EXHIBIT 10.6
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LEASE AGREEMENT
BY AND BETWEEN
AETNA LIFE INSURANCE COMPANY
("LANDLORD")
AND
AETNA LIFE INSURANCE AND ANNUITY COMPANY
("TENANT")
DATED: AS OF DECEMBER 13, 2000
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TABLE OF CONTENTS
ARTICLE 1. PREMISES...........................................................1
ARTICLE 2. TERM...............................................................2
ARTICLE 3. USE; NUISANCE; HAZARD..............................................2
ARTICLE 4. RENT...............................................................3
ARTICLE 5. TAXES; OPERATING EXPENSES..........................................4
ARTICLE 6. CONDITION OF PREMISES.............................................10
ARTICLE 7. SERVICES TO BE PROVIDED BY LANDLORD...............................11
ARTICLE 8. REPAIRS AND MAINTENANCE; ACCESS; SELF-HELP........................14
ARTICLE 9. TENANT'S EQUIPMENT AND INSTALLATIONS..............................15
ARTICLE 10. FORCE MAJEURE....................................................15
ARTICLE 11. MECHANIC'S AND MATERIALMAN'S LIENS...............................16
ARTICLE 12. INSURANCE........................................................16
ARTICLE 13. QUIET ENJOYMENT..................................................18
ARTICLE 14. ALTERATIONS......................................................18
ARTICLE 15. FURNITURE, FIXTURES, AND PERSONAL PROPERTY.......................21
ARTICLE 16. TENANT'S TAXES...................................................22
ARTICLE 17. ASSIGNMENT AND SUBLETTING........................................22
ARTICLE 18. DAMAGE AND DESTRUCTION...........................................25
ARTICLE 19. CONDEMNATION.....................................................27
ARTICLE 20. INDEMNIFICATION..................................................27
ARTICLE 21. DEFAULT..........................................................28
ARTICLE 22. INTENTIONALLY OMITTED............................................33
ARTICLE 23. OPTIONS TO RENEW.................................................33
ARTICLE 24. ATTORNEYS' FEES..................................................36
ARTICLE 25. NON-WAIVER.......................................................36
ARTICLE 26. RULES AND REGULATIONS............................................36
ARTICLE 27. ASSIGNMENT BY LANDLORD...........................................36
ARTICLE 28. LIABILITY OF LANDLORD............................................37
ARTICLE 29. SUBORDINATION AND ATTORNMENT.....................................37
ARTICLE 30. HOLDING OVER.....................................................38
ARTICLE 33. COMPLIANCE WITH LAWS.............................................41
ARTICLE 34. SEVERABILITY.....................................................42
ARTICLE 35. NOTICES..........................................................42
ARTICLE 36. OBLIGATIONS OF SUCCESSORS; PLURALITY; GENDER.....................43
ARTICLE 37. ENTIRE AGREEMENT.................................................43
ARTICLE 38. ARTICLE AND SECTION CAPTIONS.....................................43
ARTICLE 39. CHANGES..........................................................44
ARTICLE 40. AUTHORITY........................................................44
ARTICLE 41. BROKERAGE........................................................44
ARTICLE 42. EXHIBITS.........................................................45
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ARTICLE 43. APPURTENANCES....................................................45
ARTICLE 44. RECORDING........................................................45
ARTICLE 45. MORTGAGEE PROTECTION.............................................45
ARTICLE 46. TENANT'S LIMITED TERMINATION RIGHT...............................46
ARTICLE 47. RELIEF LIMITED...................................................46
ARTICLE 48. TENANT'S FINANCIAL STATEMENTS/FINANCIAL TESTS....................46
ARTICLE 49. FITNESS CENTER...................................................47
ARTICLE 50. CAFETERIA........................................................47
ARTICLE 51. AUTOMATIC TELLER MACHINES........................................47
ARTICLE 52. ANTENNA EQUIPMENT................................................47
ARTICLE 53. ELECTRICITY......................................................49
EXHIBIT A OUTLINE OF PREMISES
EXHIBIT B SITE PLAN
EXHIBIT C COMMENCEMENT DATE AGREEMENT
EXHIBIT D JANITORIAL AND CLEANING SERVICES
EXHIBIT E RULES AND REGULATIONS
EXHIBIT F APPROVED BUILDING SPECIFICATIONS
EXHIBIT G SECURITY SPECIFICATIONS
EXHIBIT G-1 PARKING SPECIFICATIONS
EXHIBIT H LOCATION OF AUTOMATIC TELLER MACHINES
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LEASE AGREEMENT
DATED: AS OF DECEMBER 13, 2000
REFERENCE DATA
1. COMMENCEMENT DATE: December 13, 2000
2. TENANT: AETNA LIFE INSURANCE AND ANNUITY COMPANY
3. TENANT'S
ADDRESS: 151 Farmington Avenue, Hartford, CT 06156
4. BUILDING: Tower Building and Conference and Training Annex.
5. PREMISES: The portion of the Building shown on EXHIBIT A,
containing 481,729 rentable square feet
6. TERM: Seven (7) years
7. BASE RENT: $10,092,222.60 per annum; $841,018.55 per month; $20.95
per rentable square foot per annum (subject to adjustment in connection
with Section 4.1 hereof).
8. TENANT'S PROPORTIONATE SHARE: 29.1%
9. BASE YEAR: Calendar Year 2001.
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into as of the
13th day of December, 2000, by and between AETNA LIFE INSURANCE COMPANY, a
Connecticut corporation ("Landlord") and AETNA LIFE INSURANCE AND ANNUITY
COMPANY, a Connecticut corporation ("Tenant").
W I T N E S S E T H:
ARTICLE 1. PREMISES
1.1 Subject to all of the terms and conditions hereinafter set
forth, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the premises (the "Premises"), outlined on EXHIBIT A annexed hereto and made a
part hereof, containing 481,729 rentable square feet of space on the "A" level,
"B" level, "C" level and the 1st, 2nd, 3rd and 4th floors of the building
commonly known as the "Tower Building" and on the 1st floor (being the top
floor) of the building commonly known as the "Conference and Training Center
Annex" (the Tower Building and the Conference and Training Center Annex are
sometimes collectively referred to herein as either the "Building" or the "Tower
Building"). The Premises rentable square footage has been measured in accordance
with the current Building Owners and Managers Association International ANSI Z
65.1 method of measurement, Copyright 1996 (the "BOMA Method"). The Premises
shall not be subject to remeasurement. The Tower Building and the Conference and
Training Center Annex are both located at 151 Farmington Avenue, Hartford,
Connecticut and are both shown on EXHIBIT B annexed hereto and made a part
hereof). The Building is contiguous to a building commonly known as the "Rogers
Building," which Rogers Building is also located at 151 Farmington Avenue,
Hartford, Connecticut. The Building and the Rogers Building are sometimes
collectively referred to herein as the "Buildings." The Building and the Rogers
Building are located on the land shown on EXHIBIT B, annexed hereto and made a
part hereof (the "Land"). The Land, the Building, the Rogers Building, the
parking areas located under the Tower Building (the "Parking Garage"; the
Parking Garage is shown on EXHIBIT A to this Lease), and all other improvements
located thereon and appurtenances thereto, including, but not limited to, the
exterior walks and access roadway (the "Exterior Common Areas"), shall be
collectively hereinafter referred to as the "Complex." EXHIBIT B annexed hereto
and made apart hereof sets forth the general layout of the Complex and shall not
be deemed to be a warranty, representation or agreement on the part of Landlord
that the Tower Building, the Rogers Building, the Parking Garage, or such
Exterior Common Areas will remain as indicated on EXHIBIT B, provided, however,
that no modification may be made by Landlord which would materially and
adversely affect Tenant's access to the Premises or which would materially
reduce the parking spaces in the Tower Building, without Tenant's prior consent,
which consent shall not be unreasonably withheld, conditioned or delayed.
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ARTICLE 2. TERM
2.1 The term of this Lease (the "Term") shall begin on December
13, 2000 (the "Commencement Date") and shall end on December 31, 2007 (the
"Expiration Date"), unless: (1) sooner terminated in accordance with the terms
and conditions contained in this Lease; or (ii) extended pursuant to the
provisions of this Lease. Within thirty (30) days after the Commencement Date,
Landlord and Tenant agree to execute a document in the form annexed hereto as
EXHIBIT C which will delineate the following: the Commencement Date, and the
Expiration Date. The term "Lease Year," as used herein, shall mean the period of
twelve (12) consecutive calendar months commencing on the Commencement Date (or
on the first day of the following calendar month if the Commencement Date is not
the first day of a calendar month), and each period of the same twelve (12)
consecutive calendar months thereafter, during the Term. The first Lease Year
shall include the period from the Commencement Date to the first day of the
first calendar month thereafter if the Commencement Date is not the first day of
a calendar month.
ARTICLE 3. USE; NUISANCE; HAZARD
3.1 The Premises shall be used and occupied by Tenant solely for
general office, administrative and related purposes and for no other use or
purpose.
3.2 Tenant shall not use, occupy, or permit the use or occupancy
of the Premises for any purpose which Landlord, in its reasonable discretion,
deems to be immoral or dangerous; permit any public or private nuisance; do or
permit any act or thing which may disturb the quiet enjoyment of any other
tenant of the Building; keep any substance or carry on or permit any operation
which might introduce offensive odors or conditions into other portions of the
Buildings; use any apparatus which might make undue noise or set up vibrations
in or about the Buildings; permit anything to be done which would increase the
premiums paid by Landlord for commercial property insurance on the Complex or
its contents or cause a cancellation of any insurance policy coveting the
Complex or any part thereof or any of its contents; or permit anything to be
done which is prohibited by or which shall in any way conflict with any law,
statute, ordinance, or governmental rule or regulation now or hereinafter in
force. Should Tenant do any of the foregoing, the same shall constitute an
"Event of Default," as defined herein, and shall enable Landlord to resort to
any of its remedies hereunder, at law or in equity.
3.3 Upon the expiration of the Term or earlier termination of this
Lease Tenant shall vacate the Premises and surrender the Premises in the same
condition as on the Commencement Date, reasonable wear and use, and casualty
damage, excepted, and otherwise in the condition required by Section 8.2 and
Articles 14 and 15 hereof.
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ARTICLE 4. RENT
4.1 Tenant hereby agrees to pay Landlord an annual base rental
("Base Rent") of $10,092,222.60 per annum; $841,018.55 per month; $20.95 per
rentable square foot per annum. The foregoing Base Rent amounts contemplate that
Tenant's electricity usage in the Premises will be separately metered and that
the charges attributable to such usage will be paid directly by Tenant to the
local electricity supplier. Until such time as Tenant's electricity usage in the
Premises is separately metered, the Base Rent during such period shall be
increased on a per annum basis by the amount of $1.20 per rentable square foot
of the Premises (prorated on a daily basis).
The Base Rent shall be due and payable in advance in twelve (12) equal
installments (the "Monthly Rent") in good and collectible funds on or before the
first day of each calendar month. Any other sums of money as shall become due
and payable under this Lease shall be defined as "Additional Rent," and unless
otherwise provided herein, shall be due and payable within ten (10) days of
Tenant's receipt of a bill therefor from Landlord. The Monthly Rent and the
Additional Rent are sometimes hereinafter collectively called "Rent" and shall
be paid when due in lawful money of the United States without demand, deduction,
abatement, or offset at such place as is set forth in Article 35 of this Lease
or as Landlord may designate from time to time. Landlord expressly reserves the
right to apply any payment received to Base Rent or any other items of Rent that
are not paid by Tenant.
4.2 In the event any Monthly Rent or Additional Rent or other
amount payable by Tenant hereunder is not paid when due and such nonpayment
becomes a "Monetary Default," as defined herein, Tenant shall pay to Landlord a
late charge (the "Late Charge"), as Additional Rent, in an amount equal to ten
percent (10%) of the amount of such late payment. Failure to pay any Late Charge
shall be deemed a "Monetary Default," as defined herein. Provision for the Late
Charge shall be in addition to all other tights and remedies available to
Landlord hereunder (including, without limitation, imposition of interest at the
"Default Interest Rate," as defined herein), at law or in equity, and shall not
be construed as liquidated damages or as limiting Landlord's remedies in any
manner. Failure to charge or collect such Late Charge in connection with any one
(1) or more such late payments shall not constitute a waiver of Landlord's right
to charge and collect such Late Charges in connection with any other or similar
or like late payments.
4.3 If the Term commences on a date other than the first day of a
calendar month or expires or terminates on a date other than the last day of a
calendar month, the Rent for any such partial month shall be prorated to the
actual number of days Tenant is in occupancy of the Premises for such partial
month.
4.4 All Rent and any other amount payable by Tenant to Landlord
hereunder, if not paid when due, shall bear interest from the date due until
paid at a rate (the "Default Interest
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Rate") equal to the prime rate announced from time to time in the Wall Street
Journal (the "Prime Rate"), plus three percent (3%) per annum, but not in excess
of the maximum legal rate permitted by law. If the Wall Street Journal prime
rate is no longer announced or available, the Prime Rate shall be the prime
commercial rate announced as such by one of the five largest commercial banks in
the United States, as chosen by Landlord. Provision for interest at the Default
Interest Rate shall be in addition to all other rights and remedies available to
Landlord hereunder (including, without limitation, imposition of any Late
Charge), at law or in equity, and shall not be construed as liquidated damages
or as limiting Landlord's remedies in any manner. Failure to charge or collect
such interest in connection with any one (1) or more delinquent payments shall
not constitute a waiver of Landlord's right to charge and collect such interest
in connection with any other or similar or like delinquent payments.
4.5 If Tenant fails to make when due two (2) consecutive payments
of Monthly Rent or makes two (2) consecutive payments of Monthly Rent which are
returned to Landlord by Tenant's financial institution for insufficient funds,
Landlord may require, by giving written notice to Tenant, that all future
payments of Rent shall be made in cashier's check or by money order. The
foregoing is in addition to any other remedies of Landlord hereunder, at law or
in equity.
ARTICLE 5. TAXES; OPERATING EXPENSES
5.1 For the purpose of this Article 5:
(a) BASE YEAR shall mean calendar year 2001;
(b) COMPUTATION YEAR shall mean each full twelve (12) calendar
month period subsequent to the Base Year through the end of
the Term;
(c) TENANT'S PROPORTIONATE SHARE shall mean the ratio, expressed
as a percentage, of the rentable square foot area of the
Premises (which the parties agree is 481,729) to the total
rentable square foot area of the Buildings, which rentable
square foot area is 1,654,410. Tenant's Proportionate Share is
twenty-nine and 1/10 percent (29.1%);
(d) TAXES shall mean all real estate taxes, assessments (general
or special), levies, user fees, taxes on rental receipts or
payments, and other charges, which are assessed, levied or
charged upon the Complex, Landlord's personal property and
equipment located at the Complex and used in connection with
the operation, maintenance or repair of the Complex, or
against Landlord, and any other tax imposed upon or levied
against real estate or upon owners of real estate or upon any
incident of ownership, use or operation of real estate,
together with the
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reasonable costs (including fees of attorneys, consultants,
and appraisers) of any negotiation, contest, or appeal pursued
by Landlord in connection therewith, during the Base Year or
any Computation Year or portion thereof throughout the Term.
Taxes shall take into account any reductions or rebates
obtained by Landlord. Notwithstanding anything to the contrary
contained in this subsection 5.1(d), Taxes shall not include
any interest or penalties imposed because of late payment of
same by Landlord. If at any time during the Term the methods
of taxation prevailing at the date hereof shall be altered so
that in lieu of, or in addition to, or as a substitute for,
the whole or any part of the Taxes now levied, assessed or
imposed, there shall be levied, assessed or imposed any other
similar or dissimilar tax, levy, imposition, charge or license
fee however described or imposed, ("Additional Taxes") then
Tenant agrees that such Additional Taxes shall be included in
the definition of Taxes.
(e) OPERATING EXPENSES shall mean, without duplication, the total
expenses incurred by Landlord for the operation, management,
maintenance, repair and replacement of the Complex during the
Base Year or any Computation Year or portion thereof
throughout the Term, including, but not limited to:
(i) reasonable wages, salaries and benefits of all
employees engaged in the physical operation, repair
and maintenance of the Complex, including, without
limitation, Employer's Social Security Taxes and any
other taxes which may be levied on such wages and
salaries, and including property management fees in
an amount equal to the fees paid to Landlord's
current property manager, or if such existing
property no longer provides property management
services for the Complex, then in an amount which is
reasonable in the Greater Hartford, Connecticut area;
(ii) all supplies and materials used in the operation,
repair and maintenance of the Complex;
(iii) the cost of supplying electricity, water, power,
heating, lighting, ventilating, air conditioning and
other utilities to the Complex; Notwithstanding the
foregoing, electricity costs which are included in
Operating Expenses shall be limited to electricity
costs with respect to all non-leasable areas of the
Complex;
(iv) "Permitted Capital Expenditures," as defined herein;
(v) the cost of all maintenance and service agreements on
equipment, including maintenance and upkeep of the
common areas of the Buildings (the "Interior Common
Areas");
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(vi) accounting fees, including without limitation, fees
in connection with the determination of Operating
Expenses;
(vii) insurance premiums;
(viii) the cost of general operation, repair, cleaning and
maintenance of the Buildings (including garbage and
refuse removal);
(ix) the costs associated with Landlord's obligation to
comply with laws, rules and regulations affecting the
Complex;
(x) costs incurred in connection with determining the
feasibility of installing, maintaining, repairing or
replacing any facilities, equipment, systems or
devices which are intended to reduce utility expenses
or other Operating Expenses in future Computation
Years;
(xi) costs incurred in maintaining, repairing and
replacing all mechanical and utility systems in or
serving the Complex (including, without limitation,
the sprinkler and heating, ventilation and
air-conditioning systems); and
(xii) costs and expenses of providing mail service.
Notwithstanding the foregoing, Operating Expenses shall not include:
(1) expenses for repairs or other work occasioned by fire
or other insured casualty, except a customary
deductible;
(2) expenses incurred in connection with leasing and
procuring new tenants;
(3) interest or amortization payments on any mortgage or
mortgages, and rental under any ground or underlying
lease;
(4) wages, salaries or other compensation paid to any
executive employee of Landlord above the grade of
manager;
(5) the cost of any alteration, addition, change,
replacement, improvement, repair or equipment, which,
under generally accepted accounting principles
consistently applied ("GAAP") is properly classified
as a capital expense, other than: (x) capital
expenditures made by reason of legal requirements,
insurance requirements (specifically excluding any
such expenditures necessary to cure current
noncompliance with existing laws or insurance
requirements) or the protection of the health and
safety of
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tenants in the Buildings, or (y) for the purpose of
reducing expenses which would otherwise be included
in Operating Expenses, then such expenditures
described in (x) or (y) above (the "Permitted Capital
Expenditures") shall be included in Operating
Expenses in the Computation Year in which such
Permitted Capital Expenditures are incurred and in
any subsequent years, on a straight-line basis,
amortized over the useful life of such items, all in
accordance with GAAP;
(6) any leasehold improvements made in the Buildings;
(7) attorneys' fees, costs and disbursements and other
expenses incurred in connection with negotiations or
disputes with tenants, other occupants, or
prospective tenants, or occupants of the Buildings;
(8) costs relating to hazardous materials, except to the
extent caused, installed, disposed of or released by
Tenant;
(9) costs relating to the breach of any warranty,
representation or covenant of Landlord under this
Lease or any other lease;
(10) all items and services for which Tenant is expressly
required under this Lease to pay to third persons;
(11) brokerage commissions, advertising expenses and legal
or other costs incurred in leasing, advertising for
the building or other marketing or promotional
activity specifically and primarily designed for
marketing space in the Buildings, but excluding
amenities for the common benefit of existing tenants
in the Buildings;
(12) any bad debt expense or bad debt reserve;
(13) amounts paid to persons or entities affiliated with,
controlled by, controlling of, or under common
control with, Landlord to the extent such amounts are
in excess of market rates;
(14) costs of complying with Landlord's obligations in
delivering the Building to Tenant and Landlord's
other tenants of the Buildings;
(15) costs incurred in installing, operating or
maintaining special facilities or items, or in
performing special work for or furnishing special
services to any tenant or occupant of the Building,
including any work or other allowance to any tenant
for its installation, whether at such tenant's or
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occupant's or Landlord's expense, to the extent that
such special work or services are in excess of any
work or services that Landlord is obligated to
perform for or furnish to Tenant at no extra cost to
Tenant;
(16) depreciation;
(17) refinancing costs, and principal and interest
payments;
(18) legal fees, brokerage commissions and other
transaction costs and expenses incurred by Landlord
in connection with any transfer of its interest
herein;
(19) fines, penalties, interest, late charges and legal
fees incurred by Landlord due to violations of legal
requirements;
(20) all fine art; and
(21) Landlord's internal overhead expenses, including the
cost of internal accounting and the cost of
preparation of Landlord's income tax or information
returns.
Operating Expenses for the Base Year and each Computation Year which
vary based on the level of occupancy of the Buildings ("Variable
Operating Expenses") shall be adjusted as necessary to reflect the
Variable Operating Expenses which would have been incurred if the
Buildings were 95% occupied during the entire Base Year or Computation
Year, as the case may be.
5.2 For each Computation Year during the Term, Tenant shall pay
Landlord, in addition to the Base Rent set forth in Article 4, the following
sums, as Additional Rent:
(a) Tenant's Proportionate Share of any increase in Taxes
over Taxes for the Base Year (the "Tax Payment"). The
Tax Payment shall be estimated, in good faith, by
Landlord in advance, from time to time (unless the
actual amount of Taxes have been established, in
which event, the actual amount of Taxes shall be the
basis for the Tax Payment), and Tenant shall pay
one-twelfth (1/12th) of such estimated Tax Payment on
a monthly basis on the first day of each month,
together with Tenant's Monthly Rent installment; and
(b) Tenant's Proportionate Share of any increase in
Operating Expenses over Operating Expenses for the
Base Year (the "Operating Expense Payment"). The
Operating Expense Payment shall be estimated by
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Landlord, in good faith, in advance, from time to
time, and Tenant shall pay Landlord one-twelfth
(1/12th) of such estimated Operating Expense Payment
on a monthly basis on the first day of each month,
together with Tenant's Monthly Rent installment. Such
estimate shall also identify which portion of the
estimated Operating Expense Payment represents
"Controllable Operating Expenses," as defined herein
(which portion is referred to herein as the
"Controllable Operating Expense Payment Portion").
"Controllable Operating Expenses" shall mean all
Operating Expenses other than utility expenses and
insurance premiums.
5.3 After the end of the Base Year and the end of each Computation
Year, Landlord shall furnish to Tenant statements setting forth Taxes for the
Base Year and Operating Expenses for the Base Year, Taxes and Operating Expenses
for the most recently completed Computation Year and Tenant's additional Tax
Payment and Operating Expenses Payment, if any (such a statement is referred to
herein individually as a "Reconciliation Statement" and collectively as
"Reconciliation Statements"). Upon written request by Tenant to Landlord,
Landlord shall provide reasonable evidence substantiating the Taxes and the
Operating Expenses identified in the Reconciliation Statement. If such a
Reconciliation Statement indicates that the estimated Tax Payment and/or
Operating Expense Payment for the applicable Computation Year exceeded the
actual Tax Payment and/or Operating Expense Payment for such Computation Year,
then Landlord shall credit such overpayment against future Tax Payments and/or
Operating Expense Payments, provided that with respect to the final Computation
Year, Landlord shall refund such overpayment within thirty (30) days after
providing the final Reconciliation Statement. If the Reconciliation Statement
indicates that the actual Tax Payment and/or Operating Expense Payment exceeded
the estimated Tax Payment and/or Operating Expense Payment, then Tenant shall
pay such excess within thirty (30) days after the date of delivery of the
applicable Reconciliation Statement. If the Reconciliation Statement indicates
that the total of the estimated Controllable Operating Expense Payment Portions
exceeded the total of the actual Controllable Operating Expenses Payment
Portions by more than ten percent (10%), then Landlord shall pay Tenant interest
at an interest rate equal to the Prime Rate, on the overpayment in excess often
percent (10%), from the date of last monthly installment which caused the total
of the actual Controllable Operating Expenses Payment Portions to exceed the
total of the estimated Controllable Operating Expense Payment Portions, until
the date the Reconciliation Statement for the applicable Computation Year is
delivered to Tenant.
5.4 Tenant shall have the right to examine, to copy and to have an
audit conducted of all books and records of Landlord pertaining to Operating
Expenses and Taxes, subject to the following conditions and limitations:
(a) Such audit shall be conducted at Landlord's office in
Hartford, Connecticut;
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(b) Such audit with respect to a Computation Year must be
conducted, if at all, not later than sixty (60) days
after Tenant's receipt of the Reconciliation
Statement for such Computation Year;
(c) Such audit must be conducted by a "Big Six"
accounting firm, which firm may not be compensated on
a contingency basis; and
(d) Such audit may not be conducted more than once in any
calendar year.
5.5 Within six (6) months after receipt of any Reconciliation
Statement, Tenant shall have the right, by notice to Landlord, to dispute the
inclusion and amount of any item or items in any Reconciliation Statement. In
the event that such a dispute is not settled within sixty (60) days after notice
from Tenant of such dispute has been delivered to Landlord, the dispute shall be
determined by a "Big Five" firm of independent certified public accountants
mutually acceptable to Landlord and Tenant (the "CPA Firm"). If Landlord and
Tenant cannot agree on the CPA Firm within thirty (30) days, then Landlord and
Tenant shall each, within fifteen (15) days, select one (1) independent CPA
Firm, and such two (2) CPA Firms shall together select a third CPA Firm, which
third CPA Firm shall be the CPA Firm who shall resolve the dispute. If either
party fails to select its CPA Firm within the aforesaid fifteen (15)-day period,
then the CPA Firm which has been selected shall resolve the dispute. The CPA
Firm shall be entitled to review all records relating to the disputed items. The
determination of the CPA Firm shall be final and binding upon both Landlord and
Tenant and the CPA Firm's expenses shall be borne by the party against whom the
decision is rendered; provided, that if more than one item is disputed, the
expenses shall be apportioned equitably according to the number of items decided
against each party and the amounts involved.
If the CPA Firm determines that Tenant has made an underpayment, Tenant
shall reimburse Landlord for the amount of the underpayment within thirty (30)
days following such determination. If the Audit Professionals determine that
Tenant has made an overpayment, Landlord shall reimburse Tenant for the amount
of the overpayment within thirty (30) days following such determination.
ARTICLE 6. CONDITION OF PREMISES
6.1 Tenant shall accept the Premises and the Complex in their "AS
IS, WHERE IS" condition without any representations, warranties or obligations
of any kind, except with respect to any "separation work" which is contemplated
in Section 3.04 of a certain Transition Services Agreement between Aetna Inc.
and Aetna U.S. Healthcare Inc. (the "Transition Services Agreement").
6.2 Neither Landlord nor Landlord's agents have made any
representations or
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promises with respect to the condition of the Premises or the Complex, or any
other matter or thing affecting or related to the Premises or the Complex,
except as herein expressly set forth, and no rights, easements or licenses are
acquired by Tenant by implication or otherwise except as expressly set forth in
this Lease.
ARTICLE 7. SERVICES TO BE PROVIDED BY LANDLORD
7.1 Subject to Article 10 herein:
(a) Landlord shall maintain, repair and replace,
consistent with those levels of maintenance currently provided to the Rogers
Building, and keep in good order and condition, all structural and
non-structural portions of the Tower Building, and all service systems for the
same, including, without limitation:
(i) the plumbing, sprinkler, heating,
ventilating and air conditioning systems, building electrical and
mechanical lines and equipment associated therewith, and elevators and
boilers and all similar base building systems and equipment, all of
which either are located in or serve the Building;
(ii) broken or damaged glass and damage by
vandals;
(iii) the exterior and interior structure of the
Building including the roof, exterior walls, bearing walls, support
beams, foundation, columns, exterior doors and windows and lateral
support to the Building and the Interior Common Areas; and
(iv) the exterior improvements to the Land,
including curbs, driveways, parking areas, sidewalks, lighting,
exterior signs (other than "Tenant's Exterior Sign," as defined
herein), ditches, shrubbery, landscaping and fencing.
(b) Without limiting subparagraph (a) above, Landlord
shall provide the following services and facilities, all such services and
facilities to be provided at the same level and standards as currently provided
to the Building's current occupant to the extent such level and standards are
provided to Landlord's own personnel:
(i) passenger and freight elevator service,
toilet facilities and supplies, hot and cold water, sewage facilities,
refrigerated drinking water and vermin extermination;
(ii) heating and air conditioning in the Premises
from 7:00 am. to 7:00 p.m. on Monday through Friday and 8:00 a.m. to
12:00 p.m. on Saturday ("Tenants Regular Business Hours"), except for
the following holidays: New Year's Day, Memorial
15
Day, Independence Day, Labor Day, Thanksgiving Day, day after
Thanksgiving, and Christmas (hereinafter sometimes collectively
referred to as "Holidays"), as currently provided;
(iii) heating and air conditioning for the
Premises at times other than Tenant's Regular Business Hours, upon
receipt of reasonable prior notice from Tenant, and provided Tenant
pays Landlord's actual costs of providing same, as Additional Rent;
(iv) access to the Premises by Tenant alter
Tenant's Regular Business Hours, twenty-four (24) hours per day, seven
(7) days per week;
(v) electricity plus all other public utilities
(e.g., gas, water, sewer) used to specifically support the services
described in this Section 7.1(b) for Tenants office uses, including,
without limitation, lighting, vending machines, office machines, office
equipment and computers ("Utility Services"). Electricity usage in the
Premises shall be separately metered and paid by Tenant directly to the
local electricity provider;
(vi) security for the Building in accordance with
the specifications annexed hereto as EXHIBIT G annexed hereto and made
a part hereof. The inclusion of such specifications shall not be a
guaranty or warranty of safety. Landlord shall have the right to
provide a reduced level of security services on Holidays. Further, such
specifications may be modified by Landlord in its sole and absolute
discretion provided that Landlord does not provide a higher level of
specifications to any other occupant of the Complex without additional
charge to such occupant. Landlord shall give Tenant prior written
notice of any modification of such security specifications;
(vii) parking rights in accordance with EXHIBIT
(G-1 annexed hereto and made a part hereof;
(viii) cleaning (in accordance with the
specifications annexed hereto as EXHIBIT D and made a part hereof) and
trash removal; provided that such services shall not be provided on
Saturdays or Holidays; and
(ix) snow and ice removal. Landlord shall use
reasonable efforts to: (A) keep vehicular and pedestrian access routes
in the Complex and the Parking Lots owned by Landlord (or Parking Lots
which Landlord leases and as to which Landlord has the obligation under
its lease for such Parking Lot to perform snow and ice removal)
reasonably clear of snow and ice to minimize interruption and delay in
access to the Tower Building by Tenant's employees and visitors during
Tenant's Regular Business Hours; and (B) permit Tenant's employees and
visitors the ability to enter or exit the Parking Garage and the
Landlord-owned Parking Lots during a snow or ice storm which occurs or
continues to occur during normal business hours. Landlord shall also
use
16
reasonable efforts, with respect to any Parking Lot which Landlord
leases but as to which the owner of such Parking Lot has the obligation
of snow and ice removal, to require the such owner to perform such snow
and ice removal in accordance with the terms of such lease;
7.2 Except as otherwise specifically provided in Section 7.3,
Landlord shall not be liable for any loss or damage arising or alleged to arise
in connection with the failure, stoppage, diminution or interruption of any such
services; nor shall the same be construed as an eviction of Tenant, work an
abatement of Rent, entitle Tenant to any reduction in Rent, or relieve Tenant
from the operation of any covenant or condition herein contained, it being
further agreed that Landlord reserves the right to discontinue temporarily such
services or any of them at such times as may be necessary by reason of repair or
capital improvements performed within the Complex, or by reason of "force
majeure," as defined herein, provide, however, that Landlord shall use
reasonable efforts to limit such discontinuance to other than the Regular
Business Hours and further provided that Landlord shall use reasonable efforts
to give Tenant advance written notice of such discontinuance. In the event of a
failure, stoppage, or interruption of services, Landlord shall use reasonable
diligence to have the same restored.
7.3 Notwithstanding the provisions set forth in Section 7.2
hereof, in the event that (i) Landlord, other than by reason of any default by
Tenant, fails to provide any of the following services for a period of seven (7)
consecutive business days after Landlord's receipt of written notice of such
failure: passenger elevator service (pursuant to subsection 7.1(b)(i)), heating
and air conditioning service (pursuant to subsection 7. 1(b)(ii)), toilet
facilities and supplies, cold water and sewage facilities (pursuant to
subsection 7.1(b)(i)), or Utility Services pursuant to subsection 7.1 (b)(v))
(individually referred to herein as an "Essential Service"); and (ii) such
failure to provide the Essential Service is within Landlord's reasonable
control; and (iii) such failure to provide such Essential Service renders the
Premises untenantable, then Tenant shall be entitled to an abatement of Base
Rent for each day after the end of said seven (7) business day period until
Landlord restores such Essential Service.
7.4 In the event that (i) Landlord, other than by reason of any
default by Tenant, fails to provide an Essential Service for a period of thirty
(30) consecutive days after Landlord's receipt of written notice of such
failure; and (ii) such failure to provide the Essential Service is within
Landlord's reasonable control; and (iii) such failure to provide such Essential
Service renders the Premises untenantable, then Tenant shall be entitled to
remedy such failure to provide the Essential Service, provided that any work
done by Tenant to remedy such failure shall be done in strict compliance with
the provisions of this Lease, including, without limitation, the provisions of
Article 14 hereof (other than the provisions thereof which require Landlord's
prior written consent).
ARTICLE 8. REPAIRS AND MAINTENANCE; ACCESS; SELF-HELP
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8.1 If the Buildings, the Parking Garage, the Complex, or any
portion thereof, including, but not limited to, the elevators, boilers, engines,
pipes, and other apparatus, or members or elements of the Buildings (or either
of them) or the Parking Garage used for the purpose of climate control of the
Buildings or operating the elevators, or of the water pipes, drainage pipes,
electric lighting, or other equipment of the Buildings or the Parking Garage or
the roof or outside walls of the Buildings or the Parking Garage and also the
Premises improvements, including, but not limited to, the carpet, wall covering,
doors, and woodwork, become damaged or are destroyed through the negligence,
carelessness, or misuse of Tenant, its agents, employees, licensees, invitees,
subtenants, or anyone permitted by Tenant to be in the Building or the Parking
Garage, or through it or them, then the cost of the necessary repairs,
replacements, or alterations shall be borne by Tenant who shall forthwith pay
the same on demand to Landlord as Additional Rent. Landlord shall have the
exclusive right, but not the obligation, to make any repairs, replacements or
alterations necessitated by such damage or destruction.
8.2 Tenant agrees, at its sole cost and expense, to repair or
replace any damage or injury done to the Complex, or any part thereof, caused by
Tenant, Tenant's agents, employees, licensees, or invitees which Landlord elects
not to repair. Tenant shall not injure the Complex or the Premises and shall
maintain the Premises in a clean, attractive condition and in good repair. If
Tenant fails to keep the Premises in such good order, condition, and repair as
required hereunder to the reasonable satisfaction of Landlord, Landlord may
restore the Premises to such good order and condition and make such repairs
without liability to Tenant for any loss or damage that may accrue to Tenant's
property or business by reason thereof, and upon completion thereof, Tenant
shall pay to Landlord, as Additional Rent, upon demand, the cost of restoring
the Premises to such good order and condition and of the making of such repairs,
plus an additional administrative charge equal the administrative charge
customarily charged by landlords of similar first-class office buildings in the
Greater Hartford area for such service. Upon the Expiration Date or the earlier
termination of this Lease, Tenant shall surrender and deliver up the Premises to
Landlord in the same condition in which they existed at the Commencement Date
(excepting only ordinary wear and tear, casualty and condemnation). Upon the
Expiration Date or the earlier termination of this Lease, Landlord shall have
the right to re-enter and take possession of the Premises.
8.3 Landlord or Landlord's officers, agents, and representatives
shall have the right to enter all parts of the Premises at all reasonable hours
upon reasonable advance notice to Tenant (except in cases of emergency when no
notice shall be required) to inspect, clean, make repairs, alterations, and
additions to the Building or the Premises which it may deem necessary or
desirable, or to show the Premises to prospective tenants, mortgagees or
purchasers of the Complex, or to provide any service which it is obligated or
elects to furnish to Tenant; and Tenant shall not be entitled to any abatement
or reduction of Rent by reason thereof. Landlord shall have the right to enter
the Premises without notice at any time and by any means in the case
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of an emergency. In the third (3rd) and sixth (6th) Lease Years of the Term, and
during the second (2nd) Lease Year of the Second Renewal Period and the Third
Renewal Period, Landlord shall be entitled, upon not less than six (6) months'
advance written notice to Tenant (the "Special Maintenance Notice"), to perform
special maintenance in the Complex which requires a complete shutdown of all
electrical feeders and circuits in the Premises (the "Special Maintenance") for
a period of twenty-four (24) hours (the Special Maintenance Period"). The
Special Maintenance Period shall be on a non-holiday weekend. Tenant's access to
the Premises during such Special Maintenance Period shall be established by
Landlord in its sole and absolute discretion ("Tenant's Access Parameters").
ARTICLE 9. TENANT'S EQUIPMENT AND INSTALLATIONS
If heat-generating machines or equipment, including telephone equipment
(to the extent such equipment is not typical of normal office installations),
cause the temperature in the Premises, or any part thereof, to exceed the
temperatures the Building's air conditioning system would be able to maintain in
such Premises were it not for such heat generating equipment, then Landlord
reserves the right to install supplementary air conditioning units in the
Premises, and the cost thereof, including the actual, reasonable cost of
installation and the cost of operation and maintenance thereof, shall be paid by
Tenant to Landlord upon demand by Landlord, as Additional Rent.
Except for customary office equipment used for general office purposes,
including personal computers and other equipment having similar or lower
electrical consumption, Tenant shall not install within the Premises any
fixtures, equipment, or facilities, without the specific written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed. Tenant shall not, without the specific written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed,
install or maintain any apparatus or device within the Premises which shall
increase the usage of electrical power or water for the Premises to an amount
greater than would be normally required for general office use for space of
comparable size in the Greater Hartford area and if any such apparatus or device
is so installed, Tenant agrees to pay Landlord for any additional costs of
utilities as the result of said installation, as Additional Rent.
ARTICLE 10. FORCE MAJEURE
It is understood and agreed that with respect to any service to be
furnished or obligations to be performed by Landlord for Tenant that in no event
shall Landlord be liable for failure to furnish or perform the same when
prevented from doing so by strike, lockout, breakdown, accident, supply, or
inability by the exercise of reasonable diligence to obtain supplies, parts, or
employees necessary to furnish such service or meet such obligation; or because
of war or other
19
emergency or for any cause beyond Landlord's reasonable control; or for any
cause due to any act or omission of Tenant or its agents, employees, licensees,
invitees, or any persons claiming by, through, or under Tenant (individually and
collectively referred to herein as "force majeure").
ARTICLE 11. MECHANICS AND MATERIALMAN'S LIENS
11.1 Tenant shall not suffer or permit any mechanic's or
materialman's lien to be filed against the Premises or the Complex or any
portion thereof, by reason of work, labor, services, or materials supplied or
claimed to have been supplied to Tenant. Nothing herein contained shall be
deemed or construed in any way as constituting the consent or request of
Landlord, expressed or implied, by inference or otherwise, for any contractor,
subcontractor, laborer, or materialman to perform any labor or to furnish any
materials or to make any specific improvement, alteration, or repair of or to
the Premises or any portion of the Complex; nor of giving Tenant any right,
power, or authority to contract for, or permit the rendering of, any services or
the furnishing of any materials that could give rise to the filing of any
mechanic's or materialman's lien against the Premises, the Complex or any
portion thereof.
11.2 If any such mechanic's or materialman's lien shall at any time
be filed against the Premises or any portion of the Complex as the result of any
act or omission of Tenant, Tenant covenants that it shall, within thirty (30)
days after Tenant has notice of the claim for lien, procure the discharge
thereof by payment or by giving security or in such other manner as is or may be
required or permitted by law or which shall otherwise reasonably satisfy
Landlord. If Tenant fails to take such action, Landlord, in addition to any
other right or remedy it may have, may take such action as may be reasonably
necessary to protect its interests, including, without limitation, making
payment to any such lienor and charging Tenant the amount thereof as Additional
Rent. Any amounts paid by Landlord in connection with such action, all other
expenses of Landlord incurred in connection therewith, including reasonable
attorneys' fees, Court costs, and other necessary disbursements, shall be repaid
by Tenant to Landlord on demand, as Additional Rent.
ARTICLE 12. INSURANCE
12.1 Landlord, with respect to the Building, the Parking Garage,
and the Complex, shall maintain or cause to be maintained, throughout the Term,
a policy or policies of commercial general liability insurance with limits of
liability of not less than Five Million Dollars ($5,000,000.00) combined single
limit and aggregate limit. Such coverage may be provided by a combination of
commercial general liability and excess liability and/or umbrella policies. Each
such policy shall contain coverage for personal injury, advertising injury
(subject to the exclusions found in ISO form CG 0001 (7/98) and premises
operations. In addition, Landlord shall maintain, or cause to be maintained, a
policy or policies of Special Form (All Risk) property insurance (including
sprinlder leakage and water damage coverage) insuring the full replacement
20
cost of the Building (other than any Alterations) and the Parking Garage,
exclusive of foundations and excavations). In addition, upon written request by
Tenant, Landlord shall furnish Tenant with certificates of insurance evidencing
that Landlord is maintaining the insurance required to be maintained by Landlord
pursuant to this Section 12.1, which certificate shall include a standard
undertaking by the insurer to notify Tenant at least thirty (30) days prior to a
cancellation or non-renewal of such policies. Receipt of a certificate or
certificates of insurance from Landlord which indicate that Landlord is carrying
less coverage than is required under this Section 12.1 will not constitute a
waiver of Landlord's obligations to fulfill said insurance requirements.
Notwithstanding anything to the contrary contained in this Section 12.1, Tenant
may self-insure the requirements of this Section 12.1.
12.2 Intentionally Omitted.
12.3 Tenant shall maintain, at its sole cost and expense,
commercial general liability insurance (including coverage for bodily injury and
death, property damage, fire, legal liability, advertising injury (subject to
the exclusions found in ISO form CG 0001(7/98), premises operations, and owner's
contractors protective liability with respect to the Premises) in a form and
with an insurance company acceptable to Landlord in a minimum amount of Five
Million and 00/100 Dollars ($5,000,000.00) combined single limit, and shall
include Contractual Liability coverage. Such insurance shall be maintained at
all times during the Term, and Tenant shall cause a current and valid
certificate of such policy to be deposited with Landlord. If Tenant fails to
have a current and valid certificate of such policy on deposit with Landlord at
all times during the Term, then Landlord shall have the right, but not the
obligation, to obtain such insurance coverage, and Tenant shall be obligated to
pay Landlord the amount of the premiums applicable to such insurance coverage
within ten (10) days after Tenant's receipt of Landlord's request for payment
thereof, as Additional Rent. Landlord shall be named as an additional insured on
such policies.
12.4 Tenant shall maintain, at its sole cost and expense, (1)
workers' compensation insurance in amounts required by law; and (ii) employers'
liability coverage in an amount not less than $1,000,000 per occurrence.
12.5 At the reasonable request of Landlord, Tenant shall adjust
annually the amount of the coverage established in Section 12.3 hereof to such
amount as Landlord determines.
12.6 Tenant shall maintain, in its sole cost and expense, on a
Special Causes of Loss, Replacement Cost basis, commercial property insurance on
Tenant's personal property, trade fixtures and Alterations, with an insurance
company reasonably acceptable to Tenant. Landlord shall be named as loss payee
on all policies insuring Alterations.
12.7 Notwithstanding anything in this Lease to the contrary,
Landlord and Tenant each hereby waives any and all rights of recovery, claim,
action, or cause of action against the other,
21
its agents, employees, licensees, or invitees for any loss or damage to or at
the Premises or the Complex or any personal property of such party therein or
thereon by reason of fire, the elements, or any other cause which would be
insured against under the terms of the insurance policies referred to
hereinabove, regardless of cause or origin, including omission of the other
party hereto, its agents, employees, licensees, or invitees. Landlord and Tenant
shall obtain waivers of such subrogation tights from its property insurers. The
parties hereto agree that any and all such insurance policies required to be
carried by either shall be endorsed with a subrogation clause, substantially as
follows: "This insurance shall not be invalidated should the insured waive, in
writing prior to a loss, any and all right of recovery against any party for
loss occurring to the property described therein," and shall provide that such
parts insurer waives any right of recovery against the other party in connection
with any such loss or damage.
12.8 Tenant shall deliver a certificate of insurance evidencing the
coverages required under Sections 12.3, 12.4 and 12.6 hereof (or such other
evidence as Landlord may reasonably request) by the Commencement Date, and at
such other time, within thirty (30) days of Landlord's written request. Each
policy will provide that Landlord shall receive at least thirty (30) days' prior
written notice of modification, cancellation or non-renewal of such policy or
policies.
12.9 In the event Tenant's manner of occupancy or conduct of
business in or on the Premises, whether or not Landlord has consented to the
same, results in any increase in premiums for the insurance carried from time to
time by Landlord with respect to the Complex, Tenant shall pay any such increase
in premiums as Additional Rent within ten (10) days after bills for such
additional premiums shall be rendered by Landlord. In determining whether
increased premiums are a result of Tenant's use or occupancy of the Premises, a
schedule issued by the organization computing the insurance rates on the Complex
showing the various components of such rate, shall be conclusive evidence of the
several items and charges which make up such rate. Tenant shall promptly comply
with all reasonable requirements of the insurance authority or of any insurer
now or hereafter in effect relating to the Premises, the Buildings or the
Parking Garage.
ARTICLE 13. QUIET ENJOYMENT
Provided Tenant has performed all of its obligations under this Lease,
including, but not limited to, the payment of Rent and all other sums due
hereunder, Tenant shall peaceably and quietly hold and enjoy the Premises for
the Term, without hindrance by Landlord, subject to the provisions and
conditions set forth in this Lease.
ARTICLE 14. ALTERATIONS
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14.1 Except as herein expressly provided to the contrary, Tenant
agrees that it shall not make or allow to be made any alterations, additions, or
improvements in or to the Premises (individually referred to herein as an
"Alteration," and collectively referred to herein as "Alterations") without
first obtaining the written consent of Landlord in each instance, which consent
may be conditioned, given, or withheld in Landlord's sole discretion as to
Alterations which adversely affect the structure or exterior of the Building,
and which shall not be unreasonably withheld, conditioned or delayed in all
other circumstances. Notwithstanding the foregoing, Landlord's consent shall not
be required under the following limited circumstances: (a) the Alteration is
either repainting, replacement of floor covering (to the extent that the
replacement floor covering is not installed by means of a permanent adhesive) or
replacement or installation of wall coverings; or (b) the Alteration consists of
changes to electrical circuits from existing electrical panel boards not in
excess of 277 volts ("De Minimus Alterations"), provided, however, that the
provisions of this Section 14.1 regarding providing Landlord with plans and
specifications with respect to an Alteration shall apply. At the time of said
request, or prior to Tenant making a De Mininius Alteration, Tenant shall submit
to Landlord plans and specifications of the proposed Alterations, and, with
respect to Alterations other than De Minimus Alterations, Landlord shall have a
period of not more than fifteen (15) days therefrom in which to review and
approve or disapprove said plans and specifications. Tenant shall pay to
Landlord upon demand the reasonable cost and expense of Landlord in (i)
reviewing said plans and specifications, and (ii) inspecting the Alterations to
determine whether the same are being performed in accordance with the approved
plans and specifications and all laws and requirements of public authorities,
including, without limitation, the fees of any architect or engineer employed by
Landlord for such purpose, provided that if such cost is for Tenant's internal
review or inspection, then such cost may not exceed the market-based cost of
such review or inspection by an independent third party consultant. In any
instance where Landlord grants such consent, and permits Tenant to use its own
contractors, laborers, materialmen, and others furnishing labor or materials for
Tenant's construction (collectively, "Tenant's Contractors"), Landlord's consent
shall be deemed conditioned upon each of Tenant's Contractors (iii) being
approved by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed; (iv) working in harmony and not interfering with any
laborer utilized by Landlord, Landlord's contractors, laborers, or materialmen
and if at any time such entry by one or more persons furnishing labor or
materials for Tenant's work shall cause such disharmony or interference, the
consent granted by Landlord to Tenant may be immediately rescinded by Landlord;
and (v) furnishing Landlord with evidence of acceptable commercial general
liability insurance, worker's compensation coverage and if reasonably required
by Landlord, completion bonding. Tenant, at its expense, shall obtain, and
provide to Landlord prior to the commencement of any Alteration (including a De
Minimus Alteration) all necessary governmental permits and certificates for the
commencement and prosecution of Alterations, and for final approval thereof upon
completion, and shall cause any Alterations to be performed in compliance
therewith and with all applicable laws and requirements of public authorities
and with all applicable requirements of insurance bodies. All Alterations shall
be diligently performed in a good and workmanlike manner, using new materials
and equipment at least equal
23
in quality and class to the then standards for the Building established by
Landlord. Upon the completion of any Alteration, Tenant shall provide Landlord
originals of all waivers or releases of lien, and contractor's affidavits, from
each of Tenant's contractors and subcontractors, as well as -built drawings,
stamped and sealed by a licensed architect, showing all Alterations made to the
Premises or the Building. No Alterations to the Building or the Premises shall
be removed by Tenant either during the Term or upon the Expiration Date or the
earlier termination of this Lease without the express written approval of
Landlord, which approval may be withheld or conditioned in Landlord's sole and
absolute discretion. Tenant shall not be entitled to any reimbursement or
compensation resulting from its payment of the cost of constructing all or any
portion of said Alterations unless otherwise expressly agreed by Landlord in
writing. Tenant agrees specifically that no food, soft drink, or other vending
machine shall be installed within the Premises, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed.
14.2 Landlord's approval of Tenant's plans for Alterations shall
impose no responsibility or liability on the part of Landlord for their
completeness, design sufficiency, or compliance with all laws, rules, and
regulations of governmental agencies or authorities, including, but not limited
to, the Americans with Disabilities Act, as amended, and all rules and
regulations promulgated thereunder (collectively the "ADA").
14.3 At least five (5) business days prior to the commencement of
any work permitted to be done by persons requested by Tenant on the Premises,
Tenant shall notify Landlord in writing of the proposed work and the names and
addresses of Tenant's Contractors. During any such work on the Premises,
Landlord, or its representatives, shall have the right to go upon and inspect
the Premises at all reasonable times, and shall have the right to post and keep
posted thereon building permits or to take any further action which Landlord may
deem to be proper for the protection of Landlord's interest in the Premises and
the Complex.
14.4 Landlord may require that Tenant remove any or all Alterations
(other than telecommunications or data cabling, wiring or conduits) on or prior
to the Expiration Date or the earlier termination of this Lease. Tenant may
request, at the time of requesting consent to an Alteration, or at the time of
providing plans and specifications with respect to a De Minimus Alteration, that
Landlord indicate whether it will require that the Alteration or De Minimus
Alteration be removed on or prior to the Expiration Date or the earlier
termination of this Lease (the "Removal Requirement"; Tenant's request for a
determination of a Removal Requirement is referred to herein as "Tenant's
Inquiry"). If Landlord does not impose the Removal Requirement within fifteen
(15) days after Tenant's Inquiry, and does not impose the Removal Requirement
with five (5) business days after a second Tenant's Inquiry, then Landlord shall
be deemed not to have imposed the Removal Requirement with respect to the
applicable Alteration or De Minimus Alteration. Notwithstanding anything to the
contrary contained in this Lease, Tenant shall not be required to remove any
Alterations which, in Landlord's sole but reasonable opinion, would not require
above-standard demolition costs to remove.
24
ARTICLE 15. FURNITURE, FIXTURES, AND PERSONAL PROPERTY
15.1 Tenant, at its sole cost and expense, may remove its trade
fixtures, office supplies and moveable office furniture, furnishings and
equipment not attached to the Premises provided:
(a) such removal is made prior to the Expiration Date or
the earlier termination of this Lease.
(b) Tenant is not in default of any obligation or
covenant under this Lease at the time of such
removal; and
(c) Tenant promptly repairs all damage caused by such
removal.
15.2 If Tenant does not remove its trade fixtures, office supplies,
moveable furniture, and equipment prior to the Expiration Date or the earlier
termination of this Lease (unless prior arrangements have been made with
Landlord and Landlord has agreed in writing to permit Tenant to leave such items
in the Premises for an agreed period), then, in addition to its other remedies
hereunder, at law or in equity, Landlord shall have the right to have such items
removed and stored at Tenant's sole cost and expense and all damage to the
Complex or the Premises resulting from said removal shall be repaired at the
cost of Tenant. All other property in the Premises, any Alterations to the
Premises (including wall-to-wall carpeting, paneling, wall covering, specially
constructed or built-in cabinetry or bookcases), and any other article attached
or affixed to the floor, wall, or ceiling of the Premises shall become the
property of Landlord and shall remain upon and be surrendered with the Premises
as a part thereof on the Expiration Date or earlier termination of this Lease,
regardless of who paid therefor; and Tenant hereby waives all rights to any
payment or compensation therefor.
15.3 All the furnishings, fixtures, equipment, effects, and
property of every kind, nature, and description of Tenant and of all persons
claiming by, through, or under Tenant which, during the Term of this Lease or
any occupancy of the Premises by Tenant or anyone claiming under Tenant, may be
on the Premises or elsewhere on the Complex shall be at the sole risk and hazard
of Tenant, and if the whole or any part thereof shall be destroyed or damaged by
fire, water, or otherwise, or by the leakage or bursting of water pipes, steam
pipes, or other pipes, by theft, or from any other cause, no part of said loss
or damage is to be charged to or be borne by Landlord unless the same is both
(i) due to the gross negligence of Landlord and (ii) not otherwise subject to
the waiver of subrogation provisions of Article 12 hereof.
ARTICLE 16. TENANTS TAXES
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During the Term hereof, Tenant shall pay, prior to delinquency, all
business and other taxes, charges, notes, duties, and assessments levied, and
rates or fees imposed, charged, or assessed against or in respect of Tenant's
occupancy of the Premises (or the rents payable by Tenant under this Lease) or
in respect of the personal property, trade fixtures, furnishings, equipment, and
all other personal property of Tenant contained in the Building, or in respect
to the Alterations ("Tenant's Taxes"), and shall hold Landlord harmless from and
against all payment of such taxes, charges, notes, duties, assessments, rates,
and fees, and against all loss, costs, charges, notes, duties, assessments,
rates, and fees, and any and all such taxes. Tenant shall cause said fixtures,
furnishings, equipment, other personal property, and Alterations to be assessed
and billed separately from the real and personal property of Landlord. In the
event any or all of Tenant's fixtures, furnishings, equipment, other personal
property, or Alterations shall be assessed and taxed with Landlord's real
property, Tenant shall pay to Landlord, as Additional Rent, Tenant's share of
such taxes within thirty (30) days after delivery to Tenant by Landlord of a
statement (a "Tax Statement") in writing setting forth the amount of such taxes
applicable to Tenant, Tenant's property and Alterations. Upon written request by
Tenant to Landlord, Landlord shall provide copies of tax bills with respect to
Tenants Taxes. Further, Tenant shall have the same audit rights with respect to
Tenant's Taxes upon receipt of a Tax Statement as Tenant has with respect to
Operating Expenses upon receipt of a Reconciliation Statement (as set forth in
Sections 5.4 and 5.5 hereof), and in such regard, the provisions of Sections 5.4
and 5.5 hereof shall apply to Tenant's audit rights with respect to Tenant's
Taxes, MUTATIS MUTANDIS.
ARTICLE 17. ASSIGNMENT AND SUBLETTING
17.1 Neither Tenant nor Tenant's legal representatives or
successors-in-interest, by operation of law or otherwise, shall assign this
Lease or sublease the Premises or any part thereof or mortgage, pledge, or
hypothecate its leasehold interest therein, or permit the use of a desk or other
space within the Premises by any third party other than: (i) a third party which
uses the space on a temporary, non-recurrent basis in connection with providing
services to Tenant; or (ii) regulators or auditors, and any attempt to do so
without the prior express written consent of Landlord, which consent shall not
be unreasonably withheld, conditioned or delayed, shall be void, of no effect,
and constitute an Event of Default hereunder. The voluntary or other surrender
of this Lease by Tenant or a mutual cancellation hereof shall not work a merger
and shall, at the option of Landlord, terminate all or any existing subleases or
shall, at the option of Landlord, operate as an assignment to Landlord of
Tenant's interest in any or all such subleases. Notwithstanding the foregoing,
each sublease must contain a provision whereby the sublessee agrees that upon
notice from Landlord to the sublessee that an Event of Default by Tenant has
occurred under this Lease, the sublessee will pay all sublease rents then and
thereafter payable, to Landlord, and Tenant hereby assigns such sublease rents
to Landlord for the period from and after the delivery of such notice to such
sublessee. Further notwithstanding anything to the contrary contained in this
Lease, Landlord may withhold its consent, in its sole and absolute discretion,
to a proposed subtenant or assignee (including an "Affiliate" or "Subsidiary,"
both as
26
defined herein, of Tenant) which is engaged in a business or line of commerce
which directly competes with Landlord or any parent, subsidiary or affiliate of
Landlord.
17.2 A sale, transfer, pledge, or hypothecation by Tenant of all or
substantially all of its assets or all or substantially all of its stock, or if
Tenant is a publicly traded corporation, a merger of Tenant- with another
corporation or a sale of fifty percent (50%) or more of its stock or a sale of
substantially all its assets; or the sale, transfer, pledge, or hypothecation of
fifty percent (50%) or more of the stock of Tenant if Tenant's stock is not
publicly traded; or the sale, transfer, pledge, or hypothecation of fifty
percent (50%) or more of the beneficial ownership interest in Tenant if Tenant
is a partnership, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed, shall, in any of the foregoing
cases (each referred to herein as a "Deemed Assignment"; the purchaser of
assets, purchaser of stock, or purchaser of partnership interests, as the case
may be, is referred to herein as a "Deemed Assignee"), and whether or not
accomplished by one or more related or unrelated transactions, constitute a
prohibited assignment of this Lease and an Event of Default hereunder.
Notwithstanding the foregoing, Landlord's consent shall not be required with
respect to a Deemed Assignment to a Deemed Assignee which has either (i) an
investment grade debt rating of at least "BBB" as determined by Standard &
Poor's Corporation or (ii) a rating of at least "Baa2" as determined by Moody's
Investors Services, Inc. as to long-term senior unsecured debt (or the
equivalent for issuers which do not have long-term senior unsecured debt (the
"Financial Tests"), provided that Tenant gives Landlord not less than ten (10)
days' advance written notice of such Deemed Assignment.
17.3 If Tenant should desire to assign this Lease or sublease the
Premises or any portion thereof, and if such proposed assignment or subletting
requires Landlord's consent pursuant to this Article 17, then Tenant shall give
Landlord written notice of such desire to make such assignment or effect such
sublease. At the time of giving such notice, Tenant shall provide Landlord with
a copy of the proposed assignment or sublease document, and such information as
Landlord may reasonably request concerning the proposed assignee or sublessee to
assist Landlord in making an informed judgment regarding the financial condition
(with respect to a sublessee only), reputation, operation, and general
desirability of the proposed assignee or sublessee. Landlord shall then have a
period of thirty (30) days following receipt of such notice and such information
within which to notify Tenant in writing of Landlord's election to:
(a) recapture the space so affected by terminating this
Lease as to such space as of the date specified by
Tenant (the "Specified Date"), in which event Tenant
shall be relieved of all further obligations
hereunder after the Specified Date as to the Premises
or said portion thereof, after paying all Rent due as
of the Specified Date, and after vacating the
affected space on or before the Specified Date in
accordance with the provisions of Section 3.3,
Section 8.2, and Articles 14 and 15 hereof.
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(b) permit Tenant to assign or sublet the Premises or
said portion thereof in accordance with the terms of
the proposed assignment or sublet document; or
(c) refuse to give its consent to Tenant's assignment or
subleasing of the Premises or said portion thereof
(provided that Landlord shall not be entitled to
unreasonably refuse its consent and further provided
that Landlord must give Landlord an explanation for
refusing to give its consent) and to continue this
Lease in full force and effect as to the entire
Premises.
Landlord and Tenant agree that, in the event of any approved assignment
or subletting, the rights of any such assignee or sublessee of Tenant herein
shall be subject to all of the terms, conditions, and provisions of this Lease,
including, without limitation, restriction on use, assignment, and subletting
and the covenant to pay Rent. Landlord may collect Rent directly from such
assignee or sublessee and apply the amount so collected to the Rent herein
reserved. No such consent to or recognition of any such assignment or subletting
shall constitute a release of Tenant, or any guarantor of Tenant's performance
hereunder ("Guarantor"), from further performance by Tenant or such Guarantor of
covenants undertaken to be performed by Tenant herein. Tenant and/or such
Guarantor shall remain liable and responsible for all Rent and other obligations
herein imposed upon Tenant. Tenant shall pay all of Landlord's costs in
connection with any such assignment of subletting, including, without
limitation, attorneys' fees and the fees of any real estate broker employed by
Landlord to consult with Landlord and/or Tenant with regard to such assignment
or subletting. Consent by Landlord to a particular assignment, sublease, or
other transaction shall not be deemed a consent to any other or subsequent
transaction. In any case, if Landlord consents to any such assignment, sublease,
or other transaction, Tenant shall pay any reasonable attorneys' fees incurred
by Landlord in connection with such transaction. All documents utilized by
Tenant to evidence any subletting or assignment for which Landlord's consent has
been requested, shall be subject to prior approval by Landlord or its attorney,
which approval shall not be unreasonably withheld, conditioned or delayed. If
any Rent payable to Tenant by any sublessee, assignee, licensee, or other
transferee exceeds the sum of: (1) the Rent reserved herein (which in the case
of a sublease, shall mean the pro-rated portion of such Rent attributable to the
subleased premises) and (2) Tenant's reasonable out-of-pocket costs in
connection with such sublease, assignment, license or transfer, then Tenant
shall be bound and obligated to pay Landlord fifty percent (50%) of such excess
within ten (10) days following receipt thereof by Tenant from such sublessee,
assignee, licensee, or other transferee, as the case might be, as Additional
Rent.
17.4 If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et. seq. (the
"Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord,
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and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any such monies or other consideration not
paid or delivered to Landlord shall be held in trust for the benefit of Landlord
and shall be promptly paid or delivered to Landlord. Any person or entity to
whom this Lease is so assigned shall be deemed, without further act or deed, to
have assumed all of the obligations arising under this Lease as of the date of
such assignment. Any such assignee shall, upon demand therefor, execute and
deliver to Landlord an instrument confirming such assumption.
17.5 Notwithstanding anything to the contrary in this Article 17,
in no event shall Tenant have the right to assign this Lease or sublet all or a
portion of the Premises if an "Event of Default," as defined herein, has
occurred and is continuing.
17.6 Notwithstanding anything to the contrary contained in this
Article 17 (but subject, however to the provisions of the last sentence of
Section 17.1), Tenant shall be entitled to assign this Lease, or sublet all or a
portion of the Premises, without Landlord's consent: (i) to an entity which is
owned by, controlled by, or under common control with, Tenant (a "Subsidiary");
(ii) to an entity which is owned by, controlled by, or under common control
with, Tenant's parent company (an "Affiliate"); (iii) in connection with a
merger, consolidation or other reorganization involving Tenant, provided that
the merged, consolidated, or reorganized corporation meets one of the Financial
Tests, and further provided that Tenant gives Landlord not less than ten (10)
days' advance written notice of such merger, consolidation or reorganization; or
(iv) in connection with the sale of all or substantially all of Tenant's assets
(provided that the purchaser of such assets meets either of the-Financial Tests)
(circumstances (i) -- (iv) above are sometimes referred to herein as "Control
Transactions"); provided, however, that within ten (10) days after the Control
Transaction, Tenant gives Landlord: (x) written notice of the details of the
Control Transaction and (y) an executed assignment and assumption agreement, or
sublease, as applicable, in form acceptable to Landlord, with respect to such
Control Transaction.
17.7 Notwithstanding anything to the contrary contained in this
Article 17, should Tenant: (i) enter into a Control Transaction with a party
which directly competes with Landlord or any parent, subsidiary or affiliate of
Landlord; or (ii) absent a Control Transaction, enter into direct competition
with Landlord or any parent, subsidiary or affiliate of Landlord, then in either
such event, Landlord shall be entitled to terminate this Lease by giving Tenant
not less than thirty (30) months' prior written notice of its election to
terminate this Lease.
ARTICLE 18. DAMAGE AND DESTRUCTION
18.1 If the Premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give prompt written notice thereof to Landlord.
If the Building shall be damaged by fire or other casualty and any of the
following applies: (a) substantial alteration or reconstruction of the Building
is, in Landlord's reasonable opinion, required (whether or not the Premises
shall have been damaged by such fire or other casualty); (b) any mortgagee under
a mortgage or any
29
holder of a deed of trust now or hereafter covering the Building requires that
the insurance proceeds payable as a result of said fire or other casualty be
used to reduce or retire the mortgage or deed of trust debt, (c) the Building is
damaged as a result of a risk that is not covered by Landlord's insurance, or
(d) the Premises is materially damaged during the last year of the Term, then,
in any such event, Landlord may, at its option, terminate this Lease by
notifying Tenant in writing of such termination within ninety (90) days after
the date of such damage or casualty, in which event the Rent hereunder shall be
abated as of the date of such damage, Landlord shall refund to Tenant any
prepaid Rent, and Tenant shall vacate the Premises in accordance with the
requirements of Sections 3.3 and 8.2 and Articles 14 and 15 hereof
18.2 If Landlord does not elect to terminate this Lease as herein
provided, then to the extent of the insurance proceeds available to Landlord
therefor, Landlord shall repair and restore the Building and/or the Premises
with reasonable dispatch (and shall commence such restoration within sixty (60)
days after such casualty) to substantially the same condition in which they were
immediately prior to the fire or other casualty, except that Landlord shall not
be required to rebuild, repair, or replace any part of Tenant's furniture,
fixtures, furnishings, or equipment or any Alterations. Landlord shall not be
liable for any inconvenience, annoyance, or injury done to the business of
Tenant resulting in any way from such damage or the repair thereof and Tenant's
obligations to pay Rent shall continue unabated, except Landlord shall allow
Tenant an equitable reduction of Rent during the time and to the extent the
Premises arc unfit for occupancy.
18.3 If the Premises or the Building shall be totally or partially
damaged by fire or other casualty resulting from the fault or negligence of
Tenant, or its agents, employees, licensees, or invitees, such damage shall be
repaired by and at the expense of Tenant (to the extent that such destruction or
damage is not covered by the waiver of subrogation provisions of Article 12
hereof) under the direction and supervision of Landlord, and Rent shall continue
without abatement.
18.4 If the Premises shall be totally or partially damaged by fire
or other casualty, then Base Rent and Additional Rent shall abate in proportion
to the portion of the Premises which become untenantable, from the date of such
casualty until the earlier to occur of: (1) the date when this Lease is
terminated pursuant to this Article 18 and (ii) five (5) days after the date
when the Premises (other than any Alterations) are substantially restored to
their condition prior to such fire or other casualty.
18.5 If: (i) the Premises shall be totally or partially damaged by
fire or other casualty and such damage is not capable of substantial restoration
within one hundred eighty (180) days after the date of such damage, and (ii)
such damage materially and adversely interferes with Tenant's business
operations in the Premises, then Tenant may, by written notice to Landlord
within forty-five (45) days after the date of such casualty, terminate this
Lease as of the date of occurrence of such damage. If neither Landlord nor
Tenant terminates this Lease pursuant to this Article 18 and Landlord does not
substantially restore any damage to the Premises which
30
materially and adversely interferes with Tenant's business operations in the
Premises within two hundred seventy (270) days after the date of damage, as
extended by "force majeure," as defined herein, then Tenant may, terminate this
Lease by written notice to Landlord within five (5) days after the end of such
two hundred seventy (270) day period.
ARTICLE 19. CONDEMNATION
If there shall be taken by exercise of the power of eminent domain, or
by conveyance in lieu thereof, during the Term any material part of the
Premises, the Building, the Rogers Building, or the Complex, Landlord may elect
to terminate this Lease upon written notice to Tenant within sixty (60) days
after the date of such taking or transfer in lieu thereof or to continue the
same in effect. All compensation awarded for any taking (or the proceeds of a
private sale in lieu thereof) of the Premises, the Building, the Rogers
Building, or the Complex shall be the property of Landlord, and Tenant hereby
assigns its interest in any such award to Landlord; provided, however, Landlord
shall have no interest in any award made to Tenant for the taking of Tenant's
movable trade fixtures and other personal property or moving expenses if a
separate award for such items is made to Tenant and such separate award does not
reduce Landlord's award. If this Lease is terminated as a result of any such
exercise of the power of eminent domain, Rent shall be payable up to the date
that possession is taken by the condemning authority Landlord shall refund to
Tenant any prepaid unaccrued Rent, less any sum then owing by Tenant to Landlord
and Tenant shall have no claim against Landlord for the value of any unexpired
portion of the Term. If such condemnation does not result in the termination of
this Lease, the Rent thereafter to be paid shall be proportionately reduced as
to the space affected.
ARTICLE 20. INDEMNIFICATION
20.1 Tenant agrees to defend, with counsel reasonably approved by
Landlord, all actions against Landlord, any partner, member, trustee,
stockholder, officer, director, employee, or beneficiary of Landlord, holders of
mortgages or deeds of trust secured by the Premises or the Complex and any other
party having an interest therein (collectively the "Landlord Indemnified
Parties") with respect to, and to pay, protect, indemnify, and save harmless, to
the extent permitted by law, all Landlord Indemnified Parties from and against,
any and all liabilities, losses, damages, costs, expenses (including reasonable
attorneys' fees and expenses), causes of action, .suits, claims, demands, or
judgments of any nature to which any Landlord Indemnified Party is subject
because of its estate or interest in the Premises or the Complex arising from
(i) injury to or death of any person, or damage to or loss of property, on the
Premises (except to the extent caused by Landlord's negligence or willful
misconduct), or, to the extent caused by or attributable to Tenant, on the
Complex, or, in any of the foregoing cases, connected with the use, condition,
or occupancy of the Premises, (ii) violation of this Lease by or attributable to
Tenant, or (iii) any act, fault, omission, or other misconduct of Tenant or its
agents, contractors,
31
licensees, sublessees or invitees. Tenant agrees to use and occupy the Premises
and other facilities of the Complex at its own risk, and hereby releases the
Landlord Indemnified Parties from any and all claims for any damage or injury to
the fullest extent permitted by law.
20.2 Landlord agrees to defend, with counsel reasonably approved by
Tenant, all actions against Tenant, and any partner, member, trustee,
stockholder, officer, director, employee, or beneficiary of Tenant (collectively
the "Tenant Indemnified Parties") with respect to, and to pay, protect,
indemnify, and save harmless, to the extent permitted by law, all Tenant
Indemnified Parties from and against, any and all liabilities, losses, damages,
costs, expenses (including reasonable attorneys' fees and expenses), causes of
action, suits, claims, demands, or judgments of any nature to which any Tenant
Indemnified Party is subject because of its estate or interest in the Premises
arising from the gross negligence or willful misconduct of Landlord or its
agents, contractors, licensees or invitees.
20.3 Tenant agrees that Landlord shall not be responsible or liable
to Tenant, its agents, employees, licensees, or invitees for fatal or non-fatal
bodily injury or property damage occasioned by the acts or omissions of any
other tenant, or such other tenant's agents, employees, licensees, or invitees,
of the Property.
ARTICLE 21. DEFAULT
21.1 The term "Event of Default" refers to the occurrence of any
one (1) or more of the following:
(a) Failure of Tenant to pay when due any sum required to
be paid hereunder (a "Monetary Default"); provided
that Tenant shall not be in Monetary Default on
account of such late payment if Tenant pays the
overdue amount within five (5) days after written
notice of such late payment (and further provided
that Tenant shall be entitled to only two (2) written
notices of late payment in any twelve (12) month
period);
(b) Failure of Tenant, after thirty (30) days' written
notice thereof to perform any of Tenant's
obligations, covenants, or agreements (except such
failure which constitutes a Monetary Default),
provided that if such failure is not reasonably
capable of being cured within such thirty (30) day
period, then within such additional period of time as
is reasonable under the circumstances, provided that
Tenant diligently prosecutes such cure at all times
during such additional period;
(c) If Tenant, or any Guarantor, admits in writing that
it cannot meet its obligations as they become due; or
is declared insolvent according to any
32
law; or assignment of Tenant's or Guarantor's
property is made for the benefit of creditors; or a
receiver or trustee is appointed for Tenant or
Guarantor, or either of their properties; or the
interest of Tenant or Guarantor under this Lease is
levied on under execution or other legal process; or
any petition is filed by or against Tenant or
Guarantor to declare Tenant or Guarantor bankrupt or
to delay, reduce, or modify Tenant's or Guarantor's
debts or obligations; or any petition is filed or
other action taken to reorganize or modify Tenant's
or Guarantor's capital structure if Tenant or
Guarantor, as the case may be, is a corporation or
other entity. Any such levy, execution, legal
process, or petition filed against Tenant or
Guarantor shall not constitute a breach of this Lease
provided Tenant or Guarantor, as the case may be,
shall vigorously contest the same by appropriate
proceedings and shall remove or vacate the same
within ninety (90) days from the date of its
creation, service, or filing;
(d) The discovery by Landlord that any financial
statement given by Tenant or any of its assignees,
subtenants, successors-in-interest, or Guarantor, was
materially false when given to Landlord; or
(e) If Tenant or Guarantor shall die, cease to exist as a
corporation or partnership, or be otherwise dissolved
or liquidated or become insolvent, or shall make a
transfer in fraud of creditors.
21.2 Upon any Event of Default by Tenant, Landlord, at its option,
may pursue one or more of the following remedies without notice or demand in
addition to all other rights and remedies provided for in law or in equity:
(a) Terminate this Lease, in which event Tenant shall
immediately surrender possession of the Premises to
Landlord;
(b) Enter upon or take possession of the Premises and its
contents and expel or remove Tenant, any other
occupant, and any contents therefrom using such force
as may be reasonably necessary, with or without
having terminated the Lease and without being liable
for prosecution of any claim of damages therefor;
and/or
(c) In connection with any action taken by Landlord under
Sections 2 1.2(a) or (b) above, alter locks and other
security devices from the Premises without being
liable for prosecution of any claim of damages
therefor.
21.3 If Landlord shall exercise any one or more remedies hereunder
granted or otherwise available, such exercise shall not be deemed to be an
acceptance or surrender of the
33
Premises by Tenant whether by agreement or by operation of law; it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. No alteration of security devices and no removal or other
exercise of dominion by Landlord over the property of Tenant or others in the
Premises shall be deemed unauthorized or constitute a conversion, Tenant hereby
consenting to the aforesaid exercise of dominion over Tenant's property within
the Premises after any Event of Default. All claims for damages by reason of
such reentry and/or repossession and/or alteration of locks or other security
devices are hereby waived as are all claims for damages by reason of any
distress warrant, forcible detainer proceedings, sequestration proceedings, or
other legal process. Tenant agrees that any reentry by Landlord may be pursuant
to a judgment obtained in legal proceedings or without the necessity of legal
proceedings (if permitted by law) as Landlord may elect, and Landlord shall not
be liable in trespass or otherwise.
In the event Landlord may elect to regain possession of the Premises by
a summary proceeding, ejectment, or forcible detainer proceedings, Tenant hereby
specifically waives, to the extent permitted by law, any statutory notice
(including a notice to quit) which may be required prior to such proceeding and
agrees that Landlord's execution of this Lease is consideration for this waiver.
21.4 Should Landlord elect to terminate this Lease, Landlord may,
without further notice, repossess the Premises and Tenant shall be liable as if
the expiration of the term fixed in such notice were the end of the Term herein
originally demised. In the event this Lease is terminated pursuant to the
provisions of this subsection, Tenant shall remain liable to Landlord for
damages in an amount equal to (i) the Rent which is due and owing as of the date
of such termination and (ii) the Rent and other sums which would have been owing
by Tenant hereunder for the balance of the Term had this Lease not been
terminated, less the net proceeds, if any, of any reletting of the Premises by
Landlord subsequent to such termination after deducting all of Landlord's
expenses in connection with such reletting, including, but without limitation,
the expenses enumerated in Section 21.6 below. Landlord shall be entitled to
collect such damages from Tenant monthly on the days on which the Monthly Rent
would have been payable hereunder if this Lease had not been terminated, and
Landlord shall be entitled to receive the same from Tenant on each such day.
21.5 Alternatively, at the option of Landlord, in the event this
Lease is terminated, Landlord shall be entitled to accelerate and collect from
Tenant the Rent due under this Lease from the date on which the Event of Default
occurred through the date which would otherwise have been the Expiration Date of
this Lease, plus all "Reletting Costs," as defined in Section 21.6 below, less
the present value of the then-fair rental value of the Premises for such period,
plus the Rent which was due and owing as of the date of such termination. For
computations of present value, the parties agree to use a six percent (6%) per
annum interest rate. The foregoing, together with any other damages incurred by
Landlord in connection with the termination of this Lease, shall accrue interest
at the Default Interest Rate.
34
21.6 Should Landlord elect not to terminate this Lease, Landlord
may, without notice or demand, enter upon the Premises or any part thereof and
take absolute possession of the same, and, at Landlord's option, Landlord may
relet the Premises or any part thereof upon such terms and such rents as
Landlord may reasonably elect (which may include, without limitation,
concessions of free rent, alteration of the Premises and improvement and moving
allowances). Landlord shall use reasonable efforts, but shall not be obligated,
to relet the Premises, and nothing herein contained shall under any
circumstances be construed so as to require Landlord to lease the Premises below
the then-current market rental rates being obtained for similar office buildings
in the Greater Hartford area or to lease the same to any Tenant not creditworthy
or otherwise unacceptable to Landlord and shall in no way be responsible or
liable for any failure to relet the Premises, or any part thereof, or for any
failure to collect any rent due upon such relcuing. In the event Landlord shall
elect to so relet, then any rent received by Landlord from such reletting shall
be applied first, to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord, second, to payment of any reasonable cost of
such reletting, including, without limitation, all repossession costs, legal
expenses, attorneys' fees, concessions, moving and/or storage costs, alteration,
remodeling and repair costs, leasing commissions, and other expenses of
preparation for such reletting (collectively, "Reletting Costs"); and third, to
the payment of Rent due and unpaid hereunder. Tenant shall satisfy and pay any
deficiency between the rents so collected from the total of the amounts for the
items listed above as "first," "second" and "third" above. In no event shall
Tenant be entitled to any excess of any rent obtained by reletting over and
above the items listed above as "first," "second" and "third" above.
21.7 Tenant further agrees that Landlord may file suit from time to
time to recover any sums due under the terms of this Article 21 and that no
recovery of any portion due Landlord hereunder shall be a defense to any
subsequent action brought for any amount not theretofore reduced to judgment in
favor of Landlord. Reletting the Premises shall not be construed as an election
on the part of Landlord to terminate this Lease, and notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach, whereupon the foregoing
provisions of this Article 21 with respect to termination shall apply. Nothing
herein shall be deemed to require Landlord to await the date whereon this Lease
or the Term hereof would have expired had there been no such default by Tenant,
or no such termination, as the case may be.
21.8 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, including, but not limited to, suits for injunctive
relief and specific performance. 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 or any or all
other tights or remedies provided for in this Lease or now or hereafter existing
at law or in equity or by statute or otherwise. All such
35
rights and remedies shall be considered cumulative and non-exclusive. All costs
incurred by Landlord in connection with collecting any Rent or other amounts and
damages owing by Tenant pursuant to the provisions of this Lease, or to enforce
any provision of this Lease, including reasonable attorneys' fees from the date
such matter is turned over to an attorney, whether or not one or more actions
are commenced by Landlord, shall also be recoverable by Landlord from Tenant.
21.9 If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the Premises for such purpose), and thereupon, Tenant shall be obligated and
hereby agrees to pay Landlord, upon demand, all reasonable costs, expenses, and
disbursements, plus an administrative charge often percent (10%) of such costs,
expenses and disbursements.
21.10 Nothing contained in this Article 21 shall limit or prejudice
the right of Landlord to prove and obtain as liquidated damages in any
bankruptcy, insolvency, receivership, reorganization, or dissolution proceeding,
an amount equal to the maximum allowed by any statute or rule of law governing
such a proceeding and in effect at the time when such damages are to be proved,
whether or not such amount be greater, equal, or less than the amounts
recoverable, either as damages or Rent, referred to in any of the preceding
provisions of this Article 21. Notwithstanding anything contained in this
Article 21 to the contrary, any such proceeding or action involving bankruptcy,
insolvency, reorganization, arrangement, assignment for the benefit of
creditors, or appointment of a receiver or trustee, as set forth above, shall be
considered to be an Event of Default only when such proceeding, action, or
remedy shall be taken or brought by or against the then holder of the leasehold
estate under this Lease.
21.11 In the event of any Event of Default by Tenant, Tenant shall
also be liable and shall pay to Landlord, in addition to any sums provided to be
paid above, brokers' commissions incurred by Landlord in connection with
reletting the whole or any part of the Premises; the costs of removing and
storing Tenant's or other occupant's property; the costs of repairing, altering,
remodeling, or otherwise putting the Premises into condition acceptable to a new
tenant or tenants; and all reasonable expenses incurred by Landlord in enforcing
or defending Landlord's tights and/or remedies, including reasonable attorneys'
fees, whether suit is actually commenced or not.
21.12 Landlord is entitled to accept, receive, in check or money
order, and deposit any payment made by Tenant for any reason or purpose or in
any amount whatsoever, and apply them at Landlord's option to any obligation of
Tenant, and such amounts shall not constitute payment of any amount owed, except
that to which Landlord has applied them. No endorsement or statement on any
check or letter of Tenant shall be deemed an accord and satisfaction or
recognized for any purpose whatsoever. The acceptance of any such check, money
order or other
36
payment shall be without prejudice to Landlord's rights to recover any and all
amounts owed by Tenant hereunder and shall not be deemed to cure any other
default nor prejudice Landlord's rights to pursue any other available remedy.
21.13 In the event of any default by Landlord, Tenant's exclusive
remedy shall be an action for damages, Tenant hereby waiving the benefit of any
laws granting it a lien upon the property of Landlord and/or upon Rent due
Landlord. Prior to any such action for damages, Tenant shall give Landlord
written notice specifying such default with particularity, and Landlord shall
thereupon have thirty (30) days (plus such additional reasonable period as may
be required in the exercise by Landlord of due diligence) in which to cure any
such default. Unless and until Landlord fails to cure any default after such
notice, Tenant shall not have any remedy or cause of action by reasons thereof.
All obligations of Landlord hereunder shall be construed as covenants, not
conditions.
21.14 In addition to and without limiting the foregoing, in the
event of any abandonment of the Premises by Tenant, if Landlord does not elect
to declare this Lease terminated, then Tenant shall remain obligated,
notwithstanding any such discontinuance or cessation of operations, to perform
all covenants and agreements under this Lease, including without limitation,
payment of all Base Rent, and all Additional Rent and other sums provided for
herein.
ARTICLE 22. INTENTIONALLY OMITTED
ARTICLE 23. OPTIONS TO RENEW
(a) Provided a Tenant Event of Default does not exist at
the time the option may be exercised and Tenant has not assigned this Lease
(other than in connection with a Control Transaction), Landlord grants Tenant
the options (the "Renewal Options") to renew this Lease with respect to the
entire Premises, for three (3) additional periods, the first of which (the
"First Renewal Period") shall be for a period commencing on the day following
the end of the original seven (7) year Term of this Lease and expiring on June
30, 2009; the second of which (the "Second Renewal Period") shall be for a
period commencing on July 1, 2009 and expiring on June 30, 2014; and the third
of which (the "Third Renewal Period") shall be for a period commencing on July
1, 2014 and expiring on June 30, 2019. Tenant's right to exercise its option for
the Second Renewal Period shall be conditioned upon Tenant's exercise of its
option for the First Renewal Period. Tenant's right to exercise its option for
the Third Renewal Period shall be conditioned upon Tenant's exercise of its
option for the Second Renewal Period. Each Renewal Option must be exercised by
Tenant delivering written notice to Landlord at least eighteen (18) months, but
not more than thirty (30) months, prior to the Expiration Date, as extended by
any previously exercised Renewal Option.
(b) The Base Rent rate for the Renewal Periods shall be
the Market Rental
37
Rate (as hereinafter defined). The Market Rental Rate is the then prevailing
rental rate then being charged by landlords (including Landlord) in the Greater
Hartford, Connecticut area on leases to tenants of a similar credit quality to
Tenant for space of similar quality and size as the Premises, taking into
account all relevant factors.
(c) Within fifteen (15) days after Tenant's exercise of
each of the Renewal Options, Landlord shall notify Tenant in writing of the Base
Rent rate (the "Renewal Rental Rate") for that Renewal Period as determined by
the above standard. Tenant shall have fifteen (15) days from the receipt of
Landlord's notice to either accept or dispute Landlord's determination of the
Renewal Rental Rate, including any annual adjustments to the Renewal Rental
Rate. Within fifteen (15) days following Landlord's deliveiy of the Renewal
Rental Rate, Tenant shall notify Landlord in writing of the acceptance or
rejection of the Renewal Rental Rate. If Tenant accepts the Renewal Rental Rate,
then the Renewal Rental Rate shall be the rental rate in effect during the
applicable Renewal Term. If Tenant timely rejects the Renewal Rental Rate during
such fifteen (15) day period, Tenant's rejection notice must either (i) withdraw
its exercise of the Renewal Option, or (ii) exercise its right to a fifteen (15)
day negotiation period with Landlord which right is hereby granted. If Tenant
exercises such right, Tenant and Landlord shall, in good faith, endeavor to
negotiate a reasonable Renewal Rental Rate (the "Negotiated Renewal Rate"). If
Tenant and Landlord fail to agree upon a Negotiated Renewal Rate during such
fifteen (15) day period, Tenant may elect to either (i) withdraw its exercise of
the Renewal Option, or (ii) exercise its right to enter into arbitration with
Landlord concerning the Market Rental Rate in accordance with the following
procedure:
(i) Within ten (10) days after Tenant delivers to
Landlord its rejection notice requesting arbitration of the Market Rental Rate
(the "Designation Date"), Landlord and Tenant shall each appoint an independent
arbitrator who shall be an appraiser or licensed real estate broker with at
least ten (10) years' experience in office leasing or as a commercial real
estate appraiser, in the Hartford County, Connecticut real estate market or in
appraising leasehold interests under commercial leases, and shall be familiar
with the valuation of comparable property in such area and otherwise qualified
to act as an expert witness over objection to give opinion testimony addressed
to the issue in a court of competent jurisdiction. Each independent appraiser
shall not have been employed, regularly or as a broker or consultant, during the
past three (3) year period by the respective party selecting such person. By the
Designation Date, each party shall notify the other party in writing of the
name, address, telephone number and qualifications of its appraiser so
appointed. If either party shall fail to notify the other party of its named
appraiser by the Designation Date, the determination of the Market Rental Rate
by the single appraiser appointed shall be conclusive and binding upon both
Landlord and Tenant. If both parties timely designate their respective
appraisers, then the two appointed appraisers shall select a third qualified
appraiser within ten (10) days after the Designation Date. Landlord and Tenant
shall each bear the cost of its appraiser and one-half (1/2) of the cost of the
third appraiser.
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(ii) The three appraisers shall determine, by mutual
agreement, the Market Rental Rate in accordance with the parameters set forth
herein within thirty (30) business days after the Designation Date by selecting
either Landlord's or Tenant's determination of the Market Rental Rate. If all of
the appraisers fail to agree on the Market Rental Rate within thirty (30)
business days after the Designation Date, but two of the appraisers can so
agree, then the Market Rental Rate as determined by such two appraisers shall be
controlling. If none of the appraisers can agree on the Market Rental Rate
within such time period, then an average shall be taken of the two closest
determinations thereof and such average shall be controlling (except that if the
median of the three rates provided by the appraisers is also the average of the
three, it shall be controlling).
(d) Landlord and Tenant shall execute an amendment to this Lease
within thirty (30) days after the determination of the Renewal Rental Rate,
which amendment shall set forth the extended Term, the Base Rent and all other
terms and conditions for the applicable Renewal Period.
(e) Any termination of the Lease during the initial Term or any
Renewal Periods shall terminate all subsequent renewal tights hereunder. The
renewal tights of Tenant hereunder shall not be severable from the Lease, nor
may such rights be assigned or otherwise conveyed in connection with any
permitted assignment of the Lease. Landlord's consent to any assignment of the
Lease to a party shall not be construed as allowing an assignment of such rights
to any assignee.
(f) Notwithstanding anything to the contrary contained in this
Article 23, if landlord requires the Premises for occupancy by its employees or
by the employees of its affiliates or subsidiaries, and intends in good faith to
so occupy the Premises, then Landlord shall have the right to void Tenant's
exercise of its Renewal Option for the Second Renewal Period and/or the Third
Renewal Option, and Tenant's right to exercise its Renewal Option for the Second
Renewal Period and/or the Third Renewal Option, by giving written notice to
Tenant within thirty (30) days after Tenant's exercise of the applicable Renewal
Option, and upon giving of such notice by Landlord, Tenant exercise of its
option for the applicable Renewal Period, as well as Tenant's tight to exercise
the applicable Renewal Option, shall be null and void and of no further force
and effect.
(g) Except as set forth above, the Renewal Period(s) shall be
subject to all of the terms and conditions of this Lease.
ARTICLE 24. ATTORNEYS FEES
Should it be necessary for Landlord or Tenant, because of a breach of
the other hereunder, to place the enforcement of this Lease or any part thereof,
or the collection of any Rent due or to
39
become due hereunder, or recovery of the possession of the Premises, in the
hands of any attorney, or file suit upon the same, it is agreed that the
prevailing party shall recover its reasonable attorneys' fees from the
non-prevailing party.
ARTICLE 25. NON-WAIVER
Neither acceptance of any payment by Landlord from Tenant nor failure
by Landlord to complain of any action, non-action, or default of Tenant shall
constitute a waiver of any of Landlord's rights or remedies hereunder, at law or
in equity. Time is of the essence with respect to the performance of every
obligation of Tenant under this Lease in which time of performance is a factor.
Waiver by Landlord of any tight or arising in connection with any default of
Tenant shall not constitute a waiver of such right or remedy or any other tight
or remedy arising in connection with either a subsequent default of the same
obligation or any other default. No right or remedy of Landlord hereunder or
covenant, duty, or obligation or Tenant hereunder shall be deemed waived by
Landlord unless such waiver is in writing, signed by Landlord.
ARTICLE 26. RULES AND REGULATIONS
Such reasonable rules and regulations applying to all tenants of the
Complex as may be hereafter reasonably adopted by Landlord for the safety, care,
and cleanliness of the Complex and the preservation of good order thereon are
hereby made a part hereof as EXHIBIT E, and Tenant agrees to comply with all
such rules and regulations. Landlord shall have the right at all times to change
such rules and regulations or to amend them in any reasonable manner as my be
deemed advisable by Landlord, all of which changes and amendments shall be sent
by Landlord to Tenant in writing and shall be thereafter carried out and
observed by Tenant. Landlord shall not have any liability to Tenant for any
failure of any other tenants of the Complex to comply with such rules and
regulations.
ARTICLE 27. ASSIGNMENT BY LANDLORD
Landlord shall have the tight to transfer or assign, in whole or in
part, all its rights and obligations hereunder and in the Premises and the
Complex. In such event, no liability or obligation shall accrue or be charged to
Landlord.
ARTICLE 28. LIABILITY OF LANDLORD
It is expressly understood and agreed that the obligations of Landlord
under this Lease shall be binding upon Landlord and its successors and assigns
and any future owner of the
40
Complex only with respect to events occurring during its and their respective
ownership of the Complex. In addition, Tenant agrees to look solely to
Landlord's interest in the Complex for recovery of any judgment against Landlord
arising in connection with this Lease, it being agreed that neither Landlord nor
any successor or assign of Landlord nor any future owner of the Complex, nor any
partner, member, shareholder, officer, director or employee or of any of the
foregoing shall ever be personally liable for any such judgment.
ARTICLE 29. SUBORDINATION AND ATTORNMENT
29.1 This Lease, at Landlord's option, shall be subordinate to any
(i) mortgage or deed of trust now or hereafter placed upon the Complex, (ii)
ground lease, (iii) declaration of covenants (now or hereafter placed upon the
Complex) regarding maintenance and use of any areas contained in any portion of
the Complex, and to (iv) any and all advances made under any mortgage or deed of
trust and to all renewals, modifications, consolidations, replacements, and
extensions of such mortgage or deed of trust thereof. Tenant agrees, with
respect to any of the foregoing documents, that no documentation other than this
Lease shall be required to evidence such subordination. If any holder of a
mortgage or deed of trust shall elect for this Lease to be superior to the lien
of its mortgage or deed of trust and shall give written notice thereof to
Tenant, then this Lease shall automatically be deemed prior to such mortgage or
deed of trust whether this Lease is dated earlier or later than the date of said
mortgage or deed of trust or the date of recording thereof. Tenant agrees to
execute such documents as may be further required to evidence such
subordination, or to make this Lease prior to the lien of any mortgage or deed
of trust, as the case may be, and by failing to do so within five (5) days after
written demand, Tenant does hereby make, constitute, and irrevocably appoint
Landlord as Tenant's attorney-in-fact and in Tenant's name, place, and stead, to
do so. This power of attorney is coupled with an interest.
29.2 Tenant hereby attorns to all successor owners of the Complex,
whether or not such ownership is acquired as a result of a sale through
foreclosure of a deed of trust or mortgage, or otherwise. Notwithstanding
anything herein to the contrary, any subordination of this Lease or Tenant's
interest in the Premises shall be conditioned upon Tenant being provided with a
non-disturbance agreement from any present or future ground lessors, mortgage
holders, and other superior lien holders of the Complex, which non-disturbance
agreement shall be in form and substance acceptable to Tenant in its reasonable
discretion.
29.3 Tenant shall, at such time or times as Landlord may request,
upon not less than ten (10) business days' prior written request by Landlord,
sign and deliver to Landlord a certificate stating whether this Lease is in full
force and effect; whether any amendments or modifications to this Lease exist;
whether any Monthly Rent has been prepaid and, if so, how much; whether there
are any defaults hereunder by either Landlord or Tenant; and such other
information and agreements as may be reasonably requested, it being intended
that any such statement delivered pursuant to this Section 29.3 may be relied
upon by Landlord and by any prospective purchaser
41
of all or any portion of Landlord's interest herein, or a holder or prospective
holder of any mortgage or deed of trust encumbering the Complex. Tenant's
failure to deliver such statement within such time shall constitute an Event of
Default. Further, if Tenant continues to fail to provide such statement for a
period of three (3) business days after a second written request by Landlord,
then: (i) such failure shall conclusively be deemed to be an admission by Tenant
of the matters set forth in the request for an estoppel certificate; and (ii)
Tenant does hereby make, constitute, and irrevocably appoint Landlord as
Tenant's attorney-in-fact and in Tenant's name, place, and stead, to do so. This
power of attorney is coupled with an interest.
ARTICLE 30. HOLDING OVER
In the event Tenant, or any party claiming under Tenant, retains
possession of the Premises after the Expiration Date or earlier termination of
this Lease, such possession shall be that of a tenancy from month-to-month. No
other tenancy or interest shall result from such possession, and such parties
shall be subject to immediate eviction and removal. Tenant or any such party
shall pay Landlord, as compensation for use and occupancy for the period of such
holdover, an amount equal to one hundred fifty percent (150%) of the Rent
otherwise provided for herein during the time of holdover (the "Holdover Period
Use and Occupancy Compensation"). Tenant shall also be liable for any and all
damages sustained by Landlord as a result of such holdover. Tenant shall vacate
the Premises and deliver same to Landlord immediately upon Tenant's receipt of
notice from Landlord to so vacate. The Holdover Period Use and Occupancy
Compensation during such holdover period shall be payable to Landlord on demand.
No holding over by Tenant, whether with or without consent of Landlord, shall
operate to extend the term of this Lease. Landlord's receipt of the Holdover
Period Use and Occupancy Compensation shall not limit in any maimer Landlord's
rights and remedies with respect to such holdover, including, without
limitation, summary process eviction proceedings, damages, or indemnity claims.
ARTICLE 31. SIGNS
No sign, symbol, or identifying marks shall be put upon the Complex,
the Building, in the halls, elevators, staircases, entrances, parking areas, or
upon the doors or walls, without the prior written approval of Landlord, which
approval may not be unreasonably withheld, conditioned or delayed.
Notwithstanding the foregoing, Landlord's consent shall not be required for
signs located within the Premises which are not visible outside the Premises.
Notwithstanding the foregoing, Tenant's right to exterior building-mounted
signage shall be limited to installation of exterior building-mounted signs in
the locations where Landlord currently maintains exterior building-mounted signs
on the Tower Building ("Tenant's Exterior Building Mounted Signs"). Landlord has
approved the exterior building-mounted signage annexed hereto as EXHIBIT F
annexed hereto and made a part hereof. Landlord must first approve the design,
size, location
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and manner of installation of all exterior signs, and Tenant's right to install
any such exterior sign shall be subject to the following conditions: (i) such
sign must comply with all municipal, state and federal laws, rules, codes and
regulations; (ii) prior to installation Tenant must obtain at its sole cost and
expense, and provide to Landlord, each and every municipal, state, and federal
consent, approval, and permit required for the installation of such sign; (iii)
Tenant shall be responsible for the fabrication, installation, maintenance and
removal of such sign, provided that the provisions of Section 3.04 of the
Transition Services Agreement shall apply with respect to any sharing of the
costs of the same; (iv) Landlord shall indemnify and hold Landlord harmless from
all loss, cost, damage, claim or expense suffered by Landlord on account of
Tenant's installation, maintenance, or removal of such sign; and (v) any sign
which replaces a Tenant's Exterior Building Mounted Sign must be substantially
similar in size, quality and design to the signwhich it replaces, and must be in
the same location as the sign it replaces.
ARTICLE 32. ENVIRONMENTAL
32.1 With respect to Tenant's use of the Premises, the Building
and the Complex, Tenant shall at all times, at its own cost and expense,
comply with all federal, state, and local laws, ordinances, regulations, and
standards relating to the use, analysis, production, storage, sale, disposal,
or transportation of any `hazardous materials," "hazardous waste, "or
"hazardous substances," (collectively referred to herein as "Hazardous
Substances") as such terms are defined in any of the following: the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 ET SEQ. ("CERCLA"); The Clear Air Act, as
amended, 42 U.S.C. Section 7401, ET SEQ.; The Federal Water Pollution Control
Act (Clean Water Act), 33 U.S.C. Section 1251, ET SEQ.; The Occupational
Safety and Health Act, 29 U.S.C. Section 51, ET SEQ.; The Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, ET SEQ.; The Hazardous
Materials Transportation Act, 49 U.S.C. Section 1802; The Toxic Substances
Control Act, 15 U.S.C. Section 2601 ET SEQ.; andlor any other federal, state
or local environmental law, ordinance, rule or regulation and the regulations
adopted and publications promulgated pursuant to any of said Acts
(collectively the "Hazardous Substance Laws"), including oil or petroleum
products or their derivatives, solvents, PCB's, explosive substances,
asbestos, radioactive materials or waste, and any other toxic, ignitable,
reactive, corrosive, contaminating, or pollution materials which are now or
in the future subject to any governmental regulations.
32.2 Tenant shall not generate, store, or dispose of any Hazardous
Substances in or on the Premises, the Buildings or the Complex, except for
Hazardous Materials commonly used in connection with general office puxposes,
but subject to compliance with Hazardous Materials Laws. Tenant shall not take
any remedial action in response to the presence or release of any Hazardous
Substances on or about the Premises, the Buildings or the Complex without first
giving written notice of the same to Landlord. Tenant shall not enter into any
settlement agreement, consent decree, or other compromise with respect to any
claims relating to any Hazardous Substances in any way connected with the
Complex without landlord's prior written
43
consent, which consent may be withheld or conditioned in Landlord's sole and
absolute discretion, and without affording Landlord the opportunity to
participate in any such proceedings.
32.3 All costs and expenses incurred by Landlord in connection with
any environmental audit shall be paid by Landlord (and may be included in
Operating Expenses), except that if any such environmental audit shows that
Tenant has failed to comply with the provisions of this Article 32, or that the
Complex (including surrounding soil and any underlying or adjacent groundwater)
have become contaminated due to the operations or activities attributable to
Tenant, then all of the costs and expenses of such audit shall be paid by Tenant
on demand, as Additional Rent.
32.4 Tenant shall inixnediately notify Landlord upon the receipt by
Tenant of any "notice," as hereinafter defined, of any violation of the
Hazardous Substance Laws. "Notice" shall mean any summons, citation, directive,
order, claim, litigation, investigation, proceeding, judgment, letter or other
communication, written or oral, actual or threatened, from the United States
Environmental Protection Agency ("US EPA") or other federal, state or local
agency or authority or any other entity or any individual, concerning any
intentional or unintentional act or omission which has resulted or which may
result in the releasing of Hazardous Substances into the waters or onto the land
of the State or commonwealth in which the Complex is located or into the
"environment" as such term is defined in CERCLA or into waters outside of the
jurisdiction of the State or commonwealth in which the Complex is located, from
or on the Premises, the Building, or the Complex or any portion thereof, and
shall include the imposition of any lien on the Premises, the Building, or the
Complex or any portion thereof, pursuant to Hazardous Substance Laws or any
violation of federal, state or local environmental laws, ordinances, rules,
regulations, government actions, orders or permits, or any knowledge, after due
inquiry and investigation, or of any facts which could give rise to any of the
above.
32.5 In the event of any breach of this Article 32, Tenant agrees
to defend, indemnify, and hold harmless Landlord, its successors and assigns
from and against any and all liabilities, losses, damages, costs, expenses
(including, without limitation, reasonable attorneys' fees and expenses), civil
and/or criminal penalties, causes of action, suits, claims, demand, or judgments
of any nature arising out of or in connection with (i) the presence of any
Hazardous Substances on or in the Premises if caused by Tenant or Tenant's
employees, agents, contractors, invitees or visitors, or the release of any
Hazardous Substances therefrom (if caused by Tenant or Tenant's employees,
agents, contractors, invitees or visitors) or from any property of Tenant
located on or in the Building or the Complex; (ii) any failure by Tenant to
comply with the terms of any order issued by the US EPA, or any other federal,
state, or municipal department or agency having regulatory authority over
environmental matters, with regard to the Premises; and (iii) any lien or claim
imposed under any Hazardous Substance Laws on account of the actions or
omissions of Tenant or Tenant's employees, agents, contractors, invitees or
visitors. The provisions of this Section 32.5 shall survive the expiration or
earlier termination of this Lease.
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32.6 Landlord agrees to defend, indemnify, and hold harmless
Tenant, its successors and assigns from and against any and all liabilities,
losses, damages, costs, expenses (including, without limitation, reasonable
attorneys' fees and expenses), civil and/or criminal penalties, causes of
action, suits, claims, demand, or judgments of any nature arising out of or in
connection with: (i) the presence of any Hazardous Substances on or in the
Complex caused by Landlord or Landlord's employees, agents, contractors,
invitees or visitors prior to the Commencement Date, or (ii) the release of any
Hazardous Substances on or in the Complex caused by Landlord or Landlord's
employees, agents, contractors, invitees or visitors, provided, however that
such indemnity obligation shall not extend to any noncompliance with laws
relating to indoor air quality or asbestos containing materials. The provisions
of this Section 32.6 shall survive the expiration or earlier termination of this
Lease.
32.7 In the event Tenant fails to comply with the requirements of
any of the Hazardous Substance Laws, it shall be a default of this Lease and
Landlord may, at its election, but without the obligation so to do, give such
notices or cause such work to be performed at the Premises, the Building, or the
Complex, or take any and all other actions as Landlord deems necessary, as shall
cure said failure of compliance, and any amounts paid as a result thereof,
together with interest thereon at the Default Interest Rate for any period
during which such default constitutes an Event of Default, from the date of
payment by Landlord, shall be immediately due and payable by Tenant to Landlord
and until paid shall be considered Additional Rent, and the same may be
collected from any Guarantor, or Landlord, by the payment of any assessment,
claim, or charge, may, if it sees fit, be thereby subrogated to the rights of
the governmental agencies having jurisdiction over such relocations.
ARTICLE 33. COMPLIANCE WITH LAWS
Tenant, at its sole cost and expense, shall promptly comply with all
laws, statutes, ordinances, and governmental rules, regulations, or requirements
now in force or which may hereafter become in force, of federal, state, county,
and municipal authorities, including, but not limited to, the ADA (collectively
all "Laws"), with the requirements of any board of fire underwriters or other
similar body now or hereafter constituted, and with any occupancy certificate
issued pursuant to any law by any public officer or officers, which impose any
duty upon Tenant, insofar as any thereof relate to the manner of use of,
Alterations to, or the manner of occupancy, of the Premises. Landlord's approval
of Tenant's plans for any improvements shall create no responsibility or
liability on the part of Landlord for their completeness, design sufficiency, or
compliance with all laws, rules, and regulations of governmental agencies or
authorities, including, but not limited to, the ADA.
ARTICLE 34. SEVERABILITY
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This Lease shall be construed in accordance with the laws of the State
of Connecticut. If any clause or provision of this Lease is illegal, invalid, or
unenforceable under present or future laws effective during the Term, then it is
the intention of the parties hereto that the remainder of this Lease shall not
be affected thereby. It is also the intention of both parties that in lieu of
each clause or provision that is illegal, invalid, or unenforceable, there is
added as a part of this Lease a clause or provision as similar in terms to such
illegal, invalid, or unenforceable clause or provision as may be possible and
still be legal, valid, and enforceable.
ARTICLE 35. NOTICES
Whenever in this Lease it shall be required or permitted that notice or
demand be given or served by either party to this Lease to or on the other, such
notice or demand shall be sent by a reputable private carrier of overnight mail
or mailed by United States Certified Mail, Return Receipt Requested, postage
prepaid, in each case addressed as follows:
If to Landlord: Aetna Life Insurance Company
151 Farmington Avenue
Hartford, Connecticut 06156-9666
Attention: Real Estate Services (RS51)
with a copy to: Joseph K. Fortier, Esq.
Reid and Riege, P.C.
One State Street
Hartford, CT 06103
If to Tenant: Aetna Life Insurance and Annuity Company
Real Estate Strategies TN42
151 Farmington Avenue
Hartford, CT 06156
Attention: Manager of R. E. Strategies
with a copy to: Sullivan & Cromwell
125 Broad Street
New York, New York 10004-2498
Attention: Dorothy E. Cumby
Notice hereunder shall become effective (i) three (3) days after being
sent by Certified Mail or (ii) the day after being sent by overnight carrier.
The above notice addresses may be changed from time to time by either-
party serving notice as provided above.
ARTICLE 36. OBLIGATIONS OF SUCCESSORS; PLURALITY; GENDER
Landlord and Tenant agree that all the provisions hereof are to be
construed as covenants and agreements as though the words imparting such
covenants were used in each paragraph hereof, and that, except as restricted by
the provisions hereof, shall bind and inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors, and assigns.
If the
46
rights of Tenant hereunder are owned by two or more parties, or two or more
parties are designated herein as Tenant, then all such parties shall be jointly
and severally liable for the obligations of Tenant hereunder. Whenever the
singular or plural number, masculine or feminine or neuter gender is used
herein, it shall equal include the other.
ARTICLE 37. ENTIRE AGREEMENT
This Lease and any attached addenda or exhibits constitute the entire
agreement between Landlord and Tenant. No prior or contemporaneous written or
oral leases or representations shall be binding. This Lease shall not be
amended, changed, or extended except by written instrument signed by Landlord
and Tenant.
ARTICLE 38. ARTICLE AND SECTION CAPTIONS
Article and Section captions are for Landlord's and Tenant's
convenience only, and neither limit nor amplify the provisions of this Lease.
ARTICLE 39. CHANGES
Should any holder of a mortgage or deed of trust require a modification
of this Lease, which modification will not bring about any increased cost or
expense to Tenant and will not in any other way substantially or adversely
change the rights and obligations of Tenant hereunder, then and in such event
Tenant agrees that this Lease may be so modified, and Tenant agrees to execute
any document requested by Landlord to incorporate and document such
modification.
ARTICLE 40. AUTHORITY
All rights and remedies of Landlord under this Lease, or those which
may be provided by law, or in equity, may be exercised by Landlord in its own
name individually, or in its name by its agent, and all legal proceedings for
the enforcement of any such rights or remedies, including distress for Rent,
ejectment, unlawful detainer, and any other legal or equitable proceedings may
be commenced and prosecuted to final judgment and be executed by Landlord in its
own name individually or in its name by its agent. Landlord and Tenant each
represent to the other that each has full power and authority to execute this
Lease and to make and perform the agreements herein contained, and Tenant
expressly stipulates that any rights or remedies available to Landlord, either
by the provisions of this Lease, at law, or in equity, may be enforced by
Landlord in its own name individually or in its name by its agent or principal.
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ARTICLE 41. BROKERAGE
Tenant and Landlord hereby represent and warrant to the other that it
has dealt with no brokers in negotiation of this Lease. Tenant hereby agrees to
indeninify and hold Landlord and/or Landlord's agent harmless of and from any
and all damages, losses, costs, or expenses (including, without limitation, all
attorneys' fees and disbursements) by reason of any claim of or liability to any
broker or other person claiming through Tenant and arising out of or in
connection with the negotiation, execution, and delivery of this Lease. Landlord
hereby agrees to indemnify and hold Tenant and/or Tenant's agent hamiless of and
from any and all damages, losses, costs, or expenses (including, without
limitation, all attorneys' fees and disbursements) by reason of any claim of or
liability to any broker or other person claiming through Landlord and arising
out of or in connection with the negotiation, execution, and delivery of this
Lease. Additionally, Tenant acknowledges and agrees that Landlord and/or
Landlord's agent shall have no obligation for payment of any brokerage fee or
similar compensation to any person with whom Tenant has dealt or may in the
future deal with respect to leasing of any additional space in the Building or
renewals or extensions of this Lease.
ARTICLE 42. EXHIBITS
EXHIBITS A THROUGH H are attached hereto and incorporated herein for
all purposes and are hereby acknowledged by both parties to this Lease.
ARTICLE 43. APPURTENANCES
The Premises include the riglit of ingress and egress thereto and
therefrom; however, Landlord reserves the right to make changes and alterations
to the Complex, the Building, and the fixtures and equipment thereof, in the
street entrances, doors, halls, corridors, lobbies, passages, elevators,
escalators, stairways, toilets, parking areas, and other parts thereof which
Landlord may reasonably deem necessary or desirable. Neither this Lease nor any
use by Tenant of the Building or any passage, door, tunnel, concourse, plaza or
any other area connecting the Parking Garage or other buildings with the
Complex, shall give Tenant any right or easement of such use and the use thereof
may, without notice to Tenant, be regulated or discontinued at any time and from
time to time by Landlord without liability of any kind to Tenant and without
affecting the obligations of Tenant under this Lease.
ARTICLE 44. RECORDING
Tenant shall not record this Lease or a memorandum or notice thereof,
but will, at the
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request of Landlord, execute a memorandum or notice thereof in recordable form
satisfactory to both Landlord and Tenant specifying the date of commencement and
expiration of the term of this Lease and other information required by statute.
Landlord may then record said memorandum or notice of lease.
ARTICLE 45. MORTGAGEE PROTECTION
Tenant agrees to give any holder of any mortgage and/or deed of trust,
by Certified Mail, a copy of any notice of default served upon Landlord,
provided that prior to such notice Tenant has been notified, in writing (by way
of notice of assignment of rents and leases, or otherwise), of the address of
such holders of mortgagees or deeds of trust. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the holders of mortgages or deeds of trust shall have such
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
if within such thirty (30) days, any holder of a mortgage or deed of trust has
commenced and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessaiy to effect such cure), in which event this Lease shall not be
terminated while such remedies are being so diligently pursued.
ARTICLE 46. TENANTS LIMITED TERMINATION RIGHT
Should Landlord (i) enter into a merger, consolidation or
reorganization with, or have all or substantially all of its assets purchased
by, a party which directly competes with Tenant (a "Landlord Control
Transaction") or (ii) absent a Landlord Control Transaction, enter into direct
competition with Tenant, then in either such event, Tenant shall be entitled to
terminate this Lease by giving Landlord not less than thirty (30) months' prior
written notice of its election to terminate this Lease.
ARTICLE 47. RELIEF LIMITED
Whenever any Tenant shall claim under any provision of this Lease that
Landlord has unreasonably withheld or delayed its consent or approval, to some
request of Tenant which consent Landlord has specifically agreed herein not to
unreasonably withhold or delay, Tenant shall have no claim for consequential or
special damages by reason of such alleged withholding or delay. Unless Landlord
has specifically agreed herein not to unreasonably withhold or delay its consent
or approval in a given instance, all consents or approvals of Landlord herein
may be granted or refused or conditioned in Landlord's sole discretion. Whenever
Landlord agrees in this Lease that a required consent or approval shall not be
unreasonably withheld or delayed, it is
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agreed that Landlord may withhold or delay its consent if any holder of a
mortgage or deed of trust shall have withheld or delayed any consent which may
be required of it.
ARTICLE 48. TENANTS FINANCIAL STATEMENTS/FINANCIAL TESTS
Not later than May 1 of each calendar year of the Term, Tenant shall
provide Landlord with financial statements for Tenant's most recently completed
fiscal year, which financial statements shall be audited by an independent
certified public accounting firm.
During the entire term of this Lease, the Tenant, or the guarantor of
Tenant's obligations under this Lease, shall at all times maintain either (i) an
investment grade debt rating of at least "BBB" as determined by Standard &
Poor's Corporation or (ii) a rating of at least "Baa2" as determined by MoodVs
Investors Services, Inc. as to long-term senior unsecured debit (or the
equivalent for issuers which do not have long-term senior unsecured debt).
ARTICLE 49. FITNESS CENTER
So long as Landlord continues to operate the existing fitness center in
the Rogers Building and offer use of the same to its employees on a fee basis,
Tenant's employees shall have the right to use the same on a fee basis in
accordance with the terms and conditions of the Real Estate Services Agreement
between Aetna U.S. Healthcare Inc. and Aetna Inc. dated as of the date of this
Lease. Notwithstanding the foregoing, Landlord reserves the right, in its sole
and absolute discretion at any time, to terminate operation of the fitness
center.
ARTICLE 50. CAFETERIA
So long as Landlord continues to operate the existing cafeteria and
offer food service in the same to its employees, Tenant's employees and Tenant's
visitors shall have the right to use the cafeteria in the Building, provided
that the cost of food and beverage is at the expense of Tenant's employees, and
provided that such usage shall be further subject to the terms of the Real
Estate Services Agreement between Aetna U.S. Healthcare Inc. and Aetna Inc.
dated as of the date of this Lease. Notwithstanding the foregoing, Landlord
reserves the right, in its sole and absolute discretion at any time, to
terminate operation of the cafeteria.
ARTICLE 51. AUTOMATIC TELLER MACHINES
So long as Landlord continues to make available to its employees the
existing automatic teller machines located as shown on EXHIBIT H, Tenant's
employees and Tenant's visitors shall
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have the right to use the same. Notwithstanding the foregoing, Landlord reserves
the right, in its sole and absolute discretion at any time, to terminate
operation of both of such automatic teller machines.
ARTICLE 52. ANTENNA EQUIPMENT
Subject to the following provisions of this Article 52, Landlord grants
Tenant the right to install, operate and maintain, at Tenant's expense and risk,
a lawfully permitted antenna(e), satellite dish and associated equipment, and
rooftop communications equipment (the "Antenna Equipment") in a location on the
roof on the Tower Building (the "Antenna Premises"), which location shall be
subject to Landlord's approval, which approval shall not be unreasonably
withheld, conditioned or delayed. Landlord may require that Tenant shield the
Antenna Equipment from view in a manner which Landlord reasonably deems
appropriate. The Antenna Equipment, as well as the location and manner of
installation of the same, shall be subject to Landlord's prior written approval,
which approval shall not be unreasonably withheld. Tenant's installation and
maintenance of the Antenna Equipment shall be subject to the following
conditions and terms:
(a) Tenant shall submit to Landlord for its approval, a
full set of engineering plans and specifications for the proposed Antenna
Equipment installation, which approval shall not be unreasonably withheld. Such
plans shall include, without limitation, (i) details and calculations indicating
that the structure of the roof will adequately and safely support the Antenna
Equipment and (ii) details regarding screening of the Antenna Equipment;
(b) Installation, repair and maintenance of the Antenna
Equipment, including, without limitation, all required conduit or cable
connections between Tenant's equipment in the Premises and the Antenna
Equipment, shall be made by vendors previously approved by Landlord, which
approval shall not be unreasonably withheld, and shall be subject to: (i)
Tenant's payment of reasonable costs for such services, and (ii) approval of
such connections by Landlord, which approval shall not be unreasonably withheld.
The vendors currently used by Landlord shall, until further notice by Landlord,
be deemed approved by Landlord;
(c) Any Antenna Equipment installed by Tenant shall be
erected so as not to interfere with the operation of any previously erected
antenna(e), and shall not interfere with any of the Building's systems or their
maintenance;
(d) Tenant and its employees and vendors shall coordinate
access to the roof with Landlord, and if Landlord requires, shall only be
permitted if accompanied by a representative of Landlord;
(e) Tenant shall obtain all necessaxy municipal, state
and federal pemiits and
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authorizations required to install, maintain and operate the Antenna(e)
Equipment and pay any charges levied by government agencies which are the
sole result of Tenant having the Antenna Equipment. Landlord agrees to fully
cooperate with Tenant in obtaining all such permits and authorizations, at no
cost or expense to Landlord;
(f) Tenant, at Tenant's sole cost and expense, agrees to
maintain the Antenna Equipment and Antenna Premises in a good state of repair
and to indemnify, defend and save Landlord's Indemnified Parties harmless from
any claims, liability or expenses resulting from the erection, maintenance,
existence or removal of the Antenna Equipment;
(g) Tenant, at Tenant's sole cost and expense, shall be
obligated.to maintain and repair any damage to the roof or Building systems
resulting from the installation, operation, repair or maintenance of the Antenna
Equipment;
(h) Upon the expiration of the Term, or earlier
termination of this Lease, Tenant shall remove the Antenna Equipment and
surrender and restore the Antenna Premises to Landlord in substantially as good
condition as when entered, except for toss or damages resulting from casualty,
condemnation or ordinary wear and tear,
(i) The liability insurance to be carried by Tenant
pursuant to the provisions of this Lease shall include coverage for Tenant's
activity on the Antenna Premises.
(j) Tenant's use the Antenna Equipment shall be
restricted to its own purposes and that of its employees or affiliates, shall
not be used for commercial purposes and may not be assigned, sublet or licensed
in any manner.
ARTICLE 53. ELECTRICITY
Tenant's electricity usage in the Premises shall be measured by
separate meter(s). Tenant shall pay for such usage directly to the electricity
provider.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, Landlord and Tenant, acting herein through duly
authorized individuals, have caused these presents to be executed in multiple
counterparts, each of which shall have the force and effect of an original as of
this 13th day of December, 2000.
WITNESSES: LANDLORD:
AETNA LIFE INSURANCE COMPANY
/s/ E. Susan Nelson By: /s/ Alfred P. Quirk, Jr.
- ------------------------- -------------------------
Vice President, Finance and Treasurer
/s/ Robert M. Donahoe Its Authorized Signatory
- -------------------------
SIGNATURES CONTINUED ON NEXT PAGE
WITNESSES: TENANT:
AETNA LIFE INSURANCE AND ANNUITY COMPANY
/s/ Mary Ellen Thibodeau By: /s/ Catherine H. Smith
- ------------------------- -------------------------
/s/ Tracey Rooslund Its Senior Vice President and
- ------------------------- Chief Financial Officer