EXHIBIT 10.8.5
THIRD AMENDMENT TO
LINDE DATA CENTER LEASE
THIS AMENDMENT, made as of June 30, 1994, between UNION
CARBIDE CORPORATION (formerly known as UNION CARBIDE CHEMICALS AND
PLASTICS COMPANY INC.), a New York corporation having offices at 39
Old Ridgebury Road, Danbury, Connecticut 06817
("Landlord"), and PRAXAIR, INC. (formerly known as UNION CARBIDE
INDUSTRIAL GASES INC.), a Delaware corporation having offices at 39
Old Ridgebury Road, Danbury, Connecticut 06817 ("Tenant"),
W I T N E S S E T H:
WHEREAS, by Danbury lease Agreement dated as of January 1,
1989, as modified by First Amendment to Linde Data Center Lease
(Danbury) dated as of June 4, 1992 and Second Amendment to Linde
Data Center Lease (Danbury) dated as of July 1, 1992 (collectively,
the "Lease"), Landlord has leased to Tenant certain office space in
the building known as Linde Data Center, Danbury, Connecticut, as
more particularly identified in the Lease (the "Demised Premises");
and
WHEREAS, Landlord is the tenant of Danbury Buildings, Inc.
("Overlandlord"); and
WHEREAS, the parties wish to amend the Lease to clarify the
computation of the Base Rent and the Additional Rent;
NOW, THEREFORE, in consideration of the Lease and the mutual
undertakings set forth herein, Landlord and Tenant hereby amend the
Lease effective as of July 1, 1992 as follows:
1. Section 3.02: In Section 3.02 of the Lease, line 5,
after "Term" insert" all in accordance with section 3.07"; and
delete the second sentence.
2. Section 3.07: Section 3.07 of the Lease shall be
modified to read as follows:
"3.07. Landlord shall furnish to Tenant on or
about December 15 of each year a statement setting
forth (i) the estimated Operating Expenses and Taxes
for the forthcoming Operational Year, and (ii)
Tenant's Proportionate Share of any increase or
decrease in the total aggregate Operating Expenses and
Taxes for the Operational Year (computed on the basis
of such estimate) over the total aggregate Operating
Expenses and Taxes for the Base Year, viz., $11.56.
Tenant shall pay to Landlord, together with each
monthly installment of Base Rent, an amount equal to
one-twelfth (1/12th) of Tenant's Proportionate Share
of any increase in Operating Expenses and Taxes as so
estimated and Landlord shall issue to Tenant a monthly
credit applicable against the Base Rent equal to one-
twelfth (1/12th) of Tenant's Proportionate Share of
any decrease in Operating Expenses and Taxes as so
estimated. Landlord shall furnish to Tenant as soon
as practicable following the close of each Operational
Year a detailed statement setting forth with respect
to such Operational Year (i) the actual amount of the
Operational Expenses and Taxes, and (ii) the actual
amount of Tenant's Proportionate Share of any total
aggregate increase or decrease in Operating Expenses
and Taxes, adjusted to reflect the payments on account
theretofore made by Tenant or credits received from
Landlord; and within thirty (30) days after receipt of
such statement, Tenant shall pay to Landlord the
amount so shown to be payable by Tenant. The
Operating Expenses for any Operational Year which is
only partly within the Term shall be prorated.
Landlord shall refund to Tenant any overpayment of
Operating Expenses and taxes for any Operational Year
within thirty (30) days after presentation of
Landlord's statement of actual Operating Expenses and
Taxes or as soon as practicable after any termination
of this Lease. As of August 1 of each Operational
Year, Landlord shall deliver to Tenant an estimate of
Operating Expenses and Taxes paid or incurred through
June 30 of such Operational Year."
3. Section 3.11: Section 3.11 of the Lease shall be
modified to read as follows:
"3.11. On or before November 1 of any year, Tenant
shall have the right to assume or decline, for the
next succeeding Operational Year, responsibility for
the following categories of Operating Expenses:
cleaning services, in-building security, and such
other categories as may be mutually agreed upon by the
parties. Tenant shall conform to reasonable standards
in performing any such work."
Landlord and Tenant hereby acknowledge that (i) for the 1994
Operational Year, Tenant has duly assumed responsibility for
cleaning and in-building security (as of August 1, 1994); (ii)
administration expenses shall consist only of costs of
administering the Prime Lease and Superior Mortgages as to the
Building, Building maintenance and repairs, and Danbury Operating
Emergency Center activities to the Building; and (iii) Landlord
shall have the right from time to time to audit Tenant's cleaning
activities at the Demised Premises against reasonable standards.
4. Section 3.12: Delete Section 3.12 from the Lease.
5. Section 12.03 (New): The following provision shall
be added to the Lease:
"12.03. Tenant shall have the right to use all
telecommunications and computer wiring in the Building
which now services the Demised Premises, to install
its own telephone switching equipment for the Demised
Premises in Landlord's N-O telephone room in the
Corporate Center located at 39 Old Ridgebury Road,
Danbury, Connecticut (the "Corporate Center"), and to
use the telecommunications cables located between (i)
Old Ridgebury Road and the Demised Premises, (ii) the
Demised Premises and the Corporate Center, and (iii)
the Corporate Center and Old Ridgebury Road. Further,
Tenant shall have the right to repair and replace, or
cause to be repaired and replaced, any such
telecommunications and computer wiring, switching
equipment or cables. Landlord shall cooperate fully
to permit Tenant to receive telecommunications service
at the Demised Premises."
6. Tenant hereby acknowledges that Landlord is not
required by the Lease and does not intend to seek the consent of
Overlandlord with respect to this Amendment.
7. Landlord shall inform Tenant in advance of any
modifications of the Prime Lease with Overlandlord and Landlord
shall give to Tenant a reasonable opportunity to benefit from any
transaction with Overlandlord reducing Landlord's payments to
Overlandlord. Tenant will take no benefit under the Lease from
any decrease in Landlord's payments of Basic Rent, Additional Rent
or other amounts to Overlandlord unless Tenant has contributed in
a mutually agreed proportionate amount to the cost of obtaining
any such decrease. As used herein, "cost" shall include all costs
and expenses incurred by Landlord and related to such reductions,
whether paid to Overlandlord or to others, including but not
limited to, prepayments of Basic Rent or Additional Rent and
payment of transaction costs such as underwriting fees, legal
fees, appraisal fees, survey fees, brokers' fees, or otherwise, of
any nature whatsoever, whether similar or dissimilar to the
foregoing.
8. All terms which are defined in the Lease shall have
the same meaning when used herein.
9. Except as otherwise provided herein, the Lease shall
remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Amendment by their duly authorized officers as of the day and year
first above written.
UNION CARBIDE CORPORATION
By: Robert F.X. Fusaro
Attorney-in-Fact
PRAXAIR, INC.
By: David H. Chaifetz
Vice President