EXHIBIT 10.23
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COMMERCIAL
LEASE
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THIS LEASE is made as of this 5/th /day of January, 1999, by and between Lot 4
LLC (hereinafter referred to as "Landlord") and the following party (hereinafter
referred to as "Tenant"):
Acorn Information Services, Inc.
IN CONSIDERATION of the mutual benefits and obligations set forth in this Lease,
Landlord and Tenant agree as follows:
ARTICLE I
LEASING DATA
1.1. LEASING DATA. This Article contains data used in other provisions of
this Lease but set forth in this Article for ease of reference. For
example, although the Monthly Base Rent is specified in this Article,
Article IV is the operative provision of the Lease regarding the
payment of the Monthly Base Rent. Whenever any item contained in this
Article is more specifically described in a subsequent Article of the
Lease, the more specific description will control.
(a) The "Building" is the building in which the Leased Premises is
located and is known as ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(b) The "Leased Premises" is to be determined, on the second floor or
above.
(c) The "Leased Premises Square Footage" shall be the gross square
footage (including a share of the core area) of Tenant's Leased
Premises, determined once Tenant's Exhibit A floor area outline
becomes final. The square footage of Tenant's Leased Premises
shall be calculated by dividing the usable area square footage as
determined by Tenant's Exhibit A floor area outline by .84. Once
Tenant's Leased Premises Square Footage has been determined, the
parties shall execute a memorandum fixing the square footage of
Tenant's Leased Premises which square footage will be
approximately 5,000 square feet and the parties will initial
Tenant's Exhibit A which will then become part of this Lease.
(d) The "Initial Commencement Date" is upon completion of Landlord's
Initial Fit-Out Work.
(e) The "Initial Term" is the period of time beginning with the
Initial Commencement Date and ending at the end of the 60/th/
month from and after the Initial Commencement Date.
(f) The "Leased Premises Use" is general administrative business
offices.
(g) The "Base Rent" for the Initial Term is $12.00 multiplied by the
number of square feet of Tenant's Leased Premises Square Footage.
The Base Rent shall be payable in equal monthly installments, in
advance.
(h) The "Security Deposit" is $12,324.06 which amount is paid by the
transfer of the security deposit which has been paid as the
security deposit under a lease between tenant and ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ LLC, an affiliate of Landlord, under a lease dated October
30, 1996 for the lease of space in a
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building located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.
The Security Deposit will be held by Landlord for the Initial
Term. Security Deposit will be reduced (credited) at the rate of
20% each December 1/st/.
(i) The "Notice Address" for Landlord and Tenant are:
Landlord:
Lot 4 LLC
c/o ▇. ▇. ▇▇▇▇▇▇, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant:
Acorn Information Services, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
President
But Until Initial Commencement Date:
Acorn Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
President
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ARTICLE II - DEFINITIONS
2.01. CAPITALIZED WORDS AND PHRASES. This Lease contains many words and
phrases with initial, capitalized letters. These words and phrases are used as
specially defined terms in an effort to make the lease easier to read. An effort
has been made to set forth some of the more common defined terms in this
Article, but other Articles may also contain defined terms. Whenever a
capitalized word or phrase is used in this Lease, it shall have the definition
specifically ascribed to it, unless the context of the usage implies otherwise.
Some of the definitions listed below may not be used in the main body of the
lease. Some definitions which may not be used in the main body of the Lease are
nevertheless listed because in some situations, the Data Section or additional
provisions or exhibits added to the Lease may incorporate the use of such
definitions.
2.02 "ADDITIONAL RENT" means any charge, other than the Base Rent,
payable by Tenant to Landlord under any provision of this Lease.
2.03. "BUILDING" means the building in which the leased premises is
located and "BUILDINGS" means all of the buildings in the Project.
2.04. "COMMON AREA" means all portions of the Project other than rentable
spaces in the Buildings.
2.05. "CONSENT" or "APPROVAL" of Landlord means only the consent or
approval given by Landlord in writing.
2.06. "CPI" means the United States Department of Labor Bureau of Labor
Statistics Consumer Price Index-All Urban Consumers-All Cities (1982-4 = 100),
or if such index is no longer published, a substitute selected by Landlord which
represents similar changes in consumer prices.
2.07. "FISCAL YEAR" means the 12 month periods comprising Landlord's
fiscal year for the purposes of computing Monthly Additional Rent. It is
contemplated that the Fiscal Year will be the calendar year, but Landlord may
choose a Fiscal Year other than the calendar year.
2.08. "LANDLORD'S INSURANCE PREMIUMS" means the premiums for Landlord's
Insurance Coverages, Landlord's Insurance Coverages being defined in paragraph
8.02.
2.09. "LEASED PREMISES" means the rentable space leased to Tenant at the
Project, as generally described in the Data Section. A more particular
description of the Leased Premises is all space within the lateral, upper and
lower boundaries, excluding common utility lines and other similar items, as
described below. The lateral boundary of the Leased Premises is the unfinished
face of the sheet-rock and inside surface of the glass on all demising walls. If
any wall is incomplete as of the inception of the Lease, the lateral boundary
shall be the inside face of the demising wall studs until they are sheet-rocked.
For the purposes of this paragraph, a demising wall is any wall separating the
Leased Premises from any other space within its Building and any exterior
Building wall separating the Leased Premises from the outdoors. The upper
boundary of the Leased Premises is the lower surface of the suspended acoustical
ceiling, and if none, the lower surface of the roof or deck of the next floor
above the Leased Premises. The lower boundary of the Leased Premises is the
unfinished surface of the concrete floor. The Leased Premises does not include
any pipe, conduit, duct chase, wire, structural building support column, or
other similar item located within the boundary of the Leased Premises but which
represents a building component that serves portions of the Project besides only
the Leased Premises.
2.10. "LEASED PREMISES SQUARE FOOTAGE" means the square footage set forth
in Article I, which represents the agreed upon rentable square footage of the
Leased Premises, which rentable square footage is different than and in excess
of the usable square footage.
2.11. "LEASED PREMISES UTILITY CHARGES" means the charges payable by
Tenant for utility consumption by the Leased Premises, as further described in
paragraph 5.02.
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2.12. "NOTICE" means only written notification given by one party to the
other. Notice may only be given by: a form of US Mail in which the recipient is
required to sign a receipt (such as certified, return receipt); a nationally
recognized courier service (such as Federal Express or UPS Next Day); and, in
the case of Notice to Tenant, delivery to the Leased Premises. All Notices will
be effective on receipt, except in the case of delivery to the Leased Premises,
in which event the Notice will be effective as of the date of delivery. Notice
must be given to the other party at the party's Notice Address, except in the
case of Notice to Tenant, which may always be given at the Leased Premises. The
Notice Address for each party is the address listed in the Data Section of this
Lease, or to such other address designated by a party by Notice to the other
party, provided, that Landlord shall not be required to give Notice to more than
one address, and if more than one address is specified, Landlord may choose any
one address of those designated by Tenant.
2.13. "PROJECT" means the Building and the real estate associated with the
Building, the current boundary of which is described on Exhibit B.
2.14. "PROJECT OPERATING EXPENSES" means all of the reasonable expenses
incurred by Landlord in the Operation of the Project except for those expenses
which are specifically excluded in this paragraph below, as may be adjusted by
the following sentence. If during all or part of any Fiscal Year the Project has
not been fully occupied, then for the purposes of computing Project Operating
Expenses for such Fiscal Year, Project Operating Expenses shall be those
expenses which would have reasonably been incurred had the Project been fully
occupied and would otherwise qualify as proper Project Operating Expenses. The
preceding sentence shall in no event allow Landlord to receive payment or
reimbursement for more than 100% of the expenses actually incurred by Landlord
for the relevant Fiscal Year. Project Operating Expenses includes, without
limitation: (a) the cost of any personnel of Landlord directly involved in the
operation of the Project, provided such personnel are not above the grade of
building manager and provided that the cost of any personnel serving more
properties than the Project is allocated to the Project only in proportion to
the time spent on the Project business; (b) the cost of equipment and supplies
used in the maintenance and operation of the Project (salt and sand in the
winter months, for example); (c) the cost of keeping the Project in good repair
(repairs & replacements); (d) the cost of utilities serving the Common Area and
utilities serving the Leased Premises other than those in Article 5 hereof
(electricity for the parking lot lighting and HVAC, for example); (e) a
reasonable management fee consistent with the operation of a first-class office
building in the local market; (f) the cost of maintenance and cleaning of the
Common Area; (g) the cost of equipment maintenance contracts; (h) landscaping
costs; (i) restriping and repairing the parking area serving the Project; (j)
Landlord's Insurance Premiums; (k) Project Taxes; and (1) any other item
reasonably expended for the maintenance, operation, repair and insurance of the
Project. Project Operating Expenses shall not include; [i] the cost of any
structural repairs or structural replacements for the Building; [ii] the cost of
any item that is not reasonable (which means no rates for any services will be
billed in excess of fair market rates - which may, for example, include a
reasonable premium for overtime, after hours services and emergency services);
[iii] any depreciation of any equipment or of any portion of the Project; [iv]
any income tax imposed upon Landlord's income or any estate or gift tax of
Landlord; [v] any payments on any mortgage debt secured by the Project; [vi] the
cost of construction for any additional rentable space in the Project; [vii]
fit-out costs for the fit-out of the leased Premises of any tenant. [viii] any
marketing and brokerage expenses in connection with the leasing of any space in
the Project to any tenant; and [ix] any expenses incurred by Landlord in
connection with the enforcement of a lease against any tenant.
2.15. "PROJECT TAXES" means the regularly assessed real estate tax of the
municipality in which the Project is located and any other tax or use charge
imposed upon the Project or its operation, such as, without limitation: a sewer
assessment or use charge; a fire district tax; and/or a special taxing district
tax. Project Taxes does not include any personal property tax imposed upon the
personal property of any tenant or any other tax which may be imposed directly
upon a tenant rather than the Project or its owner generally.
2.16. "RENT" means all sums payable by Tenant to Landlord under the
provisions of this Lease, including all Base Rent and Additional Rent.
2.17. "TENANT'S PERCENTAGE" means the percentage equivalent to the ratio
of the Leased Premises Square Footage divided by the Total Building Square
Footage, which may be adjusted upon any change in the Leased Premises Square
Footage or Total Building Square Footage, but will not be adjusted based upon
the degree of occupancy of the Project.
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2.18. "TERM" means the period of time during which Tenant is entitled to
possession of the Leased Premises in accordance with the provisions of this
Lease, but does not include any hold over Period.
2.19. "TOTAL BUILDING SQUARE FOOTAGE" means the gross rentable square
footage of all of the rentable tenant spaces in the Building, whether rented or
not. The Total Building Square Footage is subject to adjustment, such as an
increase if any additional rentable square footage is constructed as an addition
to the Building.
2.20. "WALL STREET PRIME" means the interest rate published by the Wall
Street Journal as the base rate of corporate loans posted by at least 75% of the
nations 30 largest banks, or a similar substitute rate selected by Landlord if
the foregoing rate is no longer published.
ARTICLE III - LEASING OF LEASED PREMISES AND TERM OF LEASE
3.01. LEASING OF LEASED PREMISES. Landlord hereby leases the Leased
Premises to Tenant for the Term, together with a right to use certain portions
of the Common Area, subject to the other provisions of this Lease.
3.02. QUIET ENJOYMENT. Upon payment by Tenant of the Rents herein
provided, and upon the observance and performance of all the covenants,
provisions and conditions of Tenant's part to be observed and performed. Tenant
shall peaceably and quietly hold and enjoy the Leased Premises for the Term
without hindrance or interruption by Landlord or any person claiming by or
through Landlord, except as expressly provided in this Lease.
3.03. COMMENCEMENT DATE. The Term will begin on the "Actual Commencement
Date". The "Actual Commencement Date" is the Initial Commencement Date set forth
in the Data Section, unless Landlord is unable to deliver possession of the
Leased Premises on or before the Initial Commencement Date on account of any
delay caused by any existing occupant of the Leased Premises not vacating on
time or unless Landlord is delayed in completing any Landlord's "Initial Fit-Out
Work" (defined in paragraph 3.04). In the case of any such delay, the Actual
Commencement Date shall be the Initial Commencement Date extended to the date on
which Landlord tenders possession of the Leased Premises to Tenant, in
substantially the condition promised to Tenant (for example - as-is & broom
clean and/or with substantial completion of Landlord's Initial Fit-Out Work - as
may be set forth in other provisions of this Lease regarding the condition of
the Leased Premises upon delivery to Tenant).
3.04. CONDITION OF LEASED PREMISES UPON DELIVERY TO TENANT. The Leased
Premises shall be delivered to Tenant on the Actual Commencement Date in as-is
condition, broom clean and free of all personal property of others, except that
Landlord will perform any work set forth in Exhibit C, attached hereto, as
Landlord's Initial Fit-Out Work. Any Landlord's Initial Fit-Out Work shall be
performed by Landlord in a good and workmanlike manner. Landlord will commence
any Landlord's Initial Fit-Out Work on or before the date felt to be reasonably
early enough for the work to be substantially completed on or before the Initial
Commencement Date, unless Landlord is unable to begin the work on account of
being unable to obtain occupancy of the Leased Premises due to the existing
occupancy of another party, in which event, Landlord shall use Landlord's best
efforts to obtain possession of the Leased Premises and begin Landlord's Fit-Out
Work promptly after possession of the Leased Premises has been obtained.
ARTICLE IV - PAYMENT OF RENT
4.01. PAYMENT OF RENT. Tenant shall pay the monthly Base Rent and the
Monthly Additional Rent on the first day of each month during the Term, in
advance. The amount of the Monthly Additional Rent and method of billing
therefore is set forth in paragraph 4.02. Any other charge shall be due in
accordance with the Lease provision governing the charge. For example, if Tenant
is to pay Landlord for any fit-out work, the charge and manner of payment for
that may be covered under the provision specifying the fit-out work.
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4.02. MONTHLY ADDITIONAL RENT. The Monthly Additional Rent is: [i]
Tenant's Percentage of Project Operating Expenses; plus [ii] Leased Premises
Utility Charges. At the beginning of each Fiscal Year, Landlord shall prepare an
itemized estimate (in reasonable detail) of all of the Components of the Monthly
Additional Rent expected to be incurred by Tenant during the ensuing Fiscal
Year. Landlord will provide a copy of the statement of estimated Monthly
Additional Rent to Tenant and Tenant shall pay the Monthly Additional Rent based
on Landlord's estimated statement, each monthly payment to be 1/12 of the
estimated Monthly Additional Rent to be incurred for the full Fiscal Year. After
the end of each Fiscal Year, Landlord will prepare an itemized statement of the
actual Monthly Additional Rent incurred by Tenant during the prior Fiscal Year,
together with a statement of any overpayment or underpayment of actual Monthly
Additional Rent based upon the estimated payments made by Tenant. Landlord will
render the statement of Monthly Additional Rent actually incurred by Tenant
within 90 days after the end of each Fiscal Year. In the case of an
underpayment, Tenant shall pay the shortage to Landlord within 30 days after
rendering the statement of actual Monthly Additional Rent to Tenant. In the case
of an overpayment, Landlord will reimburse the amount of the overpayment to
Tenant within 30 days after the rendering of the statement. In the event it
becomes apparent to Landlord during the course of a Fiscal Year that the actual
Monthly Additional Rent will be materially different than the estimated Monthly
Additional Rent (on account of an unexpected increase in the municipal real
estate tax, for example), then Landlord may amend the statement of estimated
Monthly Additional Rent and the monthly payments will be adjusted such that all
of the newly estimated Monthly Additional Rent for the full Fiscal Year will
have been paid via the Monthly Additional Rent payments made prior to the new
estimate plus payment of the equal adjusted installments of the Monthly
Additional Rent payments remaining in the Fiscal Year. If Landlord has not
provided Tenant with statement of estimated Monthly Additional Rent prior to the
beginning of a Fiscal Year, Tenant shall make installment payments based upon
the installments in effect for the prior year until the new statement of
estimated Monthly Additional Rent is rendered to Tenant. The calculation of
Monthly Additional Rent shall be in accordance with Generally Accepted
Accounting Principles (unless express provisions of this Lease deviate). Any
component of Project Taxes shall be charged to any period in the same manner in
which real estate tax is adjusted on closings for property in the municipality
in which the Project is located, but if not adjusted, then in advance, each
payment covering the period when first due until the date on which a payment is
next first due (the method of adjustment for the regular municipal real estate
tax being in advance - based upon a uniform fiscal year). All utility bills and
other similar expenses shall be allocated to the period of usage which resulted
in the ▇▇▇▇. For example, if Landlord receives a Common Area electric ▇▇▇▇ in
January 1994, which ▇▇▇▇ covers a period beginning in November 1993 and ending
in December 1993, the electric ▇▇▇▇ would be charged to 1993 Project Operating
Expenses.
4.03. ADDITIONAL PROVISIONS REGARDING PAYMENT OF RENT. All Rent shall be
due and payable without any setoff or deduction to Landlord at the times
specified in this Article, above. If any installment of Rent is not paid within
10 days of its due date, Tenant shall pay a late charge to Landlord equal to the
greater of $100 or 5% of the overdue payment. If the outstanding balance of Rent
owed to Landlord contains any amount that has not been paid within 10 days of
its due date, then beginning on the 11th day, the entire outstanding balance of
Rent owed by Tenant shall bear interest at the "Default Rate", until the
outstanding balance no longer includes any amounts not paid within 10 days of
their due date. The "Default Rate" is the rate of interest equal to the lesser
of: [i] 4 % over the "Wall Street Prime" in effect at the time the Default Rate
begins to accrue; or [ii] the maximum rate of interest permitted to be charged
under law. Any liability for unpaid Rent shall survive the termination of the
Lease.
ARTICLE V - LEASED PREMISES UTILITIES
5.01. RESPONSIBILITY TO PROVIDE UTILITIES TO THE LEASED PREMISES. Landlord
shall provide electric power for the lighting and power outlets for the Leased
Premises and heating fuel and electricity for the air conditioning system for
the Leased Premises. If Landlord is responsible to provide the Leased Premises
to Tenant with any plumbing fixtures (such as kitchen facilities with a sink or
bathroom facilities), Landlord will provide a water supply to the plumbing
fixtures and a waste line from such plumbing fixtures. Landlord will provide
Tenant with a location in the Building with a local telephone line connection to
which Tenant may run Tenant's telephone lines. Landlord may provide for any
utility to be separately metered to Tenant, and, at Landlord's option, may
require Tenant to maintain Tenant's own, metered account with the utility
company providing such separately metered utility. In the case of any utility
for which Tenant is required to maintain Tenant's own separately metered
account, Landlord's responsibility to provide such utility to the Leased
Premises
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shall consist of being responsible to maintain all building systems installed by
Landlord for such utility system in good repair and providing the utility up to
the point of the meter. Tenant, and not Landlord, will be responsible for
maintaining the metered account and for keeping the utility turned on from and
after the point or the meter.
5.02. RESPONSIBILITY TO PAY FOR LEASED PREMISES UTILITY CHARGES. Tenant
shall pay all charges for utilities used, consumed in or allocable to the Leased
Premises ("Leased Premises Utility Charges"). In the case of separately metered
utilities, Landlord may direct that Tenant maintain Tenant's own account with
the utility company providing the service to the Project, in which case, payment
to the utility company and keeping the utility turned on past the point of the
meter shall be Tenant's responsibility. If Tenant is in arrears with any utility
company for any separately metered utility service to the Project, Landlord may
pay the utility company charges, and Tenant shall forthwith owe Landlord
reimbursement, together with interest from and after the date of Landlord's
payment at the Default Rate (defined in Article IV). If any utility consumption
in the Leased Premises is not separately metered, Landlord may allocate the
shared utility consumption to the Leased Premises in any reasonable manner. If
the electricity consumed in the Leased Premises is not separately metered,
Tenant shall pay Landlord for the electric consumption at the rate of $1.25 per
square foot of Leased Premises Square Footage per annum, increased by the amount
of any rate increase imposed after the execution of this Lease by the utility
company providing service to the Building. The preceding $1.25 per square foot
per annum rate is based on normal office usage, and Landlord reserves the right
to increase the Tenant electric charges in the event that Tenant's electric
consumption shall be in excess of normal office usage (for example, excess usage
due to a computer installation with high energy consumption). The Leased
Premises Utility Charges are payable in monthly installments, in the manner set
forth in Article IV.
ARTICLE VI - USE OF LEASED PREMISES AND TENANT'S CONDUCT IN PROJECT
6.01. PERMITTED USE FOR LEASED PREMISES BY TENANT. Tenant and any
permitted assignee or sublessee shall use the Leased Premises for the sole and
exclusive purpose set forth in the Data Section and no other purpose. The use or
the Leased Premises shall also be in accordance with all laws affecting the
Leased Premises, including the municipal zoning laws. Unless the use set forth
in the Data Section expressly provides otherwise, the use of the Leased Premises
shall be limited to the operation of a general business office. Tenant will
comply with all rules and regulations reasonably established by Landlord for the
governing of conduct of tenants in general in the Project, of which Tenant is
given notice.
6.02. TENANT ALTERATIONS, TENANT'S CONTRACTORS, MECHANIC'S LIENS, ETC.
Tenant shall not cause any alteration or improvement to be made to the Leased
Premises or to any other portion of the Project unless Tenant has obtained
Landlord's prior Consent. Landlord will not unreasonably withhold Landlord's
Consent to such alterations or improvements, but prior to rendering Consent,
Landlord may require Tenant to submit building plans (in detail reasonably
required by Landlord) and the identity of the contractor or contractors and
subcontractors to perform any such alterations and the references for such
contractors and subcontractors reasonably requested by Landlord. Prior to the
commencement of any such alteration or improvement by any contractor, Landlord
will be provided with a certificate of insurance for such contractor, showing
public liability coverage, workers' compensation coverage and any other coverage
reasonably required by Landlord, which certificate names Landlord as an
additional insured and provides that the coverage will not be canceled or not
renewed without at least 15 days advance Notice to Landlord. All work performed
by or through Tenant shall be performed in full compliance with all laws, shall
be carried out in a prompt and workmanlike manner and shall not interfere with
the peaceful enjoyment of the Project by any other tenants. Tenant shall
promptly pay all contractors and materialmen hired by Tenant to furnish any
labor or materials which may give rise to the filing of a mechanic's lien
against the Project attributable to alterations and improvements done by or
through Tenant. Should any such lien be placed against the Project, Tenant shall
cause same to be discharged as against the Project within the sooner of: [i] 10
business days after Tenant receives notice of such lien: or [ii] 10 business
days after request by Landlord to remove such lien: [iii] the date on which the
lien could have been removed had Tenant used all other reasonable efforts to
remove it after Notice from Landlord of it. If bond is filed and such lien is
discharged, Tenant shall not be obligated to discharge the lien by payment.
Notwithstanding any notice and grace period before default elsewhere set forth
in this Lease, if Tenant shall fail to discharge such lien within the time
period set forth in this paragraph above, and shall further fail to discharge
such lien within 10 more business days after Notice of failure to discharge the
lien is
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given from Landlord, then Tenant shall be in material default of the Lease,
without any further notice or grace period.
6.03. TENANT'S GENERAL COMPLIANCE WITH LAWS. Tenant shall, at Tenant's
sole cost and expense, comply with all of the requirements of all laws now in
force or which may hereafter be in force and not being reasonably disputed by
Tenant pertaining to Tenant's use of the Leased Premises and Project and any act
therein by Tenant. Specific reference is made to Tenant's duty to comply with
all state, federal and local laws concerning environmental protection and
Tenant's conduct at the Project. Tenant shall indemnify and hold Landlord
harmless from and against any damage, liability, cost and/or expense which
Landlord may suffer by reason of Tenant's failure to comply with the laws
governing Tenant's conduct at the Project, including all laws concerning
environmental protection. Tenant shall undertake no acts which would result in
the Leased Premises being defined as an "Establishment" under the environmental
laws of the State of Connecticut.
6.04. SIGNAGE AND WINDOW TREATMENT. Tenant will not place or maintain, or
cause to be placed or maintained, on any portion of the Project exterior to the
Leased Premises or any portion of the Project (including the Leased Premises)
visible from the exterior of the Leased Premises, any sign or advertising matter
without Landlord's written consent. Tenant shall not place any object on any
portion of the Project exterior to the Leased Premises without Landlord's
written consent. Tenant shall not install or maintain any window treatment
without the prior written consent of Landlord. Landlord may require Tenant to
install window treatments with a particular exterior appearance (color, style
and quality), as viewed from the exterior of the Leased Premises.
6.05. ENVIRONMENTAL COMPLIANCE. Tenant will not under any circumstances
cause or permit the depositing, spillage or seepage of any "Hazardous or Special
Substance" in any dumpster or in any other area of the Project other than an in
an area and in a manner which is in strict compliance with all laws and which is
Approved in advance by Landlord. Tenant will not use, store, generate or dispose
of any substance in any manner which would cause the Project to be classified as
an Establishment under the laws of the State of Connecticut. Tenant will
indemnify Landlord from and against any loss, cost, damage, fines, testing
deemed reasonably necessary by Landlord or any other expense incurred by
Landlord as a result of any violation of any environmental law or this paragraph
by Tenant or any agent, servant, employee or contractor of Tenant. "Hazardous or
Special Substance" means any substance that may not be dumped in a land fill as
general trash, any substance listed under the laws of the State of Connecticut
or the United States as a hazardous waste, or any other substance whose use,
presence or storage at the Leased Premises requires any person to comply with
any environmental reporting or registration requirement under any law.
6.06 OTHER DUTIES OF TENANT REGARDING MAINTENANCE, REPAIR AND CONDUCT AT
THE PROJECT. Tenant will conform Tenant's conduct to the following standards and
will perform the following duties, all in a prompt, diligent and workmanlike
manner, at Tenant's sole cost and expense:
(a) Tenant will maintain the Leased Premises in a clean and neat
condition;
(b) Tenant will keep the Leased Premises in good repair, except that any
repairs to the structure of the Building which are not necessitated
by any negligent or willful act or omission of Tenant shall be
performed by Landlord;
(c) Tenant will remove all trash from the Leased Premises with such
frequency as is consistent with the operation of Tenant's business
in a first class manner, which will include placing general trash in
the appropriate Project Dumpster and recyclable trash in the
appropriate Project Dumpster in order to comply with any
environmental laws affecting Tenant's conduct.
(d) Tenant will comply with all laws affecting Tenant's use of the
Leased Premises and any recommendations of Landlord's fire insurance
rating organization, which laws may include, but are not limited to:
the municipal zoning regulations; any environmental laws; and any
licensing laws regulating the operation of Tenant's business.
(e) Tenant will comply with all rules and regulations reasonably
established by Landlord regarding the use of the Project, which
rules may be presently existing or hereafter established and may
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PAGE 8
include, for example rules governing employee parking, time for
rubbish remova1, manner of making deliveries to the Leased Premises
and style of signage.
6.07. LIMITATIONS ON TENANT'S CONDUCT. Tenant agrees to abide by the
following limitations regarding conduct at the Project:
(a) Tenant will not cause or permit the playing of any loudspeakers,
phonographs, public address systems or similar audio devices in any
manner so as to be audible outside of the Leased Premises:
(b) Tenant will not place any trash anywhere in the Project outside of
the Leased Premises except in the Project Dumpsters of Tenant's
Dumpsters, as the case may be.
(c) Tenant will not cause or permit to emanate from the Leased Premises
any objectionable odor, as determined in Landlord's reasonable
discretion.
(d) Tenant will not do anything which interferes with the use and
peaceful enjoyment of the leased Premises of any other tenant;
(e) Tenant will not solicit business in the Common Area via distribution
of handbills or other advertising matter or via verbal contact with
patrons of the Project, other than personal discussions with persons
known to the person soliciting prior to such person's entry into the
Common Area.
(f) Tenant will not permit the parking of any vehicles in any manner
which interferes with the drives, sidewalks and fire lanes and any
other areas desired to be kept clear by Landlord.
(g) Tenant will not permit the overnight parking of any vehicles in the
parking area.
(h) Tenant will not receive or ship merchandise or equipment outside of
the areas designated by Landlord for loading and unloading.
(i) Tenant will not place any load on any floor in excess of its loading
capacity.
(j) To the extent that Tenant may control the temperature in the Leased
Premises, Tenant will not permit the temperature in the Leased
Premises to fall low enough to cause any pipes to freeze.
(k) Tenant will not keep, use, sell or offer for sale in or upon the
Leased Premises any article which may be prohibited by the standard
form of fire insurance policy.
(1) Tenant will not use the Leased Premises or any portion of the Common
Area for any purpose prohibited by law or for any activity that is
generally considered inconsistent with the operation of a first class
building of the same type as the Building.
ARTICLE VII - LANDLORD'S MAINTENANCE OF Project AND OTHER ACTIVITIES OF LANDLORD
IN Project
7.01. LANDLORDS MAINTENANCE DUTIES. Landlord will perform all maintenance
and repair reasonably necessary to maintain the Project in a condition
consistent with a first class property of the type constituted by the Project
(e.g., office building, R&D building, retail center, etc.) in the municipality
in which it is located. Notwithstanding the preceding sentence, Landlord's
maintenance obligations shall not extend to any maintenance duties of Tenant set
forth in Article V or the maintenance of any other portion of the Project which
is the responsibility of any other tenant under such other tenant's lease.
Landlord's maintenance duties shall be carried out in a prompt, diligent and
workmanlike manner and shall include (to the extent not required to be performed
by Tenant under Article V):
(a) keeping the Common Area, including the parking areas reasonably
clean.
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PAGE 9
(b) performing snow and ice removal and sanding/salting for all portions
of the Common Area constituting parking areas, drives and walkways.
(c) keeping the exterior and structure of the Buildings in good repair,
except that to the extent not covered by Landlord's Insurance, Tenant
will be responsible for any repair necessitated by the neglect or
willful misconduct of Tenant or Tenant's agents, servants, employees
or contractors.
7.02. PROJECT DUMPSTERS AND TENANT'S DUMSTERS. "Project Dumpsters" are
those trash receptacles referred to in this paragraph. Landlord will provide a
dumpster or dumpsters for normal volumes of office trash in a location or
locations in the Project selected by Landlord. In the event Tenant's refuse
consists of other than normal volumes of office trash, Landlord reserves the
right to require Tenant to supply a dumpster or dumpsters for Tenant's trash
("Tenant's Dumpsters"), at Tenant's sole cost and expense, under a contract
which is subject to Landlord's prior approval, which approval may be withheld on
account of the contract not being cancelable on not more than one month's
advance notice. The cost incurred by Landlord in providing a dumpster or
dumpsters may be included as an element of Project Operating Expenses or may be
charged as a Monthly Reimbursement reasonably allocated by Landlord among all of
the tenants using any dumpster in common with other parties.
7.03. LANLORD'S RIGHT TO RELOCATE THE LEASED PREMISES. Landlord reserves
the right to relocate the Leased Premises to another space in the Project at any
time prior to or during the Term, subject to the following conditions. If
Landlord shall desire to relocate Tenant, Landlord shall give Tenant at least 60
days advance Notice of the relocation (the "Relocation Notice"), which shall
include the estimated effective date of the relocation and a floor area outline
and Leased Premises Square Footage of the new Leased Premises. Tenant shall
cooperate in a prompt manner after receipt of Relocation Notice, for the purpose
of developing any fit-out plans desired by Tenant for the new Leased Premises.
Landlord shall perform and bear the cost of any fit-out desired by Tenant for
the new Leased Premises, provided that Landlord shall only be required to
perform and pay for any fit-out that is specified by Tenant not later than 30
days after Landlord's Relocation Notice and provided the specified fit-out
requested to be performed by Landlord does not constitute a level of fit-out in
excess of the level of quality and quantity (on a per square foot basis) as
existed in the Leased Premises at the time of Landlord's relocation Notice.
Landlord may tender possession of the new Leased Premises to Tenant at any time
after the estimated effective date for the relocation contained in the
Relocation Notice, provided that any fit-out work required to be performed by
Landlord has been substantially completed. Landlord shall either: pay for the
reasonable cost of a moving service hired by Tenant (which cost has been
Approved by Landlord before the service is hired); or directly arrange and pay
for Tenant's move into the new Leased Premises. The date of tender of possession
of the new Leased Premises is the Relocation Commencement Date, and on such
date: the new Leased Premises shall be substituted for the previous Leased
Premises; the floor area outline given by Landlord with the Relocation Notice
shall be the new Exhibit A of this Lease; the Base Rent shall be adjusted by the
proportionate change in the Leased Premises Square Footage (the square footage
being calculated in the same manner as that for the original Leased Premises);
and any other factor dependent upon the Leased Premises Square Footage shall be
adjusted accordingly. Unless Tenant shall otherwise Consent, the exercise of
Landlord's right to relocate Tenant shall be limited such that the Leased
Premises Square Footage and the frontage of the new Leased Premises shall not
vary by more than 5% from the previous Leased Premises Square Footage. Tenant
shall vacate the previous Leased Premises not later than 5 days after the
Relocation Commencement Date, leaving the Previous Leased Premises in the same
condition as would be required had the Term for the previous Leased Premises
come to an end by expiration of time.
7.04. LANDLORD'S RIGHT TO PERFORM WORK IN PROJECT. Landlord shall have the
right to undertake the following activities in the Project: construction of
additions to the Buildings and additional buildings; demolition of Buildings;
changing the grade and/or layout of the parking area or other Common Area;
excavation of the Common Area for the purposes of the above and/or installing or
repairing utility lines; and remodeling of the exterior of the Buildings.
Landlord's right to undertake any of the foregoing activities shall be limited
such that: there will be no unreasonable interference with Tenant's use of the
Leased Premises or access thereto; there shall be no materially adverse change
with respect to the proximity of Tenant's parking to the Leased Premises; and
Tenant's parking shall not decrease below the level required to be maintained
under the municipal zoning regulations.
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PAGE 10
7.05. LANDLORD'S RIGHT TO PIPES, ETC. Landlord shall have the right to
install, maintain and repair pipes, wires, ducts and similar items in the space
above any suspended ceiling and, in the case of an area with no suspended
ceiling, in the area of the Leased Premises reasonably close to the underside of
the roof or next floor above the Leased Premises. Landlord may enter the Leased
Premises for the purpose of performing such installation, maintenance and
repair, and for the purpose of performing any maintenance or repair of any
portion of the Project for which entry into the Leased Premises is necessary,
provided any entry by Landlord under this paragraph is accomplished in a manner
which minimizes any disruption to Tenant's business.
ARTICLE VIII - INSURANCE, INDEMNIFICATION, WAIVERS, ETC.
8.01. TENANT'S INSURANCE COVERAGES. Tenant will maintain Tenant's
Insurance Coverages at all times during the Term. Tenant's Insurance Coverages
shall be maintained with an insurance carrier licensed to do business in
Connecticut and Approved of in advance by Landlord, Landlord's Approval not to
be unreasonably withheld and to be based on whether the insurance carrier
maintains a rating reasonably satisfactory to Landlord from a rating service
such as A.M. Best. Landlord may require Tenant to name Landlord as an additional
insured on Tenant's public liability policy and as a loss payee (to the extent
of damage to the realty) of Tenant's property insurance policy. Landlord may
require Tenant to provide Landlord with a copy of the policy or policies
evidencing Tenant's Insurance Coverages and Tenant shall provide Landlord (prior
to the Actual Commencement Date) with a certificate whereby the insurance
carrier agrees not to cancel or fail to renew its coverage unless at least 15
days advance Notice is provided to Landlord. If Tenant shall fail to procure
Tenant's Insurance Coverages or provide Landlord with the copy of an insurance
policy or a certificate of insurance, as Landlord may request under the
provisions of this paragraph, Landlord may procure, but without any obligation
to do so, any Tenant's Insurance Coverages and Tenant will pay Landlord the
reasonable cost of the same. Tenant's Insurance Coverages are the following
insurance coverages, or such lesser coverages as Landlord may approve of in
advance:
(a) General public liability insurance coverage in at least the single
limit amount of $500,000, without deductible, insuring Tenant against
all personal injury and property damage claims arising out of any act
or omission of Tenant at the Project and such personal injury and
property damage claims for which Tenant is required to indemnify
Landlord under the provisions of this Lease.
(b) All-risk property insurance insuring at least the full replacement
value (less a commercially reasonable deductible not to exceed
$2,000) of all of Tenant's personal property at the Project and all
fixtures and improvements forming a part of and located within the
boundaries of the Leased Premises.
8.02. LANDLORD'S INSURANCE COVERAGES. Landlord may maintain Landlord's
Insurance Coverages. Landlord's Insurance Coverages consist of any insurance
coverage reasonably maintained by Landlord in connection with the operation of
the Project, which coverages may include: a public liability insurance policy;
an all-risk property insurance policy, including coverage for rental loss on
account of property damage; and workers' compensation coverage for personnel
carrying out activities chargeable to Project Operating Expenses.
8.03. TENANT TO PAY FOR EXCESS INSURANCE PREMIUMS. Tenant will promptly pay
Landlord the amount of any insurance premium for Landlord's Insurance Coverages
which is in excess of the premium payable had Tenant's use of the Leased
Premises been a use for which the lowest premiums for Landlord's Insurance
Coverages are available. In the case where Tenant and any other tenant's use or
non use of their respective leased premises results in any insurance premium in
excess of the most favorable premiums for Landlord's Insurance Coverages, Tenant
shall be responsible to pay Landlord the portion of the excess which the Leased
Premises Square Footage bears to the total leased premises square footage of all
tenants causing the excess premium, or any other reasonable allocation made by
Landlord of the excess in premiums for Landlord's Insurance Coverages caused by
Tenant.
8.04. NO SUBROGATION - WAIVERS OF CLAIM. Landlord and Tenant, to the
extent not prohibited in their insurance policies, waive the right of
subrogation against the other party on account of any insured loss. Tenant and
Landlord each recognize that they may obtain property insurance, covering losses
to property on account of acts and/or omissions of the other, and if such
coverage is not obtained, the party failing to maintain the coverage shall bear
the risk of any insurable property loss (less a commercially reasonable
deductible) caused by any act or
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PAGE 11
omission of the other party not arising to the level of gross negligence or
willful misconduct. Accordingly, in the event of any uninsured property loss or
damage of Tenant caused by any act or omission of Landlord that does not
constitute willful misconduct or gross negligence, which loss or damage could
have been insured under a standard tenant's all-risk property insurance policy,
Tenant waives any claim against Landlord on account of the loss (except for
recovery of a commercially reasonable deductible not in excess of $2,000).
Further provided, in the event of any uninsured property loss or damage of
Landlord caused by any act or omission of Tenant that does not constitute
willful misconduct or gross negligence, which loss or damage could have been
insured under a standard Landlord's all-risk property insurance policy, Landlord
waives any claim against Tenant on account of the loss (except for recovery of a
commercially reasonable deductible).
8.05. INDEMNIFICATION AGAINST THIRD PARTY CLAIMS. In the case of third
party claims arising out of an act or omission of Tenant or an agent, servant or
employee of Tenant (a "Tenant Fault Claim") and not out of an act or omission of
Landlord or an agent, servant or employee of Landlord (a "Landlord Fault
Claim"), Tenant shall be responsible for the Tort Indemnity of Landlord. In the
event of a Landlord Fault Claim, Landlord shall be responsible for the Tort
Indemnity of Tenant. In the event of claims which are both Tenant Fault Claims
and Landlord Fault Claims, Tenant shall be responsible for the claim to the
extent of the limit of public liability insurance coverage required to be
maintained by Tenant under paragraph 8.01(a). Landlord shall then be responsible
to the extent of the limit of Landlord's public liability insurance coverage,
and thereafter each party shall be responsible for the claim in the proportion
such party's fault bears to the total fault of Landlord and Tenant. Each party
shall be responsible for the Tort Indemnity of the other party for the portion
of the claim which is the responsibility of the party owing the Tort Indemnity.
Tort Indemnity shall mean that the party responsible for the indemnification
shall provide the legal defense of the claim (counsel being subject to the
approval of the indemnified party, approval not to be unreasonably withheld) and
the indemnifying party shall be responsible to pay the amount of the claim
(subject to the right to defend it) up to the limits of the indemnifications set
forth in this paragraph, above, except that in the case of claims which are both
Tenant Fault Claims and Landlord Fault Claims, each party shall be responsible
for such party's own costs of legal defense. Tort Indemnity shall not be owed to
the extent that the party owing the indemnification has been prejudiced by any
failure of the party seeking the indemnification to give Notice to the other
party within a reasonable time after said party becomes aware of a claim in
which the other party may owe an indemnity obligation under this paragraph.
ARTICLE IX - ASSIGNMENT AND SUBLETTING
9.01. LANDLORD'S CONSENT REQUIRED FOR ASSIGNMENT AND SUBLETTING. Tenant
will not assign this Lease in whole or in part nor sublet all or any part of the
Leased Premises without the prior written Consent of Landlord, which will not be
unreasonably withheld or delayed. Prior to any assignment or subletting for
which Landlord's Consent is required, Tenant shall give Notice to Landlord of
the proposed assignee or subtenant and the terms of the proposed assignment or
subtenancy, and upon request of Landlord, Tenant will provide Landlord with any
other information reasonably requested by Landlord for the purpose of evaluating
the proposed assignee or subtenant. Landlord hereby expressly Consents to any
assignment or subletting to an entity controlled by Tenant, which controls
Tenant, or is under the control of the same entity that controls Tenant (a
"Tenant Affiliated Entity"). For the purposes of the preceding sentence,
"control" means legal voting control. The Consent by Landlord to any assignment
or subletting shall not constitute a waiver of the necessity for such Consent to
subsequent assignment or subletting. Assignment or subletting shall include a
change in a majority of any ownership of Tenant (in the case of a tenant that is
not an individual) and shall include an assignment or subletting by operation of
law (attachment of Tenant's interest in the leasehold, for example). Unless
landlord shall give express Consent of the release of Tenant, no assignment or
subletting or acceptance of any rent from any party in possession of the Leased
Premises shall constitute a release of Tenant from the obligations under this
Lease. By accepting the assignment of this Lease, any assignee assumes all
obligations of Tenant to Landlord from and after the date of the assignment,
jointly and severally with Tenant. Any attempted assignment or subletting by
'Tenant without the prior Consent of Landlord shall be void. No assignment or
subletting shall provide for a rental payment, or other payment for use and
occupancy or utilization, based in whole or in part on the net income or profits
derived by any person or entity from the property assigned, subleased, occupied
or utilized (other than an amount based upon a fixed percentage of sales), and
any such purported assignment or subletting based upon such payment shall be
void and any amount payable thereunder or any rental amount therefor passed to
any person or entity shall not have deducted therefrom any expenses or costs
related in any way to the leasing of such space.
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PAGE 12
9.02. RELEASE OF TENANT ON CERTAIN ASSIGNMENTS AND SUBLETTINGS. Except for
an assignment or subletting to a Tenant Affiliated Entity, for which express
Consent is given in paragraph 9.01, in the event Tenant gives Landlord any
Notice of proposed assignment of this Lease or subletting of more than 50% of
the Leased Premises, then Landlord may, by Notice to Tenant. terminate this
Lease by lapse of time, effective on the date specified in Landlord's
termination Notice. Landlord's termination Notice under this paragraph may only
be given within 30 days after Notice of the proposed assignment or subletting
from Tenant, unless, within 15 days after the Notice from Tenant Landlord makes
a request to Tenant for further information with which to evaluate the proposed
assignee or subtenant, in which event the time within which Landlord may give
Notice of termination shall be extended to 30 days after Tenant has provided the
further information to Landlord. Landlord's termination Notice must specify an
effective date for the termination, and if the termination Notice is given, this
Lease shall come to an end by lapse of time as if the Term had always expired on
the effective date of the termination, and provided Tenant has vacated the
Leased Premises in accordance with the provisions of this Lease. Tenant shall be
deemed to be released from any further liability or obligations of Tenant under
this Lease arising from and after the date Tenant has vacated.
9.03. LANDLORD'S RIGHTS ON PROPOSED SUBLETTING OR ASSIGNMENT. In the event
Tenant desires to sublet or assign this Lease in whole or in part, other than to
a Tenant Affiliated Entity, for which express Consent is given in paragraph
9.01, then Landlord shall have the right of first refusal against such
subletting or assignment in accordance with the further provisions of this
paragraph. Tenant shall give Landlord Notice of the terms of any bona fide offer
to sublet or assign pursuant to which Tenant desires to consummate a subletting
or assignment, which terms shall not include consideration for the subrent or
assignment price in anything other than cash and shall not include the subrent
or assignment of any premises other than all or a portion of the Leased
Premises. Landlord shall have 15 days after the Notice from Tenant to notify
Tenant of Landlord's acceptance of said subletting or assignment terms. If
Landlord shall not exercise Landlord's right of refusal within the 15 day time
period, the subletting or assignment shall be free of Landlord's refusal right
contained in this paragraph as to a subletting or assignment on the terms
contain in the Notice from Tenant, provided that such assignment or sublease is
executed and commences within not more than 60 days after Tenant's
aforementioned Notice to Landlord. If Tenant wishes to sublet or assign at a
lower rent, more favorable terms to the assignee or subtenant or outside of said
60 day period, Tenant must again Notice to Landlord the terms of any such bona
fide offer acceptable to Tenant and the above process shall be repeated.
ARTICLE X - ESTOPPEL CERTIFICATES, SUBORDINATION, ETC.
10.01. ESTOPPEL CERTIFICATES. Upon request of Landlord or any mortgagee of
Landlord, Tenant shall execute an estoppel certificate, certifying the status of
any facts with respect to the Lease. Estoppel certification may include: whether
the Lease is in full force and effect; the rentals due under the Lease and the
degree to which same have been paid; that there are no defenses or claims
against Landlord for any alleged violation of the Lease by Landlord, or a
statement of such defenses or claims; acknowledgment of the interpretation or
meaning of any term of the Lease, provided such acknowledgement shall not change
any term or provision hereof; and such other matters reasonably requested to be
certified in the estoppel certificate.
10.02 SUBORDINATION, ATTORNMENT, ETC. This Lease and all rights of the
Tenant under the Lease, will be, at the election of any mortgagee of the
Project, either subordinate or superior, all or in part, to the lien of the
mortgagee. Notwithstanding the foregoing or any other provision of this Lease to
the contrary, if there shall be more than one mortgage on the Project, the
rights of Tenant under this Lease shall not be treated as inferior to any
inferior mortgage without the consent of all mortgagees superior in right to the
mortgage to which Tenant's rights are sought to be subordinated. The
subordination provisions in this paragraph shall be self-operative, without the
need for any execution of any other document. In the event any proceeding is
brought for the foreclosure of the Leased Premises, Tenant agrees to attorn to
the mortgagee in the event of strict foreclosure, or to the purchaser in the
event of foreclosure by sale or deed in lieu of foreclosure, and recognize such
mortgagee or purchaser (as the case may be) as the Landlord under this Lease.
Tenant further agrees to execute any further instrument or instruments which
Landlord or Landlord's successors in title may at any time require to evidence
the subordination of this Lease to the lien of any such mortgage or mortgages
and Tenant's agreement to attorn.
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PAGE 13
10.03. EXECUTION OF DOCUMENTS BY TENANT. Tenant will execute and deliver to
Landlord or the party designated by Landlord, within ten days after presentation
of the proposed form, any estoppel certificate and/or subordination, attornment
and/or non disturbance agreement requested to be executed by Tenant pursuant to
the terms of this Lease. Tenant further agrees to include in any such documents,
if requested by Landlord: an agreement not to pay Landlord rent for more than
one month in advance; an agreement to give any mortgagee a notice of any alleged
default by Landlord and a reasonable time for such mortgagee to have such
default cured before Tenant will exercise any right to terminate this Lease; and
an agreement that Tenant will not look to such mortgagee for the return of any
security deposit or other monies not actually received by such mortgagee. If
Tenant shall not have delivered the executed documents, required to be executed
and delivered under this Article, within the ten day period set forth above,
Landlord may give Tenant Notice of Tenant's failure to deliver such documents,
and if Tenant shall then fail to deliver said executed documents within three
business days after delivery of such Notice, notwithstanding any provision for
notice and grace period for default elsewhere contained in this Lease, Tenant
shall be in default of the Lease, and Landlord shall have all rights provided
for in the event of such default including termination. It is acknowledged that
foreseeable damages of Landlord on account of a breach of Tenant's obligations
under this Article may include the loss of and/or additional charge incurred by
Landlord in connection with a sale of the Project or a financing of which the
Project is to serve as collateral.
ARTICLE XI - TENANT'S SECURITY DEPOSIT
11.01. TENANT'S SECURITY DEPOSIT. Tenant's Security Deposit is due and
payable to Landlord upon execution of this Lease. The Security Deposit shall be
security for the full and faithful performance of all obligations of Tenant
under this Lease. The rights and remedies reserved to the Landlord under this
Lease are cumulative, and in the event of a default by the Tenant, the Landlord
shall not be required to resort to the Security Deposit before exercising any
other remedy available to Landlord under this Lease or by law. The Security
Deposit will be refunded without interest to the Tenant promptly following the
expiration of this Lease, except to the extent the Security Deposit has been
applied to any damages of Landlord on account of Tenant's failure to comply with
any obligation of Tenant under this Lease. In no event, except when the Landlord
elects at Landlord's sole option to do so, may the Tenant set off or apply any
part of the Security Deposit against any Rent.
ARTICLE XII - CASUALTY DAMAGE TO PROJECT
12.01. REPAIR OF DAMAGE AND RENTAL ABATEMENT DURING REPAIR PERIOD. If the
Leased Premises or any portion of the Project materially affecting the
appearance or use of the Leased Premises is damaged by fire or other casualty
during the Term, Landlord shall, at Landlord's own expense, use best efforts to
cause the damage to be promptly repaired within a reasonable time, which Period
shall not exceed six months. If by reason of such damage not the fault of
Tenant, any portion of the Leased Premises is thereby rendered untenantable and
Tenant ceases use of said portion of the Leased Premises, the Monthly Base Rent
and Monthly Additional Rent shall be abated in proportion to the area of the
Leased Premises rendered untenantable and which is not used by Tenant, said
abatement to continue until the sooner of the time when the Leased Premises is
repaired or until Tenant uses the damaged portion of the Leased Premises.
Landlord's obligation to restore under this Article shall be limited to the
extent of insurance proceeds made available by any mortgagee having control over
the disposition of such proceeds and shall be limited to not include the
restoration of any portion of the Leased Premises for which Tenant is required
to maintain property insurance under paragraph 8.01. Tenant shall be responsible
to promptly restore any portion of the Leased Premises for which Tenant is
required to maintain property insurance under paragraph 8.01.
12.02. TERMINATION FOR FAILURE TO REPAIR. If the Leased Premises or any
portion of the Project is damaged by fire or other casualty not the fault of
Tenant during the Term, and if said Damage materially adversely affects Tenant's
ability to carry on Tenant's business in the Leased Premises, then if the
portion of the damage that is not Tenant's responsibility to restore is not
repairable or repaired within six months, Landlord or Tenant shall have the
right to be exercised by Notice to the other party to terminate this Lease,
which Notice may not be given later than any date upon which the damage has been
substantially repaired. Upon the giving of such termination Notice, the Term
shall immediately come to an end by lapse of time.
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ARTICLE XIII - EMINENT DOMAIN
13.01. TERMINATION ON ACCOUNT OF TAKING. If any portion of the Leased
Premises or any portion of the Project materially affecting the appearance or
use of the Leased Premises is taken in condemnation proceedings or by any right
of eminent domain, this Lease shall terminate by lapse of time, as if the Term
had always ended on the effective date of the vesting of title in the condemning
authority.
13.02. TENANT NOT ENTITLED TO LANDLORD'S AWARD. In the event any portion of
the Project is taken in condemnation proceedings or by any right of eminent
domain or is transferred by Landlord under the threat of and in lieu of the
exercise of the power of eminent domain, all proceeds of any award, judgment or
settlement payable by the taking, condemning or transferee authority shall be
and remain the sole and exclusive property of Landlord, and Tenant waives any
right to make any claim to said award, judgment or settlement received by
Landlord. Tenant may pursue Tenant's own claim against the condemning authority
permitted by statute to be paid to Tenant without diminishing or reducing the
award, judgment or settlement payable to Landlord.
ARTICLE XIV - LANDLORD'S LIABILITY LIMITATIONS
14.01. LIMITATIONS REGARDING SECURING CLAIMS. In the event of any alleged
default of Landlord, Tenant agrees that Tenant will not seek to secure any claim
for damages or indemnification by any attachment, garnishment or other security
proceeding against any property of the Landlord other than the Project, or, if
sold, any sales proceeds of the Project, and in the event Tenant obtains any
judgment against Landlord by virtue of an alleged default of Landlord, Tenant
agrees that Tenant will not look to any property or Landlord other than the
Project, or if sold, any sales proceeds, for satisfaction of such judgment. In
no event will Tenant be entitled to recover against Landlord, or prosecute or
maintain any action for the recovery against Landlord of, any consequential
damages and/or business interruption damages against Landlord on account of any
act or omission of Landlord which constitutes a breach of this Lease by
Landlord.
14.02. TRANSFER OF LANDLORD'S INTEREST IN PROJECT. Upon any transfer of
Landlord's interest in the Project, the then transferor Landlord shall be
relieved of any and all liability to Tenant arising from and after the transfer,
and the transferee Landlord shall not be liable to Tenant for any liability
arising prior to the transfer. Notwithstanding the foregoing, if any condition
shall exist on the date of transfer which would entitle Tenant to terminate this
Lease or the continuance of which would entitle Tenant to terminate this Lease
after the passage of time, unless the condition is corrected within any time
allowed under this Lease or by law, the transfer shall not affect Tenant's right
to terminate.
14.03. NO LIABILITY FOR THEFT, ETC. All property of Tenant in the Project
shall be kept at Tenant's own risk, and Landlord shall not be responsible for
any theft of Tenant's property or any property of any agent, servant, employee,
contractor or invitee of Tenant, unless the theft is committed by Landlord, and
Tenant shall indemnify and hold Landlord harmless from any claim against
Landlord by any agent, servant, employee, contractor or invitee of Tenant based
upon any allegation of theft for which Landlord's liability is disclaimed under
this paragraph.
ARTICLE XV - DEFAULTS AND ENFORCEMENT OF LEASE
15.01. EVENTS OF DEFAULT BY TENANT. Tenant will be in default of Tenant's
obligations under the Lease upon the happening of any of the following:
(a) If any payment of Rent has not been made within 5 business days
after Notice to Tenant that the payment has not been received by
Landlord on or before its due date.
(b) If Tenant shall commit a default on account of a failure to execute
and deliver any estoppel or subordination, non disturbance and/or
attornment agreement in the manner provided in Article X.
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PAGE 15
(c) If Tenant shall commit a default on account of a failure to
discharge a mechanic's lien in the manner provided in paragraph
6.02.
(d) The failure to cure any non compliance with the obligations for the
continuous operation of Tenant's business set forth elsewhere in
this Lease, if any, within 5 business days after Notice from
Landlord for a first violation in any one year, 2 business days for
a second violation in any one year and any violation thereafter,
without Notice for a third or more violation in a one year period.
(e) The failure to cure within 30 days after Notice to Tenant the non
compliance by Tenant with any other obligation of Tenant under this
Lease, except that in the case of an obligation not capable of being
cured within said 30 day period (determined without regard to the
cost or ability to pay for compliance), Tenant will not be in
default as long as Tenant has commenced the cure of the non
compliance reasonably promptly after the Notice and is continuously
thereafter diligently proceeding to complete the cure.
15.02. REMEDIES ON ACCOUNT OF DEFAULT. In the event of default by Tenant,
then Landlord may terminate this Lease and recover possession of the Leased
Premises, and Landlord may exercise any other remedy available under the law to
Landlord on account of a breach of lease by a tenant.
15.03. COSTS OF ENFORCING LEASE. Landlord shall be entitled to
reimbursement from Tenant of the reasonable costs of enforcement of this Lease
incurred by Landlord (including a reasonable attorney's fee) in any action or
proceeding (whether or not suit is brought) of Landlord to enforce the
provisions of this Lease on account of any failure of Tenant to adhere to
Tenant's obligations under this Lease, provided that Landlord prevails in such
action or proceeding.
15.04. JURY WAIVER, FORUM AND VENUE. Landlord and Tenant waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
against the other of any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Leased Premises, and/or claim of injury or damage. In any
dispute between the parties relating to the tenancy hereby created, unless the
parties shall agree otherwise, the exclusive forum for any such legal action
shall be the Connecticut state court hearing landlord and tenant disputes, with
venue based on the location of the Leased Premises and not the residence or
location of the parties.
ARTICLE XVI - VACATING AT END OF TERM, HOLDING OVER
16.01. VACATING LEASED PREMISES AT END OF TERM. At the expiration of the
Term, whether by lapse of time or for any other reason, Tenant will surrender
the Leased Premises to Landlord. the condition of which upon the surrender shall
be broom clean, free of all personal property and in good repair, reasonable
wear and tear excepted. All keys to any doors at the Leased Premises shall be
turned over to Landlord upon the surrender, and Tenant shall provide Landlord
with any other means for opening any other locks (safes, vaults, etc.) at the
Leased Premises upon the surrender. Prior to the surrender: Tenant shall remove
all of Tenant's trade fixtures, unless Landlord shall Consent to the retention
of any trade fixture; Tenant will remove any alteration that had made in the
Project by Tenant without Landlord's Approval; and Tenant will repair and/or
restore the Leased Premises and/or Project as a result of any removal of any
fixture or improvement removed by Tenant. Without diminishing Tenant's
responsibility to remove items from and repair damage in the Leased Premises at
the end of the Term, if, prior to Tenant's vacating of the Leased Premises,
Tenant fails to remove any item of personal property or any trade fixtures or
improvement that it is Tenant's responsibility to removed, all such item will
become the property of Landlord.
16.02. HOLDING OVER. If Tenant shall hold over beyond the end of the Term
with the Consent of Landlord, then the provisions of the hold over tenancy shall
be the same provisions set forth in this Lease governing the rights and
obligations of the parties during the Term, except that: the tenancy shall be on
the basis of a month to month tenancy, terminable by Landlord immediately by
issuance of a notice to quit possession, as long as the quitting date is at
least 8 days after the giving of the notice to quit; there shall be no rights or
options in Tenant to extend the Term, increase or decrease the size of the
Leased Premises, purchase any portion of the Project, exercise
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PAGE 17
any right of refusal to any leasing or sale of any portion of the Project or any
similar rights that may have been in effect during the Term; and the Monthly
Base Rent for the hold over shall be the Monthly Base Rent in effect immediately
prior to the end of the Term, which shall be increased in the same manner as the
Monthly Base Rent had been increased by any formula or with any regular
frequency during the Term. If Tenant shall not have vacated the Leased Premises
on or before the end of the Term and does not have Landlord's Consent to remain
in the Leased Premises, the failure to vacate shall not be treated as a hold
over for any further term and it is agreed that the use and occupancy damages
for which Tenant will be liable during any such period of occupancy will be the
amount that would have been payable as Additional Rent had this Lease remained
in effect during the period of occupancy plus an amount equal to twice the
Monthly Base Rent in effect at the end of the Term.
ARTICLE XVII - MISCELLANEOUS PROVISIONS
17.01. NO WAIVER OF OBLIGATIONS. The waiver by Landlord or Tenant of any
breach by or obligation of the other party of any provision in this Lease shall
not be deemed to be a waiver of any other breach or obligation. The acceptance
of any Rent by Landlord or the payment thereof by Tenant shall not be deemed to
be a waiver of any breach by any party. No payment by Tenant or receipt by
Landlord of any payment which is less than the amount due shall be deemed to be
a waiver of any right to obtain payment of the full amount due, and Landlord may
apply any payment by Tenant to any charge owed by Tenant to Landlord under the
provisions of this Lease, and no restrictive endorsement, statement of Tenant or
any other attempt by Tenant to restrict the application of the payment in any
contrary manner shall be operative or effective, and no endorsement on any check
or payment made by or on the behalf of Tenant shall be deemed as any accord and
satisfaction for any obligation, other than satisfaction of the charge to which
Landlord has applied the payment. No waiver of any breach or obligation of any
party shall be effective unless in writing by the party charged with the waiver.
17.02. ENTIRE AGREEMENT. This Lease, including any exhibits attached to it
or referenced by it, constitute the entire agreement between the parties as to
this leasing, and there are no covenants, promises, agreements, conditions or
understandings, either oral or written between the parties other than those
contained in or specifically referenced by this Lease. No subsequent alteration,
amendment, change or addition to this Lease shall be binding upon either party
unless in writing by the party to be charged.
17.03. SEVERABILITY. The provisions of this Lease are severable, and if any
provision shall be determined to be invalid or unenforceable, the provision
shall be enforced to the extent permitted by law and, to the extent any
provision or portion thereof remains unenforceable or invalid, it shall be
severed from this Lease and the remainder of the Lease shall be valid and
enforced to the fullest extent permitted by the law.
17.04. HEADINGS NOT TO LIMIT EFFECT OF LEASE. The headings for the articles
and paragraphs of this Lease are inserted for ease of reference only and no such
heading shall be interpreted to limit the operation of any language contained in
the article or paragraph following the heading. All language in this Lease shall
be given its full operative effect, regardless of the article or paragraph in
which it is located and regardless of its location, proximity or lack of
proximity to any other related or unrelated provisions.
17.05. DATES. If the Initial or Actual Commencement Date or any other date
of which any obligation or event in this Lease is dependent is not a date
certain, the Commencement Date shall in no event be later than a time which
would not violate any applicable rule against perpetuities, determined as if all
relevant lives in being ceased as of the date of execution of this Lease.
17.06. FORCE MAJEURE. In the event that Landlord or Tenant shall be delayed
in, hindered in, or prevented from, the performance of any act required under
the provisions of this Lease, except for the payment of money, by reason of
strikes, lockouts, labor troubles, inability to procure materials, failure of
power, restrictive governmental laws or regulations, riots, insurrection, war or
other reason of a like nature not the fault of the party whose act is delayed
("Force Majeure"), then as long as the party whose act is delayed is using best
efforts to avoid the delay and the effect of the Force Majeure, then performance
of such act shall be excused for the period of the delay.
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PAGE 17
17.07. LANDLORD'S ENTRY INTO LEASED PREMISES. Landlord and Landlord's
agents and other representatives shall have the right to enter into and upon the
Leased Premises at all reasonable hours, upon reasonable advance written or
verbal notice to Tenant and consistent with Tenant's security requirements, for
the purpose of examining the Leased Premises or making such repairs or
alterations therein as may be necessary, in Landlord's reasonable discretion,
for maintaining the Project in a condition of safety and good repair. Landlord's
entry under this paragraph may be made at any hour and without notice in the
case of emergency. During any period in which Tenant is in possession of the
Leased Premises, Tenant will provide Landlord with a key or set of keys and any
other means necessary for Landlord to gain emergency access to the Leased
Premises in accordance with the provisions of this Paragraph, and Tenant shall
update the key, keys or other means of access on hand with Landlord at any time
the locks to the Leased Premises are changed.
17.08. SHOWING OF LEASED PREMISES. Tenant will permit Landlord and
Landlord's agents to show the Leased Premises to any prospective purchaser of
the Project at reasonable hours and upon advance written or verbal notice to
Tenant. During any period in which there are less than 6 months remaining in the
Term, Tenant will permit Landlord and Landlord's agents: to show the Leased
Premises to any prospective tenant for the Leased Premises at reasonable hours
and upon advance written or verbal notice to Tenant; and to place a sign on the
front of the Leased Premises offering the same for lease, so long as it does not
interfere with any of the Tenant's signage permitted under other provisions of
this Lease.
17.09. NO RESERVATION OR OFFER. The submission of this Lease for
examination does not constitute a reservation of the Leased Premises, and option
to lease the Leased Premises or in any other manner an offer by Landlord, unless
and until it is executed by Landlord and delivered to Tenant.
17.10. NO RECORDING. Tenant shall not record this Lease, but Landlord
agrees to execute a notice of lease in accordance with the Connecticut General
Statutes regarding the recording of notices of lease. Tenant may record the
notice of lease. If Tenant violates this paragraph, then notwithstanding any
other provision in this Lease to the contrary, Landlord may, at Landlords
election, without any further Notice or cure period, terminate the Lease on
account of the breach.
17.11. JOINT AND SEVERAL LIABILITY. The references to Tenant and Landlord
in this Lease mean all persons or entities comprising Tenant or Landlord at any
given time, and if Tenant or Landlord shall consist of more than one person or
entity, the obligations of each person or entity shall be joint and several with
all other persons or entities comprising Tenant or Landlord, as applicable.
17.12. CHOICE OF LAW. Connecticut law shall apply to all state law matters
arising under this Lease.
ADDITIONAL TERMS:
- Effective on the Initial Lease Commencement Date, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a
member of the Landlord, shall cancel a lease between Tenant and ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ LLC, an affiliate of Landlord, dated October 30, 1996 for the lease of
space in a building located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.
Tenant agrees to vacate the space in the ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ building on or
before the Initial Commencement Date and the lease for that space will come to
an end by lapse of time.
- Payment of rent and all associated costs will be waived for the first month
following the initial lease commencement date.
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PAGE 18
IN WITNESS WHEREOF, each party has caused this Lease to be executed on the
date below written, the date of the Lease being as of the date set forth on the
face page, if different than the date of execution for either party.
Landlord Tenant
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------- -----------------
Lot 4 LLC Acorn Information Services, Inc.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Member Its: CEO
Date: January 5, 1998 Date: 12/12/91
Subscribed and Sworn to before me, a Notary
Public, in and for County of Fairfield and State
of Connecticut, this 17 day of December, 1997.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇
--------------------------
Notary Public
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇
Notary Public
My Commission Expires June 30, 2002
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PAGE ▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇/▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ of Fairfield
Personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, signer and sealer of the foregoing
instrument, who acknowledged himself or herself to be the CEO of Acorn
Information Services, Inc. and the execution to be his or her free act deed and
the duly authorized free act and deed of his, before me, this 17 of December,
1997.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇
--------------------------
Notary Public
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇
Notary Public
My Commission Expires June 30, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇/▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ of Fairfield
Personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, signer and sealer of the foregoing
instrument, who acknowledged the same to be his free act and deed, before me,
this 5/th/ day of January, 1998.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Notary Public
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public
My Commission Expires July 31, 1998
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PAGE 20
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EXHIBIT C
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ADDITIONAL LEASE PROVISIONS REGARDING
LANDLORD'S INITIAL FIT-OUT WORK
1. Tenant shall, within 2 weeks of the date on which this Lease is
executed by Tenant, deliver to Landlord final and complete dimensional
architectural and mechanical drawings and specifications for partitions,
layouts, including openings, ceiling and lighting layouts, electrical outlets,
finishing schedule, and any and all other information as may be necessary to
complete the Leased Premises, or approve in writing of the architectural plans
prepared by Landlord's architect, with the exception of flooring selection,
color choices and other finish materials selection (the "Initial Fit-Out
Plans"). Tenant shall, within 2 weeks after Tenant has delivered the above plans
to Landlord or approved of the plans that Landlord's architect has prepared,
make, in writing, flooring selection, color choices and other finish materials
selections which have not been specified in the above plans. Notwithstanding any
provision for determination of the Commencement Date elsewhere set forth in this
Lease, if Tenant shall fail to either submit or approve of the Initial Fit-Out
Plans or make the flooring selection, color choices and other finish materials
selections within the time periods set forth above, Landlord may, at Landlord's
option, set the Commencement Date as the later of the date specified as the
Commencement Date or estimated Commencement Date in the Lease; or the 74th day
from the date the Lease is executed by Tenant.
2. Tenant's Initial Fit-Out Plans shall be reviewed by Landlord's
architect and shall include both Building Standard Work (as hereinafter defined)
and Special Work (that work in excess of Building Standard Work) and shall be
consistent with the design, construction and equipment of the Building. Such
plans shall show the location and extent of any excess floor loading and all
special requirements for air conditioning, plumbing and electricity, and the
estimated total electrical load. Unless otherwise provided, Tenant may make use
of Landlord's architectural services, within reasonable limits, for development
of Tenant's Initial Fit-Out Plans, without charge to Tenant. Tenant's Fit-Out
Plans are expressly subject to Landlord's written approval, which Landlord will
not unreasonably withhold.
3. Landlord shall perform the construction and/or remodeling work set
forth in the Initial Fit-Out Plans, except expressly indicated otherwise
elsewhere in this Lease or on the Initial Fit-Out Plans ("Landlord's Fit-Out
Work"). Landlord's Initial Fit-Out Work shall be carried out in a workmanlike
manner, in compliance with all applicable building codes.
4. Landlord shall bear the cost of all Building Standard Work. Tenant
shall pay for the cost of any part of Landlord's Initial Fit-Out Work
constituting Extra Work. No allowance shall be made for the omission of any
Building Standard Work except as specifically set forth herein. "Extra Work" is
any portion of Landlord's Initial Fit-Out Work in excess of Building Standard
Work. "Building Standard Work" that portion of Landlord's Initial Fit-Out Work
consistent with the following:
a. Partitions of at least 5/8" sheetrock to hung ceiling, mounted on
steal or wood studs to provide for the reasonable subdivision of the
Leased Premises at a rate not exceeding six straight lineal feet of
such partitioning per 100 square feet of rentable floor area or
fraction thereof. Sheetrock walls and/or windows shall be provided to
all Leased Premises boundary walls, and on walls separating other
space in the building, shall run to structure above ceiling;
b. Doors at least 7' - 0" high and -3' - 0" wide of wood
construction, with metal frames, including latch sets and doorstops,
at the rate of not more than one door per 500 square feet of rentable
floor area or fraction thereof and, in the case of the entrance door
to the Leased Premises, one lock set and door closer;
c. Flooring; commercial grade carpeting throughout the Leased
Premises, consisting of 100% nylon static control, 30 ounce, cut pile,
10 year guaranty, Patchcraft brand, or equal.
d. Painting of all wall surfaces, doors and trim, included in
Building Standard Work, with not more than one color in each room,
with two or three coats as necessary. The colors shall be selected by
Tenant from a spectrum of colors supplied by Landlord.
e. Electrical distribution system sufficient to provide for a
lighting load of 2 ▇▇▇▇▇ per square foot of useable floor area, or
fraction thereof, plus an additional electrical load of 2 ▇▇▇▇▇ per
square foot of useable floor area or fraction thereof for electrical
receptacles, at the rate of not more than one duplex receptacle for
each 125 square feet of rentable floor area or fraction thereof.
Lighting fixtures of not more than one fixture (a four 40-watt tube
fixture, measuring two feet by four feet with acrylic lenses) per 125
square feet of useable floor area or fraction thereof. Light switches
provided as per applicable building code. Perimeter offices shall have
separate switches.
f. Ceiling of 2 foot by 4 foot lay-in suspended acoustical the with
▇▇▇▇▇▇▇▇▇ "Second Look" tile or equivalent.
g. Heating, Ventilating and Air Conditioning systems in general
shall consist of gas heating and electric cooling. Building standard
HVAC shall allow the following conditions to be maintained: In the
cooling season, interior conditions of not more than 78 degrees F. Dry
Bulb, and 50% relative humidity when the outside temperature is not
more than 90 degrees F, Dry Bulb, and 77 degrees F, Wet Bulb; and in
the heating season, not less than 68 degrees F. Dry Bulb, when the
outside temperature is not less than 0 degrees F, Dry Bulb.
Maintenance of these conditions is contingent on the sources of heat
within the Leased Premises not exceeding one person per 100 square
feet of useable floor area, or fraction thereof, and four ▇▇▇▇▇ of
electrical consumption for all purposes, including lighting and power,
per square foot of useable floor area, or fraction thereof. If and to
the extent that the sources of heat in the Leased Premises exceed the
aforesaid design criteria, any additional cost incurred by the
Landlord in furnishing and operating equipment capable of meeting the
heating or air conditioning performance criteria set forth above shall
be reimbursed to Landlord by Tenant.
5. Payment for the cost of any Extra Work shall be required to be made in
installments, as the work progresses, 1/3 upon delivery of an estimate therefore
by Landlord, 1/3 upon substantial completion of the sheetrock, and 1/3 upon
substantial completion of the Extra Work. Each progress payment due within 15
days after presentment of an invoice therefore from Landlord. In the event any
progress or payments shall be late beyond their 15 day due dates, Landlord may
accelerate the Commencement Date by the number of days each payment is late
beyond its due date, regardless of whether the Leased Premises construction is
completed by the Commencement Date.
6. All telephone equipment and data processing wiring for any computer
system that Tenant may desire in the Leased Premises, as well as any other work
not constituting a part of Landlord's Initial Fit-Out Work, shall be installed
by Tenant, at Tenant's sole cost and expense. Landlord will give access to the
Leased Premises to decorators and other contractors employed by Tenant for the
purpose of making such improvements therein, when so long as, in Landlord's
reasonable judgment, the work to be done in the Leased Premises by Landlord as
provided herein shall have been completed to such an extent that the making of
such improvements will not interfere with or delay Landlord's performance of the
remaining portion of its work, it being understood that Tenant shall not be
deemed to have entered into occupancy of the Leased Premises by reason of the
presence in the Leased Premises of any decorator or other contractor. If at any
time such entry shall cause disharmony, delay or interference with Landlord's
performance of the remaining portion of the work, this license may be withdrawn
by Landlord immediately upon notice to Tenant.
7. Notwithstanding anything in this Lease to the contrary, if Landlord
shall be delayed in completing Landlord's Initial Fit-Out Work or if Landlord
shall be otherwise delayed in obtaining a certificate of occupancy for the
Leased Premises, and if such delay is caused by the failure of Tenant to provide
reasonable turn around time on architectural decisions to be made by Tenant, or
the failure of Tenant to provide items to the Leased Premises on time which are
Tenant's responsibility, then the Commencement Date shall be the date on which
the Leased
Premises would have been ready but for the delay due to Tenant. Further, in the
event Landlord shall be delayed in obtaining delivery of any item specially
ordered for Tenant's Leased Premises in accordance with Tenant's Initial Fit-Out
Plans and if such delay shall cause a delay in the completion of Landlord's
Initial Fit-Out Work, the Commencement Date shall be the date on which Landlord
would have been able to complete Landlord's Initial Fit-Out Work but for the
delay in obtaining the specially ordered item. Landlord shall use best efforts
to obtain prompt delivery of all items required for completion of Landlord's
Initial Fit-Out Work in time to complete the Leased Premises on time. In the
event, however, that Landlord shall foresee difficulty in obtaining timely
delivery of any such specially ordered item referred to above, Landlord shall
notify Tenant of this condition, and Tenant shall have the option of obtaining
delivery of said item through Tenant's own source or replacing the item for
which timely delivery is not obtainable with an item with an earlier delivery
date.
8. Notwithstanding anything in this Exhibit C to the contrary, Landlord's
Fit-Out Work shall be carried out in accordance with "Building
Standard Work" specifications and with the exception Landlord shall
furnish sufficient quantities of the Building Standard Work items in
order to complete Landlord's Fit-Out Work, without regard to any
quantity limitations set forth in paragraph 4 above.