Exhibit 10.4
------------
LEASE
between
CONAIR CORPORATION
as Landlord,
and
LEANDRO P. RIZZUTO
as Tenant
As of March 14, 1994
TABLE OF CONTENTS
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ARTICLE Page
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I Premises - Term . . . . . . . . . . . . . . . . 1
II Definitions . . . . . . . . . . . . . . . . . . 2
III Rent . . . . . . . . . . . . . . . . . . . . . 5
IV Gross Lease . . . . . . . . . . . . . . . . . . 5
V No Termination, Abatement, Etc. . . . . . . . . 6
VI Use of the Premises . . . . . . . . . . . . . . 6
VII Condition of the Premises . . . . . . . . . . . 7
VIII Maintenance and Repair; Mechanic's
Liens;Encroachments; Restrictions, Etc. . . . . 8
IX Alterations . . . . . . . . . . . . . . . . . . 10
X Impositions . . . . . . . . . . . . . . . . . . 12
XI Insurance . . . . . . . . . . . . . . . . . . . 12
XII Utility Services . . . . . . . . . . . . . . . 16
XIII Legal Requirements and Insurance
Requirements . . . . . . . . . . . . . . . . . 17
XIV Encumbrances . . . . . . . . . . . . . . . . . 17
XV Permitted Contests . . . . . . . . . . . . . . 18
XVI Improvements and Tenant's Equipment . . . . . . 18
XVII Damage or Destruction . . . . . . . . . . . . . 19
XVIII Condemnation . . . . . . . . . . . . . . . . . 25
XIX Assignment and Subletting . . . . . . . . . . . 27
XX Tenant's Default . . . . . . . . . . . . . . . 39
XXI Landlord's Right to Cure Tenant's Default . . . 47
XXII Subordination . . . . . . . . . . . . . . . . . 48
XIII Broker . . . . . . . . . . . . . . . . . . . . 49
XXIV Quiet Enjoyment . . . . . . . . . . . . . . . . 50
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Page
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XXV Surrender -- Holding Over . . . . . . . . . . . 50
XXVI Estoppel Certificates . . . . . . . . . . . . . 51
XXVII Waiver of Jury and Counterclaims . . . . . . . 53
XXVIII Notices . . . . . . . . . . . . . . . . . . . . 54
XXIX No Waiver by Landlord . . . . . . . . . . . . . 54
XXX Memorandum of Lease . . . . . . . . . . . . . . 55
XXXI Acceptance of Surrender . . . . . . . . . . . . 56
XXXII Remedies Cumulative . . . . . . . . . . . . . . 56
XXXIII Landlord's Right to Purchase Lease. . . . . . . 57
XXXIV Miscellaneous . . . . . . . . . . . . . . . . . 58
XXXV No Additional Rent: Gross Lease . . . . . . . 60
XXXVI Parking . . . . . . . . . . . . . . . . . . . . 61
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L E A S E
---------
THIS INDENTURE OF LEASE ("Lease") made as of the
14 day of March, 1994 between CONAIR CORPORATION, a Delaware
Corporation with a principal place of business at One
Cummings Point Road, Stamford, Connecticut (hereinafter
referred to as "Landlord") and LEANDRO P. RIZZUTO, of
Greenwich, Connecticut (hereinafter referred to as
"Tenant"):
ARTICLE I
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Premises - Term
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1.1 For and in consideration of the rents,
covenants and agreements on the part of the Tenant to be
paid, kept and performed, Landlord hereby leases to Tenant
and Tenant hereby takes and hires from the Landlord, upon
and subject to the terms, covenants, conditions and agree-
ments hereinafter set forth, the following (collectively,
the "Premises"):
(a) All those certain areas designated as
Area "X" on the first floor and Area "Y" of the second floor
as shown on Schedule A, attached hereto and made a part
hereof, being part of that office building situated upon
premises known as One Cummings Point Road, Stamford,
Connecticut, the legal description of the premises upon
which the demised areas of the building herein referred to
being described on Schedule B, attached hereto and made a
part hereof.
(b) The right to use, in common with others,
those areas designated as common areas ("CA") and those
common areas of ingress and egress as designated by "cross
hatch" all as shown on Schedule C.
SUBJECT TO (i) all liens, charges, encumbrances,
building and zoning laws and ordinances and other matters
affecting the Premises on the date hereof, (ii) all
Mortgages (as defined in Article II hereof) and (iii) such
other liens, charges, encumbrances and matters which may
hereafter affect all or any part of the Premises and as are
permitted by the terms of this Lease or consented to by
Landlord and Tenant,
TO HAVE AND TO HOLD the same for a term (the
"Term") commencing on the date hereof (the "Commencement
Date") and expiring at midnight on the ninety-ninth (99th)
anniversary of the Commencement Date (the "Expiration Date")
unless sooner terminated in accordance with the terms of
this Lease.
ARTICLE II
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Definitions
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2.1 In addition to other defined terms contained
in the Lease, the following terms whenever used in this
Lease shall have the meanings hereinafter set forth:
(a) Default: Any condition or event which
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constitutes or would constitutes an Event of Default (as
defined in Article XXI), either with or without notice or
lapse of time, or both.
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(b) Impositions: All real estate taxes,
-----------
assessments, occupancy taxes, personal property taxes and
water, sewer and other rents, rates, charges and surcharges,
excises, levies, license and permit fees, governmental,
quasi-governmental and public utility charges, in each case
whether general or special, ordinary or extraordinary, or
foreseen or unforeseen, of every character (including,
without limitation, any interest, costs or penalties with
respect to any of the foregoing), which at any time during
the Term may be assessed, levied, confirmed, charged,
imposed upon or become a lien or due or payable in respect
of all or any part of: (i) the Premises, the Improvements,
the sidewalks or streets in front of or adjoining the
Premises, or any personal property, equipment or other
facility used in the operation thereof; (ii) any occupancy,
operation, use or possession of or activity conducted on the
Premises or any part thereof; (iii) Fixed Rent and
Additional Rent (as hereinafter defined) including all gross
receipts or similar taxes now or hereafter payable in
respect of Fixed Rent and Additional Rent and sales and use
taxes which may now or hereafter be levied or assessed
against or by payable by Landlord or Tenant on account of
the leasing or use of the Premises or the Improvements or
upon the value of the Premises or the Improvements or any
part thereof; and/or (iv) this Lease.
Nothing contained in this Lease shall require
Tenant to pay any inheritance, estate, succession, or gift
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tax of Landlord or any corporate franchise, net income or
excess profits tax imposed upon Landlord or other tax or
imposition of the same or similar nature.
(c) Insurance Requirements: All require-
----------------------
ments of any insurance policy covering or applicable to all
or any part of the Premises or the use thereof, all require-
ments of the issuer of any such policy, and all orders,
rules, regulations, recommendations and other requirements
of the National Board of Fire Underwriters (or any other
body exercising similar functions) applicable to or affect-
ing all or any part of the Premises.
(d) Legal Requirements: All federal, state,
------------------
county, city, municipal and other governmental and quasi-
governmental statutes, laws, orders, regulations,
ordinances, judgments, decrees and injunctions affecting all
or any part of the Premises or the use thereof, and permits,
licenses, authorizations and regulations relating thereto.
(e) Mortgage: Any mortgage entered into by
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Landlord now or hereafter encumbering the Premises, the
Improvements, or both or any part thereof, as the same may
be modified, extended, spread, renewed, replaced or
consolidated from time to time.
(f) Mortgagee: The holder or beneficiary of
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any Mortgage.
(g) Taking: A taking of all or any part of
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the Premises, or any interest therein or right accruing
thereto, or the use thereof as a result of the exercise of
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the right of condemnation or of eminent domain, or any
voluntary conveyance made in lieu of or in anticipation
thereof, or a change of grade affecting the Premises or any
part thereof.
(h) Tenant's Equipment: All trade fixtures,
------------------
furniture, furnishings and other equipment and personal
property owned by Tenant and removable without damage to the
Premises.
ARTICLE III
Rent
----
3.1 Tenant shall pay to Landlord fixed rent
("Fixed Rent") of One Dollar ($1.00) per annum for the
period from the Commencement Date to the Termination Date
hereunder. The Fixed Rent shall be paid to Landlord without
notice or demand, in advance on the first day of each
calendar year during the Term.
ARTICLE IV
Gross Lease
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4.1 Except as provided in Article XXXV, this
Lease shall be deemed a gross lease, and all charges,
impositions, insurance, maintenance costs and expenses of
whatsoever nature shall be the obligation of the Landlord,
it being acknowledged that Tenant's only financial
obligation hereunder to be the payment of the Fixed Rent.
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ARTICLE V
No Termination, Abatement, Etc.
-------------------------------
5.1 Except as otherwise specifically set forth
herein, this Lease shall not terminate, nor shall Tenant be
entitled to any abatement, deduction, deferment or reduction
of the Fixed Rent or set-off against the Fixed Rent, nor
shall the rights and obligations of Landlord and Tenant,
respectively, be otherwise affected for any reason
whatsoever, including any damage to or destruction of the
Premises or the Improvements from whatever cause, any
Taking, the lawful or unlawful prohibition of or
interference with the use or occupancy of the Premises or
the Improvements for any purpose or any claim which Tenant
has or might have against Landlord. The rights and
obligations of the Landlord and Tenant hereunder shall be
separate and independent covenants and agreements and the
Fixed Rent and Additional Rent shall continue to be payable
in all events unless the obligations to pay the same shall
be terminated and/or abated pursuant to an express provision
of this Lease.
ARTICLE VI
Use of the Premises
-------------------
6.1 Tenant may use the Premises for any lawful
purpose, so long as the use is not reasonably objectionable
to Landlord and provided further that said use does not
interfere with Landlord's use.
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6.2 Tenant shall not use or suffer or permit the
Premises, or any part thereof, to be used or occupied, in
any way that would (i) violate any Legal Requirements or
Insurance Requirements, (ii) make void or voidable or make
it impossible to obtain, any insurance coverage required to
be maintained hereunder, (iii) diminish or tend to diminish
the economic value of the Premises or any part thereof or
(iv) constitute a public or private nuisance or waste.
Except as provided in Article XXX, nothing contained in this
Lease and no action or inaction by Landlord shall be deemed
or construed to mean that Landlord has granted Tenant any
right, power, privilege or permission to do or fail to do
any act or to make any agreement that may create or give
rise to any right, lien, charge or other encumbrance upon
the estate of Landlord in the Premises.
ARTICLE VII
Condition of the Premises
-------------------------
7.1 Tenant acknowledges that (a) the Premises
including, without limitation, the Fixtures and all
Improvements erected thereon as of the date of this Lease
and all surface and subsurface conditions have been
inspected by Tenant or by Tenant's duly authorized
representatives and that Tenant is fully familiar with the
physical condition thereof; (b) the Premises have been
leased by Tenant as the result of such inspection and not in
reliance upon any representations or warranties by Landlord
or anyone acting or purporting to act for or on behalf of
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Landlord; (c) Landlord has neither made nor does hereby make
any representations or warranties with respect to the
physical condition of the Premises, the state of repair or
condition of the Fixtures or the Improvements or the fitness
or availability thereof for any particular use, the status
of the title to the Premises, the actual or projected costs
or expenses of operating the Premises, or any other matter
or thing relating to the Premises or the use or occupancy
thereof, and Tenant agrees to and does hereby accept the
same "as is" on the date of this Lease and without any
liability or obligation on the part of Landlord for any
latent or other defects therein or otherwise.
ARTICLE VIII
Maintenance and Repair; Mechanic's Liens;
Encroachments; Restrictions, Etc.
-----------------------------------------
8.1 Tenant assumes all responsibility for the
repair, operation, maintenance and management of the
Premises during the Term, and at its sole cost and expense,
shall put, keep and maintain the Premises and all sidewalks,
driveways and curbs adjacent or appurtenant thereto in a
safe, clean and orderly condition, free of snow, ice, debris
and other accumulations and in good order and repair; and
Tenant agrees promptly to make or cause to be made all
necessary and appropriate repairs and replacements thereto
of every kind and nature, whether ordinary or extraordinary,
foreseen or unforeseen. All repairs and replacements shall,
to the extent possible, be at least equivalent in quality
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and workmanship to the condition of the Premises as of the
Commencement Date. In any event, Tenant shall have the
right, at any time and from time to time, to remove and
dispose of Fixtures which may become obsolete or unfit for
use or which are no longer useful in the operation of the
Building in which case Tenant shall promptly replace the
same with other Fixtures, not necessarily of the same
character but of at least equal utility and value.
Immediately upon the installation of such Fixtures, title to
such Fixtures shall be vested in Landlord. Tenant shall
have the right to sell or otherwise dispose of any Fixtures
which it is required to replace or elects to replace
pursuant to the provisions of this Section and may retain as
its sole property the proceeds of any such sale or
disposition. Tenant shall at all times keep the Premises
free from all rubbish, refuse, waste and garbage and the
same shall be collected by Tenant and stored for disposal in
appropriate and sanitary containers in such a manner as to
at no time appear unsightly or conspicuous. Tenant
covenants that in performing any repairs or replacements to
the Premises it will observe and perform, insofar as the
nature of such repairs and replacements makes such
observation and performance appropriate, the conditions and
requirements relating to Alterations set forth in
Section 10.1.
8.2 If any mechanic's or materialman's lien or
claim of lien shall at any time be filed against the
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Premises or any part thereof or against Landlord's or
Tenant's respective interests therein as a result of any
labor performed or materials or services furnished, or
claimed to have been performed or furnished to or on behalf
or Tenant or any occupants of the Premises or their
contractors, Tenant, at its sole cost and expense, shall
cause the same to be vacated and discharged of record within
sixty days after the filing thereof, by bond or otherwise,
at Tenant's sole cost and expense, subject to Tenant's
rights to contest the same pursuant to Section 16.1 hereof.
ARTICLE IX
Alterations
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9.1 If not in default, Tenant may from time to
time, at its sole cost and expense, make non-structural
alterations, additions or improvements to the Improvements
or Fixtures or any part thereof or replacements to the same
(collectively, "Alterations"), provided that Tenant shall
not be permitted to make any Alterations which will affect
building systems. In each instance where the reasonably
estimated cost of the Alterations exceeds $10,000.00, as
estimated by Tenant's representative who shall be a licensed
architect designated by Tenant and approved by Landlord
(which approval will not be unreasonably withheld or
delayed), Tenant shall have secured the prior consent of
Landlord thereto, which consent shall not be unreasonably
withheld or delayed if, in Landlord's reasonable opinion,
such proposed Alterations will not (a) make void or voidable
10
the insurance required to be maintained pursuant to the
provisions of Section 12.1, (b) violate any Legal
Requirements and/or insurance requirements or (c) reduce the
economic value of the Premises or Improvements. The
reasonable cost and expense of reviewing plans and
specifications, shall be paid by Tenant to Landlord, on
demand, as Additional Rent. All Alterations shall be
performed expeditiously, in good and workmanlike manner and
in compliance with all Legal Requirements and insurance
requirements applicable thereto and if the reasonably
estimated cost of such Alterations shall exceed $25,000 as
estimated by the above mentioned architect the same shall be
effected under the supervision of such architect and in
compliance with plans and specifications approved, which
approval shall not be unreasonably withheld or delayed, by
Landlord. Tenant shall procure and pay for all permits,
licenses, certificates or other governmental approvals that
may be required for such Alterations and the use and
occupancy of the Improvements, as altered, and Tenant shall
promptly pay or cause to be paid all costs and expenses
relating to such Alterations. During the performance of any
Alterations, Landlord and its agents and representatives
may, from time to time, inspect the Improvements and
Landlord shall be furnished with all plans and
specifications (both as planned and "as built") and shop
drawings relating to such Alterations, at no cost to
Landlord. In addition to the insurance to be maintained by
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Tenant pursuant to the provisions of Section 12.1, during
any period in which Alterations shall be in progress, Tenant
shall maintain fire insurance with extended coverage
endorsements in builder's risk completed value nonreporting
form. All Alterations shall be the property of Landlord and
shall be part of the Premises.
ARTICLE X
Impositions
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10.1 Except as provided for in Article XXXV
hereof, the Landlord shall be obligated for all Impositions
as herein defined.
ARTICLE XI
Insurance
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11.1 During the Term, Landlord agrees to secure
and maintain in force, at its sole cost and expense, for the
benefit of Landlord and Tenant (and, as required, any
Mortgagee) insurance covering the Premises, including the
Improvements and Fixtures (a) fire, with extended coverage,
vandalism and malicious mischief endorsements in an amount
not less than 100% of the then full insurable value (actual
replacement value of the Improvements and Fixtures without
deduction for physical depreciation but excluding costs of
excavation, (b) comprehensive general public liability
insurance against claims for bodily injury, death and
property damage occurring in or about the Premises with a
personal injury endorsement, such insurance to afford
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minimum protection of $1,000,000.00 with respect to injury
or death resulting from any one occurrence, and $500,000.00
with respect to property damage arising out of any one
occurrence, and (c) such other insurance and in such amounts
as may from time to time reasonably be required by Landlord
against other insurable hazards as are customarily obtain-
able and carried by prudent owners and tenants of similar
properties.
11.2 All policies of insurance to be carried
pursuant to Section 11.1, other than worker's compensation
and other required statutory forms of insurance covering
Tenant's employees, shall name as insureds thereunder,
Landlord, Tenant and any Mortgagee, as their respective
interests may appear, and, except for public liability
insurance, shall contain a standard non-contributory
mortgagee endorsement in favor of each Mortgagee and such
insurance shall provide (a) that no cancellation or material
alteration thereof shall be effective until at least thirty
days after receipt of notice thereof by Landlord and any
Mortgagee; and (b) that no act or omission of Landlord, any
Mortgagee or Tenant shall affect or limit the obligation of
the insurance company to pay the amount of any loss
sustained with respect to the coverage thereof. Any rent
insurance proceeds provided by Landlord shall be applied on
account the Fixed Rent and Additional Rent for the period in
respect of which such insurance shall be collected. Tenant
shall have sole responsibility for the care, custody,
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control and insuring of the Improvements and all Tenant's
Equipment and may insure the same against such risks and in
such amounts as Tenant may designate and Landlord shall have
no rights or interest in such insurance or the proceeds
thereof. Landlord shall have no responsibility with respect
to any loss or damage to the Improvements or Tenant's
Equipment.
11.3 Except as provided in Article XXX hereof,
all premiums for policies of insurance referred to in
Section 12.1 shall be paid by Landlord to the insurance
carrier. On or before the Commencement Date, Landlord shall
deliver to Tenant, certificates or duplicates of such
insurance policies and Landlord shall deliver policies or
certificates with respect to renewal or replacement policies
to Tenant and any Mortgagee, as required, not less than
thirty days prior to the expiration of the original
policies, or succeeding renewals, as the case may be,
together with receipts or other evidence that the premiums
thereon have been paid for at least one year in advance.
Premiums on policies shall not be financed in any manner
which requires such policies to be pledged to any lender.
All insurance provided for in this Article XII shall be
effected under valid and enforceable policies issued by
insurers of recognized responsibility which are licensed to
do business in the State of Connecticut.
11.4 In respect of any property owned by Tenant
or anyone claiming under Tenant located in, at or upon the
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Premises, Tenant hereby releases Landlord from and all
liability or responsibility to it or anyone claiming by,
through or under it by way of subrogation or otherwise, for
any loss or damage thereto. Tenant shall not carry separate
or additional insurance, concurrent in form or contributing,
in the event of any loss or damage to the Premises, with any
insurance required by this Article unless such separate or
additional insurance shall comply with this Article. Tenant
may not effect any insurance coverage under this Article XII
under a policy or policies of blanket insurance.
11.5 Tenant shall have the right, upon Landlord's
failure to obtain the insurance policies required hereunder,
to obtain such insurance policies at the sole expense of
Tenant, which cost shall be payable by Landlord immediately.
11.6 If Tenant elects to obtain his own
insurance, then each party agrees to use its best efforts to
include in each of it insurance policies (and, with respect
to any Tenant's Equipment in the Premises, in the insurance
policies covering such Tenant's Equipment carried by Tenant
or the lessors of such Tenant's Equipment) against loss,
damage or destruction by fire or other insured casualty a
waiver of the insurer's right of subrogation against the
other party, or if such waiver should be unobtainable or
unenforceable (a) an express agreement that such policy
shall not be invalidated if the insured waives or has waived
before the casualty the right of recovery against any party
responsible for a casualty covered by the policy, or (b) any
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other form of permission for the release of the other party.
If such waiver, agreement or permission shall not be, or
shall cease to be, obtainable without additional charge or
at all, the insured party shall so notify the other party
promptly after learning thereof. In such case, if the other
party shall agree in writing to pay the insurer's additional
charge therefor, such waiver, agreement or permission shall
(if obtainable) be included in the policy.
11.7 Landlord and Tenant each agrees that it will
cooperate with the other, to such extent as such other party
may reasonable require, in connection with the prosecution
or defense of any action or proceeding arising out of, or or
the collection of any insurance monies that may be due in
the event of, any loss or damage, and that they will execute
and deliver to such other parties such instruments as may be
required to facilitate the recovery of any insurance monies.
ARTICLE XII
Utility Services
----------------
12.1 Except as provided in Article XXXV hereof,
Landlord shall pay or cause to be paid all charges for
electricity, power, gas, water, steam, garbage, waste and
refuse collection, telephone, fuel oil and other utilities
used in connection with the Premises and the Improvements.
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ARTICLE XIII
Legal Requirements and Insurance Requirements
---------------------------------------------
13.1 Subject to the provisions of Section 16.1,
Tenant shall, at its sole cost and expense, promptly
(a) comply with all Legal Requirements and Insurance
Requirements now or hereafter in force, whether or not
requiring replacements, repairs, modifications, or
alterations in or to all or any part of the Premises, and
(b) procure, maintain and comply with all licenses, permits
and other authorizations required for any use of the
Premises then being made.
ARTICLE XIV
Encumbrances
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14.1 Subject to the provisions of Section 16.1,
Tenant shall not directly or indirectly create or allow to
remain and shall promptly vacate and discharge of record, at
its expense, any mortgage, lien, encumbrance, attachment,
levy, claim, title retention or security agreement or charge
upon the Premises, this Lease, the leasehold estate created
hereby or the Fixed Rent except (a) this Lease, (b) any
Fixed Mortgage, (c) restrictions, liens, charges, tenancies
and other encumbrances affecting the Premises on the date
hereof or which are hereafter consented to in writing by
Landlord, Tenant and any Mortgagee as required, (d) liens
for Impositions so long as the same are not yet payable or
are payable without the addition of any fine, penalty or
interest, and (e) any other matter expressly permitted under
this Lease.
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ARTICLE XV
Permitted Contests
------------------
15.1 Landlord, at its expense, may contest, by
appropriate legal proceedings conducted in good faith and
with due diligence, the amount, validity or application, in
whole or in part, of any Imposition, Legal Requirement,
Insurance Requirement, lien or encumbrance.
ARTICLE XVI
Improvements and Tenant's Equipment
-----------------------------------
16.1 Tenant, at its expense, may install or place
or cause to be installed or placed in or on the Improve-
ments, and remove and substitute or cause to be removed and
substituted, any items of Tenant's Equipment provided that
the installation of such equipment will not adversely affect
the Improvements nor interfere with the building systems,
and Tenant shall remove or cause to be removed the same upon
the expiration or sooner termination of this Lease. All of
Tenant's Equipment shall be and remain the property of
Tenant; provided however, that any of Tenant's Equipment not
removed within thirty (30) days after the expiration or
sooner termination of this Lease shall be deemed abandoned
and may be appropriated, sold, destroyed or otherwise
disposed of by Landlord without notice to Tenant and without
any obligation to account therefor and Landlord shall not be
responsible for any loss or damage to Tenant's Equipment.
After the expiration of this Lease, Tenant shall be per-
mitted to remove Tenant's Equipment during the ten (10) day
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period following such expiration, upon paying Fixed Rent or
Additional Rent during such ten (10) day period. Tenant
shall pay, as Additional Rent, all costs and expenses
incurred by Landlord in removing, storing or disposing of
Tenant's Equipment, and Tenant shall repair at its expense
all damage to the Premises caused by the removal of Tenant's
Equipment, whether effected by Tenant or Landlord. Tenant's
obligations in respect to the provisions of this Sec-
tion 17.1 shall survive the expiration or sooner termination
of this Lease.
ARTICLE XVII
Damage or Destruction
---------------------
17.1 Tenant shall promptly give Landlord and any
Mortgagee notice of any damage or destruction to the
Premises or any part thereof by fire or other casualty. In
case of fire or other casualty, resulting in any damage or
destruction to the Improvements or any part thereof or any
part of the Premises, Tenant shall restore, repair, replace
and rebuild the same as nearly as possible to its condition
and quality immediately prior to such damage or destruction.
Tenant's obligation to restore, repair, replace and rebuild
the Improvements shall not be limited to the amount of the
insurance proceeds paid to Tenant. If the insurance
proceeds received in respect of any damage or destruction
less any cost of recovery, are insufficient to pay the
entire hard and soft costs of such restoration, repairs,
replacement or rebuilding, Tenant shall contribute an amount
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equal to such deficiency, and the insurance proceeds
received in respect of such damage or destruction shall not
be paid until Tenant has expended for restoration or
deposited with Landlord an amount equal to such deficiency.
17.2 Notwithstanding anything contained to the
contrary in this Lease, in the event that (a) all or
substantially all of the Improvements shall be damaged or
destroyed by fire or other casualty at any time during the
last year of the Term, and (b) the cost of repairing,
rebuilding, replacing or restoring the same would exceed
$500,000 and the necessary Work would take more than six
months to perform (as estimated in writing by Landlord's
architect or licensed engineer, which estimate shall be
delivered to Tenant within fifty (50) days after the date
that such damage or destruction occurs), then, in such case,
Landlord may elect to terminate this Lease by giving not
less than thirty (30) days' notice thereof to Tenant,
provided and upon condition that such notice of termination
is given within sixty (60) days after the date that such
damage or destruction occurs, and at least seven (7) days
after the delivery to Tenant or said architect's of
engineer's certificate.
If Landlord shall effectively elect to terminate
this Lease as provided above in this Section, then (1) the
Lease shall terminate and expire on the date set forth in
such notice of termination, (2) the Fixed Rent and
Additional Rent and all other charges provided to be paid by
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tenant shall be paid to the Expiration Date, (3) Tenant
shall not be required to repair the damage or destruction,
and (4) all the insurance monies arising out of such damage
and destruction shall be paid to and be the sole property of
Landlord subject to the rights to any Fee Mortgagee.
17.3 Tenant agrees that, notwithstanding the
provisions of any statute now or hereafter in force to the
contrary, this Lease will not terminate and Tenant will not
be relieved of or from the obligations to pay, in whole or
in part, the Basic Rent or any Additional Rent or the
obligation to perform the other covenants and obligations to
be performed by Tenant hereunder, in case of any damage to
or destruction of the Premises.
17.4 If Landlord so requires, all sums
representing the proceeds of any fire or other casualty
insurance or the proceeds of any Taking (hereinafter
collectively referred to as "Deposited Sums") will be
deposited with the Landlord and said sums shall be disbursed
upon receipt by Landlord (or Mortgagee) of the following:
(a) A certificate signed by a licensed
architect or engineer selected by Tenant who shall be
satisfactory to Landlord and also signed by Tenant, dated
not more than thirty (30) days prior to the application for
such disbursement, setting forth in substance the following:
(i) That the sum then requested to be
disbursed either has been paid by Tenant and/or is justly
due to contractors, subcontractors, materialmen, engineers,
21
architects or other persons (whose names and addresses shall
be stated) who have rendered and furnished certain labor and
materials for the work and giving a brief description of
such services and materials and the principal subdivisions
or categories thereof and the several amounts so paid or due
to each of said persons in respect hereof, and stating the
progress of the work up to the date of said certificate;
(ii) That the sum then requested to be
disbursed, plus all sums previously disbursed, does not
exceed the cost of the work in so far as actually
accomplished up to the date of such certificate, and that
the balance of the Deposited Sums will be sufficient to pay
in full for the completion of the work, or Landlord shall
have received other assurances reasonably satisfactory to it
of payment in full for completion thereof;
(iii) That no part of the cost of the
services and materials described in the foregoing clause (i)
of this paragraph (a), in any previous or then pending
application, has been previously the basis for the
disbursement of any part of the Deposited Sums or has been
paid out of insurance moneys not required to be paid to
Landlord (or Mortgagee) and
(iv) That except for the amounts, if any,
stated in said certificate pursuant to the foregoing
clause (i) of this paragraph (a) to be due for services or
materials, there is no outstanding indebtedness known to the
person signing the certificate, after due inquiry, which is
22
then due and payable for work, labor, services and materials
in connection with the work to be performed by Tenant, which
if unpaid, might become the basis of a vendor's, mechanic's,
laborer's or materialmen's statutory or similar lien upon
Tenant's leasehold estate or Tenant's or Landlord's interest
in the Premises or any part thereof.
(b) A certificate signed by Tenant, dated
not more than thirty (30) days prior to the application for
such disbursement, setting forth in substance that, to the
best knowledge of Tenant, after due inquiry,
(i) All materials and all property
described in the certificate furnished pursuant to
clause (i) of the foregoing paragraph (a) and every part
thereof, are free and clear of all liens and encumbrances,
except such as may secure indebtedness due to persons (whose
names and addresses and the several amounts due them shall
be stated) specified in said certificate, which liens and
encumbrances will be discharged upon payment of such
indebtedness and encumbrances to which this Lease is
subject; and
(ii) That no Event of Default has
occurred which has not been remedied.
(c) An official search, a certificate or
title company or other evidence reasonably satisfactory to
Landlord showing that there has not been filed against
Tenant's leasehold estate or Tenant's or Landlord's interest
in the Premises or any part thereof any vendor's,
23
mechanic's, laborer's or materialman's statutory or similar
lien which has not been discharged upon payment of the
amount then requested to be disbursed.
Upon compliance with the foregoing provisions
Landlord (or Mortgagee) shall, out of the Deposited Sums,
disburse to the persons named in the certificate pursuant to
the foregoing clause (i) of paragraph (a) the respective
amounts stated in said certificate to be due to them and/or
shall disburse to Tenant the amount stated in said
certificate to have been paid by Tenant.
At any time after the completion in full of the
work, the whole balance of the Deposited Sums not thereof
disbursed pursuant to the foregoing provisions of this
Section shall be disbursed to Tenant, upon receipt by
Landlord (or Mortgagee) of (a) a certificate signed by
Tenant, dated not more than thirty (30) days prior to the
application for such disbursement, setting forth in
substance the following to the best knowledge of Tenant,
after due inquiry, (i) that the work to be performed has
been completed in full; (ii) that all amounts which Tenant
is or may be entitled to have disbursed under the foregoing
provisions of this Section on account of services rendered
or materials furnished in connection with the work have been
disbursed under said provisions; (iii) that all amounts for
whose payment Tenant is or may become liable in respect of
the work to be performed have been paid in full; and
(iv) that no Event of Default has occurred which has not
24
been remedied and either (b) an official search or
certificate of a title company reasonably satisfactory to
Landlord showing that there has not been filed with respect
to Tenant's leasehold estate or Tenant's or Landlord's
interest in the Premises or any part thereof, any vendor's,
mechanic's, laborer's or materialman's statutory or similar
lien which has not been discharged of record and the time to
file any such lien shall have elapsed or (c) valid and
enforceable waivers of liens from each contractor and
subcontractor.
If an Event of Default shall have occurred and be
continuing prior to the disbursement of the Deposited Sums
or any part thereof, Landlord shall have no further
obligation to disburse any of the Deposited Sums to Tenant
as herein provided.
Article XVIII
Condemnation
------------
18.1 Landlord shall promptly give Tenant notice
of any Taking.
18.2 In the event of a total Taking (or, in the
event of any other Taking, if the Premises is no longer an
economically useful unit and Tenant so notifies Landlord
within thirty (30) days after such Taking), this Lease and
the Term and all right, title and interest of Tenant
hereunder shall terminate on the date of such Taking, and
the Fixed Rent and the Additional Rent shall be apportioned
and paid up to such date.
25
18.3 If at any time during the Term there shall
occur a Taking (other than a Taking for a temporary use) of
less than all or a substantial part of the Premises, this
Lease shall not terminate except in respect of the portion
of the Premises taken and a just proportion of the Fixed
Rent, according to the extent and nature of such Taking,
shall abate for the remainder of the Term; such abatement to
be effective as of the date of the determination thereof.
18.4 If any Taking described in Sections 18.2 or
18.3 shall occur, then, notwithstanding the termination of
this Lease with respect to the whole or a part of the
Premises, as the case may be, Tenant shall be entitled to
receive that portion of any award or damages for such Taking
as is attributable to: (a) Tenant's leasehold interest in
the Premises as would have existed through the Expiration
Date had such Taking not occurred; and (b) Tenant's
Equipment.
18.5 In case of a Taking for a temporary use,
there shall be no termination, cancellation or modification
of this Lease, and Tenant shall continue to perform and
comply with all of its obligations under this Lease (except
as such performance and such compliance may be rendered
impossible by reason of such Taking) and Tenant shall in no
event be relieved of its obligations to pay punctually all
Fixed Rent and Additional Rent. Unless a Default shall have
occurred and then be continuing or if such Taking shall
extend beyond the Expiration Date, Tenant shall have the
26
right and power, and is hereby irrevocably authorized and
empowered, to file and prosecute all claims for the award of
damages as a result of a Taking for a temporary use.
18.6 Tenant agrees and represents that it will
take all actions with respect to the Premises within its
control to avoid a Taking, and Tenant hereby grants Landlord
an irrevocable power of attorney, coupled with an interest,
to take any and all actions Landlord deems appropriate to
contest or avoid any Taking.
ARTICLE XIX
Assignment and Subletting
-------------------------
19.1 Subject to and conditioned upon compliance
with all the terms and conditions of this Article 19,
Landlord, upon the giving of 10 days' prior written notice
by Tenant, hereby consents to (a) an assignment of this
Lease to a corporation or any other business entity which
controls, is controlled by, or is under common control with
Tenant (hereinafter referred to as a "related corporation"),
or to a successor corporation (as hereinafter defined), or
(b) a subletting of all or a portion of the Premises for any
of the purposes permitted to Tenant, subject however, to
compliance with Tenant's obligations under this Lease and
provided that (a) Tenant shall not be in default beyond any
applicable grace period in any of the terms of this Lease,
(b) prior to such subletting or assignment Tenant furnishes
Landlord with the name of any such proposed subtenant; and
(c) in the case of assignment or subletting in the
27
reasonable judgment of Landlord the proposed subtenant or
assignee is of a character consistent with the standards of
a Landlord for tenants in the Building and the uses that
would be made by such subtenant do not interfere with and
are not reasonably objectional to the Landlord. Any
subletting shall not be deemed to vest in any such subtenant
any right or interest in this Lease or in the Premises nor
shall it relieve, release, impair or discharge any of the
Tenant's obligations hereunder. For the purposes hereof,
"control" shall be deemed to mean ownership of not less than
50% of all of the voting stock of such corporation or not
less than 50% of all of the equitable and legal interest in
any other business entities.
19.2 A "successor corporation," as used in this
Article 19 shall mean (a) a corporation into which or with
which Tenant, its corporate successors and assigns, is
merged or consolidated, in accordance with applicable
statutory provisions relating to the merger or consolidation
of corporations, provided that by operation of law or by
effective provisions contained in the instruments of merger
or consolidation, or (b) a corporation acquiring this Lease
and the Term and the estate hereby granted, the goodwill and
all or substantially all of the other property and assets
(other than capital stock of such acquiring corporation) of
Tenant, its corporate successors or assigns, and assuming
all or substantially all of the liabilities of Tenant, its
corporate successors and assigns, or (c) any corporate
28
successor to a successor corporation becoming such by either
of the methods described in subdivisions (a) and (b) above;
provided that, (i) such merger or consolidation, or such
acquisition and assumption, as the case may be, is for a
good business purpose and not principally for the purpose of
transferring the leasehold estate created hereby, and
(ii) the corporation surviving such merger or created by
such consolidation or acquiring such assets and assuming
such liabilities, as the case may be, shall have assets,
capitalization and a net worth, as determined in accordance
with generally accepted accounting principles, and certifi-
cations to Landlord by an independent certified public
accountant, at least equal to the assets, capitalization and
net worth, similarly determined, of Tenant at the beginning
of the Term or immediately prior to such merger or consoli-
dation or such acquisition or assumption, as the case may
be, whichever is the greater. The acquisition by Tenant,
its corporate successors or assigns, of all or substantially
all of the assets, together with the assumption of all or
substantially all of the obligations and liabilities of any
corporation, shall be deemed to be a merger for the purposes
of this Article. Upon the delivery to Landlord by any
successor corporation to whom this Lease may be and is
assigned or transferred with the consent of Landlord
pursuant to the provisions of this Section, of the current
balance sheet of such successor corporation, certified by
its chief financial officer or a certified public accoun-
29
tant, together with the agreement of such corporation to
assume all of the terms of this Lease to be performed by
Tenant, and to be bound thereby, the corporation so
assigning or transferring this Lease shall thereafter be
released and discharged from any obligations thereafter
arising under this Lease.
19.3 Except as provided in Paragraph 19.1 herein,
neither this Lease nor any part nor the interest of Tenant
in any sublease or the rentals thereunder, shall, by opera-
tion of law or otherwise, be assigned, mortgaged, pledged,
encumbered or otherwise transferred by Tenant, Tenant's
legal representatives or successors in interest and neither
the Premises, nor any part thereof, nor any Tenant's Equip-
ment shall be encumbered in any manner by reason of any act
or omission on the part of Tenant or anyone claiming under
or through Tenant, or shall be sublet or be used or occupied
for desk space or for mailing privileges by anyone other
than Tenant, without the prior written consent of Landlord
which shall not be unreasonably withheld or delayed, pro-
vided the conditions set forth in Section 19.7 herein have
been satisfied.
19.4 For purposes of this Article 19, (i) the
issuance of interests in Tenant or any subtenant (whether
stock or partnership interest or otherwise) to any person or
group of related persons, whether in a single transaction or
a series of related or unrelated transactions, such that
following such issuance such person or group shall have
30
control of Tenant or subtenant shall be deemed an assignment
of this Lease or such sublease, as the case may be, (ii) a
transfer of more than 50% in interest of Tenant or any sub-
tenant (whether stock or partnership interest or otherwise)
by any party or parties in interest whether in a single
transaction or a series of related or unrelated transactions
shall be deemed an assignment of this Lease, or such sub-
lease except that the transfer of the outstanding capital
stock of any corporate Tenant or subtenant, by persons or
parties (other than persons or parties owning 50% or more of
the voting stock of such corporation) through the "over-the-
counter" market or any recognized national securities
exchange, shall not be included in the calculation of such
50%, (iii) a take-over agreement shall be deemed an assign-
ment of this Lease, (iv) any person or legal representative
of Tenant, to whom Tenant's interest under this Lease passes
by operation of law, or otherwise, shall be bound by the
provisions of this Article 19, and (v) a modification,
amendment or extension of a sublease shall be deemed a
sublease. Any assignment or sublease by Tenant in contra-
vention of this Article 19 shall be void. For the purposes
of clause (ii) of the preceding sentence, stock ownership
shall be determined in accordance with principles set forth
in Section 544 of the Internal Revenue Code of 1954, as the
same existed on August 16, 1954. If Tenant shall assign
this Lease or sublet the Premises or a portion thereof in
accordance with this Article 19, any such assignee or sub-
31
tenant may use the Premises for executive and administrative
offices in connection with such assignee's or sublessee's
business, provided such use does not conflict with any Legal
Requirement, Insurance Requirement or any of the other terms
of this Lease.
19.5 If this Lease is assigned, whether or not in
violation of the terms of this Lease, Landlord may collect
rent from the assignee. If the Premises or any part thereof
be sublet or be used or occupied by anybody other than
Tenant, Landlord may, after default by Tenant, collect rent
from the subtenant or occupant. In either event, Landlord
may apply the net amount collected to the rent herein
reserved. The consent by Landlord to an assignment, trans-
fer, encumbering or subletting pursuant to any provision of
this Lease shall not in any way be considered to relieve
Tenant from obtaining the express prior consent of Landlord
to any other or further assignment, transfer, encumbering or
subletting. References in this Lease to use or occupancy by
anyone other than Tenant shall not be construed as limited
to subtenants and those claiming under or through subtenants
but as including also licensees and others claiming under
Tenant, immediately or remotely. The listing of any name
other than that of Tenant on any door of the Premises or on
any directory or in any elevator in the Building, or other-
wise, shall not vest in the person so named any right or
interest in this Lease or the Premises, or constitute any
consent of Landlord required under this Article, and any
32
such listing shall constitute a privilege extended by Land-
lord, revocable at Landlord's will by notice to Tenant.
Tenant agrees to pay to Landlord a reasonable processing fee
(including reasonable attorneys' fees and disbursements
incurred by Landlord) in connection with any proposed
assignments or sublettings. Neither any assignment of this
Lease or any proposed subletting of the Premises or any part
thereof by any person other than Tenant, nor any collection
of rent by Landlord from any person other than Tenant, nor
any application of any such rent as provided in this Article
shall be deemed a waiver of any of the provisions of Sec-
tion 20.1 or relieve, impair, release or discharge Tenant of
its obligations fully to perform the terms of this Lease on
Tenant's part to be performed and Tenant shall remain fully
liable therefor.
19.6 Notwithstanding anything contained in
Section 19.3 to the contrary, but subject to the rights of
Tenant under Section 19.1, if Tenant desires to sublet all
or any part of the Premises or to assign its interest in
this Lease, Tenant
(a) shall submit to Landlord the name and
address of the proposed subtenant or assignee, a reasonably
detailed description of such person's business, reasonably
detailed character and financial references for such person
(including its most recent balance sheet and income
statements certified by its chief financial officer or
certified public accountant), and, a certification by Tenant
33
that this Lease and Tenant's property are free of all liens
and encumbrances and any other information reasonably
requested by Landlord; and
(b) shall submit to Landlord (i) a conformed
or photostatic copy of the proposed assignment or sublease,
which agreements shall be conditioned on Landlord's consent
thereto and (ii) an agreement by Tenant to indemnify Land-
lord against liability resulting from any claims that may be
made against Landlord by the proposed assignee or sublessee
or by any brokers or other persons claiming a commission or
similar compensation in connection with the proposed assign-
ment or sublease.
19.7 Landlord's consent to a subletting or
assignment as required under Section 19.3 shall not be
unreasonably withheld, provided that all of the following
conditions have been satisfied:
(a) In the reasonable judgment of Landlord
the proposed subtenant or assignee is of a character and
financial worth consistent with the standards of Landlord in
those respects for the Building, and the nature of the pro-
posed subtenant's or assignee's business and its reputation
is consistent with the character of the Building and its
tenancies;
(b) The purposes for which the proposed
subtenant or assignee intends to use the Premises or the
applicable portion thereof are uses expressly permitted by
34
and not prohibited by this Lease or by any other lease in
the Building;
(c) Tenant shall not (i) advertise or
publicize in any way the availability of all or part of the
Premises without Landlord's consent, which shall not be
unreasonably withheld, and no advertisement shall state the
name or the address of the Building or the proposed rental;
(d) The proposed occupancy shall not impose
a material extra burden upon the Building equipment or
Building services;
(e) The proposed sublease shall be expressly
subject and subordinate to all of the provisions of this
Lease;
(f) Tenant shall not be in default in the
performance of any of its obligations under this Lease
either at the time Landlord's consent to such subletting or
assignment is requested or at the commencement of the term
of any proposed sublease or upon the effective date of any
such assignment;
(g) Tenant shall reimburse Landlord for any
reasonable costs that may be incurred by Landlord in connec-
tion with said sublease or assignment, including the costs
of making investigations as to the acceptability of a pro-
posed subtenant or assignee;
(h) The proposed subtenant or assignee shall
not be entitled, directly or indirectly, to diplomatic or
sovereign immunity and shall be subject to the service of
35
process in, and the jurisdiction of the courts of, the State
of Connecticut;
(i) The proposed subtenant or assignee shall
not be a person then negotiating with Landlord or Landlord's
agent (either directly or through a broker) for the rental
of any space in the Building;
(j) In the case of a subletting of a portion
of the Premises the space proposed to be sublet shall be
regular in shape and suitable for normal renting purposes;
and
(k) The proposed subtenant or assignee shall
have no further right to sublet or assign.
19.8 With respect to each and every sublease or
subletting or assignment authorized by the provisions of
this Section, it is further agreed and understood between
Landlord and Tenant as follows:
(a) No subletting shall be for a term ending
later than one day prior to the Expiration Date and that
part, if any, of the proposed term of any sublease or any
renewal or extension thereof which shall extend beyond a
date one day prior to the Expiration Date or the sooner
termination of the Term, is hereby deemed to be a nullity;
and
(b) There shall be delivered to Landlord,
within 10 days after the commencement of the term of the
proposed sublease, notice of such commencement, or in the
36
case of an assignment, notice of the effectiveness of such
assignment.
19.9 If Landlord shall recover or come into
possession of the Premises before the date herein fixed for
the termination of this Lease, Landlord shall have the
right, but not the obligation, to take over any sublease
made by Tenant and to succeed to all the rights of Tenant
thereunder, Tenant hereby assigning (effective as of the
date of Landlord's succession to Tenant's estate in the
Premises) such subleases as Landlord may elect to take over.
Every subletting hereunder shall be subject to the condition
that, from and after the termination of this Lease or
re-entry by Landlord hereunder or other succession by Land-
lord to Tenant's estate in the Premises, the subtenant shall
waive any right to surrender possession or to terminate the
sublease and, at Landlord's election, such subtenant shall
be bound to Landlord for the balance of the term thereof and
shall attorn to and recognize Landlord, as its landlord,
under all of the then executory terms of such sublease,
except that Landlord shall not (i) be liable for any pre-
vious act, omission or negligence of Tenant under such
sublease, (ii) be subject to any counterclaim, defense or
offset not expressly provided for in such sublease, which
theretofore accrued to such subtenant against Tenant,
(iii) be bound by any previous modification or amendment of
such sublease or by any previous prepayment of more than one
month's rent and additional rent which shall be payable as
37
provided in the sublease, unless such modification or
prepayment shall have been approved in writing by Landlord,
(iv) be obligated to perform any repairs or other work in
the subleased space beyond Landlord's obligations under this
Lease. Each subtenant shall execute and deliver to Landlord
any instruments Landlord may reasonably request to evidence
and confirm such attornment.
19.10 Any attempt by Tenant to sublease the whole
or any part of the Premises or to assign this Lease except
as permitted under this Article shall be null and void and
of no force or effect.
19.11 In the event that Tenant has sublet all or
a portion of the demised premises and Landlord exercises its
right to purchase this Lease Agreement in accordance with
the provisions of Article 33 hereof and requires that said
conveyance be free of any tenancies therein, notwithstanding
anything to the contrary set forth herein, Tenant, at his
sole cost and expense, within 60 days of written notice from
Landlord, shall perform whatever act(s) as may be necessary
to insure that the proposed lease purchase is free from all
tenancies. Accordingly, any proposed subtenancy by Tenant
shall contain a distinct reference to this right of termina-
tion at any time without cause should the option to purchase
be exercised.
ARTICLE XX
Tenant's Default
----------------
38
20.1 If any of the following events (individu-
ally, an "Event of Default") shall occur: (a) if Tenant
shall default in the payment of any item of Fixed Rent and
such default shall continue for ten (10) days after notice
to Tenant; (b) if Tenant shall default in the payment of any
financial charge, if any, when due for ten (10) days; or
(c) if this Lease shall be assigned or the Premises be
sublet, without Tenant having obtained Landlord's express
prior consent; or (d) if Tenant shall default in the obser-
vance of any of the other terms, covenants, conditions or
agreements of this Lease and such default shall not be cured
within twenty (20) days after Landlord has given Tenant
notice of such default, provided that in the event the same
cannot be reasonably cured within twenty (20) days, then
provided Tenant shall have commenced within such twenty (20)
day period to attempt to cure the Default and proceeded with
due diligence until completion to cure, then, upon the
happening of any one or more Events of Default, Landlord
may, at its option, terminate this Lease by giving to Tenant
not less than five (5) days' notice of Landlord's intention
to terminate this Lease because of the occurrence of any
such Event of Default, and upon the date set forth in such
termination notice, this Lease and the Term shall cease,
terminate and come to an end, with the same force and effect
as though the date so specified was the date herein fixed as
the Expiration Date, but Tenant shall remain liable to Land-
lord as hereinafter set forth. Landlord shall also in any
39
of such events, in addition to and not in limitation of any
other right or remedy, have the right to re-enter the Prem-
ises without being liable for any prosecution therefor, and
to repossess and enjoy the same and to remove Tenant and any
and all persons claiming through or under Tenant and remove
their property therefrom, by any suitable action or proceed-
ing prescribed by law (including summary proceedings).
20.2 (a) In the event Tenant is dispossessed
from the Premises by summary proceedings or otherwise, or
Landlord regains possession of the Premises, or in case this
Lease shall be terminated by reason of any Event of Default
or shall terminate by reason of any of the events set forth
in Section 21.5, then Tenant shall, nevertheless, remain
liable to Landlord in an amount equal to all Fixed Rent and
Additional Rent herein reserved for the balance of the Term,
or the period that would have constituted the balance of the
Term had this Lease not been terminated as aforesaid; and
Landlord may rebuild, repair, alter and redecorate the
Premises or any part thereof (without thereby releasing
Tenant from liability hereunder) in such manner as Landlord
may deem advisable, and/or let or re-let the Premises or any
part or parts thereof for a term or terms which may, at the
option of Landlord, be less than or exceed the balance of
the Term or the period which would have constituted the
balance of the Term had this Lease not been terminated as
aforesaid, in Landlord's name, or as agent of Tenant, and on
such conditions (which may include concessions or free rent)
40
and for such purposes as Landlord may determine, and out of
any rents resulting from such reletting, Landlord shall,
first, pay to itself the expenses and costs, including
attorneys' fees and expenses, of retaking, repossessing,
repairing, altering and/or redecorating the Premises;
second, pay to itself all expenses and costs sustained in
securing any new tenant or tenants, including brokerage
fees; and third, pay to itself any balance remaining on
account of the liability of Tenant to Landlord the amount of
the Fixed Rent and Additional Rent reserved herein and
unpaid by Tenant for the period which would have been the
remainder of the Term had this Lease not been terminated as
aforesaid, and any surplus shall belong to Landlord.
Neither (i) the termination of this Lease pursuant to
Sections 21.1 or 21.5, (ii) any entry or re-entry by
Landlord, whether had or taken under summary proceedings or
otherwise, or (iii) any reletting or failure to relet the
Premises, shall absolve or discharge Tenant from any
liability hereunder, all of which shall survive any such
termination, repossession or reletting.
(b) Should any rent collected by Landlord
from such reletting be insufficient fully to pay to Landlord
a sum equal to all Fixed Rent and Additional Rent herein
reserved, the deficiency shall be paid by Tenant on the rent
days herein specified, that is, upon each of such rent days
Tenant shall pay to Landlord the amount of the deficiency
then existing and Tenant shall be liable for any such
41
deficiency, and the Right of Landlord to recover from Tenant
the amount thereof, or a sum equal to the amount of all
Fixed Rent and Additional Rent, if there shall be no
reletting, shall survive the issuance of any dispossessory
warrant or other termination of this Lease. Landlord shall
not be liable for failure to relet the Premises, or in the
event the Premises are relet, for failure to collect the
rent under such reletting.
(c) Suit or suits for the recovery of such
deficiency or damages, or for a sum equal to any installment
or installments of any Fixed Rent or Additional Rent
hereunder may be brought by Landlord from time to time at
Landlord's election, and nothing herein contained shall be
deemed to require Landlord to await the date on which this
Lease or the Term would have expired by limitation had there
been no such default by Tenant or no such termination or
repossession by Landlord. No suit to collect the amount of
any deficiency for any month shall prejudice Landlord's
right to collect the deficiency for any subsequent month by
a similar proceeding.
20.3 If at any time during the Term, Tenant
shall: (a) be unable, or admit in writing its inability, to
pay its debts as they mature, (b) make an assignment for the
benefit of creditors, (c) file a voluntary petition in bank-
ruptcy or for reorganization or be adjudicated a bankrupt or
insolvent by any court, (d) file any petition or answer
seeking, consenting to, or acquiescing in reorganization,
42
arrangement, liquidation, dissolution or similar relief
under any present or future statute, law or regulation, or
file an answer admitting or failing to deny the material
obligations of a petition against it for any relief under
any federal or state bankruptcy or insolvency laws, (e) fail
to have dismissed any proceeding against Tenant seeking any
of the relief referred to in the foregoing clause (d) within
90 days after the commencement thereof, (f) have a trustee,
receiver or liquidator of Tenant or of any substantial part
of its properties or assets or of Tenant's estate or inter-
est in the Premises appointed with the consent or acquies-
cence of Tenant, or if any such appointment is not so
consented to or acquiesced in, shall have such appointment
remain unvacated for a period of 90 days, (g) while insol-
vent or in connection with any bankruptcy or debtor-creditor
proceeding, be liquidated or dissolved, or dissolution, or
shall, in any manner, permit the divestiture of substan-
tially all of its assets, or (h) if this Lease (but for this
provision) shall by operation of law, devolve upon or pass
to any other person or entity, except as permitted here-
under, then, upon the occurrence of any of such events, this
Lease shall ipso facto be cancelled and terminated (and the
---- -----
occurrence of any of such events resulting in a termination
of this Lease shall be deemed to constitute a Default here-
under) in which event neither Tenant nor any person claiming
through or under Tenant, by virtue of any statute or of an
order of any court, shall be entitled to possession of the
43
Premises or any part thereof, or to remain in possession of
the Premises, but shall forthwith quit and surrender the
same and Landlord, in addition to the other rights and
remedies granted to Landlord under any of the provisions of
this Article or elsewhere in this Lease contained, or by
virtue of any statute or rule of law, may retain any Fixed
Rent or monies received by the Landlord from Tenant or
others on behalf of Tenant. In the event of the termination
of this Lease pursuant to the foregoing provision of this
Section 21.5, Landlord shall forthwith be entitled to
recover from Tenant an amount equal to the liquidated and
agreed final damages described in and computed in the manner
set forth in Section 21.3; however, nothing herein contained
shall limit or prejudice the right of Landlord to prove and
obtain as liquidated damages by reason of such termination,
an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the
amount referred to above.
20.4 If this Lease is assigned to any person or
entity pursuant to the provisions of the Bankruptcy Code,
11 U.S.C. Sec. 101 et seq. (the "Bankruptcy Code"), any and all
-- ---
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 and shall not constitute property of Tenant or of
44
the estate of Tenant within the meaning of the Bankruptcy
Code. Any and all monies and other consideration consti-
tuting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust for the
benefit of Landlord and be promptly paid to or turned over
to Landlord. If Tenant assumes this Lease and proposes to
assign the same pursuant to the provisions of the Bankruptcy
Code to any person or entity who shall have made a bona fide
offer to accept an assignment of this Lease on terms accept-
able to Tenant, then notice of such proposed assignment,
setting forth (i) the name and address of such person,
(ii) all of the terms and conditions of such offer, and
(iii) the adequate assurance to be provided Landlord to
assure such person's future performance under this Lease,
including, without limitation, the assurance referred to in
Section 365(b)(3) of the Bankruptcy Code, shall be given to
Landlord by Tenant no later than twenty (20) days after
receipt by Tenant but in any event no later than ten (10)
days prior to the date that Tenant shall make application to
a court of competent jurisdiction for authority and approval
to enter into such assignment and assumption, and Landlord
shall thereupon have the prior right and option, to be
exercised by notice to Tenant given at any time prior to the
effective date of such proposed assignment, to accept an
assignment of this Lease upon the same terms and conditions
and for the same consideration, if any, as the bona fide
offer made by such person, less any brokerage commissions
45
which may be payable out of the consideration to be paid by
such person for the assignment of this Lease.
20.5 Tenant, to the extent permitted by law,
hereby waives service of any notice of intention to
re-enter, any and all right to recover or regain possession
of the Premises or to reinstate or to redeem this Lease as
may be permitted or provided by or under any statute, law or
decision now or hereafter in force and effect, and the
benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt. Whenever in
this Lease Landlord has reserved or is granted the right to
"re-enter" the Premises, the use of such word is not
intended, nor shall it be construed, to be limited to its
technical meaning.
20.6 Tenant, for itself and any and all persons
claiming through or under Tenant, including its creditors,
upon the termination of this Lease and of the Term in
accordance with the terms hereof, or in the event of entry
of judgment for the recovery of the possession of the
Premises in any action or proceeding, or if Landlord shall
enter the Premises by process of law or otherwise, hereby
waives any right of redemption provided or permitted by any
statute, law or decision now or hereafter in force, and does
hereby waive, surrender and give up all rights or privileges
which it or they may or might have under and by reason of
any present or future law or decision, to redeem the
Premises or for a continuation of this Lease for the Term
46
after having been dispossessed or ejected therefrom by
process of law, or otherwise. Tenant waives all right to
trial by jury in any summary or other judicial proceedings
hereafter instituted by Landlord against Tenant in respect
to Premises. Tenant also waives any right to assert or
interpose a counterclaim in any summary proceeding or other
action commenced by Landlord to recover or obtain possession
of the Premises.
20.7 Tenant, to the extent permitted by law,
hereby waives its right to disavow this Lease in the event
of Tenant's bankruptcy.
ARTICLE XXI
Landlord's Right to Cure Tenant's Default
-----------------------------------------
21.1 If Tenant shall fail to make any payment or
perform any act required to be made or performed under this
Lease, Landlord, after demand upon Tenant (except no demand
shall be necessary in the event of any emergency) and
without waving or releasing any obligation or Default, may
(but shall not be obligated to) at any time thereafter make
such payment or perform such act for the account and at the
expense of Tenant, and may enter upon the Premises for such
purpose and take all such action thereon as, in Landlord's
reasonable opinion, may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of
Tenant. All sums so paid by Landlord and all costs and
expenses (including, without limitation, reasonable attor-
neys' fees and expenses) so incurred, together with interest
47
thereon at the Lease Interest Rate from the date on which
such sums or expenses are paid or incurred by Landlord,
shall be paid by Tenant to Landlord on demand and shall be
collectible by Landlord as Additional Rent.
ARTICLE XXII
Subordination
-------------
22.1 (a) This Lease and the rights and interest
of Tenant herein shall be, and hereby are made, subject and
subordinate at all times to all Mortgages and all advances
thereon.
(b) Tenant agrees that if any Mortgagee, or
any other person claiming by or through any Mortgagee, or by
or through any foreclosure proceeding of any Mortgage, shall
succeed to the rights of Landlord under this Lease, Tenant
shall attorn to and recognize such successor as Tenant's
landlord under this Lease, and Tenant shall promptly execute
and deliver any instruments that may be necessary to
evidence such attornment. Upon such attornment, this Lease
shall continue in full force and effect as a direct lease
between Tenant and such successor landlord, upon and subject
to all of the terms, covenants and conditions of this Lease.
22.2 The provisions of Section 22.1 shall be
self-operative and no further instrument of subordination or
attornment shall be necessary, unless required by Landlord
or any Mortgagee or any successor in interest to such Mort-
gagee, in which event Tenant agrees, upon demand, at any
time or times, to execute, acknowledge and deliver to Land-
48
lord or any Mortgagee any and all instruments that may be
necessary or proper to confirm such subordination and
attornment. In order to effectuate the provisions of
Section 22.1 and this Section 22.2, Tenant hereby, irre-
vocably and unconditionally, appoints and designates Land-
lord as its attorney-in-fact to execute any and all such
instruments as may be necessary or proper to confirm such
subordination and attornment, such power of attorney being
deemed coupled with an interest.
22.3 If, in connection with the obtaining,
continuing or renewing of any Mortgage, any commercial or
savings bank, trust company, savings and loan association,
insurance company, real estate investment trust, pension or
retirement fund or any other entity generally considered an
institutional lender shall request reasonable modifications
of this Lease as a condition of such financing, neither
Landlord nor Tenant will unreasonably withhold or delay its
consent thereto, provided such modifications do not increase
the obligations of Landlord or Tenant hereunder nor mate-
rially and adversely affect the rights of Landlord or Tenant
under this Lease.
ARTICLE XXIII
Broker
------
23.1 Landlord and Tenant warrant and represent to
each other that they have dealt with no real estate broker
or brokers in connection with the negotiation, execution and
delivery of this Lease. Each party hereby indemnifies and
49
agrees to hold the other harmless from and against any and
all costs (including reasonable attorneys' fees and
disbursements), expenses, claims, liabilities and damages by
reason of the foregoing warranty and representation being
untrue. The provisions of this Section shall survive the
execution and delivery of this Lease and the expiration or
sooner termination of this Lease.
ARTICLE XXIV
Quiet Enjoyment
---------------
24.1 So long as Tenant shall pay the Fixed Rent
and Additional Rent as the same become due hereunder and
shall fully perform and comply with all of the other terms,
covenants, conditions and agreements of this Lease, Tenant
shall peaceably and quietly have, hold and enjoy the Prem-
ises for the Term without hindrance or molestation by or
from Landlord or anyone claiming by, through or under Land-
lord, subject, however, to the terms, covenants, conditions
and agreements of this Lease.
ARTICLE XXV
Surrender -- Holding Over
-------------------------
25.1 Upon the expiration or sooner termination of
this Lease, Tenant agrees that it will peaceably and quietly
surrender and yield up possession of the Premises to Land-
lord.
25.2 If Tenant shall hold over in possession of
the Premises after the expiration or sooner termination of
50
this Lease without the express written consent of Landlord,
such holding over shall not be deemed to have extended the
Term for any new term. Landlord may in such event, at its
option, elect to treat Tenant as one who has not removed at
the end of its term, and thereupon be entitled to all
remedies against Tenant provided by law in such case,
including consequential damages resulting from such holding
over, or Landlord may elect to construe such holding over as
a tenancy from month to month, upon and subject to all of
the terms and provisions hereof except that such tenancy
shall be terminable on thirty days' notice from either party
to the other and shall be at a monthly rental equal to the
total of: (a) one and one-half (1-1/2) times the monthly
installment of Fixed Rent payable during the last full month
of the Term plus (b) the Additional Rent, computed at a
monthly rate during such month to month tenancy, at the rate
in effect at the expiration or sooner termination of the
Term.
ARTICLE XXVI
Estoppel Certificates
---------------------
26.1 Upon the written request of Landlord, at any
time or from time to time, Tenant agrees to execute,
acknowledge and deliver to Landlord, within ten (10) days
after request, a written statement (a) certifying that this
Lease has not been modified and is in full force and effect
or, if there have been modifications of this Lease, that
this Lease is in full force and effect as modified, and
51
stating such modifications, (b) certifying the dates to
which the Fixed Rent and Additional Rent have been paid,
(c) stating whether or not, to the best knowledge of Tenant,
Landlord is in default in the performance of any of its
obligations under this Lease and, if Landlord is in default,
specifying the nature of each such default of which Tenant
may have knowledge and (d) such other matters as Landlord
may reasonably request; it being intended that any such
statement delivered pursuant to this Section 25.1 may be
relied upon by Landlord and any prospective transferee or
assignee of its interest in this Lease or the Premises, or
any Mortgagee or prospective Mortgagee, or any prospective
assignee of such Mortgagee, but reliance on any statement by
Landlord may not extend to any default as to which the
signer shall have had no actual notice.
26.2 Upon the written request of Tenant, at any
time or from time to time, Landlord agrees to execute,
acknowledge and deliver to Tenant, within ten (10) days
after request, a written statement (a) certifying that this
Lease has not been modified and is in full force and effect
or, if there have been modifications of this Lease, that
this Lease is in full force and effect as modified, and
stating such modifications, (b) certifying the dates to
which the Fixed Rent and Additional Rent have been paid,
(c) stating whether or not notice has been sent to Tenant by
Landlord of any Default which has not been cured, and
(d) stating whether or not to the best knowledge of Land-
52
lord, Tenant is in default in the performance of any of its
obligations under this Lease and, if Tenant is in default,
specifying the nature of each such default of which Landlord
may have knowledge; it being intended that any statement
delivered pursuant to this Section 26.2 may be relied upon
by Tenant or any permitted transferee or assignee of
Tenant's interest in this Lease, or any Mortgagee or pros-
pective Mortgagee, or any prospective assignee of such
Mortgagee; but reliance on such certificate by Tenant may
not extend to any default as to which the signer shall have
had no actual notice.
ARTICLE XXVII
Waiver of Jury and Counterclaims
--------------------------------
27.1 Landlord and Tenant hereby waive trial by
jury in any action, proceeding or counterclaim brought by
any of the parties hereto against another party hereto on
any matters arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, and/or any claim of injury or
damage, or any emergency or other statutory remedy. In any
action or proceeding brought by Landlord against Tenant,
Tenant hereby waives the right to interpose any counter-
claim.
ARTICLE XXVIII
Notices
-------
53
28.1 Any notices, consents, approvals, submis-
sion, demands or other communications (a "Notice") given
under this Lease or pursuant to any law or governmental
regulation, by Landlord to Tenant or by Tenant to Landlord,
shall be in writing. Unless otherwise required by law or
governmental regulation, any Notice shall be deemed given
only when sent by registered or certified mail, return
receipt requested, postage prepaid addressed to Tenant at
its address hereinabove set forth and to Landlord at its
address hereinabove set forth. Notices shall be effective
upon receipt.
ARTICLE XXIX
No Waiver by Landlord
---------------------
29.1 No receipt of monies by Landlord from
Tenant, after the termination or cancellation of this Lease,
shall reinstate, continue or extend the Term, or affect any
notice theretofore given to Tenant, or operate as a waiver
of the right of Landlord to enforce the payment of Fixed
Rent or Additional Rent then due, or thereafter falling due,
or operate as a waiver of the right of Landlord to recover
possession of the Premises by appropriate suit, action,
proceeding or remedy. No payment by Tenant or receipt by
Landlord of a lesser amount than the Fixed Rent or Addi-
tional Rent then due shall be deemed to be other than on
account of the earliest stipulated Fixed Rent or Additional
Rent, nor shall any endorsement or statement of or on any
check or any letter accompanying any check or payment as
54
Fixed Rent or Additional Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance
of such Fixed Rent or Additional Rent or pursue any other
right, privilege or remedy in this Lease or at law or in
equity provided. No failure by Landlord to insist in any
one or more cases upon the strict performance of any of the
terms, conditions or covenants of this Lease or to exercise
any right, power, option or remedy consequent upon a breach
thereof, and no acceptance of full or partial payment of
Fixed Rent or Additional Rent with knowledge of the con-
tinuance of any such breach, shall constitute a waiver of
any such breach or of any such terms, conditions or
covenants.
ARTICLE XXX
Memorandum of Lease
-------------------
30.1 Landlord and Tenant will, at any time at the
request of the other, promptly execute a short form memo-
randum of this Lease, in recordable form, which will
constitute notice of this Lease setting forth such matters
as are required by law to entitle the instrument to be
recorded and also such other portions hereof as either party
may request, other than the rental and other financial
terms.
55
ARTICLE XXXI
Acceptance of Surrender
-----------------------
31.1 No surrender to Landlord of this Lease or of
the Premises or any part thereof or of any interest therein
shall be valid or effective unless agreed to and accepted in
writing by Landlord and any Mortgagee, and no act by Land-
lord or any Mortgagee or by any representative or agent of
Landlord or any Mortgagee, shall constitute an acceptance of
any such surrender.
ARTICLE XXXII
Remedies Cumulative
-------------------
32.1 Each legal, equitable or contractual right,
power and remedy of Landlord now or hereafter granted either
in this Lease or by statute or otherwise shall be cumulative
and concurrent and shall be in addition to every other
right, power and remedy, and the exercise or beginning of
the exercise by Landlord of any one or more of such rights,
owners and remedies shall not preclude the simultaneous or
subsequent exercise by Landlord of any or all of such other
rights, powers and remedies. Landlord shall have, in addi-
tion to the rights heretofore reserved Landlord, but at
Landlord's option, the right to restrain by injunction any
violation or attempted violation by Tenant, or its sub-
tenants or agents, of any of the restrictions or covenants
or agreements of Tenant set forth in this Lease.
56
ARTICLE XXXIII
Option
------
33.1 Tenant grants and gives to the Landlord, its
successors and assigns, for a period of ten (10) years from
the date of closing and ending at 11:59 p.m. on ,
2004 the right and option to purchase Tenants rights in and
to this Lease Agreement upon payment of the following pur-
chase price:
IF THE OPTION IS EXERCISED THEN THE OPTION PRICE
BETWEEN: SHALL BE:
01 Mar 94 & 28 Feb 95: $4,000,000.00
01 Mar 95 & 29 Feb 96 $4,000,000.00
01 Mar 96 & 28 Feb 97 $4,000,000.00
01 Mar 97 & 28 Feb 98 $4,000,000.00
01 Mar 98 & 28 Feb 99 $4,000,000.00
01 Mar 99 & 29 Feb 00 $4,400,000.00
01 Mar 00 & 28 Feb 01 $4,840,000.00
01 Mar 01 & 28 Feb 02 $5,324,000.00
01 Mar 02 & 28 Feb 03 $5,856,400.00
01 Mar 03 & 29 Feb 04 $6,442,040.00
To exercise this Option, the Landlord must deliver
a written notice to the Tenant fixing a date not more than
60 days in advance for the purchase of the Tenant's rights
in and to this Lease Agreement (which date is the "time of
closing").
57
ARTICLE XXXIV
Miscellaneous
-------------
34.1 If any term of provision of this Lease or
any application thereof shall be invalid or unenforceable,
the remainder of this Lease and any other application of
such provision shall not be affected thereby. If any
interest charge provided for in any provision of this Lease
exceeds the maximum rate permitted by applicable law, such
charge shall be fixed at the maximum permissible rate.
34.2 This Lease contains the entire agreement
between the parties in respect of the leasing of the
Premises, and no oral statements or representations or prior
written matter in respect thereof not contained in this
Lease shall have any force or effect. This Lease and the
provisions hereof may not be modified or waived in any way
or terminated, other than by a writing executed by both
parties.
34.3 Wherever it is specifically provided in this
Lease that a party's consent is not to be unreasonably with-
held, a response to a request for such consent shall also
not be unreasonably delayed. If either Landlord or Tenant
considers that the other has unreasonably withheld or
delayed a consent, it shall so notify the other party within
10 days after receipt of notice of denial of the requested
consent or, in case notice of denial is not received, within
20 days after making its request for the consent. Tenant
hereby waives any claim against Landlord which it may have
58
based upon any assertion that Landlord has unreasonably
withheld or unreasonably delayed any such consent, and
Tenant agrees that its sole remedy shall be an action or
proceeding to enforce any such provision or for specific
performance, injunction or declaratory judgment. In the
event of such a determination, the requested consent shall
be deemed to have been granted; however, Landlord shall have
no liability to Tenant for its refusal or failure to give
such consent. The sole remedy for Landlord's unreasonably
withholding or delaying of consent shall be as provided in
this Section. Notwithstanding anything to the contrary
provided in this Lease, in any instance where the consent of
a Mortgagee is required, Landlord shall not be required to
give its consent until and unless such Mortgagee has given
its consent.
34.4 Wherever herein the singular number is used,
the same shall include the plural, and the masculine gender
shall include the feminine and neuter genders, and vice
versa, as the context shall require. The Article headings
used herein are for reference and convenience only, and
shall not enter into the interpretation thereof.
34.5 This Lease may be executed in several
counterparts, each of which shall be an original, but all of
which shall constitute but one and the same instrument.
34.6 The parties hereto agree that they have not
created and do not intend to create by this Lease a joint
venture or partnership relation between them.
59
34.7 The covenants and agreements herein con-
tained, subject to the provisions of this Lease, shall be
binding upon and inure to the benefit of the parties hereto,
their respective heirs, legal representatives and successors
and assigns.
34.8 The parties hereto hereby agree that from
time to time, upon the request of the other party, they
shall execute and deliver such further documents and do such
other acts and things as may be reasonably requested to
carry out the intent of this Lease or to comply with
applicable law.
ARTICLE XXXV
No Additional Rent: Gross Lease
--------------------------------
35.1 Except as provided in this Article XXXV,
Tenant shall not be obligated to pay any additional rent
hereunder, it being acknowledged that this Lease shall be
deemed and construed to be a "gross lease," and that
Landlord shall be responsible for any charges, Impositions,
deductions, costs, expenses or obligations of any kind, and
except as provided in this Article XXXV, Tenant shall not be
expected or required to make any payment of any kind what-
soever or to be under any other obligation or liability
hereunder or otherwise with respect or which relates to, or
is attributable to the Premises, the Improvements, or the
ownership, use or occupancy thereof. In the event, however,
that the Tenant or anyone claiming by, through, or under,
the Tenant sublets, uses or permits any person or entity to
60
use the Premises, then notwithstanding any other provision
of this Lease, whatsoever, Tenant shall be required to pay
his proportionate share (namely, that percentage of the
building's useable square footage being so sublet or used)
of all charges, Impositions, obligations, liabilities,
claims, costs, expenses and taxes of every kind whatsoever
which relates to or is attributable to the Premises, the
Improvements or the ownership, use or occupancy thereof, so
that the Lease will then be and be deemed a net lease under
which Tenant pays such proportional share of all charges,
Impositions, obligations, liabilities, claims, costs,
expenses and taxes whatsoever relating to or attributable to
the Premises, the Improvements, or the ownership, use or
occupancy thereof.
ARTICLE XXXVI
Parking
-------
36.1 Tenant shall be entitled to use as many
parking spaces in the South Parking Area as shown on
Schedule D attached hereto and made a part hereof as
permitted or required under the Zoning Regulations of the
61
City of Stamford, so long as Landlord shall not require such
spaces.
IN WITNESS WHEREOF, the parties hereto have
executed this Lease as of the day and year first above
written.
Witness: LANDLORD: CONAIR CORPORATION
/s/ Mary King By/s/ Richard A. Margulies
-------------------- ---------------------------------
Title: Vice President
/s/ Sophie C. Powajba
---------------------
/s/ Mary King TENANT: Leandro P. Rizzuto
--------------------
/s/ Sophie C. Powajba By/s/ Leandro P. Rizzuto
--------------------- ---------------------------------
62
SCHEDULE A
All that certain tract of land, together with the
buildings and improvements thereon situated in the City of
Stamford, County of Fairfield and State of Connecticut,
known and designated as "Parcel B - to be leased 7.810
Acres," on a certain map entitled, "Map Showing Subdivision
For Soundview Farms, Stamford, Conn.," now on file in the
office of the Town Clerk of said Stamford, and numbered
9350, reference thereto being had. Said premises are
bounded and described as follows: Beginning at a point
along the southeasterly side of Fairfield Avenue, said point
being at the intersection of the town line between the City
of Stamford and the Town of Greenwich, running thence along
said southeasterly side of the Fairfield Avenue, the
following courses and distances: north 53 degrees 21' 10"
east 48.72 feet; north 38 (plus and minus sign) 28' 10" each
28.79 feet; north 35 degrees 46' 10" east 35.92 feet; north
39 degrees 56' 10" east 21.08 feet north 33 degrees 24' 40"
east 59.02 feet; north 32 degrees 03' 40" east 38.04 feet;
north 34 degrees 58' 10" east 57 feet; north 31 degrees 46'
10" each 63.10 feet; north 36 degrees 17' 40" east 15 feet;
north 38 degrees 10' 40" east 56.67 feet; north 51 degrees
48' 40" east 20.16 feet; north 61 degrees 46' 10" east 11.74
feet; north 70 degrees 32' 10" east 8.42 feet; north 72
degrees 26' 40" east 9.77 feet; north 92 degrees 49' 40"
east 15.42 feet; south 89 degrees 13' 50" east 93.10 feet;
south 89 degrees 33' 50" east 108.77 feet to the westerly
side of Cummings Point Road, so-called; thence along the
westerly side of Cummings Point Road, the following courses
and distances: south 5 degrees 28' 10' west 563.90 feet;
and south 5 degrees 17' 20" west 256.10 feet to a point;
thence, westerly through land of Soundview Farms, north
84 degrees 42' 40" west 488.23 feet to the approximate
center line of a brook, being the town line between the City
of Stamford and the Town of Greenwich; thence along said
approximate center line of a brooker and being said town
line, the following courses and distances; north 31 degrees
31' 50" west 26.09 feet; north 7 degrees 59' 10" east 68.26
feet; north 2 degrees 46' 10" east 54.30 feet; north 17
degrees 05' 40" east 68.97 feet; north 7 degrees 27' 40"
east 116.67 feet; north 45 degrees 34' 10" east 39.66 feet;
north 31 degrees 16' 40" east 14.68 feet; north 9 degrees
28' 50" west 6.37 feet; and north 26 degrees 25' 50" west
44.70 feet to the point or place of beginning; together with
an easement of way in, over and upon Cummings Point Road to
and from said premises to and from the public highway.
It is understood and agreed that shown on said map
along Fairfield Avenue, there is located a legend "Reserved
For Road Widening (see inset)." The inset also shown on
said map shows that two parcels of land known and designated
63
as "Parcel 2 1,627 sq. ft." and "Parcel 3 453 sq. ft.,"
being portions of the property hereinabove described are to
be conveyed to the City of Stamford in exchange for a parcel
of land known and designate on said inset as "Parcel 4
1,801 sq. ft." to be conveyed to Soundview Farms. At such
time as said exchange of property is made, and for all times
thereafter, this description shall be modified to exclude
said Parcel 2 and Parcel 3 and to include said Parcel 4,
reference being had to said Map, and more particularly to
said inset for an accurate description of said Parcels.
[Map follows showing areas to be leased by
Conair Corporation to Leandro P. Rizzuto]
64
SCHEDULE B
All that certain tract of land, together with the
buildings and improvements thereon situated in the City of
Stamford, County of Fairfield and State of Connecticut,
known and designated as "Parcel B - to be leased 7.810
Acres," on a certain map entitled, "Map Showing Subdivision
For Soundview Farms, Stamford, Conn.," now on file in the
office of the Town Clerk of said Stamford, and numbered
9350, reference thereto being had. Said premises are
bounded and described as follows: Beginning at a point
along the southeasterly side of Fairfield Avenue, said point
being at the intersection of the town line between the City
of Stamford and the Town of Greenwich, running thence along
said southeasterly side of the Fairfield Avenue, the
following courses and distances: north 53 degrees 21' 10"
east 48.72 feet; north 38 (plus and minus sign) 28' 10" east
28.79 feet; north 35 degrees 46' 10" east 35.92 feet; north
39 degrees 56' 10" east 21.08 feet north 33 degrees 24' 40"
east 59.02 feet; north 32 degrees 03' 40" east 38.04 feet;
north 34 degrees 58' 10" east 57 feet; north 31 degrees 46'
10" east 63.10 feet; north 36 degrees 17' 40" east 15 feet;
north 38 degrees 10' 40" east 56.67 feet; north 51 degrees
48' 40" east 20.16 feet; north 61 degrees 46' 10" east 11.74
feet; north 70 degrees 32' 10" east 8.42 feet; north 72
degrees 26' 40" east 9.77 feet; north 92 degrees 49' 40"
east 15.42 feet; south 89 degrees 13' 50" east 93.10 feet;
south 89 degrees 33' 50" east 108.77 feet to the westerly
side of Cummings Point Road, so-called; thence along the
westerly side of Cummings Point Road, the following courses
and distances: south 5 degrees 28' 10" west 563.90 feet;
and south 5 degrees 17' 20" 256.10 feet to a point; thence,
westerly through land of Soundview Farms, north 84 degrees
42' 40" west 488.23 feet to the approximate center line of a
brook, being the town line between the City of Stamford and
the Town of Greenwich; thence along said approximate center
line of a brooker and being said town line, the following
courses and distances; north 31 degrees 31' 50" west 26.09
feet; north 7 degrees 59' 10" east 68.26 feet; north 2
degrees 46' 10" east 54.30 feet; north 17 degrees 05' 40"
east 68.97 feet north 7 degrees 27' 40" east 116.67 feet;
north 45 degrees 34' 10" east 39.66 feet; north 31 degrees
16' 40" east 14.68 feet; north 9 degrees 28' 50" west 6.37
feet; and north 26 degrees 25' 50" west 44.70 feet to the
point or place of beginning; together with an easement of
way in, over and upon Cummings Point Road to and from said
premises to and from the public highway.
It is understood and agreed that shown on said map
along Fairfield Avenue, there is located a legend "Reserved
For Road Widening (see inset"). The inset also shown on
said map shows that two parcels of land known and designated
as "Parcel 2 1,627 sq. ft." and "Parcel 3 453 sq. ft.,"
65
being portions of the property hereinabove described are to
be conveyed to the City of Stamford in exchange for a parcel
of land known and designated on said inset as "Parcel 4
1,801 sq. ft." to be conveyed to Soundview Farms. At such
time as said exchange of property is made, and for all times
thereafter, this description shall be modified to exclude
said Parcel 2 and Parcel 3 and to include said Parcel 4,
reference being had to said Map, and more particularly to
said inset for an accurate description of said Parcels.
ALL that certain tract of land, situated in the
City of Stamford, County of Fairfield and State of
Connecticut bounded and described as follows:
Beginning at a point on the Northerly line of a
certain tract of land known and designated as "Parcel 1 Area
= 3.996 Ac. (plus and minus sign)" on a certain map
entitled, "Map Show Subdivision Prepared for Sound View
Farms, Stamford, Conn." now on file in the office of the
Town Clerk of said Stamford and numbered 9485, reference
thereto being had, which point is 180 feet Westerly along
said Northerly line from the intersection of said Northerly
line and the Westerly line of Cummings Point Road as shown
on said map and running thence through land of soundview
Farms, South 05 degrees 17' 20" West 377.7 feet more or less
to a point on the mean high water line of Tomac Harbor;
running Westerly and Northerly along said mean high water
line 298 feet more or less to a point; running thence South
84 degrees 25' 20" west 27 feet to a point on the boundary
line between the City of Stamford and the Town of Greenwich;
running thence along said boundary line the following
courses and distances: North 01 degrees 30' 30" East 111.37
feet, North 2U degrees 03' 05" East 35.70 feet, North 03
degrees 33' 26" East 101.86 feet, North 01 degrees 14' 47"
East 13.77 feet, North 15 degrees 39' 15" West 25.36 feet,
North 71 degrees 32' West 36 feet and North 31 degrees 31'
50" West 15.91 feet to a point; thence running through land
of said Soundview Farms South 84 degrees 42' 40" East 308.23
feet to the point or place of beginning.
66
SCHEDULE C
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[Map showing areas to be leased by Conair Corporation, identifying common areas
of ingress and egress.]