord,
take possession of any part or parts of the Demised Premises for its use and
occupancy before the Commencement Date, provided that a temporary or permanent
Certificate of Occupancy shall have been obtained for the part or parts of the
Demised Premises in respect of which Tenant desires to take possession. Tenant
shall be deemed to have taken possession of a part of the Demised Premises for
use and occupancy (herein called "actual possession") when any personnel of
Tenant or anyone claiming under or through Tenant shall first occupy such part
for the conduct of business. Tenant's actual possession of any part of the
Demised Premises prior to the Commencement Date shall be subject to all of the
obligations of this Lease, including the payment of fixed and additional rent,
which payment shall be reasonably apportioned.
ARTICLE 5
Security Deposit
5.01 Upon execution of this Lease, ▇▇▇▇▇▇▇ ▇▇▇▇ shall sign a Limited Guarantee
in the form attached hereto as Exhibit G. Landlord shall have the right to
assign its rights under the Limited Guarantee to the purchaser of Landlord's
interest in the Building. At the end of the fifth year of this Lease, said
Guarantee shall be released by Landlord if Tenant delivers to Landlord a
security deposit in the amount of $75,000.00. ▇▇▇▇▇▇▇ ▇▇▇▇ shall provide to
Landlord a certified statement of his assets, liabilities and net worth as of
August 1995. Thereafter, as long as the Guarantee is in effect, upon Landlord's
request (not more than once each year) ▇▇▇▇▇▇▇ ▇▇▇▇ shall provide an updated
financial statement as described above.
5.02 In the event of the failure of Tenant to keep and perform any of the
terms, covenants and conditions of this Lease to be kept and performed by
Tenant, then Landlord, at its option, may appropriate and apply the entire
Security Deposit or so much thereof as may be necessary, to compensate the
Landlord for loss or damage sustained or suffered by Landlord due to such breach
on the part of Tenant. Should the entire Security Deposit, or any portion
thereof, be appropriated and applied by Landlord for the payment of overdue rent
or other sums due and payable to Landlord by Tenant hereunder, then Tenant
shall, upon the written demand of Landlord, forthwith remit to Landlord a
sufficient amount in cash to restore the Security Deposit to the original sum
deposited, and Tenant's failure to do so within five (5) days after receipt of
such demand shall constitute a breach of this Lease. Should Tenant comply with
all of the terms, covenants and conditions and promptly pay all of the rent
herein provided for as it falls due, and all other sums payable by Tenant to
Landlord hereunder, the Security Deposit shall be returned in fun to Tenant at
the end of the term of this Lease, or upon the earlier termination of this
Lease.
5.03 Landlord may deliver the Limited Guarantee or the Security Deposit to the
purchaser of Landlord's interest in the Building in the event that such interest
be sold, and thereupon Landlord shall be discharged from any further liability
with respect to the Security Deposit.
ARTICLE 6
Adjustments of Rent for Changes in Real Estate Taxes
6.01 (a) The term "Tax Base Year" shall mean the tax fiscal year of July 1,
1995 to June 30, 1996.
(b) The term "Appurtenant Land" or "land" shall mean a 5.846 acre site,
as shown in Exhibit "F", occupied by the Building and its parking
area (sometimes Collectively referred to as the "Improvements").
(c) The term "Common Areas" shall mean 3.61 acres of land as shown on
Exhibit "F", occupied by the roadway and central pond, which portion
of land is used by all tenants of High Ridge Park.
(d) The term "Real Estate Taxes" shall mean 100% of all taxes and
assessments levied, assessed or imposed at any time by any
governmental authority upon or against the Building, Improvements,
Appurtenant Land and 12.25% of all taxes and assessments levied,
assessed or imposed at any time by any governmental authority upon
or against the Common Areas, and also any tax or
-5-
assessment levied, assessed or imposed at any time by any
governmental authority in connection with the receipt of income or
rents from the Building, Improvements, and Common Areas, to the
extent that same shall be in lieu of or in addition to all or a
portion of any of the aforesaid taxes or assessments upon or against
the Building and Common Areas. The term "Real Estate Taxes" shall
not mean any interest or penalties which may become due by reason of
the failure to pay any such taxes when due and payable; or any
municipal, state or federal income, estate, inheritance, transfer,
corporate or franchise taxes assessed against Landlord unless and to
the extent that same is assessed in lieu of part or all of real
estate taxes as presently constituted and are computed as if
Landlord owned no other property. Landlord represents that said
12.25% represents the ratio of the rentable area of Building Four
compared to the rentable area of High Ridge Park.
(e) The term "Tenant's Proportionate Share" shall be 23.53% of all Real
Estate Taxes as described in the above paragraph (d). Landlord
represents that the Building contains 61,000 rentable square feet.
(f) The phrase "Real Estate Taxes payable by Landlord" shall not include
Real Estate Taxes for which Landlord is reimbursed by Tenant under
Section 1.05 or by other tenants of the Building under similar
provisions of their leases.
6.02 (a) In addition to the annual fixed rent, Tenant agrees to pay as
additional rent an amount equal to Tenant's Proportionate Share of
the excess of Real Estate Taxes payable by Landlord for each tax
fiscal year of the City which is subsequent to the Tax Base Year
over the Real Estate Taxes payable by Landlord for the Tax Base
Year.
(b) Tenant's obligation to pay additional rent under (a) above, shall
commence on the July 1st or January 1st (whichever comes first)
after the end of Tax Base Year; and Tenant shall pay additional
rent, with respect to each fiscal year subsequent to the Tax Base
Year, in two equal installments, on such July 1/st/ or January 1/st/
(as the case may be) and each subsequent July 1/st/ and January
1/st/ during the balance of the term of this Lease.
(c) Within thirty (30) days after the Expiration Date, Landlord shall
pay to Tenant an amount equal to the portion, if any, of such
additional rent which is attributable to the period subsequent to
the Expiration Date.
(d) The times for the payment of taxes, July 1/st/ and January 1/st/,
are based on the present time for the payment of real estate taxes
in the City. If the City or other governmental authority changes the
dates for the payment of Real Estate Taxes then said changed dates
shall be sequentially substituted for the July 1 and January 1 dates
contained herein.
(e) In the event that, after a statement has been sent to Tenant, an
assessment or valuation which had been utilized in computing the
Real Estate Taxes for a tax fiscal year is reduced (as a result of
settlement, final determination or legal proceedings or otherwise),
and as a result thereof a refund of Taxes is actually received by or
on behalf of Landlord, promptly after receipt of such refund,
Landlord shall send Tenant a statement adjusting the Real Estate
Taxes for such tax fiscal year (taking into account the expenses
mentioned in the last sentence of this subparagraph (e) and setting
forth Tenant's proportionate share of such refund. Tenant shall be
entitled to receive such share by way of a credit against the
Additional Rent next becoming due after the sending of such
statement; provided, however, that Tenant's Share of such refund
shall be limited to the amount, if any, which Tenant had theretofore
paid to Landlord as increased Additional Rent for such tax fiscal
year on the basis of the assessed valuation before it had been
reduced. All expenses, including attorneys' and appraisers' fees and
disbursements, expenses and other witnesses' fees, incurred in
contesting the validity or amount of any Real Estate Taxes or in
obtaining a refund shall be considered as part of the Real Estate
Taxes for such year.
-6-
(f) In the event that any time during a tax fiscal year after the Tax
Base Year the assessment or valuation which had been utilized in
computing the Real Estate Taxes for the Tax Base Year is reduced (as
a result of settlement, final determination or legal proceedings or
otherwise), then and in such event: (i) the Taxes for the Tax Base
Year shall be reduced to the lower amount based on said reduced
valuation (the "Updated Tax Base Year"); and (ii) Tenant shall pay
as additional rent its Proportionate Share of the amount by which
the Taxes for each succeeding tax fiscal year, exceeds the taxes for
the Updated Tax Base Year. Landlord shall promptly send to Tenant a
statement setting forth the basis for the Updated Tax Base Year and
all adjustments and additional rent payments.
6.03 Landlord shall furnish to Tenant a copy of the Assessor's report or
reports showing the assessment for the Building and the Common Areas and the
report or reports showing the increased assessment therefor and all applicable
tax bills, or such other evidence coming from the Assessor's and/or Tax
Collectors office which show the assessments and tax involved or some other
reasonable documentation of the same.
6.04 Any dispute between Landlord and Tenant arising out of an adjustment
provided for in this Article shall be submitted to Arbitration pursuant to
Article 33 of this Lease. Pending the determination of such dispute, Tenant
shall pay the amount specified in the statement without prejudice to Tenant's
position and subject to refund by Landlord if the dispute shall be determined in
Tenant's favor.
ARTICLE 7
Adjustment of Rent for Changes in Operating Costs
7.01 (a) In the event that the Operating Costs for an Operating Year shall
exceed the Operating Costs for the Base Year, Landlord shall adopt
an Adjustment Date in the succeeding Operating Year, and within ten
(10) days of the Adjustment Date, and Tenant shall pay to Landlord
an amount equal to the Tenant's Proportionate Share of such excess
(without setoff or deduction of any kind and additional rent), less
the amount of additional rent, if any, which Tenant paid to
Landlord, as additional rent under subparagraph (b) below, during
the Operating Year in question.
(b) Tenant shall also pay to Landlord, as additional rent (in equal
monthly installments) in each projected Operating Year, retroactive
to the first month of such year, a sum equal to one twelfth of
Tenant's Proportionate Share of the amount by which Landlord's
reasonable estimate of the Operating Costs for the current Operating
Year exceeds the Operating Costs for the Base Year.
(c) If the amount paid by Tenant during an operating year pursuant to
(b) above is greater than Tenant's Proportionate Share of the actual
operating expenses for said year, then the payment shall be credited
to Tenant against the next due payment of additional rent after the
Adjustment Date.
7.02 For the purposes of this Article, the following terms shall have the
following meanings:
(a) The term "Base Year" shall mean the period from January 1, 1996 to
December 31, 1996.
(b) The term "Operating Year" shall mean successive twelve month periods
commencing January 1, 1997.
(c) The term "Adjustment Date" shall be a date adopted by the Landlord
subsequent to each Operating Year.
(d) The term "Tenant's Proportionate Share" shall be 23.53%. "Building
Four's Share" of the Common Area of the Park shall be 12.25%.
(e) The term "Operating Costs" shall mean 100% of all expenses paid or
incurred by Landlord for the operation, maintenance, servicing and
management of the Building and Appurtenant Land plus 12.25% of all
of the expenses paid or incurred by Landlord for the operation,
maintenance,
-7-
servicing and management of the Common Areas, and shall include,
without limitation, the following: (i) wages and salaries paid by
Landlord, including all fringe benefits and taxes related thereto, of
employees directly engaged in cleaning, maintenance and repair of the
Building, Building equipment, Appurtenant Land and Common Areas, and
performing the functions of garbage and snow removal, landscaping and
security, including a customary managing agent's fee, or cost to
Landlord of an independent contractor performing any such services;
(ii) any and all supplies and materials utilized by Landlord or
independent contractors of Landlord in the performance of the items
set forth in subparagraph (i) immediately preceding; (iii) the cost of
supplying utilities to the Building, Appurtenant Land and Common
Areas; (iv) insurance premiums paid by Landlord with respect to the
Building, Appurtenant Land and Common Areas; (v) expenditures of not
more than $75,000 per year incurred by Landlord after substantial
completion of the Building for any equipment, device or capital
improvement which is required by any law, statute or regulation or a
requirement of the insurance carrier or which is designed as a labor-
saving measure or designed to effect other economies or efficiencies
in the operation or maintenance of the Demised Premises, Common Areas
or the Building Equipment (provided that the amount expended is not
disproportionate to the savings realized as a result thereof), in
which case only the annual amortization (on a straight line basis over
a depreciable life in accordance with generally accepted accounting
principles consistently applied, with interest calculated at an annual
rate of one (1) percentage point above the prime rate at the time of
Landlord's having made such expenditure) of such expenses shall be
included in Operating Costs; and (vi) legal and accounting fees and
disbursements, and any other expense or charge of any nature
whatsoever which, in accordance with generally accepted accounting
principles with respect to the operation of a first-class office
building, would be construed as an operating expense, excluding,
however, real property taxes, depreciation, interest on and
amortization of debt, and any items otherwise properly constituting
such an operating expense to the extent payment therefor is received
from or payable by tenants for services rendered or performed directly
for the account of such tenants or for which a tenant pays directly
under an electricity schedule.
(f) In the event that the Building is less than 90% occupied at any time
during the Base Year or any Operating Year, the Operating Costs for
such year shall be those which, with equitable adjustment, would have
been paid or incurred by Landlord for the operation of the Building
and Common Areas if the Building had been ninety percent occupied
throughout the whole of such year.
7.03 Notwithstanding anything to the contrary contained herein, the following
items shall not be included in Operating Costs: (a) wages or benefits for any
partner of the Landlord or any employee of the Landlord above the level of
Building Manager; (b) expenses for alterations or improvements to any portion of
the building to prepare space for occupancy by a new or renewal tenant; (c)
brokerage commissions or fees; (d) expenses in connection with obtaining loans;
(e) advertising expenses and other expenses in connection with obtaining new or
renewal tenants; (f) expenses in connection with litigation; and (g) other
expenses to the extent that the amount paid by Landlord for goods or services
materially exceeds the fair market value of said goods or services.
7.04 Landlord shall advise Tenant by written notice stated to be accurate by
Landlord or its agent of increased Operating Costs for any Operating Year. The
statement shall show the amount of Tenant's Proportionate Share of such increase
and shall establish the Adjustment Date and the manner in which the adjustment
is computed.
7.05 Tenant shall have the right to require the production of Landlord's books
and records which relate to the items of operating costs and the right within
thirty (30) days after reviewing said books and records, to deliver notice of
disagreement with respect to any item of Operating Costs. If Tenant fails to
deliver such notice within said thirty (30) day period, then Landlord's
determination of Operating costs shall be deemed conclusive and binding.
7.06 Any dispute between Landlord and Tenant arising out of an adjustment
provided for in this Article shall be submitted to arbitration pursuant to
Article 33 of this Lease. Pending the determination of such dispute,
-8-
Tenant shall pay the amount specified in the statement, without prejudice to
Tenant's position and subject to refund by Landlord if the dispute shall be
determined in Tenant's favor.
ARTICLE 8
Subordination, Attornment, Notice to Lessor and Mortgagees
8.01 This Lease, and all rights of Tenant hereunder, are and shall be subject
and subordinate in all respects to all present and future ground leases, over-
riding leases and underlying leases and/or grants of term of the land and/or the
Building or the portion thereof in which the Demised Premises are located in
whole or in part now or hereafter existing and to all mortgages and building
loan agreements, including leasehold mortgages and building loan agreements,
which may now or hereafter affect the land and/or the Building and/or any of
such leases, whether or not such mortgages shall also cover other lands and/or
buildings, to each and every advance made or hereafter to be made under such
mortgages, and to all renewals, modifications, replacements and extensions of
such leases and such mortgages and spreaders, consolidations and correlations of
such mortgages. This Section shall be self-operative and no further instrument
of subordination shall be required. In confirmation of such subordination,
Tenant shall promptly execute and deliver an instrument, in recordable form, if
required, that Landlord, the lessor of any such lease or the holder of any such
mortgage or any of their respective successors in interest may request to
evidence such subordination, and Tenant hereby constitutes and appoints
Landlord attorney-in-fact for Tenant to execute any such instrument for and on
behalf of Tenant. The leases to which this Lease is, at the time referred to,
subject and subordinate pursuant to this Article are hereinafter sometimes
called "superior leases" and the mortgages to which this Lease is at the time
referred to, subject and subordinate are hereinafter sometimes called "superior
mortgages" and the lessor of a superior lease or its successor in interest at
the time referred to is hereinafter sometimes called a "lessor".
8.02 Landlord hereby notifies Tenant that in accordance with the terms of a
superior mortgage, this Lease may not be modified or amended so to reduce the
rent, shorten the term, or adversely affect in any other respect to any material
extent the rights of the Landlord hereunder, or be cancelled or surrendered
without the prior written consent of the holder of the superior mortgage in each
instance, except that said holder's consent shall not be required to the
institution or prosecution of any action or proceedings against Tenant by reason
of a default on the part of Tenant under the terms of this Lease.
8.03 This Lease shall not terminate or be terminable by Tenant by reason of any
termination of the ground lease, by summary proceedings, foreclosure of a
superior mortgage, or otherwise. Tenant agrees without further instruments of
attornment in each case, to attorn to the lessor under the ground lease, or the
mortgagee under the superior mortgage, as the case may be, to waive the
provisions of any statute or rule of law now or hereafter in effect which may
give or purport to give Tenant any right of election to terminate this Lease or
to surrender possession of the Demised Premises in the event the ground lease is
terminated or a superior mortgage is foreclosed, and that unless and until the
lessor, or mortgagee, as the case may be, shall elect to terminate this Lease,
this Lease shall not be affected in any way whatsoever by any such proceeding or
termination, and Tenant shall take no steps to terminate this Lease without
giving written notice to the lessor under the ground lease, or mortgagee under a
superior mortgage, and a reasonable opportunity to cure (without such lessor or
mortgagee being obligated to cure), any default on the part of the Landlord
under this Lease. Prior to the Commencement Date of the Lease, Landlord shall
use its best efforts to deliver to Tenant (at Tenant's sole cost and expense) a
standard "Nondisturbance Agreement", signed by the holder of any superior
mortgage or superior lease presently in effect, by which the mortgagor or lessor
agrees that Tenant shall not be disturbed in its possession of the Premises
after a default by Landlord under the mortgage or lease; unless Tenant is in
default under the terms of this Lease. In the event Landlord enters into any
superior mortgage or superior lease during the term of this Lease, Landlord
shall use its best efforts to obtain and deliver to Tenant a similar
Nondisturbance Agreement signed by the mortgagee or lessor.
-9-
ARTICLE 9
Quiet Enjoyment
9.01 Landlord covenants that if, and so long as, Tenant pays all of the fixed
and additional rent due hereunder, and keeps and performs each and every
covenant agreement, term, provision and condition herein contained on the part
and on behalf of Tenant to be kept and performed, Tenant shall quietly enjoy the
premises without hindrance or molestation by Landlord or by any other person
lawfully claiming the same, subject to the covenants, agreements, terms,
provisions and conditions of this Lease. Notwithstanding the foregoing, Tenant
shall not be deemed in default hereunder unless Tenant's failure to perform or
comply with the terms of this Lease continues beyond the expiration of any
notice and/or cure period provided for herein.
ARTICLE 10
Assignment, Mortgaging, Subletting
10.01 Neither this Lease, nor the term and estate hereby granted, nor any part
hereof or thereof, nor the interest of Tenant in any sublease or the rentals
thereunder, shall be assigned, mortgaged, pledged, encumbered or otherwise
transferred by Tenant by operation of law or otherwise, and neither the Demised
Premises, nor any part thereof, shall be encumbered in any manner by reason of
any act or omission on the part of Tenant or anyone claiming under or through
Tenant, nor shall be sublet to be used or occupied or permitted to be used or
occupied, or utilized for desk space or for mailing privileges, by anyone other
than Tenant or for any purpose other than as permitted by this Lease, without
the prior written consent of Landlord in every case, except as expressly
otherwise provided in this Article.
10.02 If this Lease is assigned, whether or not in violation of the provisions
of this Lease, Landlord may collect rent from the assignee. If the Demised
Premises or any part thereof is sublet or is used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such default, collect
rent from the sub-tenant or occupant. In either event, Landlord may apply the
net amount collected to the rents herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Section 10.01, or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord to
assignment, mortgaging, subletting or use or occupancy by others shall not in
any way be considered to relieve Tenant from obtaining the express written
consent of Landlord to any other or further assignment, mortgaging or subletting
or use or occupancy by others not expressly permitted by this Article.
References in this Lease to use or occupancy by others, that is anyone other
than Tenant, shall not be construed as limited to subtenants and those claiming
under or through sub-tenants but as including also licensees and others claiming
under or through Tenant, immediately or remotely.
10.03 Tenant, upon written notice to Landlord, but without Landlords written
consent, may permit any corporations or other business entities which control,
are controlled by, or are under common control with Tenant (herein called
"related corporations") to use the whole or part of the Demised Premises for any
of the purposes permitted to Tenant, subject however to compliance with Tenant's
obligations under this Lease. Such use shall not be deemed to vest in any such
related corporation any right or interest in this Lease or in the Demised
Premises, unless Tenant assigns this Lease or sublets all or part of the
Premises to the related corporation with Landlord's consent pursuant to 10.04,
nor shall such use release, relieve, discharge or modify any of Tenant's
obligations hereunder.
10.04 Tenant, upon Landlord's prior written consent, which shall be granted
unless Landlord has a reasonable and good faith objection to the character and
net worth of the assignee or subtenant, may assign or transfer its entire
interest in the Lease and the leasehold estate hereby created or sublet the
whole or part of the Demised Premises on one or more occasions to a "wholly
owned subsidiary" or "affiliate" of Tenant or to a "successor corporation" of
Tenant, as such terms are hereinafter defined, provided that Tenant shall not be
in default in any of the terms, covenants, conditions and agreements of this
Lease, including but not limited to the payment of the fixed rent or additional
rent payable by Tenant hereunder. A "wholly owned subsidiary" of Tenant shall
mean
-10-
any business entity all, or substantially all of whose outstanding voting stock,
partnership interests or membership interests shall at the time be owned,
directly or indirectly by Tenant or by one or more of its wholly owned
subsidiaries. An "affiliate" of Tenant shall mean any business entity which
directly or indirectly controls or is controlled by or is under common control
with Tenant. For purposes of this definition, "control" (including
"controlling," "controlled by" and "under common control with") as used with
respect to any corporation, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such corporation, whether through the ownership of voting securities, or by
contract or otherwise. A "successor corporation" as used in this Article, shall
mean (i) a business entity into which or with which Tenant, its corporate
successors or assigns, is merged or consolidated, in accordance with applicable
statutory provisions for the merger or consolidation of business entities,
provided that by operation of law or by effective provisions contained in the
instruments of merger or consolidation the liabilities of the entities
participating in such merger or consolidation are assumed by the entity
surviving such merger or consolidation, or (ii) a corporation acquiring this
Lease and the term hereby demised, the good will and all or substantially all of
the other property and assets of Tenant, its corporate successors or assigns,
and assuming all or substantially all of the liabilities of Tenant, its
corporate successors and assigns, or (iii) any successor to a successor
corporation becoming such by either of the methods described in Clauses (i) and
(ii). The acquisition by Tenant, its corporate successors or assigns, of all or
substantially all of the assets, together with the assumption of all or
substantially all of the obligations and liabilities of any corporation, shall
be deemed to be a merger of such corporation into Tenant for the purpose of this
Article.
10.05 If Tenant is a corporation or partnership, and if at any time during the
term of this Lease the person or persons who, as of the date this Lease is
executed by Tenant, own or owns a majority of such corporation's voting stock
(as hereinafter defined) or the general partner's interest in such partnership,
as the case may be, cease or ceases to own a majority of such a voting stock or
general partner's interest, as the case may be, then the occurrence of any such
event shall be deemed to be an assignment of this Lease with respect to which
the Landlord's prior written consent shall be required, except, however, that
this provision shall not be applicable to any corporation, all the outstanding
voting stock of which is listed on a National Securities Exchange. For the
purpose of this Section, stock ownership shall be determined in accordance with
the principles set forth in Section 544 of the Internal Revenue Code of 1986, as
amended, and the term "voting stock" shall refer to share of stock regularly
entitled to vote for the election of directors of the corporation.
10.06 Notwithstanding anything contained in Sections 10.01 and 10.02 hereof but
subject to the right of Tenant under Sections 10.03 and 10.04 hereof, in the
event that at any time or from time to time prior to or during the term of this
Lease Tenant desires to sublet all or any part of the Demised Premises, Tenant
(a) shall notify Landlord in writing of the term of the proposed subletting and
the area so proposed to be sublet, (b) shall be deemed to have granted Landlord
the option to sublet from Tenant such space so proposed to be sublet upon the
covenants, agreements, terms, provisions and conditions hereinafter set forth,
or if the proposed term of the sublet is the entire remaining term of this
Lease, then Tenant shall be deemed to have offered Landlord the right to
"Recapture" (as hereinafter defined) the space in question. As used herein,
"Recapture" shall mean the amendment of this Lease so as to eliminate the space
in question from the Demised Premises and pro rata (based on the ratio of the
rentable area of the space in question (the "Recapture Space") to the rentable
area of the Demised Premises) reduction of Tenant's fixed rent and additional
rent obligations hereunder, and release of all other obligations of Tenant
hereunder with respect to the Recapture Space (c) shall not offer such space for
subletting to anyone other than Landlord until thirty (30) days have elapsed
after the receipt of such notice by Landlord. Such option on the part of
Landlord to sublet from Tenant such space so proposed to be sublet shall be
exercisable by Landlord in writing during such 30 day period referred to in
clause (c) of the next preceding sentence. If Landlord fails to exercise such
option within said thirty (30) days and Tenant fails to complete a sublease or
assignment with a third party (as hereinafter provided within one hundred twenty
(120) days thereafter), Tenant shall again comply with all the conditions of
this Section, as if the notice and option herein above referred to had not been
given and received.
In the event Landlord exercises Landlord's option to sublet such space,
such sublease by Tenant to Landlord shall be at an annual fixed rent equal to
the fixed rent and additional rent as provided in this Lease for the entire
Demised Premises or equal to an equitable apportionment of such fixed and
additional rent if such
-11-
sublease shall be in respect of less than the whole of the Demised Premises, and
shall be for the same term as that of the proposed subletting, and it is hereby
expressly agreed that:
(a) The sublease shall be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease except
such as are not relevant or applicable, and except as otherwise
expressly set forth to the contrary in this Section.
(b) Such sublease to Landlord shall give Landlord the unqualified and
unrestricted right without Tenant's permission, to assign such
sublease or any interest therein and/or sublet the space covered by
such sublease or any part or parts of such space and to make any and
all changes, alterations, and improvements in the space covered by
such sublease;
(c) Such sublease to Landlord shall provide that any assignee or
subtenant of the Landlord may, at the election of the Landlord, be
permitted to make alterations, decorations and installments in such
space or any part thereof and shall also provide in substance that
any such alterations, decorations and installations therein made by
any assignee or subtenant for the Landlord may be removed, in whole
or in part, by such assignee or subtenant, at its option, prior to
or upon the expiration or other termination of such sublease
provided that such assignee or subtenant at its expense, shall
repair any damage and injury to such space or sublet caused by such
removal; and
(d) Such sublease to Landlord shall also provide that the parties to
such sublease expressly negate any intention that any estate created
under such sublease be merged with any other estate held by either
of said parties. Tenant covenants and agrees (i) that any such
assignment or subletting by the subtenant may be for any purpose or
purposes that Landlord, in Landlord's uncontrolled discretion, shall
deem suitable or appropriate, (ii) that Tenant, at Tenant's expense,
shall and will at all times provide and permit reasonably
appropriate means of ingress to and egress from such space so sublet
by Tenant to Landlord, and (iii) that at the expiration of the term
of such sublease, Tenant will accept the space covered by such
sublease in its then existing condition, subject to the obligations
of Landlord to make such repairs thereto as may be necessary to
preserve the premises demised by such sublease in good order and
condition.
(e) In the event Landlord elects to Recapture the offered space, then
Landlord and Tenant shall execute an amendment to this Lease in
accordance with the definition of Recapture set forth above.
10.07 In the event Landlord does not exercise its option to Recapture such
space, Landlord covenants not to unreasonably withhold its consent which must be
in writing, to a subletting or assignment provided, however, that Landlord shall
not, in any event, be obligated to consent to any such proposed subletting
unless:
(a) Tenant shall furnish Landlord with the name and business address of
the proposed subtenant or assignee a counterpart of the proposed
subleasing or assignment agreement and satisfactory information with
respect to the nature and character of the business of the proposed
subtenant or assignee together with current financial information
and references reasonably satisfactory to Landlord;
(b) In the reasonable judgment of Landlord the proposed subtenant or
assignee is of a character and engaged in a business such as are in
keeping with the standards of Landlord in those respects for the
Building, and
(c) The purposes for which the proposed subtenant or assignee intends to
use the portion of the Demised Premises sublet to it are uses
expressly permitted by and not expressly prohibited by this Lease;
and
(d) Tenant shall not have (i) advertised or publicized in any way the
availability of all or part of the Demised Premises without prior
notice to and approval by Landlord which approval shall not be
-12-
unreasonably withheld or delayed, (ii) listed or publicly advertised
the rental rate less than the fixed rent and additional rent
(pursuant to Articles 6 and 7) then payable hereunder for such space
without Landlord's consent (which consent shall not unreasonably be
withheld or delayed). The provisions of this subsection, however,
shall not, be deemed to prohibit Tenant from negotiating a sublease
at a lesser rate of rent and consummating the same insofar as it may
be permitted under the provisions of this Article; and
(e) Tenant shall pay to Landlord immediately upon receipt thereof a sum
equal to the amount of (i) one half of all fixed rent and additional
rent and any other consideration paid to Tenant by any subtenant
which is in excess of the fixed rent and additional rent then being
paid by Tenant to Landlord pursuant to the terms hereof and (ii) one
half any other profit or gain realized by Tenant from any such
subletting, if only a part of the Demised Premises is sublet, then
the fixed rent and additional rent paid therefor by Tenant to
Landlord shall be deemed to be the fraction thereof that the area of
the sublet space bears to the entire Demised Premises. In
calculating such excess consideration, profit or gain, the following
item shall be deducted to the extent paid by Tenant; advertising and
marketing expenses, brokerage commissions or fees, attorney's fees,
fit-up expenses and other expenses incurred in connection with
subletting space or assigning this Lease.
(f) In the case of a subletting of a portion of the Demised Premises,
the portion so sublet shall be regular in shape and suitable for
normal renting purposes.
Except for any subletting by Tenant to Landlord pursuant to the
provisions of this Article, each subletting pursuant to this Article shall be
subject to all the covenants, agreements, terms, provisions and conditions
contained in this Lease. Tenant covenants and agrees that notwithstanding any
such subletting to and subtenant (other than the Landlord) and/or acceptance of
rent or additional rent by Landlord from any subtenant, Tenant shall and will
remain fully liable for the payment of the fixed rent and additional rent due
and to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions and conditions contained in this Lease on the part
of Tenant to be performed and all acts and omissions of any licensee or
subtenant or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this Lease and any such violation shall
be deemed to be a violation by Tenant. Tenant further covenants and agrees that
notwithstanding any such subletting no other and further subletting of the
Demised Premises or any part thereof shall or will be made except upon
compliance with and subject to the provisions of this Article.
10.08 With respect to each and every sublease, subletting or assignment
authorized by the provisions of this Article:
(a) No subletting shall be for a term ending later than one day prior to
the Expiration Date of this Lease, and that part, if any, of the
proposed term of any sublease or any renewal or extension thereof
which shall extend beyond a date one day prior to the Expiration
Date or the earlier termination of the term of this Lease, is hereby
deemed to be a nullity.
(b) Upon the execution of any such sublease or assignment as may be
authorized by this Article, Tenant shall promptly deliver to
Landlord a copy of each such sublease or assignment, as the case may
be.
ARTICLE 11
Compliance with Laws and Requirements of Public Authorities
11.01 Tenant shall promptly notify Landlord of any written notice it receives
of the violation of any law or requirements of any Federal, State, Municipal or
other public authority. Except as otherwise set forth in this Lease, and at its
expense Tenant shall comply with all laws and requirements of such public
authorities which shall, with respect to the Building or the Demised Premises or
the use and occupation thereof or the abatement of any nuisance, impose any
violation, order or duty on Landlord or Tenant, arising from (i) Tenant's use of
the Demised Premises, (ii) the manner of conduct of Tenant's business or
operation of its installations, equipment or
-13-
other property therein, (iii) any cause or condition created by or at the
instance of Tenant, or (iv) breach of any of Tenant's obligations hereunder.
ARTICLE 12
Insurance
12.01 Tenant shall not do, or permit anything to be done, or keep or permit
anything to be kept in the Demised Premises which would increase the fire or
other casualty insurance rate on the Building or the property therein over the
rate which would otherwise then be in effect (unless Tenant pays the resulting
increased amount of premium as provided in Section 12.02) or which would result
in insurance companies of good standing refusing to insure the Building or any
of such property in amounts and at normal rates reasonably satisfactory to
Landlord.
12.02 If, by reason of any act or omission on the part of Tenant, the rate of
fire insurance with extended coverage on the Building or equipment or other
property of Landlord shall be higher than it otherwise would be, Tenant shall
reimburse Landlord, on demand, for that part of the premiums for fire insurance
and extended coverage paid by Landlord because of such act or omission on the
part of Tenant, which sum shall be deemed to be additional rent and collectible
as such.
12.03 In the event that any dispute should arise between Tenant and Landlord
concerning rates, a schedule or make up of rates for the Building or the Demised
Premises, as the case may be, issued by a Fire Insurance Rating Organization or
other similar body making rates for fire insurance and extended coverage for the
premises concerned, shall be presumptive evidence of the facts therein stated
and of the several items and charges in the fire insurance rates with extended
coverage then applicable to such premises.
12.04 Tenant shall obtain and keep in full force and effect during the term of
this Lease at its own cost and expense comprehensive General Public Liability
Insurance on an occurrence basis with minimum limits of liability in an amount
of not less than $2,000,000.00 for bodily injury or death including personal
injury, and with respect to damage to property, water damage and sprinkler
leakage including legal liability arising out of any one occurrence, which
insurance shall contain contractual liability insurance covering the matters set
forth in Article 21.
12.05 All policies of insurance to be obtained and furnished by Tenant
hereunder shall be issued and carried in the name of Landlord and Tenant, as
their respective interests may appear, together with such other party or parties
as may be designated by Landlord, as their interests may appear. All such
policies of insurance shall be issued by a financially responsible company or
companies, authorized to issue such policy or policies, and licensed to do
business in the State of Connecticut, which shall be reasonably satisfactory to
Landlord, and shall contain endorsements providing as follows: (a) that any such
insurance shall not be subject to cancellation, termination, reduction or
change, except with 30 days' prior written notice sent by registered mail to
Landlord by the insurance company, and (b) that Landlord shall not be liable for
any damage by fire or other casualty covered by such insurance, regardless of
the cause, it being understood that Tenant shall look solely to its insurer or
insurers for reimbursement. Landlord and Tenant waive their right to recover
damages against each other for any reason whatsoever to the extent the damaged
party recovers from its insurance carrier. Any insurance policy procured by
Tenant which does not name the Landlord as an additional insured shall contain
an express waiver of any right of subrogation by the insurance company against
Landlord. All public liability and Property damage polices shall contain an
endorsement that Landlord, although named as an insured, shall nevertheless be
entitled to recover under said policies for any loss or damage occasioned to it,
its servants, agents and employees. The original policy or policies together
with satisfactory evidence of payment of the premium thereof, shall be delivered
to Landlord on or before the commencement of any Work under this Lease, and upon
renewals of such policies, not less than 30 days prior to the expiration of the
term of any such coverage. The minimum limits of any insurance coverage
required herein to be carried by Tenant shall not limit Tenant's liability under
Article 21 hereof.
12.06 In the event that Tenant at any time or times shall fail to obtain or
maintain in full force and effect any or all of the insurance polices and
coverage required of it hereunder, or should Tenant violate any of the
provisions of Section 12.05 herein, Landlord, at its election after ten (10)
days written notice to Tenant, and as agent for
-14-
Tenant, may obtain such insurance or coverage, or additional insurance or
coverage as the case may be, pay the premiums thereon or take such other steps
as may be necessary to meet the requirements of this Article and thereafter,
upon demand, obtain reimbursement of the costs so expended from Tenant. The
failure of Landlord to obtain evidence of the required insurance coverage shall
not relieve Tenant of its obligations under this Article.
12.07 Throughout the Lease term, Landlord shall keep the Building (including
the Demised Premises, Building Systems and fixtures), but excluding Tenant's
property, insured for the full replacement value (without deducting
depreciation) thereof against loss or damage by perils customarily included
under standard "all risk" policies for similar types of commercial buildings
located in Fairfield County. Landlord shall also maintain comprehensive public
liability insurance on an occurrence basis to cover its operations of the
Demised Premises and Common Areas against loss for bodily injury and property
damage in amounts and on such terms currently included for similar types of
buildings located in Fairfield County.
ARTICLE 13
Rules and Regulations
13.01 Tenant and its employees and agents shall faithfully observe and comply
with the rules and regulations set forth in the attached Exhibit "C" (the "Rules
and Regulations"), and such reasonable changes therein (whether by modification,
elimination or addition) as Landlord at any time or times hereafter may make and
communicate in writing to Tenant, which do not have a materially adverse effect
on the conduct of Tenant's business in the Demised Premises; provided, however,
that in case of any conflict or inconsistency between the provisions of this
Lease and any Rules and Regulations enacted subsequent to the date of this Lease
the provisions of this Lease shall control.
13.02 Notwithstanding anything to the contrary in any of the Rules and
Regulations set forth in Exhibit "C":
(a) Tenant may bring into and keep in the Demised Premises such small
quantities of inflammable or combustible objects or materials as are
permitted by local law and as are incidental to the use of the
Demised Premises for the purposes permitted by Article 2, but this
shall not be deemed to relieve Tenant of responsibility to comply
with all other obligations of this Lease that may be applicable to
or result from the introduction or maintenance of such objects or
materials in the Demised Premises, including but not limited to
compliance with the provisions of Sections 12.01 and 12.02.
(b) Subject to the provisions of Paragraph 2.02(c), Landlord shall not
unreasonably withhold its consent to the installation, maintenance
and operations by Tenant in the Demised Premises of data processing
machines, office duplicating machines, teletypewriter machines and
other business machines and machinery customarily used in offices in
the ordinary course of business, provided, however, that Tenant
shall comply with all other obligations of this Lease that may be
applicable to or result from such installation, maintenance or
operation.
(c) Landlord shall not unreasonably withhold from Tenant any approval
provided for in the Rules and Regulations.
(d) Whenever Landlord shall claim, by written notice to Tenant, that
Tenant is violating any of the provisions of the Rules and
Regulations, and Tenant shall in good faith dispute such claim by
written notice given to Landlord within ten (10) days after service
of Landlord's notice of the violation, the dispute shall be
determined by arbitration pursuant to Article 33.
(e) Tenant shall utilize only security and cleaning services approved in
writing by Landlord, which shall not be unreasonably withheld or
delayed.
-15-
ARTICLE 14
Alterations and Tenant's Property
14.01 Tenant shall not make any alterations, decorations, installations,
additions, or improvements in or to the Demised Premises without Landlord's
prior written consent, which consent Landlord agrees shall not be unreasonably
withheld or delayed.
14.02 All work done by or on behalf of Tenant ("Tenant work") shall be done at
Tenant's sole expense and shall be done only by Landlord's contractors, or those
contractors approved by the Landlord, which approval shall not be unreasonably
withheld or delayed.
14.03 All alterations, decorations, installations, additions or improvements
upon the Demised Premises made by any party shall at the expiration of the term
hereof become the property of the Landlord and be surrendered with the Demised
Premises as part thereof at the end of the term. Tenant's special chandeliers,
business and trade fixtures, machinery and equipment whether or not attached to
the Demised Premises, which are installed by or for the account of Tenant, and
can be removed without permanent structural damage to the Demised Premises or
the Building, and all furniture, furnishings and other articles of movable
personal property shall be and shall remain Tenant's property and may be removed
by it prior to the expiration date of this Lease; provided, however, that if any
of Tenant's property is removed, Tenant shall repair or pay the cost of
repairing any damage to the Demised Premises resulting from such removal. Any
equipment or other property for which Landlord shall have granted any allowance
or credit to Tenant shall not be deemed to have been installed by or for the
account of Tenant and shall not be considered Tenant's property.
14.04 At or before the Expiration Date, or the date of any earlier termination
of this Lease, Tenant at its expense, shall remove from the Demised Premises all
of Tenant's property except such items thereof as Tenant shall have expressly
agreed in writing with Landlord were to remain and to become the property of
Landlord, and shall repair any damage to the Demised Premises or the Building
resulting from such removal. Any other items of Tenant's property (except
money, securities and other like valuables) which shall remain in the Demised
Premises after the Expiration Date or after a period of fifteen (15) days
following an earlier termination date, may, at the option of the Landlord, be
deemed to have been abandoned, and in such case either may be retained by
Landlord as its property or may be disposed of without accountability, in such
manner as Landlord may see fit at Tenant's expense.
14.05 All Tenant's work, at all times, shall comply with laws, orders and
regulations of governmental authorities having jurisdiction thereof and all
rules and regulations of Landlord. Tenant, at its expense, shall obtain all
necessary governmental permits and certificates for the commencement and
prosecution of Tenant's work and for final approval thereof upon completion, and
shall cause Tenant's work to be performed in compliance therewith and with all
applicable requirements of insurance bodies, and in good and first class
workmanlike manner, using materials and equipment at least equal in quality and
class to the original installations of the Building. Tenant's work shall be
performed in such a manner as not to interfere with the occupancy of any other
tenant in the Building, nor delay or impose any additional expense upon Landlord
in the construction, maintenance or operation of the Building. Throughout the
performance of Tenants work, Tenant, at its expense, shall carry, or cause to be
carried, workmen's compensation insurance in statutory limits, and general
liability insurance for any occurrence in or about the Building, of which
Landlord and its managing agent shall be named as parties insured, in such
limits as Landlord may reasonably prescribe, with insurers reasonably
satisfactory to Landlord. Tenant shall furnish Landlord with reasonably
satisfactory evidence that such insurance is in effect at or before the
commencement of Tenant's work and, on request, at reasonable intervals
thereafter during the continuance of Tenant's work. No Tenant's work shall
involve the removal of any fixtures, equipment or other property in the Demised
Premises which are not Tenant's property, unless Landlords prior written consent
is first obtained and unless such fixtures, equipment or other property shall be
promptly replaced at Tenant's expense and free of superior title, liens and
claims, with fixtures, equipment or other property (as the case may be) of like
utility and at least equal value (which replaced fixture, equipment or other
property shall thereupon become the property of Landlord), unless Landlord shall
otherwise expressly consent in writing.
-16-
14.06 Tenant, at its expense, and with diligence and dispatch, shall procure
the cancellation or discharge of all notices of violation arising from or
otherwise connected with Tenant's work which shall be issued by any public
authority having or asserting jurisdiction. Tenant shall defend, indemnify and
save harmless Landlord against any and all mechanics and other liens in
connection with Tenant's work, repairs or installation, including but not
limited to the liens of any conditional sale of, or chattel mortgages upon, any
materials, fixtures, or articles installed in and constituting part of Demised
Premises and against all costs, attorney's fees, fines, expenses and liabilities
reasonably incurred in connection with any such lien, conditional sale or
chattel mortgage or any action or proceeding brought thereon.
Tenant, at its expense, shall procure the satisfaction or discharge of all such
liens within twenty (20) business days of the filing of such lien against the
Demised Premises or the Building. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid, then, in addition to any other right or
remedy, Landlord may, but shall not be obligated to, discharge the same either
by paying the amount claimed to be due or by procuring the discharge of such
lien by deposit or by bonding proceedings, and in any such event Landlord shall
be entitled, if Landlord so elects, to compel the prosecution of an action for
the foreclosure of such lien by the lienor and to pay the amount of the judgment
in favor of the lienor with interest, costs and allowances. Any amount so paid
by Landlord and all costs and expenses incurred by Landlord, in connection
therewith, together with interest thereon at the rate of one percent per month
or portion thereof from the respective dates of Landlord's making of the payment
or incurring of the cost and expense shall constitute additional rent payable by
Tenant under this Lease and shall be paid by Tenant on demand. If Tenant makes
any such payment it shall not be entitled to any set-off against rent due
hereunder. Tenant agrees that it will not at any time prior to or during the
term of this Lease, either directly or indirectly, use any contractors, labor or
materials in the Demised Premises, if the use of such contractors, labor or
materials would, in the Landlord's reasonable judgment, create any difficulty
with other contractors or labor engaged by Tenant or Landlord or others or would
in any way disturb harmonious labor relations in the construction, maintenance
or operation of the Building or any part thereof.
ARTICLE 15
Repairs and Maintenance
15.01 Except as otherwise set forth herein, Tenant shall take good care of the
Demised Premises and the fixtures and appurtenances therein, and at its sole
cost and expense shall make all repairs thereto, as and when needed to preserve
them in good working order and condition. In addition, except as otherwise set
forth herein Tenant at its expense, shall promptly make all repairs, ordinary or
extraordinary, interior or exterior, structural or otherwise, in and about the
Demised Premises and the Building as shall be required by reason of (i) the
performance or existence of work by Tenant necessary to suit the Demised
Premises to Tenant's initial occupancy or Tenant's Work (ii) the installation,
use or operation of Tenant's property in the Demised Premises, (iii) the moving
of Tenant's property in or out of the Building, or (iv) the misuse or neglect of
Tenant or any of its employees, agents or contractors. Tenant shall not be
responsible, and Landlord shall be responsible, for any repairs to the Demised
Premises as are required by reason of Landlord's neglect or other fault in the
manner of performing any work included in the Work Letter or Tenant's Work which
may be undertaken by Landlord for Tenant's account or as are otherwise required
by reason of neglect or other fault of Landlord or its employees, agents or
contractors.
15.02 Landlord shall keep and maintain the Building and its fixtures,
appurtenances, systems (including base building H/V/A/C and perimeter heat pump
units) and facilities serving the Demised Premises, in good working order,
condition and repair and shall make all structural repairs, interior and
exterior, except as indicated in Section 15.01 as and when needed in the
Building, except for those repairs for which Tenant is responsible pursuant to
any other provisions of this Lease, and subject to all other provisions of this
Lease, including but not limited to the provisions of Article 21. Landlord
shall also keep and maintain the grounds, driveway, parking areas and sidewalks
in good order, condition and repair and in compliance with all applicable
governmental laws, ordinances and regulations.
15.03 Except as expressly otherwise provided in this Lease, Landlord shall have
no liability to Tenant by reason of any inconvenience, annoyance, interruption
or injury to business arising from Landlord or any tenant
-17-
making any repairs or changes or performing maintenance services, whether or not
Landlord is required or permitted by this Lease or by law to make such repairs
or changes or to perform such services in or to any portion of the Building or
the Demised Premises, or in or to the fixtures, equipment or appurtenances of
the Building or the Demised Premises, provided that Landlord shall be reasonably
diligent with respect thereto and shall perform such work, except in case of
emergency, at times reasonably convenient to Tenant and otherwise in such manner
and to the extent practical as will not unreasonably interfere with Tenant's use
and occupancy of the Demised Premises.
15.04 During the term of this Lease, the Landlord shall make improvements,
alterations and modifications to the Building and High Ridge Park as may be
necessary to comply with the requirements of the Americans with Disabilities
Act. Said improvements, alterations and modifications shall be done in a manner
which is consistent with the standards of a Class A office building in Stamford,
Connecticut. Landlord shall also perform its obligations under this Lease, and
shall maintain the Building and High Ridge Park, in accordance with all
applicable laws and requirements of public authorities.
15.05 In the event that Landlord shall, as the result of Landlord's negligence
or willful misconduct (and specifically not due to Unavoidable Delays) fail to
provide any of the services to be provided by Landlord which are limited to
HVAC, electricity, water or elevator service, and solely as a result thereof
Tenant's business is suspended and Tenant is unable to and does not use the
Demised Premises for the conduct of its business for a period of five
consecutive business days Tenant shall be entitled to receive an equitable
abatement of rent for any period in excess of said five consecutive days during
which such services is interrupted, curtailed or suspended, provided that Tenant
has given Landlord notice of the loss of services and Landlord has failed to
restore said services within five business days after said notice.
ARTICLE 16
Electrical Energy
16.01 Landlord shall furnish electrical energy for use by the Tenant in the
Demised Premises for lighting and operation of its business machines.
16.02 Tenant shall pay to Landlord such amounts at such times as is set forth
in Exhibit "E", attached hereto and made a part hereof.
16.03 Landlord shall in no way be liable for any failure of or defect in the
character or supply of electrical energy supplied to the Demised Premises.
16.04 Tenant shall at its expense, install all lamps (including, but not
limited to, incandescent and fluorescent), starters and ballasts used in the
Demised Premises.
ARTICLE 17
Heat, Ventilation and Air Conditioning
17.01 Landlord has installed in the Demised Premises the Building heating,
ventilating and air conditioning system. Landlord at its expense shall maintain
and operate the systems (including the perimeter units) and shall furnish heat,
ventilation and air conditioning in the Demised Premises through the systems,
during regular business hours, but not before 8:00 A.M., or after 6:00 P.M. on
business days (which term is used herein to mean all days except Saturdays,
Sundays and the days observed by the Federal or the Connecticut government as
legal holidays). If Tenant shall require ventilating and air conditioning
service or heating service at any other time ("after hours"), Landlord shall
furnish after hours ventilating and air conditioning service or heating service
upon reasonable advance notice from Tenant, and Tenant shall pay Landlord's then
established charges therefor on Landlord's demand. Such charges shall not
exceed 121% of Landlord's actual cost of labor, utilities and equipment
depreciation used in providing after hours air conditioning and heating service.
Current overtime charges for 14,358 rentable square feet approximate $52.00 per
hour. Landlord represents and agrees that increases in overtime HVAC charges to
Tenant shall be commensurate with actual increases in Landlord's cost thereof
vis-a-vis Landlord's costs upon the date of this Lease.
-18-
17.02 Landlord will not be responsible for the failure of the air conditioning
system if such failure results the occupancy of the Demised Premises by more
than an average of one person for each 100 from square feet or if the Tenant
installs and operates machines and appliances, the installed electrical load
when combined with the load of all lighting fixtures exceeds six ▇▇▇▇▇ per
square foot of floor area in any one room or other area. If due to use of the
Demised Premises in a manner exceeding the aforementioned occupancy and
electrical load criteria, or due to rearrangement of partitioning after the
initial preparation of the Demised Premises, interference with normal operation
of the air conditioning in the Demised Premises results necessitating changes in
the air conditioning system servicing the Demised Premises, the changes shall be
made by Landlord upon written notice to Tenant at Tenant's sole cost and
expense. Tenant agrees to lower and close window coverings when necessary
because of the sun's position whenever the air conditioning system is in
operation, and Tenant agrees at all times to cooperate fully with Landlord and
to abide by all the reasonable regulations and requirements which Landlord may
prescribe or the proper functioning and protection of the air conditioning
system. Landlord, throughout the term of this Lease, shall have free and
unrestricted access to any and all air conditioning facilities in the Demised
Premises.
ARTICLE 18
Landlord's Other Services
18.01 Landlord, at its expense, shall provide public elevator service, by
elevators serving the floors on which, the Demised Premises are situated as
specified and shown in the Building plans and specifications, during regular
hours of business days, and shall have at least one passenger elevator subject
to call at all other times. The elevators, or any of them, may be operated by
automatic control and/or by manual control, as Landlord shall determine at any
time or from time to time. Landlord shall not be obligated to furnish an
operator for any automatic elevator and shall have no liability to Tenant for
discontinuing the service of any operator theretofore furnished.
18.02 Landlord, at its expense, Monday thru Friday, shall cause the Demised
Premises, including the interior of the windows thereof, to be cleaned in
accordance with the standards set forth in Exhibit "B" annexed hereto and hereby
made a part hereof. Tenant shall pay to Landlord on demand the costs incurred
by Landlord for (a) cleaning work in the Demised Premises or the Building
required because of (i) misuse or neglect on the part of the Tenant or its
employees or visitors, (ii) use of portions of the Demised Premises for
preparation, serving, or consumption of food or beverages (except as permitted
in Section 2.02(f), commercial reproducing operations, private lavatories or
toilets or other special purposes requiring greater or more difficult cleaning
work than office areas, (iii) unusual quantity of interior glass surfaces, (iv)
non-standard building materials or finishes installed by Tenant or at its
request, (x) increases in frequency or scope in any of the items set forth in
Exhibit "B" as shall have been requested by Tenant, and (b) removal from the
Demised Premises and the Building of (i) so much of any refuse and rubbish of
Tenant as shall exceed that normally accumulated daily in the routine of
ordinary business office occupancy, and (ii) all of the refuse and rubbish of
Tenant's machines and the refuse and rubbish of any other eating facilities
requiring special handling (known as "wet garbage"). Landlord and its cleaning
contractor and their employees shall have after hours access to the Demised
Premises and the use of Tenant's light, power and water in the Demised Premises
as may be reasonably required for the purpose of cleaning the Demised Premises.
18.03 Landlord, at Tenants expense, shall furnish adequate hot and cold water
for drinking, lavatory, toilet, and ordinary cleaning purposes to the plumbing
fixtures of central facilities of the Building serving the Demised Premises.
18.04 Landlord shall keep and maintain the public areas only and the public
facilities of the Building clean and in good order and the sidewalks adjoining
the Building shall be kept in good repair and free of accumulation of snow and
ice or unlawful obstructions.
-19-
18.05 Landlord, subject to its prior written approval, which approval shall not
be unreasonably withheld or delayed, at its expense, and on Tenant's request,
shall maintain listings on the Building directory of the names of Tenant its
organizational divisions and any other person or business entities lawfully
occupying the Demised Premises or any part thereof, and the names of any of
their officers and employees, provided that the names so listed shall not take
up more than Tenant's Proportionate Share of the space on the Building
directory, the size of which shall be determined by Landlord. The listing of
any name other than that of Tenant on the Building directory or on any of the
doors of the Demised Premises shall not be deemed to vest in the person or
entity so listed any right or interest in this Lease or in the Demised Premises
or to constitute the consent of Landlord required under Article 10, or a waiver
thereof. Notwithstanding anything to the contrary herein, initial listings on
the Building directory shall be at Landlord's expense, and any subsequent
changes and/or additions shall be at Tenant's expense.
18.06 Landlord reserves the right without any liability to Tenant except as
otherwise expressly provided in this Lease, and without being in breach of any
covenant of this Lease, to stop, interrupt or suspend service of any of the
heating, ventilating, air conditioning, electric, sanitary, elevator or other
Building systems serving the Demised Premises, or the rendition of any of the
other services required of Landlord under this Lease, whenever and for so long
as may be necessary, by reason of accidents, emergencies, strikes or the making
of repairs or changes which Landlord is required by law to make or in good ▇▇▇▇▇
▇▇▇▇▇ advisable, or by reason of difficulty in securing proper supplies of fuel,
steam, water, electricity, labor or supplies, or by reason of any other cause
beyond Landlord's reasonable control, including Governmental restrictions on the
use of materials or the use of any of the Building systems. In each instance
Landlord shall exercise reasonable diligence to eliminate the cause of stoppage
and to effect restoration of service and shall give Tenant reasonable notice,
when practicable, of the commencement and anticipated duration of such stoppage,
and if any work is required to be performed in or about the Demised Premises for
such purpose, the provisions of Section 14.03 shall apply. Tenant shall not be
entitled to any diminution or abatement of rent or other compensation nor shall
this Lease or any of the obligations of Tenant be affected or reduced by reason
of the interruption, stoppage or suspense of any of the Building systems or
services arising out of the causes set forth in this Section. The abatement
provisions of Section 15.05 shall apply to such interruption or suspension of
services.
18.07 Telephone installation and all costs therefor shall be the sole
responsibility of Tenant, and Tenant shall make all necessary arrangements.
Such telephone installations are subject to approval by Landlord and must be
performed in strict compliance with all government codes.
18.08 Tenant shall, within thirty (30) days after the Commencement Date,
install vertical blinds at its expense on all windows, such vertical blinds to
be a solid, light color facing the exterior of the Building, and no other type
of window covering will be used without Landlord's prior consent.
18.09 Tenant, its employees, visitors and invitees shall have the right, in
common with all other tenants, their employees, visitors and invitees, to use
car parking spaces of the car parking area adjoining the Building of which the
Demised Premises are a part. It is understood that no specific spaces in such
parking area will be assigned to Tenant for its use. Landlord represents that
said lot provides at least three spaces per 1,000 rentable square feet leased in
the Building.
18.10 (a) Tenant is hereby granted an easement and right to use during the
term of this Lease and any renewal thereof to use, in common with
others, any road, walk or pathway now or hereafter constructed in
the High Ridge Park which provides for access to and from any public
road or street or common area of High Ridge Park to the Building.
The term "Tenant" herein shall include Tenant, its employees,
visitors, subtenants, assignees and designees.
(b) It is agreed and understood that Landlord reserves the right to
relocate any access road, walk or pathway. In addition, Landlord
reserves the right to dedicate any such access road (other than any
road on the Demised Premises) as a city road. Neither the relocation
of any access road or dedication thereof as a city road shall be
deemed to be in violation of the easement hereinabove
-20-
granted so long as Tenant is afforded access to and from Turn of
River Road substantially equal to the access shown on Exhibit "F" or
provided at the commencement of the Lease. During any construction
or relocation of any access road, Landlord shall provide temporary
access to and from Turn of River Road and the Building.
ARTICLE 19
Access, Changes in Building Facilities, Name
19.01 All walls, windows and doors bounding the Demised Premises (including
exterior Building walls, corridor walls and doors and any corridor entrance ),
except the inside surfaces thereof, any terraces or roofs adjacent to the
Demised Premises, and any space in or adjacent to the Demised Premises used for
shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other Building facilities, and the use thereof as well as access
thereto through the Demised Premises for the purposes of operation, maintenance,
decoration and repair are reserved to Landlord.
19.02 Tenant shall permit Landlord to install use and maintain pipes, ducts and
conduits within or through the Demised Premises, or through the walls, column
and ceilings therein, provided that the installation work is performed at such
times and by such methods as will not unreasonably interfere with Tenant's use
and occupancy of the Demised Premises, or damage the appearance thereof
materially reduce the floor area thereof (without an appropriate adjustment in
rent) or materially affect Tenant's layout. Where access doors are required for
mechanical fixtures in or adjacent to the Demised Premises, landlord shall
furnish and install such access doors and confine their location, wherever
practical to closets, coat rooms, toilet rooms, corridors and kitchen or pantry
rooms. Landlord and Tenant shall cooperate with each other in the location of
Landlord's and Tenant's facilities requiring such access doors.
19.03 Landlord or Landlord's agents or employees shall have the right upon
request made on reasonable advance notice to Tenant, or to an authorized
employee of Tenant at the Demised Premises, to enter and/or pass through the
Demised Premises or any part thereof, at reasonable times during reasonable
hours, (i) to examine the Demised Premises or to show them to the fee owners,
lessors of superior leases, holders of mortgages, insurance carriers, or
prospective purchasers, mortgagees or lessees of the land or the Building, and
(ii) for the purpose of making such repairs or changes or doing such repainting
in or to the Demised Premises or in or to the Building or its facilities as may
be provided for by this Lease or as Landlord may deem necessary or as Landlord
may be required to make by law or in order to repair and maintain the Building
or its fixtures or facilities. Landlord shall be allowed to take all materials
into and store such materials upon the Demised Premises which may be required
for such repairs, changes, repainting or maintenance. Landlord's rights under
this Section shall be exercised in such a manner as will not unreasonably
interfere with Tenant's use and occupancy of the Demised Premises. Landlord, its
agents or employees, shall also have the right to enter on and/or pass through
the Demised Premises, or any part thereof without notice at such times as such
entry shall be required by circumstances of emergency affecting the Demised
Premises or the Building.
19.04 During the period of 12 months prior to the Expiration Date Landlord may
exhibit the Demised Premises to prospective tenants upon the same notice and
subject to the same conditions as arc provided in Section 19.03.
19.05 Landlord reserves the right, at any time after completion of the
Building, without incurring any liability to Tenant therefor, to make such
changes in or to the Building and the fixtures and equipment thereof as well as
in or to the street entrances, halls, passages, elevators, and stairways thereof
as it may deem necessary or desirable; provided that there be no unreasonable
lengthy interference with the use of the Demised Premises or in the services
furnished to the Demised Premises, and no material reduction in the area of the
Demised Premises in excess of two percent without an appropriate adjustment in
rent.
19.06 The Landlord reserves the right to select a name for the Building and to
make such Change or changes of name as it may deem appropriate during Tenant's
occupancy, and Tenant agrees not to refer to the Building by any other name than
(i) the name selected by Landlord, or (ii) the postal address approved by the
U.S. Post Office.
-21-
19.07 Landlord may limit and restrict, as provided in the Rules and Regulations
attached hereto, the means of access to the Demised Premises outside of normal
business hours, so long as Tenant's employees and authorized agents have
reasonable access to all parts of the Demised Premises at all times during the
term of this Lease. Tenant and its agents, employees and visitors shall be
entitled to access from the Demised Premises to, and the right to use, the
toilets, lavatories and powder rooms only on the floor (or floors) on which the
Demised Premises are located.
ARTICLE 20
Shoring, Notice of Accidents, etc.
20.01 If an excavation or other substructure work shall be undertaken or
authorized upon land adjacent to the Building or in the vaults beneath the
Building or in subsurface space adjacent to the said vaults, Tenant, without
liability on the part of the Landlord therefor, shall afford to the person
causing or authorized to cause such excavation or other substructure work
license to enter upon the Demised Premises for the purpose of doing such work as
such person shall deem necessary to protect or preserve any of the walls or
structures of the Building or surrounding lands from injury or damage and to
support the same by proper foundations, pinning and/or underpinning, and, except
in case of emergency, if so requested by Tenant such entry shall be accomplished
in the presence of a representative of Tenant, who shall be designated by Tenant
promptly upon Landlord's request. The said license to enter shall be afforded
by Tenant without any claim for damages or indemnity against the Landlord and
Tenant shall not be entitled to any diminution or abatement of rent on account
hereof.
20.02 Tenant shall give notice to Landlord promptly after Tenant learns of (i)
any accident in or about the Demised Premises or the Building, (ii) any fire in
the Demised Premises, (iii) all damages to or defects in the Demised Premises,
including the fixtures, equipment and appurtenances thereof, for the repair of
which Landlord might be responsible or which constitutes Landlord's property,
and (iv) all damage to or defects in any parts of the Building's sanitary,
electrical, heating, ventilating, air conditioning, elevator and other systems
located in or passing through the Demised Premises.
ARTICLE 21
Non-Liability and Indemnification
21.01 Neither Landlord nor any agent or employee of Landlord shall be liable to
Tenant its employees, agents, contractors and licensees, and Tenant shall hold
Landlord harmless for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of any property of Tenant
and/or of any other person, irrespective of the cause of such injury, damage or
loss, unless such injury was caused by or due to the intentional act or
negligence of Landlord, its agents or employees or contractors without
contributory negligence on the part of Tenant; it being understood that no
property, other than such as might normally be brought upon or kept in the
Demised Premises as incident to the reasonable use of the Demised Premises for
the purposes herein permitted, will be brought upon or be kept in the Demised
Premises. Landlord shall not be liable in any event for loss of, or damage to,
any property entrusted to any of Landlord's employees or agents by Tenant
without Landlord's specific written consent.
21.02 Tenant shall defend, indemnify and save harmless Landlord and its agents
and employees against and from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable architects' and
attorneys' fees, which may be imposed upon or incurred by or asserted against
Landlord and/or its agents by reason of any of the following occurring during
the term of this Lease, or during any period of time prior to the Commencement
Date that Tenant may have been given access to or possession of all or any part
of the Demised Premises pursuant to Section 3.03:
(a) Any work or thing done in or about the Demised Premises or any part
thereof by or at the instance of Tenant, its agents, contractors,
subcontractors, servants, employees, licensees or invitees;
(b) any negligence or otherwise wrongful act or omission on the part of
Tenant or any of its agents, contractors, subcontractors, servants,
employees, subtenants, licensees or invitees;
-22-
(c) any accident, injury or damage to any person or property occurring
in, on or about the Demised Premises or any part thereof unless
caused by the intentional act or negligence of Landlord, its agents,
employees or contractors, or by Landlord's failure to perform any of
its obligations hereunder.
(d) any failure on the part of Tenant to perform or comply with any of
the covenants, agreements, terms, provisions, conditions or
limitations contained in this Lease on its part to be performed or
complied with.
In case any action or proceeding is brought against Landlord by reason of any
such claim, Tenant upon written notice from Landlord, shall at Tenant's expense
resist or defend such action or proceeding by counsel approved by Landlord in
writing, which approval Landlord shall not unreasonably withhold.
21.03 Whenever either party shall be obligated under the terms of this Lease to
indemnify the other party, the indemnifying party may select legal counsel
(subject to the consent of the indemnified party, which consent shall not be
unreasonably withheld) and shall keep the indemnified party fully apprised at
all times of the status of such defense. Legal counsel of the insurer for
either party is hereby deemed satisfactory to both parties.
21.04 Except as otherwise expressly provided herein, this Lease and the
obligations of Tenant to pay rent hereunder and perform all of the other
covenants, agreements, terms, provisions and conditions hereunder on the part of
Tenant to be performed shall in no way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease or is
unable to supply or is delayed in supplying any service, express or implied, to
be supplied or is unable to make or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by reason of any
cause whatsoever beyond Landlord's reasonable control, including, but not
limited to, Acts of God, strikes, labor troubles, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any governmental agency
or by reason of the conditions of supply and demand which have been or are
affected by war, hostilities or other similar emergency; provided that Landlord
shall in each instance exercise reasonable diligence to effect performance when
and as soon as possible.
ARTICLE 22
Destruction or Damage
22.01 If the Demised Premises and/or access thereto shall be partially or
totally damaged or destroyed by fire or other casualty, then, Landlord shall,
subject to its right under Section 22.03 hereof repair such damage and restore
and rebuild the Demised Premises and/or access thereto as nearly as may be
reasonably practical to its condition and character immediately prior to such
damage or destruction, with reasonable diligence after notice to it of the
damage or destruction.
22.02 If the Demised Premises and/or access thereto shall be partially or
totally damaged or destroyed by fire or other casualty, the rents payable
hereunder shall be abated to the extent that the Demised Premises shall be
rendered untenantable from the date of such damage or destruction to the date
the damage shall be substantially repaired, restored or rebuilt. Should Tenant
reoccupy a portion of the Demised Premises during the period that the repair,
restoration, or rebuilding is in progress and prior to the date that the same
are made completely tenantable, rents allocable to such portion shall be payable
by Tenant from the date of such occupancy to the date the Demised Premises are
made tenantable.
22.03 In case the Building shall be so damaged by such fire or other casualty
that substantial renovation, reconstruction or demolition of the Building shall,
in Landlord's sole judgment, be required (whether or not the Demised Premises
shall have been damaged by such fire or other casualty), then Landlord may, at
its option, terminate this Lease and the term and estate hereby granted, by
notifying Tenant in writing of such termination, within 60 days after the date
of such damage. If at any time prior to Landlord giving Tenant the aforesaid
notice of termination or commencing the repair and restoration pursuant to
Section 22.01, the holder of a superior mortgage or any person claiming under or
through the holder of such superior mortgage takes possession of the Building
through foreclosure or otherwise, such holder or person shall have a further
period of 60 days from the
-23-
date of so taking possession to terminate this Lease by appropriate written
notice to Tenant. In the event that such a notice of termination shall be given
pursuant to either of the two immediately preceding sentences, or if this Lease
is terminated by Tenant as hereinafter provided, this Lease and the term and
estate hereby granted shall expire as of the date of such termination with the
same effect as if that were the date hereinbefore set for the expiration of the
term of this Lease, and the fixed and additional rent due and to become due
hereunder shall be apportioned as of such date if not earlier abated pursuant to
Section 22.02. If said damage to the Building or such part of the Demised
Premises cannot be repaired within five (5) months from the date of damage as
estimated by an independent architect or contractor selected by Landlord, a copy
of which estimate will be provided to Tenant within sixty (60) days of the day
of damage, Tenant shall have the option to cancel this Lease by written notice
to Landlord. In the event of any termination of this Lease, Tenant shall vacate
the demised premises and surrender the same to Landlord in its as is condition.
Nothing contained in this Section shall relieve Tenant from any liability to
Landlord or to its insurers in connection with any damage to the Demised
Premises or the Building by fire or other casualty if Tenant shall be legally
liable in such respect.
22.04 No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy.
22.05 Landlord will not carry insurance of any land on Tenant's property and,
except as provided by law or its breach of any of its obligations hereunder,
shall not be obligated to repair any damage thereto or replace the same.
22.06 The provisions of this Article shall be considered an express agreement
governing any case of damage or destruction of the Demised Premises by fire or
other casualty, and any law to the contrary, now or hereafter in form, shall
have no application in such case.
22.07 Notwithstanding any of the foregoing provisions of this Article, if
Landlord or the holder of any superior mortgage shall be unable to collect all
of the insurance Proceeds (including rent insurance proceeds) applicable to
damage or destruction of the Demised Premises or the Building by fire or other
cause, by reason of some intentional act or negligence on the part of the Tenant
or any of its employees, agents or contractors, then, without prejudice to any
other remedies which may be available against Tenant, the abatement of Tenant's
rents provided for in this Article shall not be effective to the extent of the
uncollected insurance proceeds.
ARTICLE 23
Eminent Domain
23.01 In the event that the land, Building or any part thereof or the Demised
Premises or any part thereof shall be taken in condemnation proceedings or by
the exercise of any right of eminent domain or by agreement between the Landlord
on the one hand and any governmental authority authorized to exercise such right
on the other hand, Landlord shall be entitled to collect from any condemnor the
entire award or awards that may be made in any such proceeding without deduction
therefrom for any estate hereby vested in or owned by Tenant, to be paid out as
in this Article provided. Tenant hereby expressly assigns to Landlord all of
its right, title and interest in or to every such award and also agrees to
execute any and all further documents that may be required in order to
facilitate the collection thereof by Landlord.
23.02 At any time during the term of this Lease if title to the whole or
substantially all of the land, Building and/or Demised Premises shall be taken
in condemnation proceedings or by the exercise of any right of eminent domain or
by agreement between the Landlord on the one hand and any governmental authority
authorized to exercise such right on the other hand, this Lease shall terminate
and expire on the date of such taking and the fixed rent and additional rent
provided to be paid by Tenant shall be apportioned and paid to the date of such
taking. For the purposes of this Article "substantially all of the land,
Building and/or Demised Premises" shall be deemed to have been taken if the
remaining portion of such land, Building or Demised Premises not so taken cannot
reasonably or practicably be repaired or reconverted so as to permit the use
thereof for substantially the same purposes for which such land, Building or
Demised Premises were used immediately prior to such taking.
-24-
23.03 However, if substantially all of the land or Building is not so taken and
if only a part of the entire Demised Premises shall be so taken, this Lease
nevertheless shall continue in full force and effect, except that Tenant may
elect to terminate this Lease if that portion of the Demised Premises then
occupied by Tenant shall be reduced by more than 25%. Tenant shall give notice
of such election to Landlord not later than thirty (30) days after (i) notice of
such taking is given by Landlord to Tenant, or (ii) the date of such taking,
whichever occurs first. Upon the giving of such notice by Tenant this Lease
shall terminate on the date of service of Tenant's notice and the fixed rent and
additional rent due and to become due, shall be prorated and adjusted as of the
date of the taking. If Tenant fails to give such notice upon such partial
taking and this Lease continues in force as to any part of the Demised Premises
not taken, the rents apportioned to the part taken shall be prorated and
adjusted as of the date of taking and from such date the fixed rent and
additional rent shall be reduced to the amount apportioned to the remainder of
the Demised Premises.
23.04 In the event of any such taking of less than the whole of the Building
which does not result in a termination of this Lease, or in the event of such a
taking of all or any part of the Demised Premises which does not result in a
termination of this Lease, Landlord, at its expense, shall proceed with
reasonable diligence to repair, alter and restore the remaining parts of the
Building and the Demised Premises to substantially the same condition as it was
in immediately prior to such taking to the extent that the same may be feasible,
so as to constitute a tenantable Building and Demised Premises, provided that
Landlord's liability under this Section shall be limited to the proportionate
amount received by Landlord as an award arising out of such taking.
ARTICLE 24
Surrender
24.01 On the last day of the term of this Lease, or upon any earlier
termination of this Lease, or upon any reentry by Landlord upon the Demised
Premises, Tenant shall quit and surrender the Demised Premises to Landlord broom
clean, in good order, condition and repair except for ordinary wear and tear and
damage by fire or other insured casualty, Tenant shall remove Tenant's property
subject to the provisions of Article 14 hereof, and Tenant shall surrender to
Landlord all keys to offices, lavatories and mail boxes and all Building
identification and parking cards possessed by Tenant's employees.
ARTICLE 25
Conditions of Limitation
25.01 This Lease and the term and estate hereby granted are subject, inter
alia, to the limitation that whenever Tenant shall make an assignment for the
benefit of creditors, or shall file a voluntary petition under any bankruptcy or
insolvency law, or an involuntary petition alleging an act of bankruptcy or
insolvency is filed against Tenant or whenever a petition shall be filed by or
against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
any future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, or shall seek or consent to or acquiesce
in the appointment of any trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties, or whenever a permanent or temporary
receiver of Tenant or of or for the property of Tenant shall be appointed, or if
Tenant shall plead bankruptcy or insolvency as a defense in any action or
proceeding, then, Landlord (a) at any time after receipt of notice of the
occurrence of any such event, or (b) if such event occurs without the
acquiescence of Tenant, at any time after the event continues for 60 days, may
give Tenant a notice of intention to end the term of this Lease at the
expiration of five (5) days from the service of such notice of intention, and
upon the expiration of said five (5) day period this Lease and the term and
estate hereby granted, whether or not the term shall theretofore have commenced,
shall terminate with the same effect as if that day were the Expiration Date,
but Tenant shall remain liable for damages as provided in Article 27.
25.02 This Lease and the term and estate hereby granted are subject to the
further limitation that:
-25-
(a) whenever Tenant shall default in the payment of any installment of
fixed rent, or in the payment of any additional rent on any day upon
which the same shall be due and payable and such default shall
continue for ten (10) days after the date on which the same was due
and payable, provided that Landlord shall give written notice to
Tenant of such nonpayment not more than twice in any lease year, and
thereupon and in such event Tenant shall not be in default until ten
days after Landlord shall, have given such notice; or
(b) whenever Tenant shall do or permit anything to be done, whether by
action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be
remedied by Tenant within fifteen (15) days after Landlord shall
have given to the Tenant a notice specifying the same, or, in the
case of a happening or default which cannot with due diligence be
cured within a period of fifteen (15) days and the continuance of
which for the period required for cure will not subject Landlord to
the risk of criminal liability or termination of any superior lease
or foreclosure of any superior mortgage, if Tenant shall not duly
institute within such fifteen (15) day period and promptly and
diligently prosecute to completion all steps necessary to remedy the
same; or
(c) whenever any event shall occur or any contingency shall arise
whereby this Lease or any interest therein or the estate hereby
granted or any portion thereof or the unexpired balance of the term
hereof would by operation of law or otherwise, devolve upon or pass
to any person, firm or corporation other than Tenant, except as
expressly permitted in Article 10.
Then in any such event at any time thereafter, Landlord may give to Tenant a
notice ending the term of this Lease on the date of the service of such notice
and thereupon this Lease and the term and estate hereby granted, whether, or not
the term has theretofore commenced, shall terminate with the same effect as if
that day were the Expiration Date, but Tenant shall remain liable for damages as
provided in Article 27.
ARTICLE 26
Re-entry by Landlord - Default Provisions
26.01 If this Lease shall terminate for any reason whatsoever, Landlord or
Landlord's agents and employees may in compliance with laws without further
notice immediately or at any time thereafter enter upon and reenter the Demised
Premises or any part thereof, and possess or repossess itself thereof either by
summary dispossess proceedings, ejectment or by any suitable action or
proceeding at law, or by agreement, and otherwise and may dispossess and remove
Tenant and all other persons and property from the Demised Premises without
being able to indictment, prosecution or damage therefor, (unless Landlord acted
in violation of law or the term of this Lease), and may repossess the Demised
Premises and the right to receive all rental income again as and of its first
estate and interest therein. The words "enter" or "reenter", "possess" or
"repossess" as herein used, are not restricted to their technical legal meaning.
In the event of any termination of this Lease, or of reentry by summary
dispossess proceedings, ejectment or by any suitable action or proceeding at
law, or by agreement, or otherwise by reason of default hereunder on the part of
Tenant, Tenant shall thereupon pay to Landlord a fixed rent and additional rent
due up to the time of such termination of this Lease, or such recovery of
possession of the Demised Premises by Landlord, as the case may be, and shall
also pay to Landlord damages as provided in Article 27.
26.02 In the event of any breach or threatened breach by Tenant of any of the
agreements, terms, covenants or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity or by statute
or otherwise as though reentry, summary proceedings, and other remedies were not
provided for in this Lease.
26.03 Each right and remedy of Landlord provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by Landlord of any one
or more of the rights or
-26-
remedies provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the simultaneous or later
exercise by Landlord of any or all other rights or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise.
26.04 If this Lease shall terminate under the provisions of Article 25, or if
Landlord shall reenter the Demised Premises under the provisions of this
Article, or in the event of the termination of this Lease or of reentry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such monies shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or reentry or, at Landlord's option, against any damages
payable by Tenant under Article 27 or pursuant to law.
ARTICLE 27
Damages
27.01 If this Lease is terminated under the provisions of Article 25, or if
Landlord shall reenter the Demised Premises under the provisions of Article 26
or in the event of the termination of this Lease, or of reentry by summary
dispossess proceedings, ejectment or by any suitable action or proceeding at
law, or by agreement, or by force or otherwise, by reason of default hereunder
on the part of Tenant, Tenant shall pay Landlord as damages, at the election of
Landlord, either:
(a) on demand, a sum which at the time of such termination of this Lease
or at the time of any such reentry by Landlord, as the case may be,
represents the excess of (i) the aggregate of the fixed rent and the
additional rent payable hereunder which would have been payable by
Tenant (conclusively presuming the additional rent to be the same as
was payable for the year immediately preceding such termination) for
the period commencing with such earlier termination of this Lease or
the date of such reentry, as the case may be, and ending with the
Expiration Date, had this Lease not so terminated or had Landlord
not so reentered the Demised Premises, over (ii) the aggregate
rental value (calculated as of the date of such termination or
reentry) of the Demised Premises for the same period; or
(b) sums equal to the fixed rent and the additional rent (as above
presumed) payable hereunder which would have been payable by Tenant
had this Lease not so terminated, or had Landlord not so reentered
the Demised Premises, payable quarterly, in advance, but otherwise
upon the terms therefor specified herein following such termination
or such reentry and until the Expiration Date, provided, however
that if Landlord shall relet the Demised Premises or any portion or
portions thereof during said period, Landlord shall credit Tenant
with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents
as and when received by Landlord from such reletting the expenses
incurred or paid by Landlord in terminating the Lease or in
reentering the Demised Premises and in securing possession thereof,
as well as the expenses of reletting, including altering and
preparing the Demised Premises or any portion or portions thereof
for new tenants, brokers' commissions, advertising expenses, and all
other expenses properly chargeable against the Demised Premises and
the rental therefrom; it being understood that any such reletting
may be for a period shorter or longer than the remaining term of
this Lease, but in no event shall Tenant be entitled to receive any
excess of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the
collection of damages pursuant to this subsection to a credit in
respect of any net rents from a reletting except to the extent that
such net rents are actually received by Landlord. If the Demised
Premises or any part thereof should be relet in combination with
other space, then proper apportionment shall be made of the rent
received from such reletting and of the expenses of reletting, and
Landlord shall have the right to grant reasonable rent concessions
to attract one or more new tenants and to permit the term of any new
lease covering part or all of the Demised Premises to be for a
shorter or longer period than provided for herein.
-27-
If the Demised Premises or any part thereof be relet by Landlord for the
unexpired portion of the term of this Lease, or any part thereof before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, be admissible in such
proceeding as evidence of the fair and reasonable rental value for the Demised
Premises, or part thereof so relet during the term of the reletting. Landlord,
however, shall in no event and in no way be responsible or liable for failure to
collect any rent due upon any such reletting.
27.02 In the event Landlord elects to collect damages from Tenant under Section
27.01(b) at any time subsequent to such election and upon ten days prior written
notice to Tenant, Landlord may elect to collect a lump sum under Section
27.01(a), crediting Tenant with amounts theretofore received by Landlord as
damages. In the event this Lease is terminated due to Tenant's default Landlord
shall use good faith and reasonable efforts to mitigate its damages.
27.03 Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
so terminated under the provisions of Article 25, or under any provision of law,
or had Landlord not reentered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder or
otherwise on the part of Tenant. Nothing herein contained shall be construed to
limit or prejudice the right of the Landlord to provide for and obtain as
liquidated damages by reason of the termination of this Lease or reentry on the
Demised Premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time, and
governing the proceedings in which such damages are to be proved whether or not
such amount be greater, equal to, or less than any of the sum referred to in
Section 27.01.
27.04 The foregoing Sections of this Article shall apply even if the default by
Tenant has occurred prior to the Commencement Date and/or prior to Tenant taking
possession of the Demised Premises. The parties acknowledge that this
instrument is a lease and not a contract to make a lease.
ARTICLE 28
Waivers
28.01 Tenant, for itself, and on behalf of any and all persons claiming through
or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege so far as is permitted by law, which they or
any of them might have under or by reason of any present or future law, of the
service of any notice of intention to reenter and also waives any and all right
to redemption or reentry or repossession in case Tenant shall be dispossessed or
ejected by process of law or in case of reentry or repossession by Landlord upon
any expiration or termination of this Lease as herein provided.
28.02 Tenant waives Tenant's rights, if any, to designate the items against
which any payments made by Tenant are to be credited, and Tenant agrees that
Landlord may apply any payments made by Tenant to any items it sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items against which any such payments shall be credited.
28.03 Tenant waives Tenant's rights, if any, to assert a counterclaim in any
summary proceeding brought by Landlord against Tenant, and Tenant agrees to
assert any such claim against Landlord only by way of a separate action or
proceeding.
-28-
28.04 TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, OR TENANT'S
USE OR OCCUPANCY OF THE DEMISED PREMSES, OR ANY EMERGENCY OR OTHER STATUTORY
REMEDY WITH RESPECT THERETO.
ARTICLE 29
No Other Waivers or Modifications
29.01 The failure of either party to insist in any one or more instances upon
the strict performance of any one or more of the agreements, terms, covenants,
conditions or obligations of this Lease, or to exercise any right, remedy or
election herein contained, shall not be construed as a waiver or relinquishment
for the future of the performance of such one or more obligations of this Lease
or of the right to exercise such election, but the same shall continue and
remain in full force and effect with respect to any subsequent breach, act or
omission. The manner of enforcement or the failure of Landlord to enforce any
of the Rules and Regulations set forth herein, or hereafter adopted against the
Tenant and/or any other tenant in the Building shall not be deemed a waiver of
any such Rules and Regulations. No executory agreement hereafter made between
Landlord and Tenant shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or part,
unless such executory agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge or termination or effectuation of the abandonment is
sought.
29.02 The following specific provisions of this Section shall not be deemed to
limit the generality of the foregoing provisions of this Article:
(a) No agreement to accept a surrender of all or any part of the Demised
Premises shall be valid unless in writing and signed by Landlord.
The delivery of keys to an employee of Landlord or of its agent
shall not operate as a termination of this Lease or a surrender of
the Demised Premises. If Tenant shall at any time request Landlord
to sublet the Demised Premises for Tenant's account, Landlord or its
agent is authorized to receive said keys for such purposes without
releasing Tenant from any of its obligations under this Lease and
Tenant hereby releases Landlord of any liability for loss or damage
to any of Tenant's property in connection with such subletting.
(b) The receipt or acceptance by Landlord of rents with knowledge of
breach by Tenant of any term, agreement, covenant, condition or
obligation of this Lease shall not be deemed a waiver of such
breach.
(c) No payment by Tenant or receipt by Landlord of a lesser amount than
the correct fixed rent or additional rent due hereunder shall be
deemed to be other than a payment on account, nor shall any
endorsement or statement on any check or any letter accompanying any
check or payment be deemed to effect or evidence an accord and
satisfaction, and Landlord may accept such check on payment without
prejudice to Landlord's right to recover the balance or pursue any
other remedy in this Lease or at law provided.
(d) If, in connection with obtaining, continuing or renewing financing,
for which the Building, land or the leasehold or any interest
therein represents collateral in whole or in part, a banking,
insurance or other lender shall request reasonable modifications of
this Lease as a condition of such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided
that such modifications do not increase the obligations of Tenant
hereunder or adversely affect to a material degree the Tenant's
leasehold interest hereby created.
-29-
ARTICLE 30
Curing Tenant's Defaults
30.01 If Tenant shall default in the performance of any covenant, term,
provision or condition herein contained, Landlord, without thereby waiving such
default, may perform the same for the account and at the expense of Tenant
without notice in a case of emergency and in any other case if such default
continues after three days from the date of the giving by Landlord to Tenant of
written notice of intention so to do. Bills for any reasonable and necessary
expense incurred by Landlord in connection with any such performance by Landlord
for the account of Tenant, and reasonable and necessary bills for all costs,
expenses and disbursements, including (without being limited to) reasonable
counsel fees, incurred in collecting or endeavoring to collect the fixed rent or
additional rent or other charge or any part thereof or enforcing or endeavoring
to enforce any rights against Tenant under or in connection with this Lease, or
pursuant to law, including (without being limited to) any such cost, expense and
disbursement involved in instituting and prosecuting summary proceedings, as
well as bills for any property, material, labor or services provided, furnished
or rendered, or caused to be provided, furnished or rendered, by Landlord to
Tenant including (without being limited to) electric lamps and other equipment,
construction work done for the account of Tenant, water, ice, drinking water,
drinking cups, towel and other services, as well as for any charges for any
additional elevator, heating, air conditioning or cleaning services and any
charges for other services incurred by Tenant under this Lease, may be sent by
Landlord to Tenant monthly, or immediately, at Landlord's option, and shall be
due and payable by Tenant in accordance with the terms of said bills and if not
paid when due, the amounts thereof shall immediately become due and payable as
additional rent under the Lease together with interest thereon at the rate of
12% per annum from the date of the said bills which should have been paid in
accordance with their terms. Landlord reserves the right, without liability to
Tenant and without constituting any claim of constructive eviction, to suspend
furnishing or rendering to Tenant any property, material, labor, or other
service, (except for utilities and other services which are necessary in order
for Tenant to use and occupy the Premises for the conduct of Tenant's business),
whenever Landlord is obligated to furnish or render the same at the expense of
Tenant, in the event that (but only for so long as) Tenant is in arrears in
paying Landlord therefor.
ARTICLE 31
Consents - Broker
31.01 It is hereby agreed that whenever it is provided in this Lease that
Tenant is prohibited from taking an action without Landlord's consent or
approval, then such consent or approval shall also not be unreasonably withheld
or be unreasonably delayed.
31.02 Any provision of this Lease which requires Landlord not to unreasonably
withhold or delay its consent shall never be the basis for an award of damages
or give rise to a right of setoff to Tenant, but shall only be the basis for a
declaratory judgment or specific injunction with respect to the matter in
question.
31.03 Tenant represents and warrants that the sole broker with whom it has
dealt with in this transaction is Rand Real Estate Services, Inc. and that no
other broker interested Tenant in the Demised Premises. Landlord shall be
responsible for the payment of any real estate commission to said broker but
Tenant shall hold Landlord harmless from the claim of any other real estate
broker or salesman who interested Tenant in the Premises or who was responsible
for Tenant's execution of this Lease.
ARTICLE 32
Notices
32.01 Any notice, statement, demand, request or other communication required or
permitted to be given, rendered or made by either party to the other, pursuant
to this Lease or pursuant to any applicable law or requirement of public
authority, shall be in writing (whether or not so stated elsewhere in this
Lease) and shall be deemed to have been properly given, rendered or made, if
sent by registered or certified mail, return receipt requested, postage prepaid,
addressed to the other party at the address hereinabove set forth (except that
after the Commencement Date, Tenant's address, unless Tenant shall give written
notice to the contrary, shall be the Building), and shall be deemed to have been
given, rendered or made on the second business day after it was so
-30-
mailed, unless mailed outside of the State of Connecticut, in which case it
shall be deemed to have been given, rendered or made on the expiration of three
business days after mailing. The foregoing shall not preclude or render invalid
other methods of delivering such communications. Either party may, by notice as
aforesaid, designate a different address or addresses for notices, statements,
demands or other communications intended for it.
32.02 However, notices requesting after hours service pursuant to Sections
17.01 and 18.01 may be delivered, provided they are in writing to the Building
Superintendent or any other person in the Building designated by Landlord to
receive such notices, and notice of fire, accident or other emergency shall be
given by fax, telegraph or by personal delivery of written notice to that
address designated for this purpose from time to time by the respective parties
hereto.
32.03 Whenever either party shall consist of more than one person or entity,
any notice, statement demand, or other communication required or permitted to be
given, rendered or made to or by, and any payment to be made to such party,
shall be deemed duly given, rendered, made or paid if addressed to or by (or in
the case of payment by check, to the order of) any one of such persons or
entities who shall be designated from time to time as the authorized
representative of such party. Such party shall promptly notify the other of the
identity of such person or entity who is so to act on behalf of all persons and
entities then comprising such party and of all changes in such identity.
ARTICLE 33
Arbitration
33.01 The parties hereto shall not have been deemed to have agreed to
determination of any dispute arising out of this Lease by arbitration unless
determination in such manner shall have been specifically and unequivocally
provided for in this Lease and in no other case or cases.
33.02 Every dispute between the parties which is expressly provided in this
Lease to be determined by arbitration shall be rendered in the manner provided
in this Article.
33.03 The party requesting arbitration shall do so by giving written notice to
that effect to the other party (the "Arbitration Notice"). The Arbitration
Notice shall specify the name and address of the person designated to act as an
arbitrator on its behalf. Within ten (10) days after the service of the
Arbitration Notice, the other party shall give notice to the first party
specifying the name and address of the person designated to act as an arbitrator
on its behalf. If the second party fails to notify the first party of the
appointment of its arbitrator, as aforesaid, within the time above specified,
then the appointment of the second arbitrator shall be made in the same manner
as hereinafter provided for the appointment of a third arbitrator in a case
where the two arbitrators appointed hereunder and the parties are unable to
agree upon such appointment. If, within twenty (20) days after the second
arbitrator is appointed, the two arbitrators shall not have determined the
dispute they shall together appoint a third arbitrator. In the event of their
being unable to agree upon such appointment within thirty (30) days after the
appointment of the second arbitrator, the third arbitrator shall be selected by
the parties themselves if they can agree thereon within a further period of ten
(10) days. If the parties do not so agree, then either party, on behalf of both
or on notice to the other, may request such appointment by the American
Arbitration Association (or any organization successor thereto) in accordance
with its rules then prevailing or if the American Arbitration Association (or
such successor organization) shall fail to appoint a third arbitrator within ten
(10) days after such request is made, then either party may apply on notice to
the other, to the Superior Court of Fairfield County, Connecticut (or any other
court having jurisdiction and exercising functions similar to those now
exercised by said court) for the appointment of such third arbitrator, and the
other party shall not raise any question as to such court's full power and
jurisdiction to entertain the application and make the appointment. Each
arbitrator chosen or appointed pursuant to this Section shall be a disinterested
person having at least ten (10) years experience in the States of Connecticut or
New York in a calling connected with the dispute. Notwithstanding anything to
the contrary contained herein either party shall have the right to request that
the parties agree to arbitrate before a single arbitrator under the rules of the
American Arbitration Association.
-31-
33.04 The arbitration shall be conducted by three arbitrators appointed in
accordance with the provisions hereof and, to the extent consistent with this
Article, in accordance with the then prevailing rules of the American
Arbitration Association (or any organization successor thereto) in the City of
Stamford. The arbitrators have the right to retain and consult experts and
competent authorities skilled in the matters under arbitration. The arbitrators
shall render their decision and award, upon the concurrence of at least two of
their number, within thirty (30) days after the appointment of the third
arbitrator or fifteen (15) days after the final hearing of the arbitrators,
whichever is later. Such decision and award shall be in writing and counterpart
copies thereof shall be delivered to each of the parties. In rendering such
decision and award, the arbitrators shall not add to, subtract from or otherwise
modify the provisions of this Lease. Judgment may be entered on the
determination and award made by the arbitrators in any court of competent
jurisdiction and may be enforced in accordance with the laws of the State of
Connecticut.
33.05 If for any reason whatsoever the written decision and award of the
arbitrators shall not be rendered within the time limits set forth in Section
33.04, either party may apply to the Superior Court for Fairfield County,
Connecticut, or to any other court having jurisdiction and exercising the
functions similar to those now exercised by such court, by action, proceeding or
otherwise (but not by a new arbitration proceeding) as may be proper to
determine the question in dispute consistently with the provisions of this
Lease.
33.06 Each party shall pay the fees and expenses of the one of the two original
arbitrators appointed by or for such party and the fees and expenses of the
third arbitrator and all other expenses of the arbitration shall be borne by the
parties equally. However, each party shall bear the expense of its own counsel,
experts and presentation of proof.
33.07 Notwithstanding anything to the contrary elsewhere provided in this
Lease, if the subject matter of a dispute which is provided in this Lease to be
determined by arbitration is one which would directly affect the liability of an
insurer under any of the policies of insurance referred to in Section 12.05 and
12.06, and the party which is the insured under such policy so notifies the
other party, then unless such insurer gives its written consent to the
determination of such matter by arbitration pursuant to the provisions of this
Lease, the dispute shall not be determined by arbitration and the parties shall
be left to such other remedies as they may have.
ARTICLE 34
Estoppel Certificate, Memorandum
34.01 Tenant agrees, at any time, and from time to time, as requested by
Landlord, upon not less than five (5) days prior notice, to execute and deliver,
without cost or expense to the Landlord, a statement 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 modified and stating the
modifications), certifying the dates to which the fixed rent and additional rent
have been paid, and stating whether, to the best knowledge of the Tenant, the
Landlord is in default in performance of any of its obligations under this
Lease, and, if so, specifying each such default of which the Tenant may have
knowledge, it being intended that any such statement delivered pursuant thereto
may be relied upon by any other person with whom the Landlord may be dealing.
34.02 Should the Tenant fail to execute and deliver to the Landlord the
certificate and statement set forth in Section 34.01, above, then the Landlord
may execute the statement as attorney-in-fact for the Tenant specifying to the
best of Landlord's knowledge, the items called for in said Section 34.01.
34.03 At the request of either party, Landlord and Tenant shall promptly
execute, acknowledge and deliver a memorandum with respect to this Lease
sufficient for recording. Such memorandum shall not be deemed, under any
circumstances, to change or otherwise affect any of the obligations or
provisions of this Lease.
-32-
ARTICLE 35
No Other Representations, Construction, Governing Law
35.01 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 the Lease, or in any other
written agreement which may be made and executed between the parties
concurrently with the execution and delivery of this Lease, which agreement
shall expressly refer to this Lease.
35.02 If any of the provisions of this Lease, or the application thereof to any
person or circumstances, shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and every provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
35.03 This Lease shall be governed in all respects by the laws of the State of
Connecticut.
ARTICLE 36
Parties Bound
36.01 The obligations of this Lease shall bind and benefit the successors and
assigns of the parties with the same effect as if mentioned in each instance
where a party is named or referred to, except that no violation of the
provisions of Article 10 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 25.
However, provided Landlord's transferee assumes (in writing) the obligations of
Landlord under this Lease, the obligations of Landlord under this Lease shall
not be binding upon Landlord herein named with respect to any period subsequent
to the transfer of its interest in the Building as owner or lessee thereof and
in the event of such transfer the obligations thereafter shall be binding upon
each transferee of the interest of Landlord herein named as such owner or lessee
of the Building, but only with respect to the period ending with a subsequent
transfer within the meaning of this Article, and such transferee, by accepting
such interest, shall be deemed to have assumed such obligations except only as
may be expressly otherwise provided in this Lease. A lease of Landlord's entire
interest in the Building as owner or lessee thereof shall be deemed a transfer
within the meaning of this Article.
36.02 Tenant shall look solely to the estate and interest of Landlord, its
successors and assigns, in the land and the Buildings of High Ridge Park (or the
proceeds thereof) for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord in the event of any default by
Landlord hereunder, and no other property or assets of Landlord shall be subject
to levy, execution or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to either this Lease, the relationship
of Landlord and Tenant hereunder or Tenant's use and occupancy of the Demised
Premises. Landlord represents that at all times during the term of this Lease,
Landlord shall have at least $1,000,000 of equity in said property.
ARTICLE 37
Certain Definitions and Constructions
37.01 For the purposes of this Lease and all agreements supplemental to this
Lease, unless the context otherwise requires:
(a) The term "Mortgage" shall include any indenture of mortgage and deed of
trust to a trustee to secure an issue of bonds and debentures, and the
term "Mortgagee" shall include such a trustee.
(b) The terms "include" and "such as" shall each be construed as if
followed by the phrase "without being limited to."
-33-
(c) The term "obligations of this Lease" and words of like import, shall
mean covenants to pay rent and additional rent under this Lease and
all of the other covenants and conditions contained in this Lease. Any
provision in this Lease that one party or the other or both shall do
or not do, or shall cause or permit or not cause to permit a
particular act, condition or circumstance shall be deemed to mean that
such party so covenants or both parties so covenant, as the case may
be.
(d) The term "Tenant's obligations hereunder" and words of like import,
and the term "Landlord's obligations hereunder" and words like import,
shall mean the obligations to this Lease which are to be performed or
observed by Tenant or by Landlord, as the case may be. Reference to
"performance" of either party's obligations under this Lease shall be
construed as "performance and observance." Tenant's obligations
hereunder shall be construed in every instance as conditions as well
as covenants.
(e) Reference to Tenant being or not being "in default hereunder" or words
of like import, shall mean that Tenant is in default in the
performance of one or more of Tenant's obligations hereunder, beyond
any applicable notice and/or cure period or that Tenant is not in
default in the performance of any of Tenant's obligations hereunder
beyond any applicable notice and/or cure period or that a condition of
the character described in Section 25.01 has occurred and continues or
has not occurred or does not continue, as the case may be.
(f) References to Landlord as having "no liability to Tenant" or being
"without liability to Tenant" shall mean that Tenant is not entitled
to terminate this Lease, or to claim actual or constructive eviction,
partial or total, or to receive any abatement or diminution of rent,
or to be relieved in any manner of any of its other obligations
hereunder, or to be compensated for loss or injury suffered or to
enforce any other kind of liability whatsoever against the Landlord
under or with respect to this Lease or with respect to Tenant's use or
occupancy of the Demised Premises.
(g) The term "laws and/or requirements of public authorities" and words of
like import shall mean laws and ordinances of any or all of the
federal, state, city and county governments and rules, regulations,
orders and or directives of any or all departments, subdivisions,
boards, agencies or offices thereof, or any other governmental, public
or quasipublic authorities, having jurisdiction in the premises,
and/or the direction of any public officer pursuant to law.
(h) The term "requirements of insurance bodies" and words of like import
shall mean rules, regulations, orders and other requirements of the
Board of Fire Underwriters and/or the Fire Insurance Rating
Organization in Connecticut and/or any other similar body performing
the same or similar functions and having jurisdiction or cognizance of
the Building and/or the Demised Premises.
(i) The term "repair" shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good
working order and condition, and the term "untenantable" shall be
deemed to include being inaccessible.
(j) Reference to "termination of this Lease" includes expiration or
earlier termination of the term of this Lease or cancellation of this
Lease pursuant to any of the provisions of this Lease or pursuant to
law. Upon a termination of this Lease, the term and estate granted by
this Lease shall end at noon on the date of termination as if such
date were the date of expiration of the term of this Lease and neither
party shall have further obligation or liability to the other after
such termination (i) except as shall be expressly provided for in this
Lease, or (ii) except for such obligations as by their nature or under
the circumstances can only be, or by the provisions of this Lease, may
be, performed after such termination, and, in any event, unless
expressly otherwise provided in this Lease, any liability for a
payment which shall have accrued to or with respect to any period
ending at the time of termination shall survive the termination of
this Lease.
(k) The term "in full force and effect" when herein used in reference to
this Lease as a condition to the existence or exercise of a right on
the part of Tenant shall be construed in each instance as including
-34-
the further condition that at the time in question no default on the
part of Tenant exists, and no event has occurred which has continued
to exist for such period of time (after the notice, if any, required
by this Lease), as would entitle Landlord in either such instance to
terminate this Lease or to dispossess Tenant.
(l) The term "Landlord" as used in this Lease means only the owner, or
other mortgagee in possession, for the time being of the land and
Building (or the owner of a lease of the Building or of the land and
Building) of which the Demised Premises form a part, so that in the
event of any sale or sales of said land and Building or of said
Lease, or in the event of a lease of said Building, or of the land
and Building, provided the transferee or lessee assumes (in writing)
the Landlord's obligations hereunder, the said Landlord shall be and
hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder, and it shall be deemed and
construed without further agreement between the parties or their
successors in interest, or between the parties and the purchaser, at
any such sale, or the said lessee of the Building, or of the land
and Building, that the purchaser or the lessee of the Building has
assumed and agreed to carry out any and all covenants and
obligations of Landlord, hereunder.
(m) The term "Tenant" shall mean Tenant herein named or any assignee or
other successor in interest (immediate or remote) of Tenant herein
named, when Tenant herein named or such assignee or other successor
in interest, as the case may be, is in possession of the Demised
Premises as owner of the Tenant's estate and interest granted by
this Lease, and also if Tenant is not an individual or corporation,
all of the individuals, firms and/or corporations and other entities
comprising Tenant, provided that said individuals, firms and/or
corporations are named herein as Tenant and executed this Lease.
(n) Words and phrases used in the singular shall be deemed to include
the plural and vice versa, and nouns and pronouns used in any
particular gender shall be deemed to include any other gender.
(o) The rule of "ejusdem generis" shall not be applicable to limit a
general statement following or referable to an emuneration of
specific matter or matters similar to the matters specifically
mentioned.
(p) All references in this Lease to numbered Articles, numbered Sections
and Subsections and lettered Exhibits are references to Articles and
Sections and Subsections of this Lease, and Exhibits annexed to (and
thereby made a part of) this Lease, as the case may be, unless
expressly otherwise designated in the context.
(q) The term "rent" or "rents" shall, except where the context expressly
implies to the contrary, be deemed to mean fixed rent and additional
rent as such terms are defined in Section 1.04.
37.02 The various terms which are defined in other Articles of this Lease or
are defined in exhibits annexed hereto, shall have the meaning specified in such
other Articles and such exhibits for all purposes of this Lease and all
agreements supplemental thereto, unless the context shall otherwise require.
37.03 The Article headings in this Lease and Index prefixed to this Lease are
inserted only as a matter of convenience or reference, and are not to be given
any effect whatsoever in construing this Lease.
-35-
ARTICLE 38
Subordination and Miscellaneous
38.01 (a) This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all covenants agreements
and restrictions of record as of the date hereof, with respect to
the land and/or the Building, including but not limited to those
restrictions and conditions contained in the deed from the City of
Stamford, Connecticut to Landlord or Landlord's predecessor in
title. In said deed, Landlord agrees in part, that in the sale,
lease or occupancy of the property, it would not effect or execute
any agreement, lease, conveyance or other instrument whereby the
property or any part thereof is restricted upon the basis of race,
sex, religion, color or national origin, and it would comply with
all state and local laws in effect from time to time prohibiting
discrimination or segregation by reason of race, sex, religion,
color or national origin.
(b) Tenant shall not take or permit any action with respect to the
Demised Premises which would violate any covenants, agreements and
restrictions of record with respect to the land and/or the Building.
38.02 (a) If Landlord fails to cure any default on its part under this Lease,
the holder of any superior mortgage shall have the right, at its
option, to cure such default in order to prevent termination of this
Lease by Tenant.
ARTICLE 40
Rider
40.01 The Rider comprises four (4) pages and is attached hereto and hereby made
a part of this Lease.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers and their corporate seal to be
hereunder affixed the date and year first above written.
Signed, Sealed and Delivered
in the Presence of:
LANDLORD:
HIGH RIDGE PARK ASSOCIATES
By: Winter Realty Corp.
________________________
[Illegible] /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------ --------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
its President
TENANT: NEWSUB SERVICES, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
[Illegible] /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------ -----------------------------
Its President - ▇▇▇▇▇▇▇ ▇▇▇▇
-36-
STATE OF CONNECTICUT )
) ss:
COUNTY OF FAIRFIELD )
Before me, the undersigned, this __ day of _____, 1995, personally appeared
▇▇▇▇▇▇ ▇. ▇▇▇▇, known to me to be the President of Winter Realty Corp., a
general partner of HIGH RIDGE PARK ASSOCIATES, and that he as such officer,
signer and sealer of the foregoing instrument, acknowledged the execution of the
same to be his free act and deed as such officer, the free act and deed of such
corporation as such general partner and the free act and deed of said general
partnership.
In Witness Whereof, I hereunto set my hand.
________________________________________
Notary Public/Commissioner of the
Superior Court
STATE OF CONNECTICUT )
) ss:
COUNTY OF Fairfield )
Before me, the undersigned, this 30/th/ day of August _____, 1995, personally
appeared ▇▇▇▇▇▇▇ ▇▇▇▇, known to me to be the President of NewSub Services, Inc.,
a corporation, and that he as such officer, signer and sealer of the foregoing
instrument, acknowledged the execution of the same to be his free act and deed
individually and as such officer, and the free act and deed of said corporation
partnership.
In Witness Whereof, I hereunto set my hand.
[Illegible]
-----------------------------------------
Notary Public/Commissioner of the
Superior Court
MY COMMISSION EXPIRES
OCTOBER 31, 1999
-37-
RIDER TO LEASE
BETWEEN
HIGH RIDGE PARK ASSOCIATES
AND
NEWSUB SERVICES, INC.
ARTICLE 40
Westinghouse Demised Premises - Option Space and Relocation
40.00 (a) Landlord agrees to use its best efforts to obtain a binding written
Lease Amendment from Westinghouse to relocate its Demised Premises on the third
(3rd) floor of the Building by moving over one window bay prior to the
commencement of Tenant's construction work in the Demised Premises. If Landlord
fails to obtain said agreement with Westinghouse by August 28, 1995, then Tenant
shall have the option to terminate this Lease by written notice to Landlord
given within one week after said date. In the event this Lease is terminated as
aforesaid, Landlord shall promptly return to Tenant all sums paid by Tenant to
Landlord on account of this Lease. Provided this lease is in full force and
effect, Landlord shall use its best efforts to finalize any construction details
for Westinghouse that might impact or delay the commencement of construction for
NewSub Services, Inc. by September 30, 1995 or earlier. Should NewSub Services
not commence its construction activities in the first week of October and if
Landlord requires additional time to finalize those details of construction for
Westinghouse, Landlord and NewSub Services may agree upon another date by which
Landlord is committed to finalize those details for Westinghouse that would
delay the commencement of NewSub's construction.
(b) Provided Tenant is not in default under the terms of this Lease,
Tenant shall have the option to lease all of the space currently leased to
Westinghouse (approximately 2,609 rentable square feet) on the third floor of
Building Four upon the expiration of the Westinghouse lease (October 31, 1999)
or earlier termination thereof. In order to exercise said option, Tenant shall
give Landlord written notice no later than January 31, 1999 stating that Tenant
intends to lease the Westinghouse space. If the Westinghouse lease is terminated
prior to its expiration date, then Landlord shall notify Tenant of such
termination, and Tenant shall have thirty (30) days within which to exercise its
option to lease the Westinghouse space. Thereafter the parties shall enter into
an amendment to this Lease adding the Westinghouse space to the Demised Premises
(the "Lease Amendment"). The option to lease the Westinghouse space shall be at
92.5 percent of the then current prevailing fair market rents and other
prevailing concessions such as tenant improvements. The term of said Lease
Amendment shall be coincident with the term of this Lease. Except as to the
rent, Landlord concessions, term and designation of base years, the other terms
of this Lease shall apply to the Westinghouse space. Tenant's right to lease the
Westinghouse space is referred to herein as the "Westinghouse Option." In the
event the parties have been unable to agree upon the Westinghouse rent base
years and concessions as of one (1) month after the Westinghouse Option was
exercised by Tenant, then the issue shall be decided as set forth in (c) below.
(c) Each party shall appoint an impartial licensed Connecticut real estate
appraiser who has a least five years experience appraising commercial property
in Fairfield County. The appraisers shall be requested to submit to the parties
their estimate of the fair market rent for the Westinghouse space and other
concessions, as described above (the "Joint Estimate") by the date which is one
(1) month after they are hired. If said appraisers have agreed upon the Joint
Estimate within said time, then the Joint Estimate shall be deemed to be the
fair market rent of the Westinghouse space for purposes of establishing the
fixed rent and applicable concessions for the Westinghouse space. However, if
they have not agreed upon the Joint Estimate within said time, then they shall
each submit their estimate of the fair market rental value and applicable
concessions to the parties, and the parties shall direct them to appoint a third
impartial appraiser who has the same minimum qualifications. The third appraiser
shall be requested to submit his appraiser who has the same minimum
qualifications. The third appraiser shall be requested to
1
submit his estimate of the fair market rent and concession. The average of the
two of the three estimates of fair market rental value and concessions, which
are estimates are closest to each other, shall be deemed to be the fair market
rent of the Westinghouse space for purposes of establishing the fixed rent and
applicable concessions for said space. Each party shall bear an equal share of
the fees of all appraisers who are hired.
ARTICLE 41
Right of First Offer
41.00 (a) Provided Tenant is not in default of the Lease, Tenant shall
have the Right of First Offer on all space within Building Four for the purposes
of expansion, excluding any current rights of existing tenancies for either
expansion space or renewals of lease term.
(b) Said Right of First Offer shall be provided to Tenant by written
notice by the Landlord regarding the availability of such spaces at 100% of the
then current prevailing fair market rates, and including Landlord concessions
which are comparable to those typically offered by other building owners for
similar space. The terms of said Lease shall be coincident with the term of this
Lease. Tenant shall have ten (10) business days to respond to Landlord in
writing should Tenant accept Landlord's offer to lease such additional space.
Should Tenant elect not to lease the additional space, Landlord shall have the
right to offer the space to a third party; however, Landlord's offer to a third
party shall not be more than ten percent (10%) less than the amount originally
proposed to NewSub Services, Inc., without a new offer being extended to Tenant
on the same terms offered to the third party, except that the expiration date
shall be the same as the expiration date of this Lease.
(c) Tenant's failure to give Landlord written notice exercising the
Right of First Offer within the stipulated time frame shall result in the
automatic forfeiture of said option.
(d) This Right of First Offer is offered exclusively to Tenant and may
not be assigned, pledged, or otherwise transferred, except to a party to whom
Tenant assigns this Lease pursuant to Section 10.04 hereof.
(e) Tenant agrees that the Right of First Offer contained in Article 41
hereof shall not apply to space in the Building which is presently being offered
by Landlord (approximately a total of 9,000 rentable square feet on the second
floor and Lower Level of the Building) unless said space is still being offered
for lease one (1) year after the date of this Lease. If any said space is till
being offered for lease at that time, then Landlord shall offer it to Tenant in
accordance with the terms hereof prior to leasing it to any third party.
Notwithstanding anything to the contrary set forth above, Landlord shall not be
required to lease any space offered to Tenant pursuant to this Article for a
term of less than three (3) years.
(f) Except as modified herein, all terms and conditions of this Lease
shall be in full force and effect including any standard move-out or surrender
procedures.
ARTICLE 42
Cancellation Options
42.00 (a) Provided Tenant is not in default of its Lease, Tenant shall have
the option to terminate the lease after the expiration of the fifth lease year
by providing Landlord with written notice no later than nine (9) months prior to
the end of the fifth lease year.
(b) In the event Tenant exercises its option to terminate, two (2)
months prior the termination date (the end of the fifth lease year), Tenant
shall pay to Landlord an amount of $150,000.
2
(c) Should Tenant elect not to terminate the lease, the lease shall
remain in full force and effect. The option to terminate is offered exclusively
to Tenant and may not be assigned, pledged or otherwise transferred except to a
party to whom Tenant assigns this Lease pursuant to Section 10.04 hereof
(d) Provided Tenant is not in default under the terms of this Lease,
Tenant shall have the option to terminate this Lease on the date which is seven
and a half (7 1/2) years after the Commencement Date by providing Landlord with
written notice no later than nine (9) months prior to said date. In the event
Tenant exercises said option to terminate, Tenant shall pay to Landlord $375,000
two (2) months prior to the termination date. In the event Tenant does not
exercise said option to terminate, this Lease shall remain in full force and
effect. If Tenant has provided the $75,000 security deposit to the Landlord as
stipulated in the Limited Guarantee, said security deposit shall be credited
against the $375,000 termination fee described above.
ARTICLE 43
The Landlord represents to the best of Landlord's knowledge and information the
following:
(a) Tenant's proposed use of the Demised Premises, as stated herein, is
not prohibited by the term of any grant, lease or mortgage to which this Lease
is subordinate, or by the Certificate of Occupancy for the Premises or the
Building.
(b) That Landlord is presently in compliance with all of the grants,
leases, mortgages and the Certificate of Occupancy referred to in the preceding
paragraph.
(c) That Landlord is not in default, and has not received any notice of
default with respect to any mortgage or ground lease to which the Building is
subject.
(d) That as of the Commencement Date, the Premises and the Building
shall be in compliance with all Federal, state and municipal laws, ordinances
and regulations and all orders and directives of governmental authorities, and
that as of said date all of the mechanical systems of the Building shall be in
working order.
(e) That the Premises do not contain any hazardous or toxic waste or
substance, or any other substance which is required to be removed pursuant to
any law, ordinance, regulation, order or directive to above.
ARTICLE 44
44.00 Prior to the Commencement Date, Landlord shall perform the following at
its expense:
(a) Fire-wrap plastic PVC piping above the ceiling in the Premises;
(b) upgrade and redecorate the second floor lounge area in a manner
which is consistent with the standards of a Class A office building in Stamford,
Connecticut or in the alternative, provide a lounge area in another location of
the Building. (Said new lounge area shall be of appropriate size and consistent
with the standards of a Class A office building);
(c) refurbish the elevator cab so that it is consistent with said
standards;
(d) remove damaged sunscreen on windows in the Demised Premises;
3
(e) replace the entrance door to the Westinghouse space with a wood door
which is appropriate to the standards of a Class A office building in Stamford,
Connecticut;
(f) upgrade the common areas on the third floor of the building; and
(g) provide to Tenant Landlord's report prepared by a qualified
consultant company confirming that there is no asbestos in the Demised Premises.
ARTICLE 45
45.00 In the event of any litigation or arbitration between the parties arising
out of, or, in connection with this Lease, the prevailing party shall be
entitled to reimbursement of its expenses incurred in connection with said
proceeding (including reasonable attorney's fees, disbursements, court costs and
expert fees) by the other party.
4
EXHIBIT B
CLEANING SCHEDULE
Subject to Section 18.02. Landlord covenants and agrees to provide the
following basic cleaning services to the Demised Premises:
Daily (5 days per week Monday to Friday, legal holidays excepted):
* Sweep hard surface floors with treated dust mop
* Empty and wipe all ash trays
* Empty waste paper baskets
* Low dusting
* Vacuum all carpeted areas
Weekly:
* Damp mop all hard surface floors
Every three (3) months:
* Clean windows inside and out
RECYCLING
Tenant is advised that the Building is subject to a mandatory recycling program
for disposables and waste materials. Tenant shall abide by all rules and
regulations as may be promulgated for compliance with the program.
-B1-
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, lobby, elevators, vestibules,
stairways, corridors or halls outside the Demised Premises shall not be
obstructed or encumbered by any tenant or used for any purpose other than
ingress and egress to and from the Demised Premises and Tenant shall not permit
any of its employees, agents or invitees to congregate in any said areas. No
door mat of any kind whatsoever shall be placed or left in any public hall or
outside any entry door of the Demised Premises.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens shall be attached to or
hung in, or used in connection with any window or door of the Demised Premises
without the prior written consent of Landlord. Such curtains, blinds, shades or
screens must be of a quality type, design and color, and attached in the manner,
approved by Landlord.
3. No sign, insignia, advertisement, object, notice or other lettering
shall be exhibited, inscribed, painted, or affixed by any tenant on any part of
the outside of the Demised Premises or the Building without the prior written
consent of Landlord. In the event of the violation of the foregoing by any
tenant, Landlord may remove the same without any liability, and may charge
expense incurred in such removal to the tenant or tenants violating this rule.
Interior signs and lettering on doors and directory tablet outside of the
Demised Premises shall, if and when approved by Landlord, be inscribed, painted
or affixed for each tenant by Landlord at the expense of such tenant, and shall
be of a size, color and style acceptable to Landlord.
4. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels, or other articles be placed on the window ▇▇▇▇▇.
5. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules outside the Demised Premises.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purpose other than those for which they were designed or constructed,
and nor sweepings, rubbish, rags, acids or other substances shall be thrown or
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by the tenant who, or whose servants, employees, agents, visitors or
licenses shall have caused the same.
7. No boring, cutting or stringing of wires in violation of applicable
laws, codes or regulations shall be permitted, except with the prior written
consent of Landlord, and as Landlord may reasonably direct. No tenant shall lay
linoleum, or other similar floor covering, so that the same shall come in direct
contact with the floor of the Demised Premises.
9. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the premises. No noise, including, but not
limited to, music or the playing of musical instruments, recordings, radio, or
television which, in the judgment of Landlord, might disturb other tenants in
the Building, shall be made or permitted by any Tenant. Nothing shall be done or
permitted in the Demised Premises by Tenant which would unreasonably impair or
interfere with the use or enjoyment by any other tenant of any other space in
the Building. No tenant shall throw anything out of the doors, windows or
skylights or down the passageways.
-C1-
10. Tenant, its servants, employees, agents, visitors or licensees, shall
not at any time bring or keep upon the Demised Premises any explosive fluid,
chemical or substance, nor any inflammable or combustible objects or materials,
in violation or any applicable law, ordinance or governmental regulation.
11. Additional locks or bolts of any kind which shall not be operable by
the Grand Master Key for the Building shall not be placed upon any of the doors
or window by any tenant nor shall any changes be made in locks or the mechanism
thereof which shall make such locks inoperable by said Grand Master Key. Each
tenant shall, upon the termination of its tenancy, turn over to the Landlord all
keys or stores, offices and toilet rooms, either furnished to, or otherwise
provided by, such tenant and in the event of the loss of any keys furnished by
Landlord, such tenant shall pay to Landlord the cost thereof. Tenant shall have
the right to install additional security systems for the Demised Premises, which
systems will be coordinated with those operated by Landlord and its managing
agent. Keys or cards used in connection with such systems shall be furnished to
Landlord or its managing agent.
12. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators as Landlord
or its agent may reasonably determine from time to time. Landlord reserves the
right to inspect all objects and matter to be brought into the Building and to
exclude from the Building all objects and matter which violate any of these
Rules and Regulations or the Lease of which these Rules and Regulations are a
part. Landlord may require any person leaving the Building with any package or
other object or matter to submit a pass, listing such package or object or
matter, from the tenant from whose premises the package or object or matter is
being removed, but the establishment and enforcement of such requirement shall
not impose any responsibility on Landlord for the protection of any tenant
against the removal of property from the premises of such tenant. Landlord
shall, in no way, be liable to Tenant for damages or loss arising from the
admission, exclusion or ejection of any person to or from the Demised Premises
or the Building under the provisions of this Rule 12 or of Rule 16 hereof.
13. Tenant shall not occupy or permit any portion of the Demised Premises
to be occupied as an office for a public stenographer or public typist, or for
the warehousing, manufacture or sale to the general public of beer, wine,
liquor, narcotics or dope, or as a ▇▇▇▇▇▇, beauty or manicure shop, or as an
employment bureau. Tenant shall not engage or pay any employees on the Demised
Premises, except those actually working for Tenant or its affiliates. Tenant
shall not use the Demised Premises or any part thereof, or permit the Demised
Premises or any part thereof to be used, for manufacturing, or sale at auction
of merchandise, goods or property of any kind, except for promotional purposes.
14. Tenant shall not obtain, purchase or accept for use in the Demised
Premises cleaning, floor polishing or other similar services from any persons
not authorized by Landlord in writing to furnish such services, provided always
that the charges for such services by persons authorized by Landlord are not
excessive. Such services shall be furnished only at such hours, in such places,
within the Demised Premises, and under such regulations as may be fixed by
Landlord. Tenants shall not purchase or contract for waxing, rug shampooing,
venetian blind washing, furniture polishing, lamp servicing, cleaning of
electric fixtures, removal of garbage or towel service in the Demised Premises
except from companies or persons approved by the Landlord. Landlord will be
reasonable in its decision.
15. Landlord shall have the right to prohibit any advertising, or
identifying sign by any tenant which in Landlord's reasonable judgment tends to
impair the reputation of the Building or its desirability as a building for
offices, and upon written notice from Landlord, such tenant shall refrain from
or discontinue such advertising or identifying sign.
16. Landlord reserves the right to exclude from the Building during hours
other than Business Hours (as defined in the foregoing Lease) all persons who do
not present a pass to the Building signed by Landlord. All persons entering
and/or leaving the Building during hours other than Business
-C2-
Hours may be required to sign a register. Landlord will furnish passes to
persons for whom any tenant requests same in writing. Tenant, provided Tenant
has such pass, will be permitted access to the Building and the Demised Premises
24 hours a day, seven days a week.
17. All entrance doors in the Demised Premises shall be left locked by
Tenant when the Demised Premises are not in use. Entrance doors shall not be
left open at any time. Landlord or its agents or contractors will turn off
lights upon completion of cleaning services.
18. Unless Landlord shall furnish electrical energy hereunder as a service
included in the rent, Tenant shall, at Tenant's expense, provide artificial
light and electrical energy for the employees of Landlord and/or Landlord's
contractors while doing janitor service or other cleaning in the Demised
Premises and while making repairs or alterations in the Demised Premises.
19. The Demised Premises shall not be used for lodging or for any illegal
purpose.
20. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
21. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
22. There shall not be used in any space or in the public halls of the
Building, either by any tenant or by jobbers or any others, in the moving or
delivery or receipt of safes, freight, furniture, packages, boxes, crates,
paper, office material, or any other matter or thing, any hand trucks except
those equipped with rubber tires, side guards and such other safeguards as
Landlord shall reasonably require. No hand trucks shall be used in passenger
elevators, and no such passenger elevators shall be used for the moving,
delivery or receipt of the aforementioned articles.
23. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Demised
Premises which would annoy other tenants or create a public or private nuisance.
No cooking shall be done in the Demised Premised except as is expressly
permitted in the foregoing Lease.
24. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of thc cooling system and if requested by Landlord shall lower and
close drapes and curtains when the sun's rays fall directly on the windows of
the Demised Premises.
25. Subject to the provisions of Section 13.01, Landlord in its reasonable
judgment, reserves the right to rescind, alter or waive any rule or regulation
at any time prescribed for the Building when, in its reasonable judgment, it
deems it necessary or desirable for the reputation, safety, care or appearance
of the Building, or the preservation of good order therein, or the operation or
maintenance of the Building or the equipment thereof, or the comfort of tenants
or others in the Building.
26. Smoking is prohibited in all common areas of the Building including
but not limited to: corridors, elevators, elevator lobbies, stairwells and
toilet rooms.
-C3-
EXHIBIT "D" - WORK LETTER
Tenant Work
Tenant, through its contractors, shall perform the work described herein, at
Tenant's cost and expense, subject to the terms and conditions of the plans and
specifications. Except as otherwise provided herein, the initial installation in
the Demised Premises which is sometimes referred to herein as "Tenant Work",
must be approved by Landlord and performed by Tenant's contractor subject to the
following provisions:
1.(a) Tenant, through its architect shall submit to Landlord final and
complete dimensioned and detailed plans and drawings of partition layouts,
including openings, ceiling and lighting layouts, colors, and any and all other
information as may be necessary to complete the Demised Premises, which plans
shall be at Tenant's cost and expense (all herein called "Tenant's Plans" or
"Plans and Specifications"). The submission of drawings shall include all
millwork drawings as are necessary to enable the completion of floors, walls and
ceilings for the purpose of obtaining a Certificate of Occupancy. The partition
layout, and ceiling and lighting layout plans shall be 1' - 0" = 1/8" scale. In
addition to the before listed architectural plans Tenant shall furnish to
Landlord, at Tenants expense, all HVAC distribution system, mechanical, and
electrical circuitry plans required for the construction of the Demised
Premises. Such HVAC distribution system, mechanical, and electrical circuitry
plans shall be 1' - 0" = 1/8" scale. Tenant shall submit its final plans to
Landlord at Tenant's expense in four (4) sets of black (or blue) line ozalid
prints and two (2) reproducible copies (sepias) such plans to be executed in a
quality acceptable for the purposes of filing for a Building Permit with the
Building Department of the City, and such plans shall be signed and sealed:
Architectural Plans - by an architect licensed in the State of
Connecticut; and
Electrical/Mechanical - by an engineer licensed in the State of
Connecticut
(b) It is understood that Landlord does not provide architectural,
mechanical, electrical or layout services and all of such work shall be
performed by others for Tenant at Tenant's cost and expense. Landlord, however,
agrees to get involved with the preparation of the Tenant's Plans and consult
with Tenant with regard to budgeting and/or layout of Tenant's space promptly
after the execution of this Lease.
(c) Landlord shall review all of Tenant's Plans within seven (7) days, of
submission to Landlord and shall approve or disapprove Tenant's Plans, with
reasons, within the seven (7) day period. In the event Landlord disapproves
Tenant's Plans, then Tenant shall resubmit the Tenant Plans within seven (7)
days thereafter and Landlord shall then approve or disapprove with reasons
within seven (7) days after receipt of the resubmitted Plans.
(d) All Tenant's Plans shall be submitted in accordance with the provisions
of this Exhibit.
(e) Any architect, designer or consultant acting for or on behalf of Tenant
shall be deemed an agent of and authorized to bind Tenant in all respects.
Tenant's contractor shall submit all plans for or on behalf of Tenant, for any
approval or permit, to the governmental authority having jurisdiction over the
construction of the Demised Premises and Tenant shall pay any and all costs for
obtaining permits or filing Tenant's Plans.
(f) All plans, drawings, and specifications with respect to the Demised
Premises and required to be submitted by Tenant, shall comply and conform with
the Building plans filed with the Building Department of the City of Stamford,
and with all the rules, regulations and other requirements of any governmental
department having jurisdiction over the construction of the Building or the
Demised Premises. Any changes required by any governmental department affecting
the construction of the Building or the Demised Premises shall be complied with
by Tenant in completing the Building or the Demised Premises and shall not be
deemed to be a violation of Tenant's Plans or any provision of this Exhibit, and
shall be accepted by Tenant.
4.(a) Landlord agrees to afford Tenant access to the Demised Premises prior
to the completion and possession date for the purpose of making inspections,
taking measurements and making Tenant's Installations (all of which are to be
paid for by Tenant), provided that the construction of the Building and the
Demised Premises and all installations required to be made by the Landlord
therein shall have reached a point which in
-D1-
Landlord's sole judgment, exercised in good faith, will not delay or hamper
Landlord in performing Landlord's obligations. This Paragraph shall permit
Tenant to make only installations or improvements in the Demised Premises,
including, but not limited to, millwork, computer and telephone systems,
carpeting and interior decorative treatments, such installations to be in
conformity with the regulations promulgated by the State of Connecticut and City
of Stamford Fire ▇▇▇▇▇▇▇▇'▇ Offices. Upon Landlord's request, a certificate of
Compliance must be presented by Tenant's carpet manufacturer to the regulatory
bodies, prior to the issuance of a Certificate of Occupancy by the Building
Department. Landlord has been advised by said Fire ▇▇▇▇▇▇▇▇ and Tenant is aware
that certain types of carpet backing may not meet state and local regulatory
requirements. In the event the Landlord causes delay in Tenant's Work by failure
to perform its obligations hereunder, or by any negligence or intentional act,
then such period of delay caused by Landlord shall be added to the one hundred
(100) day period specified in Articles One and Four of this Lease.
(b) Prior to the commencement of Tenant's Installation, Tenant shall submit
to Landlord complete detailed plans and specifications thereof for Landlord's
prior written approval, which shall not be unreasonably be withheld or delayed
(c) Any entry by Tenant in or on the Demised Premises shall be at Tenant's
sole risk except for any loss or damage caused by the negligence or intentional
act of Landlord, its agents or employees. Upon request of Landlord, Tenant
shall pay for and deliver to Landlord, policies and certificates of insurance in
amounts and with such companies as shall be reasonably satisfactory to Landlord,
such as, but not limited to Public Liability, Property Damage and Workers'
Compensation to protect Landlord and Tenant during the period of making such
Tenant's Installations. Landlord shall be named as an additional insured in
such policies or certificates of insurance and the same shall be continued in
effect, by Tenant at its cost and expense, during the period of the performance
of Tenant's Installations.
(d) All Tenant's Installations shall be in accordance with the rules and
regulations of any governmental department or bureau having jurisdiction
thereover, and shall not conflict with or be in violation of, or cause any
violation of Landlord's basic building plans and/or the construction of the
Building, and all Tenant's Installations shall be completed free of all liens
and encumbrances. All permits which may be required by Tenant for Tenant's
Installations shall be procured and paid for by Tenant only after having
obtained Landlord's written approval of such work, or, if Landlord shall deem
the same advisable, Landlord may procure such permit and Tenant shall pay for
the same. No plans and/or specifications required to be filed by Tenant
pursuant to any work contemplated to be performed by it within the Demised
Premises shall be filed or submitted to any governmental authority having
jurisdiction thereover without first having obtained Landlord's approval to the
same not to be unreasonably withheld.
(e) In the event Tenant or Tenant's contractor shall enter upon the Demised
Premises or any other part of the building, as may be above permitted by
Landlord, Tenant agrees to indemnify and save Landlord free and harmless from
and against any and all claims arising from or claimed to arise from any act, or
for any other reason whatsoever arising out of said entry or such work.
(f) Any costs for services incurred or repairs required due to Tenant's
contractors or Tenant's Installations shall be paid for by Tenant.
6.(a) Landlord shall provide Tenant a tenant improvement allowance for
application against the cost of Tenant's Work (including all costs of permits,
building fees and architectural and engineering fees and costs) in an amount of
$172,296.00 (the "Tenant Improvement Allowance"). The Tenant Improvement
Allowance shall be payable in three (3) equal payments of each within one (1)
week
-D2-
following receipt of an application for payment accompanied by a certification
by Tenant's architect that the work has been completed in at least the following
amounts" (1) 33%, (2) 66%, (3) substantially complete. Substantially complete
is defined for purposes of this article only (and not for the commencement of
rent) as; when Tenant's Work is sufficiently complete so that Tenant can use and
occupy the Premises for the conduct of its business, subject to the completion
of minor "punch-list" items which do not materially interfere with the use and
occupancy of the Premises.
6.(b) Partial payments of the Tenant Improvement allowance during the
progress of the work shall be applied for by Tenant presenting completed AIA
Documents G702 and G703.
6.(c) The final payment of the Tenant Improvement Allowance shall not
become due or payable unless and until (i) a Certificate of Occupancy is
received, and (ii) Tenant's architect certifies as the architect of record that
substantial completion has been achieved. If substantial completion is
determined at less than 100%, then an amount sufficient to complete the
remainder of the work shall be retained until such time as the work is fully
completed pursuant to Landlord's requirements including such items as "as built
documents," balancing reports and related items.
6.(d) Portions of the Improvement Allowance shall be paid directly by
Landlord to contractors designated by Tenant, in amounts stipulated in 6.(a).
7. Telephone installation and all costs therefor shall be the sole
responsibility of Tenant, and Tenant shall make all necessary arrangements.
Such telephone installations are subject to approval by Landlord and must be
performed in strict compliance with all government codes. At the expiration or
earlier termination of the Lease, Tenant shall be responsible for the removal of
all telecommunications and data wiring and any affiliated equipment.
-D3-
INSTRUCTIONS TO MOVING CONTRACTORS
1. The directions of the Landlord and/or his managing agent will be followed
at all times.
2. No furniture and/or building materials will be moved in or out of the
building from 8:00 a.m. to 6:00 p.m., Monday through Friday, unless approved by
the Landlord and/or his managing agent.
3. The moving contractor must submit, not later than two weeks prior to the
move, a written schedule which indicates the date and time the move will
commence and also the same for the completion of the move.
4. All routes over finished floors will be protected with a minimum 3/8"
plywood runway, which is to be picked up at the close of work each day.
5. Appropriate warning signs are to be posted in all public corridors and
lobbies used.
6. Temporary staging of furniture and equipment in public areas is not
permitted.
7. All areas traveled are to be broom cleaned at the close of each day.
Elevators are to be swept and debris carried from the car, NOT across the door
opening.
8. Workmen should use the toilet facilities provided by the general
contractor.
9. The load limit of 3,000 pounds in the passenger elevator is NOT to be
exceeded.
10. No more than two trailers will be allowed at the loading dock.
11. Only rubber wheeled dollies and carts, in good operating condition, may be
used. Excess oil and grease must be removed from wheels to prevent staining
flooring.
12. Reasonable care must be taken at all times to avoid any personal injury or
property damage.
13. All packing and crating materials must be removed at the end of each day,
and NOT be left to accumulate over night (fire hazard).
14. The moving contractor must utilize labor that will work in harmony with
other labor in the building. In addition, Landlord's office should receive not
later than two weeks prior to move, insurance certificates evidencing the
following minimum coverages:
Workmen's Compensation Insurance - Statutory Limit
Comprehensive Public Liability:
Property Damage Coverage - Minimum $ 1,000,000.00
Bodily Injury or Death - One person - Minimum $250,000
- More than one person - Minimum $500,000
All certificates are to stipulate that ten (10) days prior notice of
cancellation will be given to the Tenant and to:
▇. ▇. ▇▇▇▇ MANAGEMENT COMPANY, agent for
High Ridge Park Associates
Five ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-D4-
INSTRUCTIONS TO TENANT'S CONTRACTORS
1. It shall be Tenant's contractor's responsibility to schedule the
performance of his work and notify the Landlord's Project Manager of his
proposed schedule, so that the contractor's elevator usage for material
deliveries and rubbish removal may be coordinated with the over-all project
(reserved) hoisting usage.
2. The Tenant's contractor shall notify Landlord's Project Manager at least
four (4) weeks prior to his proposed starting date to perform Tenant Work and at
that time will discuss the arrangements and requirements of his schedule. At
this contact time, Landlord's Project Manager would like to cover the following
items to determine reservation time schedule:
a. Material delivery, schedule - dates - times
b. Number of vehicles
c. Elevator Service and hoist reservation time
d. Docking arrangements and reservation time
e. Insurance requirements
f. Names and telephone numbers of contact and coordinators
g. General instructions - rules and regulations
3. The Tenant's contractor shall confirm his schedule with the Landlord's
Project Manager, not less than 48 hours in advance of his pre-scheduled material
deliveries. It shall be Tenant's contractor's sole responsibility to confirm
his reservation times, and in the event that this confirmation is not verified
and re-executed it shall be deemed that his reservations are to be voided
(cancelled) and allocated to others. He shall then be required to reschedule
both his deliveries and his reservations through the Landlord's Project Manager.
In all fairness to the other Tenants going into the building, if Tenant's
contractor fails to meet or confirm this date, his contractor will have to wait
until there is free time in the material delivery and hoisting schedule before
they will be allowed to perform Tenant Work. Landlord's Project Manager will
make every effort to accommodate the Tenant's contractor as early as possible,
but it is very likely that to re-schedule would effect a serious time delay; you
can clearly see, then that it is extremely important to confirm the schedule not
less than 48 hours in advance, and if possible, preferably three to five days
ahead of time.
4. Tenant and its contractors shall remain responsible for the scheduling and
transportation of material and equipment used in the performance of Tenant's
Work and for the removal from the Building of waste and debris resulting from
the performance of Tenant's Work, and Landlord shall not be responsible for
coordination of the work of Tenant's contractors with the work of Landlord's
contractors. However, Landlord and Tenant shall cooperate in their respective
performances of Landlord's Work and Tenant's Work in order to enable the same to
be properly coordinated. Tenant shall not be under any obligation to employ any
of Landlord's contractors or to pay any charge to any of them by reason of
Tenant's having other contractors or purchasing any materials or labor or
employing any labor from other sources. Tenant and its contractors shall not be
under any obligation to pay for water, electricity, heat, ventilation or cooling
provided in the Premises during the performance of any of Tenant's Work during
normal working hours of the Building construction project.
5. Temporary staging of materials and equipment in public areas is not
permitted.
6. Should large equipment or materials need to be transported via dollies
and/or carts, then the contractor transporting such equipment or materials shall
protect all routes over finished floors with a minimum of 3/8" plywood runway,
which will be picked up at the close of work each day.
7. All areas traveled are to be broom cleaned at the close of each day.
Elevators are to be swept and debris carried from the car, NOT swept across the
door opening.
-D5-
8. Workmen should use the toilet facilities provided by the general
contractor.
9. The hoisting load limit of 3,000 pounds in passenger elevator is NOT to be
exceeded.
10. All packing and crating materials must be removed at the end of each day,
and not be left to accumulate over night (fire hazard).
11. The Tenant's contractor must utilize labor that will work in harmony with
other labor in the Building. In addition, Landlord's Project Manager should
receive not later than two weeks prior to contractor's performance of Tenant's
Work, insurance certificates evidencing the following minimum coverages:
Workmen's Compensation Insurance - Statutory Limit
Comprehensive Public Liability:
Property Damage Coverage - Minimum $ 1,000,000.00
Bodily Injury or Death
- One Person - Minimum $250,000
- More than one person - Minimum $500,000
All certificates are to stipulate that ten (10) days prior notice of
cancellation will be given to the Tenant and to:
▇. ▇. ▇▇▇▇ MANAGEMENT COMPANY, as agent for
High Ridge Park Associates
Five ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-D6-
EXHIBIT E
ELECTRICITY SCHEDULE
1. Landlord and Tenant have agreed that Landlord will furnish electrical
energy (the "LANDLORD'S STANDARD ELECTRICAL SERVICE") to Tenant for use in the
"Demised Premises"; the annual cost of such electrical energy (based on 6 ▇▇▇▇▇
of combined connected electrical load for lighting and convenience outlets per
square foot of Demised Premises for up to 240 hours of use per month) shall be
as set forth in the rate schedule below, and shall be considered to be
additional rent.
Size of Rate Per Year
Demised Premises Per Rentable
Rentable Sq. Ft. Square Foot
0 - 399 $1.92
400 - 799 1.82
800 - 899 1.79
900 - 999 1.77
1,000 - 1,999 1.63
2,000 - 2,999 1.57
3,000 - 3,999 1.54
4,000 - 4,999 1.53
5,000 - 6,999 1.52
7,000 - 10,999 1.51
11,000 & above
Adjustments: (a) or each additional two (2) hours of use per week add
$.031 per rentable square foot per year.
(b) For each additional watt per square foot, add $0.3005 per
rentable square foot per year.
2. For the purpose of the provisions of this Exhibit "E" of this Lease, the
Demised Premises shall be deemed to be a floor area of 14,358 rentable square
feet.
3. Landlord shall furnish to the Demised Premises Landlord's Standard
Electrical Service through the transmission facilities initially installed by
Landlord in the Building, in the form of alternating electrical energy, to be
used by Tenant for the operation of lighting fixtures and electrical outlets
initially installed in the Demised Premises.
4. It is specifically understood that:
(a) All installations of electrical fixtures, appliances and equipment
within the Demised Premises shall be subject to Landlord's prior
written approval which shall not unreasonably be withheld or delayed;
and
(b) In the event that Tenant shall require additional electrical energy
for use in the Demised Premises and if, in Landlord's reasonable
judgement, Landlord's facilities are inadequate for such additional
requirements, and if electrical energy for such additional
requirements is available to Landlord, Landlord, upon written request
and the sole cost and expense of Tenant, will furnish and install such
additional wires, risers, conduits, feeders, panels and switchboards
as reasonably may be required to supply such additional requirements
of the Tenant provided: (1) that same shall be permitted by applicable
laws and not in violation of
-E1-
any insurance regulations or recommendations, (2) that, in Landlord's
reasonable judgement, the same are necessary and will not cause
permanent damage or injury to the Building or the Demised Premises or
cause or create a dangerous or hazardous condition or entail excessive
or unreasonable alterations or repairs or interfere with or disturb
other tenants or occupants of the Building, (3) that Tenant at
Tenant's expense shall, concurrently with the making of such written
request, execute and deliver to Landlord Tenant's written undertaking,
with a surety and in form and substance satisfactory to Landlord,
obligating Tenant to fully and promptly pay the entire cost and
expense of so furnishing and installing any such additional wires,
risers, conduits, feeders, panels, and/or switchboards, and (4) that
such installation does not preclude expansion of electrical service
for other tenants. Tenant covenants and agrees that at all times its
use of electrical current shall never exceed the capacity of the
feeders to the Building or the risers or wiring installation. It is
further covenanted and agreed by Tenant that all the aforesaid costs
and expenses are chargeable and collectable as additional rent and
shall be paid by Tenant to Landlord within ten (10) days after
rendition of any ▇▇▇▇ or statement to Tenant therefore.
5. Tenant shall pay Landlord for Landlord's Standard Electrical Service
an amount computed by multiplying the rate per rentable square foot as set forth
in Paragraph 1 above, as adjusted, times the rentable square feet of floor area
of the Demised Premises as set forth in Paragraph 2 above. The resulting
product shall be paid by Tenant to Landlord in advance in twelve (12) equal
monthly installments as additional rent.
6. The cost of electrical energy as shown in Paragraph 1 above, has been
based on The Connecticut Light and Power Company's current rates for General
Service Electric Rate 30 and the applicable State of Connecticut sales taxes.
If the filed Rate 30 (or any successor classification reflecting similar
service) of Connecticut Light and Power Company (or its successor) and/or the
State of Connecticut sales taxes shall be increased or decreased from and after
the date hereof, the parties agree that the Utility Charge shall be increased or
decreased, as the case may be, by applying the new rates to the connected load
and hourly use factor as set forth in Paragraph 1 above, as adjusted, such
increase or decrease to go into effect on the first day of the month following
such decrease or increase in such Rate 30 (or its successor) and/or the State of
Connecticut sales taxes. Such increase or decrease in rates shall apply not
only to the Demised Premises under this Lease but also to any option area
referred to herein, so that, at the time such area shall become part of the
Demised Premises (if it shall become part of the Demised Premises) the increase
in additional rent for the Utility Charge to be paid by Tenant at such time
shall be increased or decreased to reflect all changes in the aforesaid rates
from the date hereof to the time such area shall become part of the Demised
Premises.
7. The Connecticut Public Utilities Commission has granted Connecticut
Light and Power Company the right to add to customers' bills the increase in
cost of fuel oil used to manufacture electricity. Such a fuel cost adjustment
will be effected by adding a monthly surcharge to the normal bills based on the
monthly kilowatt-hours used. It is expected that such an increase cost factor
will change from month to month. It is hereby agreed and understood. that the
Landlord, at its option, has the right to pass on such surcharge to the Tenant
by billing Tenant monthly or annually, as elected by Landlord, for such monthly
increase amounts retroactively (increase factor multiplied by monthly kilowatt-
hours as established elsewhere in this Exhibit "E"). It is further agreed and
understood that the operation of this Paragraph 7 shall survive the termination
of this Lease.
8. Notwithstanding anything to the contrary contained herein, Landlord
agrees that any increase in charges to Tenant for electricity shall be
commensurate with Tenant's actual usage of electricity and the charges of
Connecticut Light & Power (or its successor) for said electricity.
-E2-
EXHIBIT G
LIMITED GUARANTEE
This Limited Guarantee is executed by ▇▇▇▇▇▇▇ ▇▇▇▇ in connection with that
certain Lease from High Ridge Park Associates ("Landlord") to NewSub Services,
Inc. ("Tenant") dated August 1995 with respect to office space located on the
third floor of Building Four, High Ridge Park, Stamford, Connecticut.
In consideration of the execution of the above-referenced Lease (the
"Lease") by the Landlord, at the request of the undersigned and in reliance on
the Guarantee, the undersigned hereby guarantees unto the Landlord, its
successors and assigns, the prompt payment of all rent and additional rent and
the performance of all of the terms, covenants and conditions set forth in the
Lease, subject to the limitations set forth below. The undersigned hereby
consents to any extensions of time or changes in the manner of payment or
performance of any of the terms and conditions of the Lease the Landlord may
grant the Tenant, and further consents to the assignment of the Lease, and any
modifications thereof, all without notice to the undersigned. The undersigned
agrees to pay the Landlord all expenses, including reasonable attorneys fees and
disbursements incurred in enforcing the obligations of the Tenant under the
Lease and in enforcing this Guarantee, subject to the limitations set forth
below.
Notwithstanding anything to the contrary contained herein, the liability of
the undersigned pursuant to this Guarantee is limited to the sum of $300,000.
Said limitation is referred to herein as the "Guarantee Limit". This Guarantee
is subject to the further limitation that upon each anniversary of the
commencement date of the Lease, the Guarantee Limit shall be automatically
reduced by $30,000 as long as the Tenant is in full conformance with the terms
of the Lease at the time of said reduction. Article 5 of the Lease provides that
the Landlord shall release the undersigned from any further liability pursuant
to this Guarantee at the end of the fifth year of the Lease if the Tenant
delivers to Landlord a cash security deposit in the amount of $75,000.00
In Witness Whereof, the undersigned executed this Guarantee on August
1995.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
FIRST AMENDMENT OF LEASE
------------------------
This FIRST AMENDMENT OF LEASE, made as of the __ day of ___________, 1995,
by and between HIGH RIDGE PARK ASSOCIATES, acting herein as WINTER REALTY,
having an address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Landlord") and NewSub Services, Inc., a Connecticut Corporation, having an
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Tenant").
W I T N E S S E T H:
WHEREAS Landlord and Tenant have entered Into a Lease dated August 30, 1995
(the "Lease"), with respect to approximately 14,358 rentable square feet on the
third (3rd) floor of ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇. Accordingly, Landlord and Tenant agree to expand Tenant's offices by an
additional 530 rentable square feet.
NOW, THEREFORE, the parties agree as follows:
1. Section 1.02 of the Lease is hereby amended to read as follows:
"Landlord and Tenant hereby agree the space consists of a revised
total of 14,888 rentable square feet..."
2. Section 1.04(c) of the Lease is hereby added to the Lease to read as
follows:
"(c) Effective January 1, 1997, Fixed Rent (the "fixed rent") for the
additional 530 rentable square feet shall be commensurate with Tenant's
existing rental structure as follows:
Rental Amount Annual Fixed Monthly Fixed
Lease Years Per Sq. Ft. Rent Amount Rent Amount
---------------------- --------------- ---------------- ---------------
12/07/95 - 12/31/96 - 0 - - 0 - - 0 -
01/01/97 - 12/06/00 $20.00 $10,600.00 $883.33
12/07/00 - 12/06/03 $21.00 $11,130.00 $927.50
12/07/03 - 12/31/05 $22.00 $11,660.00 $971.67
3. Section 6.01(e) and 7.02(d) of the Lease is hereby amended to read as
follows:
"The Term "Tenant's Proportionate Share" shall be revised to 24.41%."
4. Exhibit "A" of the Lease is hereby replaced by Exhibit "A-1".
5. Exhibit "E" of the Lease is hereby replaced by Exhibit "E-1".
6. Tenant shall take possession of the Demised Premises in an "as is"
condition; and Landlord shall not be obligated to expend any money for a tenant
improvement allowance for the 530 rentable square feet. Such cost shall be
borne by Tenant.
7. Article 31.04 is added to the Lease to read as follows:
"Landlord shall not be responsible for the payment of any real estate
commission to said broker and Tenant shall hold Landlord harmless from the
claim of any real estate broker or salesman for the additional 530 rentable
square feet. Tenant shall pay broker directly, if warranted, for the
additional space."
Page 1 of 3
New Sub Services, Inc.
First Amendment of Lease
Page 2 of 3
8. Except as modified herein, all other terms and conditions of the Lease
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment of Lease
to be executed as of the day and year first above written.
Signed, Sealed and Delivered
in the Presence of: LANDLORD:
HIGH RIDGE PARK ASSOCIATES
By: Winter Realty Corp., General
Partner
_______________________________
_______________________________ __________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ TENANT:
-------------------------------
NewSub Services, Inc.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------- ----------------------------------
Its: President
New Sub Services, Inc.
First Amendment of Lease
Page 3 of 3
STATE OF CONNECTICUT )
) ss:
COUNTY OF FAIRFIELD )
Before me, the undersigned, this _____ day of _____________, 1995, personally
appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇, known to me to be the President of Winter Realty Corp.,
a general partner of HIGH RIDGE PARK ASSOCIATES, and that he as such officer,
signer and sealer of the foregoing instrument, acknowledged the execution of the
same to be his free act and deed as such officer, the free act and deed of such
corporation as such general partner and the free act and deed of said general
partnership.
In Witness Whereof, I hereunto set my hand.
______________________________________
Notary Public/Commissioner of the
Superior Court
STATE OF CONNECTICUT )
) ss: New Canaan, CT
COUNTY OF FAIRFIELD )
Before me, the undersigned, this 18/th/ day of Dec., 1995, personally appeared
▇▇▇▇▇▇▇ ▇▇▇▇, known to me to be the President of ___________________, a
corporation, and that he as such officer, signer and sealer of the foregoing
instrument acknowledged the execution of the same to be his free act and deed
individually and as such officer, and the free act and deed of said corporation
partnership.
In Witness Whereof, I hereunto set my hand.
/s/ Illegible
-------------------------------
Notary Public/Commissioner of the
Superior Court
MY COMMISSION EXPIRES
OCTOBER 31, 1999
SECOND AMENDMENT TO LEASE
This Amendment to Lease is entered into as of October 3, 1996 by and
between High Ridge Park Associates (the "Landlord") and NewSub Services, Inc.
(the "Tenant").
Whereas, the Landlord and the Tenant entered into a lease dated August 30,
1995 (the "Lease") with respect to certain premises located on the third floor
of Building Number ▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇; and
Whereas, the Landlord and the Tenant desire to amend the Lease so as to
include within the leased premises certain space located on the Pond Level of
Building Number ▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇; and
Whereas, the Landlord and the Tenant have agreed to certain other
modifications to the Lease as hereinafter set forth.
Now therefore, in consideration of the mutual covenants set forth herein,
the Landlord and the Tenant agree that the Lease shall be, and hereby is,
amended as follows:
1. Add the following as an additional paragraph at the end of Section 1.01:
"As used herein, the term Third Floor Space shall mean certain space on the
third floor of the Building, which space is shown on the floor plan annexed
hereto as Exhibit A. As used herein, the term Pond Level Space shall mean
certain space on the Pond Level of the Building, which space is shown on the
floor plan annexed to the Amendment to Lease as Exhibit A-1. As used herein, the
term Premises and the term Demised Premises shall each mean the Third Floor
Space and the Pond Level Space, collectively. As used herein, the term Third
Floor Commencement Date shall mean the date upon which this Lease shall commence
as to the Third Floor Space. As used herein, the term Pond Level Commencement
Date shall mean the date upon which this Lease Amendment shall commence."
2. Amend the first sentence of Section 1.02 to delete the word "space" and
insert instead the words "Third Floor Space."
3. Delete the last sentence of Section 1.02, and insert instead the following:
"Landlord and Tenant hereby agree and stipulate that for purposes of this Lease,
the Pond Level Space consists of a total of 6104 rentable square feet on the
Pond Level of the Building which are outlined on the floor plan annexed hereto
as Exhibit A-1 and hereby made a part hereof.
4. In Section 1.03, each time the term "Demised Premises" appears, delete it
and replace it with the term "Third Floor Space" and each time the term
"Commencement
1
Date" appears, delete it and replace it with the term "Third Floor Commencement
Date."
5. After Section 1.03 add the following as Section 1.03.1: "The term for which
the Pond Level Space is leased pursuant to this Lease shall commence on the date
which is 120 days after the date the Amendment to Lease has been fully executed
and delivered, or the date on which Tenant takes occupancy of the Pond Level
Space for purposes of conducting business, whichever occurs earlier. The term
for which the Pond Level Space is leased pursuant to this Lease shall end on the
Expiration Date with respect to the Third Floor Space, which is December 31,
2005. Promptly following the Pond Level Commencement Date, the Landlord shall
send to Tenant a notice stating the Pond Level Commencement Date."
6. Delete the first line of Section 1.04(a) and insert instead: "Fixed rent
for the Third Floor Space shall be as follows:"
7. Delete Section 1.04(c) and insert instead the following: "With respect to
the Third Floor Space, Tenant's first nine months of fixed base rent only shall
be waived during the first lease year, commencing as of the Third Floor
Commencement Date. With respect to the Pond Level Space, Tenant's first three
months of fixed base rent only shall be waived during the first lease year,
commencing as of the Pond Level Commencement Date."
8. Add the following as Section 1.04 (d) "The annual fixed base rent for the
Pond Level Space, expressed in dollars, shall be $122,080. Said fixed base rent
for the Pond Level Space shall be payable in equal monthly installments in
advance on the first day of each and every calendar month during the term of
this Lease, except as otherwise set forth herein."
9. Add the following at the end of Section 1.06: "Tenant shall commence paying
monthly installments of fixed base rent with respect to the Pond Level Space
upon the expiration of the free rent period as set forth in Section 1.04(c)."
10. Amend Sections 3.01 and 3.02 by deleting the term "Demised Premises" and
inserting instead the term "Third Floor Space."
11. Add the following as Section 3.05: "Tenant shall hire one or more
contractor(s) for the purpose of performing the work in the Pond Level Space as
set forth in the Work Letter, upon the terms and conditions specified in the
Work Letter. Said contractors shall be subject to Landlord's approval, which
shall not unreasonably be withheld."
12. Delete the term "Demised Premises" each time it appears in Sections 4.01,
4.02 and 4.03, and insert instead the term "Third Floor Space."
2
12.1 In Section 5.01, delete "$75,000" and insert instead "$100,000."
13. Add the following as Section 6.05: "Notwithstanding anything to the
contrary contained in this Article 6, there shall be separate calculations of
Tenant's proportionate share of real estate taxes with respect to the Third
Floor Space and the Pond Level Space. For purposes of said calculation for the
Third Floor Space, the Tax Base Year shall be as set forth in Section 6.01(a),
and Tenant's Proportionate Share shall be as set forth in Section 6.01(e). For
purposes of said calculation for the Pond Level Space, the Tax Base year shall
mean the tax fiscal year of July 1, 1996 to June 30, 1997, and Tenant's
Proportionate Share shall be 10.01%."
14. Delete the first sentence of Section 7.02 and insert instead the following:
"The term Tenant's Proportionate Share for purposes of the Operating Cost
Adjustment shall be 33.54%."
15. Add the following at the end of Section 8.03: "Prior to the Pond Level
Commencement Date, Landlord shall use its best efforts to deliver to Tenant a
standard Nondisturbance Agreement pertaining to the Pond Level Space. The
substance of said Nondisturbance Agreement shall as described in the third
sentence of this Section."
16. In the fourth sentence of Section 8.03, after the term "Nondisturbance
Agreement" add the following: "with respect to Premises."
17. In the first sentence of Section 31.03, delete the term "Demised Premises"
and insert instead the term "Third Floor Space."
18. Add the following as Section 31.04.
"Tenant represents that no broker interested it in the Pond Level Space. Tenant
agrees to indemnify and hold the Landlord harmless with respect to any
obligation of Landlord to pay a commission to a broker on account of Tenant
leasing the Pond Level Space, provided it is proven that a commission is due and
payable because such broker interested Tenant in the Pond Level Space."
19. Delete Sections 42.00 (a) and (b) and insert instead the following:
"42.00(a) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
Third Floor Space as of December 31, 2000 by providing Landlord with written
notice no later than nine (9) months prior to said date. In the event Tenant
exercises said option to terminate as to the Third Floor Space, not later than
October 31, 2000, Tenant shall pay $150,000 to Landlord.
3
(b) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
Pond Level Space as of December 31, 2000 by providing Landlord with written
notice no later than nine (9) months prior to said date. In the event Tenant
exercises said option to terminate as to the Pond Level Space, not later than
October 31, 2000, Tenant shall pay $50,000 to Landlord."
20. Delete Section 42.00 (d) and insert instead the following:
"(d) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
Third Floor Space as of June 30, 2002 by providing Landlord with written notice
no later than nine (9) months prior to said date. In the event Tenant exercises
said option to terminate as to the Third Floor Space, not later than April 30,
2002, Tenant shall pay $375,000 to Landlord.
(e) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
Pond Level Space as of June 30, 2002 by providing Landlord with written notice
no later than nine (9) months prior to said date. In the event Tenant exercises
said option to terminate as to the Pond Level Space, not later than April 30,
2002, Tenant shall pay $35,000 to Landlord.
(f) If Tenant has provided the $100,000 security deposit to the Landlord as
stipulated in the Limited Guarantee, and Tenant exercises the early termination
options described in Sections 42.00 (d) and (e) above, said security deposit
shall be credited against the termination fees described in said sections."
21. Add the following as Section 46 of the Lease:
"The Landlord hereby offers to Tenant the right to Lease space on the second
floor of Building Four at High Ridge Park, which space is described as follows:
approximately 2,380 rentable square feet currently occupied by NTI (the "NTI
Space"). Tenant agrees to lease the NTI Space as described herein. The
commencement date with respect to the NTI Space shall be approximately the date
that Landlord has obtained exclusive possession of the space. The expiration
date with respect to said space shall be coterminus with the Expiration Date for
the Third Floor and Pond Level Spaces. Landlord offers the NTI Space at a fixed
base rent of $21 per rentable square foot. There shall not be an improvement
allowance for the NTI Space. Other terms with respect to the NTI Space shall be
subject to good faith negotiation between Landlord and Tenant, and shall be
documented in an amendment to the Lease.
The Landlord represents that it intends to relocate Tenneco from approximately
3,260 square feet of space on the second floor of Building Four (the "Tenneco
Space") when the term of its current lease expires. Landlord and Tenant hereby
confirm that they intend to enter into an amendment to the Lease whereby Tenant
shall lease the Tenneco Space for a term which is coterminus with the term of
the Third Floor and Pond Level Spaces. The parties shall negotiate in good
faith with respect to the base rent, fit-up allowance and
4
other details of the amendment to the Lease. The parties intend that the terms
with respect to the Tenneco Space shall be generally consistent with the terms
applicable to the other space leased by Tenant in Building Four, and reflective
of current fair market conditions for similar space and properties in the
Stamford, Connecticut marketplace."
22. Add the following as Section 47:
"Landlord acknowledges that Tenant considers the use of the lunchroom on the
Pond Level to be a material benefit. Landlord agrees that during the term of
this Lease and any extensions hereof, Tenant shall continue to have the use of
said lunchroom in the manner that is their custom, or other space of comparable
size and quality in the building, for the purpose of serving and consuming food
and beverages. Tenant acknowledges that use of the lunchroom shall be shared
with other tenants in the building. Tenant shall cooperate with Landlord and
the other tenants in the building with respect to hours of use, conduct and
cleanliness."
23. Add the following as Section 48:
"Tenant shall have the right to install a sink, coffee machines and ice maker in
a kitchen area within the Pond Level Space, subject to Landlord's review and
approval of Tenant's plans, which approval shall not unreasonably be withheld."
24. Add the following as Section 49:
"Prior to the Pond Level Commencement Date, Landlord shall provide to Tenant a
certificate or existing written evidence from a qualified expert in the field of
asbestos testing, abatement and remediation, confirming that there is no
asbestos within or adjacent to the Pond Level Space. In addition, prior to the
Pond Level Commencement Date, Landlord shall provide to Tenant a certificate or
existing written evidence from a qualified expert in the field of radon testing,
confirming that the radon reading within the Pond Level Space is less than 4.0
pirocuries per liter."
25. Add the following as Section 50:
"Landlord agrees that Tenant shall have the right to run cables from the Third
Floor Space to the Pond Level Space for the purpose of connecting Tenant's
telephone and computer systems as located within said two spaces, subject to
Landlord's review and approval of Tenant's plans, which approval shall not
unreasonably be withheld."
5
26. Add the following as Section 51:
"Within 30 days after the date of the Amendment to Lease, Landlord shall replace
the broken window in the Pond Level Space."
27. Add the following as Section 52:
"Not later than the Pond Level Commencement Date, Landlord shall do the
following within the Pond Level Space at Landlord's expense: (a) repair and/or
replace any missing HVAC units and related cabinetry within said space; and (b)
make appropriate modifications to the waste-water line running through the Pond
Level Space so as to materially reduce the noise from said plumbing heard within
said space."
28. Add the following at the end of Section 6 (a) of Exhibit D - Work Letter:
"Except for the definition of the term Substantially Complete, this Section 6(a)
shall apply only to the fit-up of the Third Floor Space. The definition of the
term Substantially Complete shall apply to the entire Premises."
29. Add the following as Section 6(e) of Exhibit D - Work Letter:
"Landlord shall provide Tenant a tenant improvement allowance of $122,080 (the
"Pond Level Improvement Allowance") for application against the cost of Tenant's
Work (including all costs of permits, building fees, and architectural and
engineering fees and costs) with respect to the fit-up of the Pond Level. The
Pond Level Improvement Allowance shall be payable in three equal payments, each
within one week following receipt of an application for payment accompanied by a
certification by Tenant's architect that the work has been completed in at least
the following amounts: (1) 33%; (2) 66%; and (3) Substantially Complete as
defined in Section 6(a). Portions of the Pond Level Improvement Allowance shall
be paid directly by Landlord to contractors designated by Tenant, in the amounts
stipulated in the preceding sentence."
30. Delete the first: sentence of Exhibit G - Limited Guarantee, and insert
instead the following: "This Limited Guarantee is executed by ▇▇▇▇▇▇▇ ▇▇▇▇ in
connection with that certain Lease from High Ridge Park Associates to NewSub
Services, Inc. dated August 30, 1995 (as modified from time to time) with
respect to office space located in Building Four, High Ridge Park, Stamford,
Connecticut."
31. Delete the first sentence of the third paragraph of Exhibit G Limited
Guarantee, and insert instead the following: "Notwithstanding anything to the
contrary contained herein, the liability of the undersigned pursuant to this
Guarantee is limited to the sum of $400,000.
32. Amend the third paragraph of Exhibit G Limited Guarantee as follows: delete
"$75,000" and insert instead "$100,000."
6
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment to Lease as of the date first above written.
LANDLORD:
High Ridge Park Associates
By Winter Realty Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Its President
TENANT:
NewSub Services, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
Its President
7
STATE OF CONNECTICUT )
) ss: STAMFORD
COUNTY OF FAIRFIELD )
Before me, the undersigned, this 4/th/ day of October, 1996, personally appeared
▇▇▇▇▇▇ ▇. ▇▇▇▇, known to me to be the President of Winter Realty Corp., a
general partner of HIGH RIDGE PARK ASSOCIATES, and that he as such officer,
signer and sealer of the foregoing instrument, acknowledged the execution of the
same to be his free act and deed as such officer, the free act and deed of such
corporation as such general partner and the free act and deed of said general
partnership.
In Witness Whereof, I hereunto set my hand.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
NOTARY PUBLIC
MY COMMISSION EXPIRES JUNE 30, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ )
) ss: STAMFORD
COUNTY OF FAIRFIELD )
Before me, the undersigned, this 3/rd/ day of October, 1996, personally appeared
▇▇▇▇▇▇▇ ▇▇▇▇, known to me to be the President of NewSub Services, Inc., a
corporation, and that he as such officer, signer and sealer of the foregoing
instrument, acknowledged the execution of the same to be his free act and deed
individually and as such officer, and the free act and deed of such corporation
partnership.
In Witness Whereof, I hereunto set my hand.
/s/ Illegible
--------------------------------------
Notary Public/Commissioner of the
Superior Court
MY COMMISSION EXPIRES
OCTOBER 31, 1999
THIRD AMENDMENT TO LEASE
This Amendment to Lease is entered into as of July 17, 1997 by and between
High Ridge Park Associates, LLC (the "Landlord") and NewSub Services, Inc. (the
"Tenant").
Whereas, the Landlord and the Tenant entered into a lease dated August 30,
1995 (the "Lease") with respect to certain premises located on the third floor
of Building Number ▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇; and
Whereas, the Lease was amended to include additional space on the Pond
Level of said building pursuant to the Second Amendment to Lease dated October
3, 1996 (the "Second Amendment"); and
Whereas, the Landlord and the Tenant desire to further amend the Lease so
as to include within the leased premises certain space located on the second
floor of Building Number ▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇; and
Whereas, the Landlord and the Tenant have agreed to certain other
modifications to the Lease as previously amended by the Second Amendment.
Now therefore, in consideration of the mutual covenants set forth herein,
the Landlord and the Tenant agree that the Lease as previously amended is
further amended as follows:
1. The following is added as an additional paragraph of Section 1.01 of the
Lease:
"As used herein, the term 'NTI Space' shall mean certain space located on the
second floor of the Building, which space is shown on the floor plan annexed
hereto as Exhibit A-2. As used herein, the term 'Tenneco Space' shall mean
certain space located on the second floor of the Building, which space is shown
on the floor plan annexed hereto as Exhibit B-2."
2. The definition of "Premises" and "Demised Premises set forth in Section
1.01 of the Lease as previously amended is hereby deleted and the following is
substituted in its place:
"As used herein, the terms 'Premises' and 'Demised Premises' shall mean the
Third Floor Space, the Pond Level Space, the NTI Space and the Tenneco Space,
collectively."
3. Add the following to Section 1.02 of the Lease as previously amended:
"Landlord and Tenant hereby agree and stipulate that for purposes of this Lease,
the NTI Space consists of a total of 2,380 rentable square feet on the Second
Floor of the Building which space is shown on the floor plan annexed hereto as
Exhibit A-2 and hereby made a part hereof. Landlord and Tenant hereby agree and
stipulate that for purposes of this
1
Lease, the Tenneco Space consists of a total of 3,260 rentable square feet on
the Second Floor of the Building which space is shown on the floor plan annexed
hereto as Exhibit B-2 and hereby made a part hereof.
4. Add the following as Section 1.03.2 of the Lease: "The term for which the
NTI Space is leased pursuant to this Lease shall commence on April 1, 1997 and
said term shall end on December 31, 2005.
5. Add the following as Section 1.03.3 of the Lease:
"Landlord shall use good faith efforts to obtain exclusive possession of the
Tenneco Space from the current occupant thereof by July 31, 1997 or earlier if
possible. Promptly after obtaining exclusive possession of said space, Landlord
shall deliver said space to Tenant. The term for which the Tenneco Space is
leased pursuant to this Lease shall commence on the date on which Tenant takes
possession of the Tenneco Space, and said term shall end on December 31, 2005.
Promptly following the Tenneco Space Commencement Date, the Landlord shall send
to Tenant a notice stating the Tenneco Space Commencement Date."
6. Insert the following at the end of Section 1.04(c): "With respect to the
Tenneco Space, the Tenant shall not be obligated to pay fixed base rent until
the 76th day after Landlord delivers exclusive possession of said space to
Tenant, or the date Tenant occupies said space for the purpose of conducting
business, whichever occurs earlier."
7. Add the following as Section 1.04(e) of the Lease:
"The annual fixed base rent for the NTI Space shall be $49,980. Said fixed base
rent for the NTI Space shall be payable in equal monthly installments in advance
on the first day of each and every calendar month during the term of this Lease,
except as otherwise set forth herein."
8. Add the following as Section 1.04(f) of the Lease:
"The annual fixed base rent payable for the Tenneco Space during the four year
period immediately following the Tenneco Space Commencement Date shall be
$71,720. The annual fixed base rent payable for the Tenneco Space during the
period from the end of said four year period through the end of the Lease shall
be $74,980. Said fixed base rent shall be payable in equal monthly installments
in advance on the first day of each and every calendar month during the term of
this Lease, except as otherwise set forth herein."
2
9. Add the following as Section 3.05:
"Tenant shall hire one or more contractor(s) for the purpose of performing the
work in the Tenneco Space as set forth in the Work Letter, upon the terms and
conditions specified in the Work Letter. Said contractors shall be subject to
Landlord's approval, which shall not unreasonably be withheld."
10. In Section 5.01 of the Lease as previously amended by the Second Amendment,
delete "$100,000" and insert instead "$125,000."
11. Add the following as Section 6.06:
"For purposes of calculating Tenant's Proportionate share of increases in Real
Estate Taxes for the NTI Space and the Tenneco Space, the Tax Base year shall
mean the tax fiscal year of July 1, 1997 to June 30, 1998, and Tenant's
Proportionate Share with respect to said two spaces shall be 9.25%."
12. Delete Section 7.02(a) and insert the following in its place:
"For purposes of calculating Tenant's Proportionate Share of Operating Cost
increases with respect to the Third Floor Space and the Pond Level Space, the
term 'Base Year' shall mean the period from January 1, 1996 to December 31,
1996. For purposes of calculating Tenant's Proportionate Share of Operating
Cost increases with respect to the NTI Space and the Tenneco Space, the term
'Base Year' shall mean the period from January 1, 1997 to December 31, 1997.
13. Delete the first sentence of Section 7.02(d) of the Lease and insert the
following in its place:
"The term 'Tenant's Proportionate Share' for purposes of the Operating Cost
Adjustment applicable to the Third Floor Space and the Pond Level Space shall be
34.41%. The term 'Tenant's Proportionate Share' for purposes of the Operating
Cost Adjustment applicable to the NTI Space and the Tenneco Space shall be
9.25%."
14. Add the following at the end of Section 8.03 of the Lease as amended by the
Second Amendment:
"Prior to the Commencement Date applicable to the Tenneco Space, Landlord shall
use its best efforts to deliver to Tenant a standard Nondisturbance Agreement
pertaining to said space. The substance of said Nondisturbance Agreement shall
be as described in the third sentence of this Section."
15. Add the following to Section 42.00 of the Lease as amended by the Second
Amendment:
"(c) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
NTI Space as of
3
December 31, 2000 by providing Landlord with written notice no later than nine
(9) months prior to said date. In the event Tenant exercises said option to
terminate, not later than October 31, 2000, Tenant shall pay $17,433.50 to
Landlord.
(d) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
Tenneco Space as of December 31, 2000 by providing Landlord with written notice
no later than nine (9) months prior to said date. In the event Tenant exercises
said option to terminate, not later than October 31, 2000, Tenant shall pay
$55,313.60 to Landlord.
20. Delete Section 42.00 (d), (e) and (f) as set forth in the Second Amendment
and insert instead the following:
"(d) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
Third Floor Space as of June 30, 2003 by providing Landlord with written notice
no later than nine (9) months prior to said date. In the event Tenant exercises
said option to terminate as to the Third Floor Space, not later than April 30,
2003, Tenant shall pay $375,000 to Landlord.
(e) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
Pond Level Space as of June 30, 2003 by providing Landlord with written notice
no later than nine (9) months prior to said date. In the event Tenant exercises
said option to terminate as to the Pond Level Space, not later than April 30,
2003, Tenant shall pay $35,000 to Landlord.
(f) If Tenant has provided the $125,000 security deposit to the Landlord as
provided for in Section 5.01, and Tenant exercises the early termination options
described in Sections 42.00 (d) and (e) above, said security deposit shall be
credited against the termination fees described in said sections."
16. Add the following as Sections 42.00 (g) and (h):
"(g) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
NTI Space as of June 30, 2003 by providing Landlord with written notice no later
than nine (9) months prior to said date. In the event Tenant exercises said
option to terminate as to said space, not later than April 30, 2003, Tenant
shall pay $8,718.75 to Landlord.
(h) Provided Tenant is not in default of its obligations pursuant to this
Lease, Tenant shall have the option to terminate the Lease with respect to the
Tenneco Space as of June 30, 2003 by providing Landlord with written notice no
later than nine (9) months prior to said date. In the event Tenant exercises
said option to terminate as to said space, not later than April 30, 2003, Tenant
shall pay $28,539.71 to Landlord."
4
17. Add the following as Section 53 of the Lease:
"Prior to the Commencement Date with respect to the Tenneco Space, Landlord
shall provide to Tenant a certificate or existing written evidence from a
qualified expert in the field of asbestos testing, abatement and remediation,
confirming that there is no asbestos within or adjacent to the Tenneco Space."
18. Add the following as Section 54 of the Lease:
"Landlord agrees that Tenant shall have the right to run cables from the Third
Floor Space to the Tenneco Space for the purpose of connecting Tenant's
telephone and computer systems as located within said two spaces, subject to
Landlord's review and approval of Tenant's plans, which approval shall not
unreasonably be withheld."
19. Add the following as Section 6(f) of Exhibit D - Work Letter:
"Landlord shall provide Tenant an improvement allowance of $39,120 (the "Tenneco
Space Improvement Allowance") for application against the cost of Tenant's Work
(including all costs of permits, building fees, and architectural and
engineering fees and costs) with respect to the fit-up of the Tenneco Space.
The Tenneco Space Improvement Allowance shall be payable in three equal
payments, each within thirty days following receipt of an application for
payment accompanied by a certification by Tenant's architect that the work has
been completed in at least the following amounts: (1) 33%; (2) 66%; and (3)
Substantially Complete as defined in Section 6(a). If requested by Tenant,
portions of the Tenneco Space Improvement Allowance shall be paid directly by
Landlord to contractors designated by Tenant, in the amounts stipulated and
substantiated pursuant to the preceding sentence, and as may be subject to
Section 6(c) of the Work Letter."
20. The Limited Guarantee of ▇▇▇▇▇▇▇ ▇▇▇▇, attached to the Lease as Exhibit G
is hereby released by Landlord. Simultaneously with the execution and delivery
of this document, Tenant shall deliver to Landlord a Limited Guarantee executed
by ▇▇▇▇▇▇▇ ▇▇▇▇ in the form attached hereto as Exhibit G.
21. The parties recognize Rand Real Estate Services, Inc. as the broker who
interested Tenant in the Tenneco Space. Landlord shall be responsible for the
payment of any real estate commission which may be due and payable to said
broker.
5
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment to Lease as of the date first above written.
LANDLORD:
High Ridge Park Associates, LLC
By Winter Realty Corp.,
Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Its President
TENANT:
NewSub Services, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
Its President
6
EXHIBIT G
LIMITED GUARANTEE
This Limited Guarantee is executed by ▇▇▇▇▇▇▇ ▇▇▇▇ in connection with that
certain Lease from High Ridge Park Associates ("Landlord") to NewSub Services,
Inc. ("Tenant") dated August 30, 1995 (the "Lease") as amended by the First
Amendment to Lease, the Second Amendment to Lease and the Third Amendment to
Lease, with respect to office space located on the third floor, pond level and
second floor of Building Four, High Ridge Park, Stamford, Connecticut.
In consideration of the execution of the above-referenced Lease and said
Amendments by the Landlord, at the request of the undersigned and in reliance on
the Guarantee, the undersigned hereby guarantees unto the Landlord, its
successors and assigns, the prompt payment of all rent and additional rent and
the performance of all of the terms, covenants and conditions set forth in the
Lease and said Amendments subject to the limitations set forth below. The
undersigned hereby consents to any extensions of time or changes in the manner
of payment or performance of any of the terms and conditions of the Lease and
said Amendments the Landlord may grant the Tenant, and further consents to the
assignment of the Lease, and any modifications thereof, all without notice to
the undersigned. The undersigned agrees to pay the Landlord all expenses,
including reasonable attorneys' fees and disbursements, incurred in enforcing
the obligations of the Tenant under the Lease and in enforcing this Guarantee,
subject to the limitations set forth below.
Notwithstanding anything to the contrary contained herein, the liability of
the undersigned pursuant to this Guarantee is limited to the sum of $500,000.
Said limitation is referred to herein as the "Guarantee Limit." Notwithstanding
anything to the contrary contained herein, this Guarantee is subject to the
further limitation that upon each anniversary of the Third Floor Commencement
Date of the Lease, the Guarantee Limit shall be automatically reduced by $50,000
as long as the Tenant is in full conformance with the terms of the Lease at the
time of said reduction. Accordingly, the first $50,000 reduction occurred on
December 31, 1996. Article 5 of the Lease as amended by the Third Amendment to
Lease provides that the Landlord shall release the undersigned from any further
liability pursuant to this Guarantee at the end of the fifth year of the Lease
(December 31, 2000) if the Tenant delivers to Landlord a cash security deposit
in the amount of $125,000.
IN WITNESS WHEREOF, the undersigned executed this Guarantee on July 17,
1997.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
FOURTH AMENDMENT TO LEASE
-------------------------
AGREEMENT made this 8/th/ day of January, 1999, between HIGH RIDGE PARK
ASSOCIATES, LLC, acting herein by Winter Realty Corp., its Managing Member, and
having its office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Landlord"), and NEWSUB SERVICES, INC., a Connecticut Corporation having its
principal ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Tenant").
W I T N E S S E T H:
On August 30, 1995, Landlord and Tenant entered into a Lease Agreement (the
"Lease") covering 14,358 rentable square feet on the third (3rd) floor of
Building Four, High Ridge Park (hereinafter referred to as the "Initial
Premises").
WHEREAS, the Lease was amended to include an additional 530 rentable square
feet on the 3rd floor of the Building pursuant to the First Amendment of Lease
dated January 4, 1996, and
WHEREAS, the Lease was amended to include an additional 6,104 rentable
square feet on the Pond Level of the Building pursuant to the Second Amendment
to Lease dated October 3, 1996, and
WHEREAS, the Lease was amended to include an additional 5,640 rentable
square feet on the Second Floor of the Building pursuant to the Third Amendment
to Lease dated July 17, 1997, and
WHEREAS, Tenant desires to lease an additional 362 rentable square feet on
the Pond Level of the Building,
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
Landlord and Tenant agree to amend the Lease as follows:
1. Article 1:
a) Section 1.02: The term "Demised Premises" is hereby amended to include
the Initial Premises (14,358 rsf), the Additional Premises (530 rsf),
the Pond Level Premises (6,104 rsf), the Second Floor Premises (5,640
rsf) and the Additional Pond Level Premises (362 rsf), annexed hereto
as Exhibit A-3.
b) Section 1.03: Add the following:
The term for which the Additional Pond Level Premises is leased shall
be for a period of approximately seven (7) years, and shall commence
on December 1, 1998 (the "Effective Date"), and continue through
December 31, 2005 (the "Expiration Date").
c) Section 1.04: Add the following as Section 1.04(g):
Fixed Rent for the Additional Pond Level Premises is as follows:
Lease Amendment Years SF Rate
--------------------- -------
1-7 $20.00
d) Section 1.04: Add the following as Section 1.04(h):
Tenant's first twelve (12) months of fixed base rent only for the
Additional Pond Level Premises shall be waived. Said free rent shall
commence as of the Effective Date of this Lease Amendment.
Promptly following the Effective Date for the Additional Pond Level
Premises, Landlord shall send to Tenant a notice fixing the Effective
Date.
2. Article 3: Add the following:
3.06 Additional Pond Level Premises:
Tenant shall take possession of the Additional Pond Level Premises in an
"as-is" condition. Except as otherwise set forth in the Lease, Tenant
shall demise the Premises in accordance with Exhibit A-3 and shall perform
all improvements within the premises with Tenant's contractors, approved by
the Landlord, at Tenant's cost and expense, and in accordance with Tenant's
plans, approved in advance by the Landlord.
3. Article 6 of the Lease is amended to additionally provide:
As of the Effective Date, and with respect to the Additional Pond Level
Premises only:
(i) The term "Tenant's Proportionate Share" shall be 0.59%.
(ii) The "Tax Base Year" shall be July 1, 1998 to June 30, 1999.
(iii) The initial twelve (12) months of the Lease Term shall be without any
increase for real estate tax escalations.
4. Article 7 of the Lease is amended to additionally provide:
As of the Effective Date, and with respect to the Additional Pond Level
Premises only:
(i) The term "Tenant's Proportionate Share" shall be 0.59%.
(ii) The "Operating Base Year" shall be January 1, 1999 to December 31,
1999.
(iv) The initial twelve (12) months of the Lease Term shall be without any
increase for operating expense escalations.
5. Option to Terminate:
Provided Tenant is not in default of its obligations pursuant to the Lease,
Tenant shall have the option to terminate the term of Lease with respect to
the Additional Pond Level Premises under the same terms and conditions as
provided to Tenant for all previously leased space in Building Four.
6. Exhibit E:
Paragraph 2 of the Electricity Schedule shall be modified to reflect as of
the Effective Date of this Amendment, that the Demised Premises includes a
total of 26, 994 rentable square feet.
7. Article 31.04 Broker:
With respect to the Additional Pond Level Premises only, Landlord does not
recognize that any Broker interested Tenant in these premises.
Tenant represents and warrants that no broker interested Tenant in this
transaction or in these Additional Premises, and Tenant shall hold Landlord
harmless from the claim of any real estate broker or salesperson claiming
to have interested or having been responsible for Tenant's execution of
this Amendment.
8. Except as herein modified, all other terms and conditions of the Lease
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment of
Lease to be executed as of the day and year first above written.
Signed, Sealed and Delivered
In the Presence of: LANDLORD:
HIGH RIDGE PARK ASSOCIATES, LLC
By: Winter Realty Corp., Managing Member
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
/s/ Illegible /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------- ---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: President
TENANT:
NEWSUB SERVICES, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Facilities Manager /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- ---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Chief Financial Officer
EXHIBIT F
SITE PLAN
HIGH RIDGE PARK ASSOCIATES
STAMFORD, CONNECTICUT
[map]
EXHIBIT A
WESTINGHOUSE SPACE
FOUR HIGHRIDGE PARK
3/RD/ FLOOR
[floor plans]