Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 146 767K
2: EX-3.1 Restated Certificate of Incorporation 29 135K
3: EX-3.3 By-Laws of the Registrant 16 79K
4: EX-10.1 1997 Stock Option Plan 13 55K
13: EX-10.10 Form of Option Stockholders Agreement 9 48K
14: EX-10.11 Stock Purchase Agreement Dated March 9, 1998 39 183K
15: EX-10.12 Stock Purchase Agreement Dated September 9, 1998 24 114K
16: EX-10.13 Stock and Warrant Purchase Agreement 31 143K
17: EX-10.14 Stock Purchase Agreement Dated May 17, 2000 22 118K
18: EX-10.15 Stock Purchase Agreement Dated May 17, 2000 29 161K
19: EX-10.16 Form of Warrant Delivered to the Purchasers 18 80K
20: EX-10.17 Shareholder Agreement 27 65K
21: EX-10.18 Amendment to Shareholders Agreement 4 30K
22: EX-10.19 Amended and Restated Shareholders Agreement 13 69K
5: EX-10.2 1999 Stock Option Plan 12 55K
23: EX-10.20 Walker and Jaeckle Shareholder Agreement 15 43K
24: EX-10.21 Stock Option Agreement 5 38K
25: EX-10.22 Amended and Restated Stockholders Agreement 46 188K
26: EX-10.23 Amend. #1 to Amended & Restated Stockholders Agmt 5 27K
27: EX-10.24 Amend #2 Waiver of Amended & Restated Stockholders 5 28K
28: EX-10.25 2nd Amended & Restated Stockholders Agmt 43 211K
29: EX-10.26 Amended & Restated Registration Rights Agmt 38 137K
30: EX-10.27 Amend #1 to Amended & Restated Registration Rights 4 28K
31: EX-10.28 2nd Amended & Restated Registration Rights 29 130K
32: EX-10.29 Indemnification Agreement 11 43K
6: EX-10.3 2000 Stock Incentive Plan 7 45K
33: EX-10.31 Guarantee Signed by Time, Inc. 1 17K
34: EX-10.32 Letter Agreement 3 24K
35: EX-10.33 Consulting Agreement 9 45K
36: EX-10.34 Employment Agreement 4 27K
37: EX-10.35 Letter Agreement 3 25K
38: EX-10.36 Employment Agreement 2 23K
39: EX-10.37 Subordinated Promissory Note 3 25K
40: EX-10.38 Subordinated Promissory Note 3 25K
41: EX-10.39 Subordinated Promissory Note 3 25K
7: EX-10.4 Form of Non-Qualified Stock Option Agreement 3 26K
42: EX-10.40 Subordinated Promissory Note 3 25K
43: EX-10.41 Promissory Note 2 20K
44: EX-10.42 Promissory Note 2 20K
45: EX-10.43 Promissory Note 2 20K
46: EX-10.44 Promissory Note 2 20K
47: EX-10.45 Promissory Note 2 20K
48: EX-10.46 Promissory Note 2 20K
49: EX-10.47 Loan Exchange Agreement 5 28K
50: EX-10.48 Revolving Promissory Note 3 25K
51: EX-10.49 Credit Agreement 47 170K
8: EX-10.5 Form of Option Shareholders Agreement 15 46K
52: EX-10.50 Promissory Note 3 21K
53: EX-10.51 Promissory Note 3 22K
54: EX-10.52 Lease 80 323K
55: EX-10.53 Lease 64 277K
56: EX-10.54 Settlement Agreement 8 51K
57: EX-10.55 Sales Representative Agreement 18 59K
58: EX-10.56 Limited Liability Company Agreement 25 102K
59: EX-10.59 Letter Agreement 2 20K
9: EX-10.6 Form of Non-Qualified Stock Option Agreement 3 26K
60: EX-10.60 Master Agreement 13 69K
61: EX-10.61 Revolving Promissory Note 4 25K
10: EX-10.7 Form of Option Shareholders Agreement 10 43K
11: EX-10.8 Form of Nonstatutory Stock Option Agreement 6 35K
12: EX-10.9 Form of Incentive Stock Option Agreement 6 35K
62: EX-16.1 Letter Regarding Change in Certifying Accountant 1 16K
63: EX-21.1 Subsidiaries of the Registrant 1 15K
64: EX-23.1 Consent of Arthur Andersen LLP 1 15K
65: EX-27.1 Financial Data Schedule 2 18K
| Page | (sequential) | | | | (alphabetic) | Top |
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- Alternative Formats (Word, et al.)
- ARTICLE 11 Compliance with Laws and Requirements of Public Authorities
- ARTICLE 12 Insurance
- ARTICLE 13 Rules and Regulations
- ARTICLE 14 Alterations and Tenant's Property
- ARTICLE 15 Repairs and Maintenance
- ARTICLE 16 Electrical Energy
- ARTICLE 17 Heat, Ventilation and Air Conditioning
- ARTICLE 18 Landlord's Other Services
- ARTICLE 19 Access, Changes In Building Facilities, Name
- ARTICLE 1 Demise, Premises, Term, Rents
- ARTICLE 20 Shoring, Notice of Accidents, etc
- ARTICLE 21 Non-Liability and Indemnification
- ARTICLE 22 Destruction or Damage
- ARTICLE 23 Eminent Domain
- ARTICLE 24 Surrender
- ARTICLE 25 Conditions of Limitation
- ARTICLE 26 Re-entry by Landlord - Default Provisions
- ARTICLE 27 Damages
- ARTICLE 28 Waivers
- ARTICLE 29 No Other Waivers or Modifications
- ARTICLE 2 Use
- ARTICLE 30 Curing Tenant's Defaults
- ARTICLE 31 Consents - Broker
- ARTICLE 32 Notices
- ARTICLE 33 Arbitration
- ARTICLE 34 Estoppel Certificate, Memorandum
- ARTICLE 35 No Other Representations, Construction, Governing Law
- ARTICLE 36 Parties Bound
- ARTICLE 37 Certain Definitions and Constructions
- ARTICLE 38 Subordination and Miscellaneous
- ARTICLE 39 (Intentionally Omitted)
- ARTICLE 3 Preparation of the Demised Premises
- ARTICLE 40 Rider
- ARTICLE 4 When Demised Premises Ready for Occupancy
- ARTICLE 6 Adjustments of Rent for Changes In Real Estate Taxes
- ARTICLE 7 Adjustment of Rent for Changes In Operating Costs
- ARTICLE 8 Subordination, Attornment, Notice to Lessor and Mortgagees
- ARTICLE 9 Quiet Enjoyment
- Landlord
- Lease
- Rules and Regulations
- Table of Contents
- Tenant
- Tenant Work
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| 1 | 1st Page - Filing Submission
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| " | Lease
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| 2 | Table of Contents
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| 4 | ARTICLE 1 Demise, Premises, Term, Rents
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| 5 | ARTICLE 2 Use
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| 7 | ARTICLE 3 Preparation of the Demised Premises
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| " | ARTICLE 4 When Demised Premises Ready for Occupancy
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| 8 | ARTICLE 6 Adjustments of Rent for Changes In Real Estate Taxes
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| 10 | ARTICLE 7 Adjustment of Rent for Changes In Operating Costs
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| 11 | ARTICLE 8 Subordination, Attornment, Notice to Lessor and Mortgagees
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| 12 | ARTICLE 9 Quiet Enjoyment
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| 16 | ARTICLE 11 Compliance with Laws and Requirements of Public Authorities
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| 17 | ARTICLE 12 Insurance
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| 18 | ARTICLE 13 Rules and Regulations
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| 19 | ARTICLE 14 Alterations and Tenant's Property
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| 20 | ARTICLE 15 Repairs and Maintenance
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| 21 | ARTICLE 16 Electrical Energy
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| 22 | ARTICLE 17 Heat, Ventilation and Air Conditioning
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| " | ARTICLE 18 Landlord's Other Services
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| 24 | ARTICLE 19 Access, Changes In Building Facilities, Name
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| 25 | ARTICLE 20 Shoring, Notice of Accidents, etc
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| 26 | ARTICLE 21 Non-Liability and Indemnification
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| 27 | ARTICLE 22 Destruction or Damage
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| 28 | ARTICLE 23 Eminent Domain
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| 29 | ARTICLE 24 Surrender
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| " | ARTICLE 25 Conditions of Limitation
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| 30 | ARTICLE 26 Re-entry by Landlord - Default Provisions
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| 31 | ARTICLE 27 Damages
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| 32 | ARTICLE 28 Waivers
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| 33 | ARTICLE 29 No Other Waivers or Modifications
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| " | ARTICLE 30 Curing Tenant's Defaults
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| 34 | ARTICLE 31 Consents - Broker
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| " | ARTICLE 32 Notices
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| 35 | ARTICLE 33 Arbitration
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| 36 | ARTICLE 34 Estoppel Certificate, Memorandum
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| 37 | ARTICLE 35 No Other Representations, Construction, Governing Law
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| " | ARTICLE 36 Parties Bound
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| " | ARTICLE 37 Certain Definitions and Constructions
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| 40 | ARTICLE 38 Subordination and Miscellaneous
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| " | ARTICLE 39 (Intentionally Omitted)
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| " | ARTICLE 40 Rider
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| 41 | Landlord
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| " | Tenant
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| 44 | Rules and Regulations
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| 47 | Tenant Work
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Exhibit 10.53
HIGH RIDGE PARK ASSOCIATES, LLC
LANDLORD
AND
NewSub Services, Inc.
TENANT
Building No. Five
High Ridge Park
Stamford, Connecticut
_______________
LEASE
_______________
Dated: 4/16/98
Table of Contents
-----------------
[Download Table]
Page
----
ARTICLE 1 Demise, Premises, Term, Rents.............................. 1
ARTICLE 2 Use........................................................ 2
ARTICLE 3 Preparation of the Demised Premises........................ 4
ARTICLE 4 When Demised Premises Ready for Occupancy.................. 4
ARTICLE 5 Security Deposit/Limited Guarantee......................... 4
ARTICLE 6 Adjustments of Rent for Changes In Real Estate Taxes....... 5
ARTICLE 7 Adjustment of Rent for Changes In Operating Costs.......... 7
ARTICLE 8 Subordination, Attornment, Notice to Lessor and
Mortgagees............................................... 8
ARTICLE 9 Quiet Enjoyment............................................ 9
ARTICLE 10 Assignment Mortgaging, Subletting.......................... 10
ARTICLE 11 Compliance with Laws and Requirements of Public
Authorities.............................................. 13
ARTICLE 12 Insurance.................................................. 14
ARTICLE 13 Rules and Regulations...................................... 15
ARTICLE 14 Alterations and Tenant's Property.......................... 16
ARTICLE 15 Repairs and Maintenance.................................... 17
ARTICLE 16 Electrical Energy.......................................... 18
ARTICLE 17 Heat, Ventilation and Air Conditioning..................... 19
ARTICLE 18 Landlord's Other Services.................................. 19
ARTICLE 19 Access, Changes In Building Facilities, Name............... 21
ARTICLE 20 Shoring, Notice of Accidents, etc.......................... 22
ARTICLE 21 Non-Liability and Indemnification.......................... 23
ARTICLE 22 Destruction or Damage...................................... 24
ARTICLE 23 Eminent Domain............................................. 25
ARTICLE 24 Surrender.................................................. 26
ARTICLE 25 Conditions of Limitation................................... 26
ARTICLE 26 Re-entry by Landlord - Default Provisions.................. 27
ARTICLE 27 Damages.................................................... 28
ARTICLE 28 Waivers.................................................... 29
ARTICLE 29 No Other Waivers or Modifications.......................... 30
ARTICLE 30 Curing Tenant's Defaults................................... 30
ARTICLE 31 Consents - Broker.......................................... 31
ARTICLE 32 Notices.................................................... 31
ARTICLE 33 Arbitration................................................ 32
ARTICLE 34 Estoppel Certificate, Memorandum........................... 33
ARTICLE 35 No Other Representations, Construction, Governing Law...... 34
ARTICLE 36 Parties Bound.............................................. 34
ARTICLE 37 Certain Definitions and Constructions...................... 34
ARTICLE 38 Subordination and Miscellaneous............................ 37
ARTICLE 39 (Intentionally Omitted).................................... 37
ARTICLE 40 Rider...................................................... 37
i
Table of Contents
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(continued)
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 April 16, 1998 between HIGH RIDGE PARK ASSOCIATES, LLC , a
limited liability company, organized under the laws of the State of Connecticut,
acting herein by Winter Realty Corp., its managing member, and having its office
at One Landmark Square, Stamford, Connecticut 06901 (the "Landlord"), and NewSub
Services, Inc., a Connecticut corporation having its principal office at Four
High Ridge Park, Stamford, CT 06905 (the "Tenant").
ARTICLE 1
Demise, 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. Five 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 13,335 rentable square feet on the
second floor (2nd) in the Building which are outlined on the floor plan(s)
annexed hereto as Exhibit "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 later of
(i) May 4, 1998, or (ii) the first business day following the date the existing
tenant (Nestle Holdings) fully vacates said premises and shall end at midnight
on December 31, 2005 (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. Landlord shall
deliver exclusive possession of the premises to Tenant on the Commencement Date.
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:
[Download Table]
Annual Fixed Monthly Fixed
Lease Years Rent Amount Rent Amount
May 1, 1998 - December 31, 2002 $360,045 $30,003.75
January 1, 2003 - December 31, 2005 $373,380 $31,115.00
payable in equal monthly installments in advance on the first day of
each month 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 two months of fixed base rental only shall be waived
during the first lease year. Said free rent shaft 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 Tenant's 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 assessor's
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 bill, 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 bill 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, 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;
-2-
(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 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 reasonably or 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 or 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 do or 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 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 reviewing
existing conditions in preparation 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 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 subsequent to 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.
ARTICLE 5
Security Deposit
Limited Guarantee
5.01 Upon execution of this Lease, Tenant shall deliver to Landlord a Limited
Guarantee by Michael Loeb 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. Michael Loeb shall provide to
Landlord a certified statement of his assets, liabilities and net worth as of
February 1998. Thereafter, as long as the Guarantee is in effect, upon
Landlord's request (not more than once each year) Michael Loeb shall provide an
updated financial statement as described above. The Landlord shall release
Michael Loeb from the Limited Guarantee referred to in this Article at the end
of the fifth year of the Lease (April 30, 2003) if the Tenant delivers to
Landlord a cash security deposit in the amount of $55,705.
-4-
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 full 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,
1998 to June 30, 1999.
(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 18.82% 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 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 18.82% represents the ratio of the rentable area
of Building Five compared to the rentable area of High Ridge Park.
(e) The term "Tenant's Proportionate Share" shall be 14.22% of all Real
Estate Taxes as described in the above paragraph (d). Landlord
represents that the Building contains 93,771 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.
-5-
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 1st or January 1st (as the case may
be) and each subsequent July 1st and January 1st 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 1st and January 1st, 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.
(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 after the Updated Tax Base 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
Collector's 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.
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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 s 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 excess 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, 1998 to
December 31, 1998.
(b) The term "Operating Year" shall mean successive twelve month periods
commencing January 1, 1999.
(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 14.22%. "Building
Five's Share" of the Common Area of the Park shall be 18.82%.
(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 18.82% of all of
the expenses paid or incurred by Landlord for the operation,
maintenance, 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
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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, 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".
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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.
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.
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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 Tenants 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 Landlord's 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 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
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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 644 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 hereinabove 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 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.
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(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
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
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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 of
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 items 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 Landlord or any such subletting to any other subtenant and/or
acceptance of rent or additional rent by Landlord from any 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 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 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.
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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 policies 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.
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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 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 Tenants 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.
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(e) Tenant shall utilize only security and cleaning services approved in
writing by Landlord, which shall not be unreasonably withheld or
delayed.
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. If carpet is glued down,
then at Landlord's option Tenant may be required to remove the carpet 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. Tenants 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 Tenant's 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 Landlord's 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,
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equipment or other property shall thereupon become the property of Landlord),
unless Landlord shall otherwise expressly consent in writing.
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 at 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.
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15.02 Landlord shall keep and maintain the Building and its fixtures,
appurtenances, systems 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 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 a 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.
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ARTICLE 17
Heat, Ventilation and Air Conditioning
17.01 Landlord has installed in the Demised Premises the Building heating,
ventilating and air conditioning systems. Landlord at its expense shall
maintain and operate the systems and shall furnish heat, ventilation and air
conditioning in the Demised Premises through the systems, in compliance with
such performance specifications, 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 13,335 rentable
square feet approximate $45.75 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.
17.02 Landlord will not be responsible for the failure of the air conditioning
system to meet the building standard performance specifications if such failure
results from the occupancy of the Demised Premises by more than an average of
one person for each 100 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 watts 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 for 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 through 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, (v) 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
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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 Tenant's 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.
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 faith
deems 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 supply 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.
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18.08 Tenant shall, within thirty (30) days after the Commencement Date,
install vertical blinds or drapes at its expense on all windows, such vertical
blinds or drapes to be a solid, light color or having a solid light color lining
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 two (2) specific spaces in
the Lower Level 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 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,
columns 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 by more than two percent (2%)
(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
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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 are 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.
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.
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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 (with respect to personal injury only) 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;
(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
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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 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.
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22.05 Landlord will not carry insurance of any kind 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.
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.
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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 (a) 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:
(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)
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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, or by force and otherwise and may dispossess
and remove Tenant and all other persons and property from the Demised Premises
without being liable to indictment, prosecution or damage therefor, (unless
Landlord acted in violation of law or the terms 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 "re-
enter," "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 by force or otherwise by reason of
default hereunder an 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 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.
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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.
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 admissable 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 any
failure to relet the Demised Premises or any part thereof or for failure to
collect any rent due upon any such reletting.
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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 sums 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.
28.04 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 PREMISES, OR ANY EMERGENCY OR OTHER STATUTORY
REMEDY WITH RESPECT THERETO.
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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.
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)
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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, utility 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 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 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.
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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 shaft have the right to request that
the parties agree to arbitrate before a single arbitrator under the rules of the
American Arbitration Association.
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33.04 The arbitration shall be conducted by three arbitrators appointed in
accordance with 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.
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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.
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(b) The terms "include" and "such as" shall each be construed as if
followed by the phrase "without being limited to."
(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,
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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
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.
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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.
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 defaults 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 39
(Intentionally Omitted)
ARTICLE 40
Rider
40.01 The Rider comprises one (1) page and is attached hereto and hereby made a
part of this Lease.
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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, LLC
/s/ [Illegible] By: Winter Realty Corp.
---------------------
/s/ Colleen Graham /s/ Robert N. Rich
--------------------- --------------------------
Robert N. Rich
Its Managing Member
TENANT:
/s/ Kathleen Santelle NewSub Services, Inc.
---------------------
/s/ Maura E. Evans /s/ Michael Loeb
--------------------- --------------------------
Michael Loeb
Its President
STATE OF CONNECTICUT )
) ss:
COUNTY OF FAIRFIELD )
Before me, the undersigned, this ____ day of _________, 199__, personally
appeared Robert N. Rich, known to me to be the President of Winter Realty Corp.,
its managing member of HIGH RIDGE PARK ASSOCIATES, LLC 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 )
Before me, the undersigned, this ___ day of ___________, 199__, personally
appeared Michael Loeb, 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.
_________________________________
Notary Public/Commissioner of the
Superior Court
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RIDER TO LEASE
BETWEEN
HIGH RIDGE PARK ASSOCIATES, LLC
AND
NewSub Services, Inc.
ARTICLE 39
39.00 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 40
40.00 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.
-39-
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.
B-1
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 and 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 places on the window sills.
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.
8. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the premises.
9. 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.
C-1
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 barber, 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 person entering
and/or leaving the Building during hours other than Business 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.
C-2
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
deliver 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 the 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 other's 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.
C-3
EXHIBIT "D" - WORK LETTER
Tenant Work
Tenant has examined the Demised Premises and except as otherwise set forth
herein, agrees to accept possession of the Demised Premises in an "as is"
condition, and further agrees that Landlord shall have no obligation to perform
any work, supply any materials, incur any expense or make any installations, in
order to prepare the Demised Premises for Tenant's occupancy.
Tenant, through its contractors, shall perform the "Tenant Work," (defined
herein as alterations, construction, installations of wiring for equipment,
carpeting, window treatments and similar improvements to be performed in the
Demised Premises), 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 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 Tenant's 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 Tenants 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
D-1
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 or Landlord, 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.
2.(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 such Tenant's Installations will
not require any structural changes, and further 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 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
Marshall's 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 Marshall and Tenant is aware that certain types of
carpet backing may not meet state and local regulatory requirements.
(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 Teriant'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.
D-2
(e) In the event Tenant or Tenant's contractors 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.
3.(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
$160,020.00 (the "Tenant Improvement Allowance"). The Tenant Improvement
Allowance shall be payable in three (3) equal payments of each within thirty
(30) 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%, (3) substantially complete.
Substantially complete is deemed 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.
3.(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.
3.(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.
3.(d) Portions of the Improvement Allowance shall be paid directly by
Landlord to contractors designated by Tenant, in amounts stipulated in 3.(a).
4. 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.
D-3
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 carded 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:
F. D. RICH MANAGEMENT COMPANY, agent for
High Ridge Park Associates, LLC
Five High Ridge Park
Stamford, Connecticut 06905
D-4
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 re-schedule
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 property 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.
D-5
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.
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:
F. D. RICH MANAGEMENT COMPANY, as agent for
High Ridge Park Associates, LLC
Five High Ridge Park
Stamford, Connecticut 06905
D-6
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 watts
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
Rental 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 1.50
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 13,335 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 any insurance regulations or
recommendations, (2) that, in Landlord's sole 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
E-1
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 bill 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 it's 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 any 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.
E-2
EXHIBIT G
LIMITED GUARANTEE
This Limited Guarantee is executed by Michael Loeb in connection with that
certain Lease for High Ridge Park Associates, LLC ("Landlord") to NewSub
Services, Inc ("Tenant") dated April 16, 1998 with respect to office space
located on the second floor of Building Five, 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, 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 $160,020.
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 $20,863 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 (April 30,
2003) if the Tenant delivers to Landlord a cash security deposit in the amount
of $55,705.
In Witness Whereof, the undersigned executed this Guarantee on April 20,
1998.
/s/ Michael Loeb
------------------------------------
Michael Loeb
G-1
FIRST AMENDMENT TO LEASE
------------------------
AGREEMENT made this 8/th/ day of February, 1999, between HIGH RIDGE PARK
ASSOCIATES, LLC, acting herein by Winter Realty Corp., its Managing Member, and
having its office at One Landmark Square, Stamford, Connecticut 06901 (the
"Landlord"), and NEWSUB SERVICES, INC., a Connecticut Corporation having its
principal office at Four High Ridge Park, Stamford, Connecticut 06905
("Tenant").
W I T N E S S E T H:
On April 16, 1998, Landlord and Tenant entered into a Lease Agreement (the
"Lease") covering 13,335 rentable square feet on the second (2nd) floor of
Building Five, High Ridge Park (hereinafter referred to as the "Initial
Premises").
WHEREAS, Tenant desires to lease an additional 1,504 rentable square feet
on the Second Floor 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 (13,335 rsf), and the Additional Premises (1,504
rsf), annexed hereto as Exhibit A-2.
b) Section 1.03: Add the following:
The term for which the Additional Premises is leased shall be for a
period of approximately seven (7) years, and shall commence on January
1, 1999 (the "Effective Date"), and continue through December 31, 2005
(the "Expiration Date").
c) Section 1.04: Add the following as Section 1.04(d):
Fixed Rent for the Additional Premises is as follows:
Lease Amendment Years SF Rate
---------------------- -------
January 1, 1999 - December 31, 2005 $28.00
d) Section 1.04: Add the following as Section 1.04(e):
Tenant's first three (3) months of fixed base rent only for the
Additional Premises shall be waived. Said free rent shall commence as
of the Effective Date of this Lease.
Promptly following the Effective Date for the Additional Premises,
Landlord shall send to Tenant a notice fixing the Effective Date.
1
2. Article 3: Add the following:
3.05 Additional Premises:
a) Tenant shall take possession of the Additional Premises in an "as-is"
condition. Except as otherwise set forth in the Lease, Tenant 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.
b) Landlord shall provide a Work Letter allowance for application against
the cost of Tenant's Work in the Additional Premises up to $18,048. As
of the Effective Date, Tenant may utilize any portion of the allowance
throughout any portion of the Additional Premises. "Tenant Work" is as
defined in Exhibit "D" of the Work Letter. Landlord's reimbursement of
the allowance shall follow the same format defined in paragraph 3 of
the Work Letter.
3. Article 6 of the Lease is amended to additionally provide:
As of the Effective Date, and with respect to the Additional Premises
only:
(i) The term "Tenant's Proportionate Share" shall be 1.60%.
(ii) The "Tax Base Year" shall be July 1, 1998 to June 30, 1999.
(iii) The initial twelve (12) months of the Lease Amendment 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 Premises only:
(i) The term "Tenant's Proportionate Share" shall be 1.60%.
(ii) The "Base Year" for the Additional Premises shall be January
1, 1999 to December 31, 1999.
(iii) The initial twelve (12) months of the Lease Amendment term
shall be without any increase for operating expense
escalations.
5. 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 14,839 rentable square feet.
6. Article 31.04 Broker:
With respect to the Additional Premises only, Landlord does not recognize
that any Broker interested Tenant in these premises.
2
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.
7. Except as herein modified, all other terms and conditions of the Lease
shall remain in full force and effect.
3
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, LLC
By: Winter Realty Corp., Managing Member
/s/ Jodi Lee Sanchioni
-----------------------------
/s/ [Illegible] /s/ Robert N. Rich
----------------------------- --------------------------------------
Robert N. Rich
Its: President
TENANT:
NEWSUB SERVICES, INC.
_____________________________
/s/ Kathy Santelle /s/ Kevin P. Manion
----------------------------- --------------------------------------
Kevin P. Manion
Chief Financial Officer
4
SECOND AMENDMENT TO LEASE
-------------------------
AGREEMENT made this 15/th/ day of October, 1999 between HIGH RIDGE PARK
ASSOCIATES, LLC, acting herein by Winter Realty Corp., its Managing Member, and
having its office at One Landmark Square, Stamford, Connecticut 06901 (the
"Landlord"), and NEWSUB SERVICES, INC., a Connecticut Corporation having its
principal office at Four High Ridge Park, Stamford, Connecticut 06905
("Tenant").
W I T N E S S E T H:
On April 16, 1998, Landlord and Tenant entered into a Lease Agreement (the
"Lease") covering 13,335 rentable square feet on the second (2nd floor of
Building Five, High Ridge Park (hereinafter referred to as the "Initial
Premises").
WHEREAS, the Lease was amended to include an additional 1,504 rentable
square feet on the Second Floor of the Building, and
WHEREAS, Tenant desires to lease an additional 5,505 rentable square feet
on the Second Floor 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 (13,335 rsf), the First Additional Premises
(1,504 rsf), and the Second Additional Premises (5,505 rsf), annexed
hereto as Exhibit A-3.
b) Section 1.03: Add the following:
The term for which the Second Additional Premises is leased shall be
for a period of approximately six (6) years, 2 months, and shall
commence on the date this Second Amendment is fully executed by both
parties (the "Effective Date"), and continue through December 31, 2005
(the "Expiration Date").
c) Section 1.04: Add the following as Section 1.04(f):
Fixed Rent for the Second Additional Premises is as follows:
Lease Amendment Years SF Rate
--------------------- -------
Effective Date - December 31, 2000 $30.00
January 1, 2001 - December 31, 2003 $31.00
January 1, 2004 - December 31, 2005 $32.00
d) Section 1.04: Add the following as Section 1.04(g)
Tenant's first month of fixed base rent only for the Second Additional
Premises shall be waived. Said free rent shall commence as of the
Effective Date of this Lease.
Promptly following the Effective Date for the Second Additional
Premises, Landlord shall send to Tenant a notice fixing the Effective
Date.
1
2. Article 3: Add the following:
3.06 Second Additional Premises:
a) Tenant shall take possession of the Second Additional Premises in an
"as-is" condition. Except as otherwise set forth in the Lease, Tenant
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.
b) Landlord shall provide a Work Letter allowance for application against
the cost of Tenant's Work in the Second Additional Premises up to
$71,565. As of the Effective Date, Tenant may utilize any portion of
the allowance throughout any portion of the Second Additional
Premises. "Tenant Work" is as defined in Exhibit "D" of the Work
Letter. Landlord's reimbursement of the allowance shall follow the
same format defined in paragraph 3 of the Work Letter.
3. Article 6 of the Lease is amended to additionally provide:
As of the Effective Date, and with respect to the Second Additional
Premises only:
(i) The term "Tenant's Proportionate Share" shall be 5.87%.
(ii) The "Tax Base Year" shall be July 1, 1999 to June 30, 2000.
(iii) The initial twelve (12) months of the Lease Amendment 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 Second Additional
Premises only:
(i) The term "Tenant's Proportionate Share" shall be 5.87%.
(ii) The "Base Year" for the Additional Premises shall be January 1,
1999 to December 31, 1999.
(iii) The initial twelve (12) months of the Lease Amendment term
shall be without any increase for operating expense
escalations.
5. 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 20,344 rentable square feet.
6. Article 31.04 Broker:
With respect to the Second Additional 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.
7. Except as herein modified, all other terms and conditions of the Lease
shall remain in full force and effect.
2
IN WITNESS WHEREOF, the parties hereto have caused this Second 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/ Colleen Opal
------------------------------
/s/ [Illegible] /s/ Robert N. Rich
------------------------------ -----------------------------------------
Robert N. Rich
Its: President
TENANT:
NEWSUB SERVICES, INC.
/s/ Kathleen Santelle
------------------------------
Kathleen Santelle
/s/ Elizabeth L. Welsh /s/ Michael Loeb
------------------------------ -----------------------------------------
Elizabeth L. Welsh Michael Loeb
Its: President
3
Exhibit A-3
Floor Plan
4
Exhibit F
Site Plan
5
Dates Referenced Herein
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