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AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE (this "Amendment") is made and entered into as
of the 30th day of June, 1997, by and between HARTFORD CITYPLACE L.L.C.
("Landlord") and CONNING & COMPANY and CONNING, INC., formerly known as
CONNING CORPORATION (collectively, the "Tenant").
R E C I T A L S:
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JMB/Urban CityPlace Limited Partnership (Landlord's predecessor in
interest) and Tenant have previously entered into that certain Office Lease
dated August 22, 1989 (the "Lease"), which demised the entire eighth (8th)
and ninth (9th) floors containing approximately 32,966 square feet of
rentable area (the "Current Space") in the Building known as CityPlace II,
185 Asylum Street, Hartford, Connecticut (all capitalized terms herein that
are defined in the Lease shall have the same meaning herein as therein,
unless the context otherwise requires). Landlord and Tenant desire to amend
the Lease upon the terms and conditions hereinafter set forth.
NOW THEREFORE, for and in consideration of the mutual premises as
contained herein, the parties agree as follows:
1. LEASING OF NEW SPACE. Landlord hereby leases to Tenant, and
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Tenant hereby accepts and leases from Landlord, the entire seventh (7th)
floor of the Building containing approximately 16,483 square feet of rentable
area as shown on the diagram annexed hereto and made a part hereof as
Exhibit A (the "New Space") for a term to commence upon September 1, 1997
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(subject to the provisions of Paragraph 4 below, herein called the "New Space
Commencement Date") and which shall end upon March 31, 2005, the Termination
Date under the Lease. Tenant's use and occupancy of the New Space shall be
governed by the terms, provisions and conditions of the Lease and, unless the
context otherwise requires, the term "Premises" as used in the Lease, as
amended by this Amendment, shall mean both the Current Space and the New
Space, containing an aggregate of approximately 49,449 rentable square feet
of space.
2. BASE RENT. The Base Rent for the New Space shall be payable
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upon the due dates set forth in the Lease and shall be: Eighty-Four Thousand
($84,000) Dollars per annum, payable in equal monthly installments of $7,000,
for the period commencing upon the thirtieth (30th) day following the New
Space Commencement Date to and including June 30, 1998; One Hundred Nineteen
Thousand Eight Hundred Sixty Four ($119,864) Dollars per annum, payable in
equal monthly installments of $9,988.67, for the period commencing upon July
1, 1998 to and including July 31, 2000; and One Hundred Fifty-Two Thousand
Eight Hundred Thirty ($152,830) Dollars per annum, payable in equal
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monthly installments of $12,735.84, for the period commencing upon August 1,
2000 to and including March 31, 2005. Base Rent payments for any partial month
shall be prorated. The Base Rent for the Current Space shall remain unchanged
and be governed by the terms of the Lease. As used in the Lease, the term "Base
Rent" shall mean the Base Rent for both the Current Space and the New Space,
unless the context requires a different interpretation.
3. ADDITIONAL RENT. "Tenant's Prorata Share" as defined in
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Section 4.2.2 of the Lease shall be Fifteen and Twenty-three one-hundredths
(15.23%) percent commencing upon the thirtieth (30th) day following the New
Space Commencement Date to and including June 30, 1998, and Sixteen and
Seventy-seven one-hundredths (16.77%) percent commencing upon July 1, 1998 to
and including the Termination Date of the Lease.
4. TENANT'S WORK. Landlord shall cause certain tenant
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improvements to be installed in the Premises (herein called the "Tenant's
Work") in the manner provided in Exhibit B attached hereto. In the event the
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Premises shall not be substantially completed on September 1, 1997 for any
reason, this Lease shall nevertheless continue in force and effect, but Base
Rent shall abate until the earlier to occur of (i) the date upon which the
Premises are "substantially completed" (which for purposes of this Paragraph
4 means that the Tenant's Work is completed in such a manner so as not to
materially interfere with Tenant's use and occupancy of the Premises, even
though minor details of such work remain undone or incomplete, and a
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temporary certificate of occupancy is issued for the New Space by the City of
Hartford); or (ii) October 1, 1997, as the case may be, and Landlord shall
have no other liability whatsoever on account thereof provided, however, that
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(x) there shall be no abatement of Base Rent if the Premises are not ready
for occupancy because of a "Tenant Delay", as such term is defined in
Exhibit B; and (y) said October 1, 1997 date shall be extended for the actual
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number of days of delay to the substantial completion of the Premises if due to
an act of God or a construction delay caused by Landlord or the contractor which
is not a "Tenant Delay".
5. LANDLORD'S CONTRIBUTION. Provided that Tenant shall not be
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in default under any material term, provision or condition of this Lease,
Landlord agrees to contribute the amount of Five Hundred Ninety-Three
Thousand Three Hundred Eighty-Eight ($593,388) Dollars toward the cost of
performing the Tenant's work described on Exhibit B hereof, including
architectural and engineering fees therefor ("Landlord's Contribution").
Landlord's Contribution shall be payable by Landlord to the contractors
performing the Tenant's Work as construction progresses and in such manner as
Landlord shall determine. Said Contribution shall be a single, non-recurring
obligation of Landlord. In any event, Tenant shall be fully responsible to
pay all costs and expenses associated with the performance and completion of
Tenant's Work in excess of Landlord's Contribution, whether resulting from
cost over-runs, delays or any other matter
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whatsoever. The rights to receive Landlord's Contribution are personal to the
named Tenant and cannot be assigned or transferred in any manner to any other
person or entity. If, after Tenant's Work is finally completed and fully paid
for, Landlord's Contribution has not been fully disbursed as hereinabove
contemplated, Tenant shall be entitled to a credit against the next ensuing
monthly installments of Base Rent coming due under this Lease equal to such
undisbursed amount.
6. EXPANSION RIGHTS. (a) FIRST EXPANSION RIGHT. As of April
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1, 2000, and provided that Tenant shall not be in default under any material
term, provision or condition of this Lease, Tenant shall have the right to
lease approximately 8,250 square feet (+/- 10%) of rentable area on the six
(6th) floor of the Building (Landlord and Tenant to mutually determine the
exact location and amount of space at the time of Tenant's exercise) (the
"First Expansion Space") in an "as is" condition, on the same terms and
provisions then in effect under this Lease, except that (i) the annual Base
Rent shall be increased by an amount equal to Ten ($10) Dollars multiplied by
the number of rentable square feet of space in the First Expansion Space;
(ii) Tenant's Pro Rata share will be proportionately increased taking into
account the number of rentable square feet of area in the First Expansion
Space; and (iii) Landlord shall build out the Expansion Space in the same
manner and subject to the same terms and conditions as set forth on Exhibit B
hereto, except that (1) the Landlord's Contribution shall be either (x) $35
multiplied by the number of rentable square feet of area in the First
Expansion Space, if the First Expansion Space is "shell" space previously
unimproved by or on behalf of any tenant or occupant, or (y) $10 multiplied
by the number of rentable square feet of area in the First Expansion Space,
if the First Expansion Space is space which was previously improved by or on
behalf of a prior tenant or occupant; and (2) the latest date by which rent
will commence for the First Expansion Space shall be April 1, 2000.
Tenant shall exercise its right to lease the First Expansion Space upon
the terms described above by delivering its written election to Landlord no
later than nine (9) full calendar months preceding April 1, 2000. If Tenant
exercises the right to lease the First Expansion Space, said lease shall
continue for the duration of the Term of this Lease.
(b) SECOND EXPANSION RIGHT. As of April 1, 2002, Tenant shall
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have the additional right to lease either (1) the balance of the sixth (6th)
floor of the Building not then already leased to Tenant, in the event Tenant
previously exercised its option under Sub-paragraph (a) immediately above, or
(2) approximately 8,250 square feet (+/- 10%) of rentable area on said six
(6th) floor, in the event Tenant did not previously exercise its option under
said Sub-paragraph (a) (Landlord and Tenant to mutually determine the exact
location and amount of space at the time of Tenant's exercise) (the "Second
Expansion Space") in an "as is" condition, on the same terms and provisions
then in effect under this Lease, except that (i) the annual Base Rent shall
be increased to reflect
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the Expansion Prevailing Rental Rate; (ii) Tenant's Pro Rata share will be
proportionately increased taking into account the number of rentable square feet
of area in the Second Expansion Space; and (iii) Landlord shall perform no work
nor make a contribution towards tenant's work, unless required by the
application of the following provisions of this Paragraph. "Expansion
Prevailing Rental Rate" means the average per square foot rental rate for all
leases for comparable space and build out in the Building and for approximately
the same number of months, executed by tenants during the six (6) months
immediately prior to the date upon which such Expansion Prevailing Rental Rate
is to become effective and payable, under the terms of this Lease, where the
rates for such expansions were not set in such leases, subject to reasonable
adjustments for comparable space on more or less desirable floors or areas of
the Building. If no comparable space has been leased during such six (6) month
period, the rental rates used for purposes of this provision shall be adjusted
as follows: the Expansion Prevailing Rental Rate shall be the fair market
rental rate per rentable square foot which landlords are then charging for a
comparable lease term for comparable tenants leasing comparable space of
comparable size and build out in comparable Class A office buildings in
Hartford, Connecticut central business district. In all cases, such rates shall
be determined without regard to any take-over incentives. In the event that
such comparable leases include base years, stop levels, or other provisions
respecting taxes or operating expenses, or include other economic provisions,
such as but not limited to consumer price provisions, utility reimbursements, or
fixed rent increases, the same shall be included in Tenant's leasing terms. In
all other respects, the leasing shall be on a triple net basis.
Tenant shall exercise its right to lease the Second Expansion Space
upon the terms described above by delivering its written election to Landlord
no earlier than twelve (12) full calendar months nor later than nine (9) full
calendar months preceding April 1, 2002. If Tenant exercises the right to
lease the Second Expansion Space, said lease shall continue for the duration
of the Term of this Lease.
If the parties are unable to agree on the Expansion Prevailing Rental
Rate within one hundred twenty (120) days after Tenant shall have delivered
its exercise notice, either party may request the Expansion Prevailing Rental
Rate be determined by arbitration, under the Commercial Arbitration Rules of
the American Arbitration Association then in effect. Such determination
shall be final and binding upon the parties. In recognition that the
Expansion Prevailing Rental Rate may not be determined until after the
commencement of the lease for the Second Expansion Space, Tenant shall pay,
as rent for the Expansion Space, until the Expansion Prevailing Rental Rate
is determined, one hundred ten (110%) percent of the amount of Rent under the
Lease then in effect for the 6th floor (if Tenant previously exercised its
option under Sub-paragraph (a) immediately above) or for the 7th floor (in
all other cases) on a per rentable square foot basis (including Base Rent,
and all other charges). If the Expansion Prevailing Rental Rate is
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determined to be greater or lesser than such amount, Tenant shall pay
Landlord, or Landlord shall credit Tenant, as the case may be, within thirty
(30) days after written request therefor, the difference between the amount
required by such determination of the Expansion Prevailing Rental Rate, and
the amount of Rent theretofore paid by Tenant for the Second Expansion Space.
(c) GENERAL EXPANSION PROVISIONS. The foregoing two expansion
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rights shall apply only with respect to the entire Expansion Space to which
they apply, and may not be exercised with respect to only a portion thereof.
If Tenant shall fail to exercise any such expansion right within the time
period stated herein, such right shall be deemed to have lapsed and expired,
and shall be of no further force or effect. Landlord may thereafter freely
lease all or a portion of the applicable Expansion Space to any other party,
at any time, on any terms, in Landlord's sole discretion.
If Tenant shall exercise any expansion right granted herein, Landlord
does not guarantee that the applicable Expansion Space shall be available on
the commencement date of the lease thereof if the then existing occupants of
such Expansion Space shall hold over or remain in occupancy for any other
reason beyond Landlord's reasonable control. In such event, Rent with
respect to the applicable Expansion Space shall be abated until Landlord
delivers the same to Tenant, as Tenant's sole recourse. However, in the
event such existing occupant remains in occupancy beyond sixty (60) days
following said commencement date, Landlord agrees to use commercially
reasonable efforts to make such space available, including the possible
eviction of such occupant.
After Tenant validly exercises an expansion right provided herein, the
parties shall promptly execute an amendment to this Lease, adding the
applicable Expansion Space, or shall execute a new lease for the applicable
Expansion Space (cross defaulted with this Lease), or such other
documentation as Landlord shall require, any of which shall be prepared by
Landlord and be reasonably satisfactory to Tenant. The foregoing written
agreements shall be confirmatory in nature, it being agreed however that the
leasing of the applicable Expansion Space as of April 1, 2000 (with respect
to the First Expansion Space) and April 1, 2002 (with respect to the Second
Expansion Space) shall be fully effective, whether or not such confirmatory
documentation is executed. Tenant further agrees that upon the addition of
any Expansion Space, any security deposit held by Landlord shall be ratably
increased to reflect the additional financial obligations of Tenant
hereunder.
If Tenant shall fail to exercise any option herein provided, said
option shall terminate, and shall be null and void and of no further force or
effect. Tenant's exercise of said option shall not operate to cure any
default by Tenant of any of the terms or provisions in the Lease, nor to
extinguish or impair any rights or remedies of Landlord
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arising by virtue of such default. If the Lease or Tenant's right to possession
of the Premises shall terminate, or be sublet or assigned in any manner
whatsoever, other than a subletting or assignment (i) consented to by Landlord,
or (ii) to an Affiliate of Tenant, before Tenant shall exercise the option
herein provided, then immediately upon such termination, sublease or assignment,
the option herein granted to expand the Premises shall simultaneously terminate
and become null and void. Time is of the essence on the part of Tenant to
exercise any expansion right herein contained. Any rights to expand under
the Lease other than set forth in this Amendment are hereby deleted in their
entirety.
7. RIGHT OF FIRST OFFER. Article 55 of the Lease is hereby
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modified by deleting references of the "seventh floor" therefrom and
inserting the following in lieu thereof: "six (6th) floor." In the event
that Tenant does not accept an offer under this Paragraph and no third party
accepts an offer by Landlord to lease the space within a three month period
following the date Tenant has declined, or is deemed to have declined, the
offer, Landlord shall thereafter first re-offer the space to Tenant prior to
offering it again to third parties if the offer by Landlord to such third
parties would be on substantially different material terms than that
originally proposed to Tenant.
8. INSURANCE REQUIREMENTS. Prior to taking occupancy of the New
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Space, Tenant shall provide to Landlord evidence of insurance, as set forth
in Article 11 of the Lease, with respect to the New Space.
9. PARKING. From and after the Effective Date, Tenant shall be
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entitled to an additional two (2) general non-exclusive indoor parking spaces
at the Building on-site garage and an additional fifteen (15) general
non-exclusive parking spaces at locations selected by Landlord in the
existing municipal parking garage located on Church Street, Hartford,
Connecticut and being adjacent to the existing Sheraton Hotel subject to and
in accordance with Article 36 of the Lease.
10. BROKERS. Tenant represents to Landlord that it has not dealt
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with any broker or finder with respect to the transactions referred to in
this Amendment other than RealCorp, LLC (Scott Macbeth, broker) and hereby
indemnifies and agrees to defend and hold Landlord harmless from and against
any claims made by any broker or finder, other than RealCorp for a commission
or fee in connection with the transactions herein set forth. Landlord
represents that it has not dealt with or engaged any brokers other RealCorp
with respect to the transactions referred to in this Amendment.
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11. NOTICES. The address for notices to Landlord shall be modified
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as follows:
Hartford CityPlace, L.L.C. With copies to:
c/o Finard & Company Hartford CityPlace L.L.C.
CityPlace II c/o Oaktree Capital Management, L.L.C.
185 Asylum Street 550 Hope Street
Hartford, Connecticut 06103 Los Angeles, CA 90071
Attn: Law Department
12. CHANGES IN ORIGINALLY NAMED TENANT. Tenant represents and
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warrants to Landlord that: (a) Conning International, Inc. has been
dissolved in accordance with Connecticut law; and (b) Conning Corporation has
changed its corporate name to "Conning, Inc." Accordingly, Conning
International, Inc. is deleted as a tenant under the Lease and references to
"Conning Corporation" shall be changed to "Conning, Inc."
13. ASSIGNMENT, SUBLETTING, ETC. Tenant has advised Landlord
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that Conning Asset Management Company is an Affiliate of Tenant (as such term
is defined in Section 16.8 of the Lease) and Landlord acknowledges its
present and/or future occupancy of the Premises. No merger, consolidation,
reorganization or sale of all of the stock in the named Tenant or the sale of
all of the assets of the named Tenant shall be deemed a "Transfer" under
Section 16.7 of the Lease, provided and upon the conditions that: Tenant
shall not be in default under any material term, condition or provision of
this Lease; Tenant shall have given Landlord no less than thirty (30) days'
prior written notice of the effective date of the event; and, prior to the
effective date of such event, the surviving entity shall have (i)
demonstrated to Landlord's satisfaction that it has and shall reasonably
continue to maintain a net worth of no less than Ten Million ($10,000,000)
Dollars, calculated in accordance with generally accepted accounting
procedures, and (ii) executed, acknowledged and delivered to Landlord a
written assumption agreement, satisfactory to Landlord, in which said entity
agrees to timely be bound by and perform all of the terms, provisions and
agreements of this Lease on the part of the tenant to be observed and
performed hereunder as of and from the commencement date of this Lease.
14. MISCELLANEOUS. The parties agree that a default in a
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"material" term, condition or provision under this Lease shall include the
non-payment by Tenant of any rent or additional rent beyond the applicable
notice and grace periods provided for same.
15. REAFFIRMATION. Except as amended hereby, all of the terms and
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provisions of the Lease shall remain unchanged, the terms and provisions of
which are hereby ratified and confirmed in all respects. Tenant represents
and warrants to Landlord that (a) the Lease is in full force and effect and
free from default, (b) Tenant's interest in the
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Lease and the Current Space is free and clear of any liens, encumbrances or
adverse interests of third parties, (c) Tenant has full and lawful power and
authority to enter into this Amendment and to consummate the transactions herein
described, and (d) Tenant has no, and hereby waives any, offsets, defenses or
counterclaims against Landlord's enforcement of any of the terms or conditions
of the Lease, including the payment of rent. Landlord represents and warrants
to Tenant that (a) the Lease is in full force and effect and free from default,
and (b) Landlord has full and lawful power and authority to enter into this
Amendment and to consummate the transactions herein described.
16. CONCLUDING PROVISIONS. This Amendment shall bind and inure
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to the benefit of the parties hereto and their respective successors and
permitted assigns. This Amendment shall not be binding upon Landlord unless
and until Landlord executes same and delivers a fully executed counterpart
thereof to Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Amendment as of the date and year first above written.
HARTFORD CITYPLACE, L.L.C. CONNING & COMPANY
By: TCW Asset Management Company,
its agent and manager
By: /s/ Bruce Brodie
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Name: Bruce B. Brodie
By: /s/ Russel S. Bernard Its: S.V.P. & Chief Operating Officer
------------------------------- Authorized Signatory
Russel S. Bernard, Authorized
Signatory
CONNING, INC., formerly known as
By: /s/ Wm. Gregory Geiger CONNING CORPORATION
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W. Gregory Geiger,
Authorized Signatory
By: /s/ Bruce Brodie
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Name: Bruce B. Brodie
Its: S.V.P. & Chief Operating Officer
Authorized Signatory
The Company hereby undertakes to furnish schedules hereto to the Commission
supplementally upon request.
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OFFICE LEASE
CITYPLACE II
HARTFORD, CONNECTICUT
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Office Lease
Index
1. TERM 1
2. TENANT'S WORK 2
3. BASE RENT 4
4. ADDITIONAL RENT 5
5. USE OF PREMISES 9
6. CONDITION OF PREMISES 9
7. SERVICES 9
8. REPAIRS 11
9. ADDITIONS AND ALTERATIONS 11
10. COVENANT AGAINST LIENS 12
11. INSURANCE 13
12. FIRE OR CASUALTY 14
13. WAIVER OF CLAIMS-INDEMNIFICATION 15
14. NONWAIVER 16
15. CONDEMNATION 16
16. ASSIGNMENT AND SUBLETTING 17
17. SURRENDER OF POSSESSION 20
18. HOLDING OVER 21
19. ESTOPPEL CERTIFICATE 21
20. SUBORDINATION 21
21. CERTAIN RIGHTS RESERVED BY LANDLORD 22
22. RULES AND REGULATIONS 24
23. LANDLORD'S REMEDIES 27
24. EXPENSES OF ENFORCEMENT 30
25. COVENANT OF QUIET ENJOYMENT 30
26. FINANCIAL REPORTS 30
27. REAL ESTATE BROKER 30
28. RIGHTS CUMULATIVE 31
29. INTEREST 31
30. TERMS 31
31. BINDING EFFECT 31
32. LEASE CONTAINS ALL TERMS 31
33. DELIVERY FOR EXAMINATION 31
34. NO AIR RIGHTS 32
35. MODIFICATION OF LEASE 32
36. PARKING 32
37. TRANSFER OF LANDLORD'S INTEREST 32
38. LANDLORD'S TITLE 33
39. PROHIBITION AGAINST RECORDING 33
40. CAPTIONS 33
41. COVENANTS AND CONDITIONS 33
42. RELATIONSHIP OF PARTIES 33
43. APPLICATION OF PAYMENTS 33
44. TIME OF ESSENCE 34
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45. GOVERNING LAW 34
46. PARTIAL INVALIDITY 34
47. NOTICES 34
48. NO WARRANTY 35
49. LANDLORD EXCULPATION 35
50. OPTIONS TO EXTEND 35
51. OPTION TO EXPAND 37
52. CONSENTS 39
53. INITIAL SECURITY DEPOSIT 39
54. OTHER PREMISES 40
55. RIGHT OF FIRST OFFER 41
56. FORCE MAJEURE 42
EXHIBITS
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EXHIBIT A - PLAN SHOWING LOCATION OF PREMISES
EXHIBIT B - OUTLINE OF LANDLORD'S AND TENANT'S WORK
EXHIBIT C - JANITORIAL SERVICES
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AGREEMENT OF LEASE made as of this 22nd day of August, 1989
(hereinafter referred to as the "Lease") between JMB/Urban CityPlace Limited
Partnership, an Illinois limited partnership (hereinafter referred to as
"Landlord") and CONNING & COMPANY, a Connecticut corporation whose present
address is 101 Pearl Street, Hartford, Connecticut 06103, CONNING
INTERNATIONAL, INC., a Connecticut corporation whose present address is 101
Pearl Street, Hartford, Connecticut, and CONNING CORPORATION, a Delaware
corporation, whose present address is 101 Pearl Street, Hartford, Connecticut
(hereinafter collectively referred to as "Tenant").
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby accepts from
Landlord, the premises (hereinafter referred to as the "Premises") being the
entire eighth (8th) and ninth (9th) floors, containing 32,966 square feet of
rentable area and designated on the plan attached hereto as Exhibit A, in the
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office building containing 297,124 square feet of rentable area known as
CityPlace II (hereinafter referred to as the "Building"), located at 185
Asylum Street, Hartford, Connecticut, subject to the covenants, terms,
provisions and conditions of this Lease. The Premises specifically excludes
any ceilings, floors or walls (with the exception of the inner surfaces
thereof and with the further exception of any walls which are constructed
solely to partition space within the Premises). Tenant shall have, as
appurtenant to the Premises, rights to use in common, subject to reasonable
rules of general applicability to tenants of the Building from time to time
made by Landlord of which Tenant is given notice: (a) the common lobbies,
corridors, stairways, elevators and loading platform of the Building, and the
pipes, ducts, conduits, wires and appurtenant meters and equipment serving
the Premises in common with others, (b) common walkways and driveways
necessary for access to the Building, and (c) if the Premises include less
than the entire rentable floor area of any floor, the common toilets,
corridors and elevator lobby of such floor. In the event Tenant shall
validly exercise its expansion rights, as hereinafter provided, the term
"Premises" for all purposes of this Lease (including, without limitation,
Paragraph 3 hereof) shall include such additional space.
In consideration thereof, Landlord and Tenant covenant and agree as
follows (the covenants and agreements of Tenant are the joint and several
covenants and agreements of each of the entities comprising Tenant):
1. TERM.
The term of this Lease (hereinafter referred to as the "Term") shall
commence on the earlier to occur of (i) the date Tenant takes possession of
the Premises, or part thereof, or (ii) the lst day of April, 1990
(hereinafter referred to as the "Commencement Date") and shall end on the
31st day of March, 2005 (hereinafter referred to as the "Initial Termination
Date") , unless sooner terminated or extended as provided herein.
Notwithstanding the foregoing from and after December 1, 1989 Tenant shall be
given access to the Premises for purposes of commencing and performing
Tenant's work, subject to all of the terms and provisions of this Lease,
except the payment of Base Rent and the Expense Adjustment Amount. In the
event that the Building shall not be "available to Tenant" as of December 1,
1989, the Commencement Date (and the Initial
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Termination Date) shall be postponed one day for each day the Building is not
"available to Tenant" until the Building becomes "available to Tenant", and
Landlord shall have no other liability whatsoever on account thereof. The
Building shall be "available to Tenant" upon the following occurring: (1) the
Building in completed to such an extent that it is feasible for Tenant to
commence and prosecute the Tenant's Work to completion with the expectation
that, on or about April 1, 1990 (A) all Building systems required to service
the Premises will be operational, (B) the parking garages referred to herein,
including any garage elevators therein, will be available to Tenant; and (2)
Tenant shall have access for itself, its employees and contractors for
purposes of entering the Building and Premises to perform Tenant's Work and
(3) there will be made available at least one elevator (passenger or freight)
to service the moving in of Tenant's furniture and equipment installers.
2. TENANT'S WORK.
2.1 Tenant shall be fully responsible to perform all work required for
Tenant's initial occupancy of the Premises. All such work shall be completed
by Tenant at Tenant's expense and shall hereinafter be referred to as
"Tenant's Work". Landlord shall have no obligation to perform any work at
the Premises.
2.2 Tenant's Work shall be performed in conformance with Exhibit B.
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2.3 Tenant agrees to submit to Landlord, as provided in Exhibit B, plans
and specifications covering Tenant's Work in such detail as Landlord may
require and agrees not to commence work on any of the aforesaid Tenant's
Work, whether initially or at any time during the Term of this Lease, until
Landlord has approved such plans and specifications in writing and until
Tenant shall have supplied all the items set forth in Exhibit B as
prerequisites to the commencement of Tenant's Work. Landlord agrees not to
unreasonably withhold or delay its approval of said plans and specifications.
Tenant shall commence construction of Tenant's Work within ten (10) days
after Landlord's written approval of Tenant's Working Drawings, as defined in
Exhibit B, or thereafter if otherwise directed by Landlord in writing, and
diligently thereafter complete same. Tenant shall have no claim whatsoever
for damages or otherwise against Landlord for any delay in the date on which
the Premises shall be ready for commencement of Tenant's Work. The Term of
this Lease shall not, however, in any event extend beyond the Initial
Termination Date above stated in Paragraph 1 hereof.
2.4 In the event Tenant shall have failed to complete Tenant's Work and to
have occupied the Premises on or before the Commencement Date, as hereinabove
defined, then Tenant's rental shall nevertheless commence on the Commencement
Date, as determined pursuant to Article 1 hereinabove.
2.5 Tenant shall have the right to select its own general contractor to
perform Tenant's Work, subject to the prior approval of Landlord, not to be
unreasonably withheld or delayed. During any period of construction, Tenant
agrees to conduct its labor relations and its relations with its employees in
such a manner as to avoid all strikes, picketing and boycotts of, on or about
the Premises or the Building. Tenant further agrees that if, during the
period of construction of the Premises, any of its employees strike, or if
picket lines or boycotts or
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14
other visible activities objectionable to Landlord are established or
conducted or carried out against Tenant or its employees, or any of them, on
or about the Premises or the Building, Tenant shall immediately remove or
cause to be removed all employees from the Building involved in such
activities until the dispute giving rise to such strike, picket line, boycott
or objectionable activity has been settled to Landlord's satisfaction. For
purposes of this paragraph the employees of Tenant's contractors,
subcontractors, materialmen and suppliers shall be deemed to be Tenant's
employees.
2.6 If there is some defect in the items supplied by or on behalf of Tenant
as set forth in Exhibit B prior to the commencement of Tenant's Work or if
Tenant is not performing Tenant's Work consistent with Tenant's Drawings as
approved by Landlord and Tenant fails to cure such defect or defects in the
items to be supplied or in the performance of Tenant's Work within 48 hours
of notice thereof (or, except in the event of an emergency, as soon
thereafter as reasonably practical) from Landlord, Landlord shall have the
right, in addition to all other remedies of Landlord and without affecting
the Commencement Date or in any manner affecting the validity or continued
effectiveness of this Lease, to enter the Premises and physically prevent the
continuation of the performance of Tenant's Work until such time as Landlord
in its sole judgment has determined that the performance contemplated herein
by Tenant will proceed under the terms hereof.
2.7 Upon demand, Tenant and Landlord shall each execute and promptly
deliver to the other a written certificate confirming the Commencement Date
of this Lease.
2.8 Provided Tenant shall not be in default under any of the terms,
provisions or conditions of this Lease, Landlord agrees to contribute an
amount towards the actual cost of the performance of Tenant's Work not in any
event to exceed the sum of One Million Eight Hundred Seventy-Nine Thousand
Sixty-Two ($1,879,062.00) Dollars ("Landlord's Contribution"), which
Landlord's Contribution shall be delivered to Tenant, but be made payable to
the order of Tenant's contractor, as construction progresses upon the payment
dates set forth in the construction contracts providing for Tenant's Work
(collectively, the "Contracts"); provided, however, in no event earlier than
the date that Tenant delivers to Landlord lien waivers (in recordable form
and satisfactory to Landlord) for all portions of the Tenant's Work then
supplied, delivered and performed and a certificate signed by Tenant's
architect certifying (i) that all Tenant's Work to be performed under the
Contracts to the date of such certificate has been performed; (ii) the amount
of the installment payment then due to each of Tenant's contractors,
subcontractors, materialmen and suppliers (collectively, the "Contractors")
under the Contracts and authorizing payment of such amounts to the
Contractors; and (iii) the amounts remaining to be paid under the Contracts
as of the date of such certificate for Tenant's Work yet to be performed.
Tenant shall be solely responsible for, and shall pay when due, all amounts
in connection with Tenant's Work in excess of the amount of Landlord's
Contribution, as aforesaid. The obligation of Landlord to contribute the
Landlord's Contribution shall be a single, non-recurring obligation. The
right of the named Tenant hereunder to receive the Landlord's Contribution is
personal to it and shall not be transferred, assigned or pledged by it to any
person or entity.
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2.9 Prior to commencing any Tenant's Work at the Premises, and as a
precondition thereto, Tenant shall submit to Landlord for Landlord's approval
(not to be unreasonably withheld or delayed) Tenant's good faith estimate of
the costs and expenses to be incurred by Tenant to fully perform and complete
all of Tenant's Work. Upon Landlord's approval of said cost estimates, as
aforesaid, Tenant shall deposit with Landlord, in good funds, a sum (the
"Deposit") equal to the total dollar value of the approved cost estimates,
less the amount of Landlord's Contribution, as defined in Section 2.8 above.
Upon depletion of Landlord's Contribution, portions of said Deposit shall be
delivered to Tenant, and made payable to the order of Tenant's contractor, as
construction progresses, in accordance with the same procedure set forth in
Section 2.8 above with respect to Landlord's Contribution. In the event that
at any time Landlord has reason to believe that the full cost of performing
and completing Tenant's Work shall exceed the aggregate of Landlord's
Contribution plus said Deposit, Tenant shall, upon demand, deposit with
Landlord such additional sums as Landlord shall reasonably require as
security for the full performance and completion of Tenant's Work, to be held
and applied in accordance with the terms and provisions hereof.
Notwithstanding the foregoing, provided that Tenant shall deliver to Landlord
complete recordable mechanic lien waivers (which shall also waive all rights
to pre-judgment and attachment remedies) in form satisfactory to Landlord
duly executed by all Contractors performing and/or supplying Tenant's Work in
which said Contractors, inter alia, waive all rights to place any liens
----------
against the Land and Building for any aspect of Tenant's Work, the amount of
the Deposit shall be reduced in half and Landlord shall not fund Tenant's
Work with portions of said Deposit until such time as the cost of completing
Tenant's Work is equal to or less than the amount of the Deposit.
2.10 Provided Tenant shall not be in default under any of the terms,
provisions or conditions of this Lease, and as a special inducement to the
named Tenant to enter into and consummate this lease transaction, Landlord
agrees to pay to the named Tenant the sum of Six Hundred Twenty Five Thousand
($625,000) Dollars in cash in installments as follows: Three Hundred Thousand
($300,000) Dollars upon the date which is no later than thirty (30) days
following the date that both Landlord and the named Tenant have executed and
delivered to the other a fully signed original of this Lease; and Three
Hundred Twenty Five Thousand ($325,000) Dollars on the thirtieth (30th) day
following the date the named Tenant shall take possession of the Premises.
The right of the named Tenant hereunder to receive such special inducement is
personal to it and shall not be transferred, assigned, or pledged by it to
any person or entity.
3. BASE RENT.
3.1 Tenant shall pay, without notice or demand, to Landlord or Landlord's
agent at the Office of the Building, CityPlace, 185 Asylum Street, Hartford,
Connecticut, or at such other place as Landlord may from time to time
designate in writing, in coin or currency which, at the time or payment, is
legal tender for public or private debts in the United States of America,
annual Base Rent with respect to the Premises being initially demised to
Tenant under this Lease as of the Commencement Date (excluding, in any event,
any Rent for Expansion Space) as follows: Three Hundred Seventy Thousand
Eight Hundred Sixty-Seven and 50/100 ($370,867.50) Dollars per annum for the
period commencing upon the Commencement Date to and including the day
preceding the Third (3rd) anniversary
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of the Commencement Date; Seven Hundred Forty-One Thousand Seven Hundred
Thirty-Five ($741,735.00) Dollars per annum for the period commencing upon
the Third (3rd) anniversary of the Commencement Date to and including the day
preceding the Fifth (5th) anniversary of the Commencement Date; Nine Hundred
Twenty-Three Thousand Forty-Eight ($923,048) Dollars per annum for the period
commencing upon the Fifth (5th) anniversary of the Commencement Date to and
including the day preceding the Tenth (10th) anniversary of the Commencement
Date, and One Million Seventy-One Thousand Three Hundred Ninety-Five
($1,071,395) Dollars per annum for the period commencing upon the Tenth
(10th) anniversary of the Commencement Date to and including the Initial
Termination Date.
All of said Base Rent shall be payable in equal monthly installments, in
advance, on or before the first day of each and every month during the Term,
without any set off or deduction whatsoever. If the Term commences other
than on the first day of a month or ends other than on the last day of the
month, the Rent for such shall be prorated. The prorated Rent for the
portion of the month in which the Term commences shall be paid on the first
day of the first full month of the Term.
3.2 Provided Tenant shall not be in material default under any of the
terms, provisions or conditions of this Lease, Landlord agrees that the named
Tenant shall receive a credit against Base Rent payable under this Lease from
and after the Tenth (10th) anniversary of the Commencement Date in the amount
of Three Hundred Seventy Five Thousand ($375,000) Dollars. The right of the
named Tenant hereunder to receive such rental credit is personal to it and
shall not be transferred, assigned or pledged by it to any person or entity.
The parties agree that a "material default under any of the terms, provisions
or conditions of this Lease" shall include any of the following: a monetary
default hereunder; failure of Tenant to comply with any of the insurance
provisions of this Lease; the occurrence of any Transfer in violation of the
provisions of Article 16 hereof; failure of Tenant to deliver or renew any
letter of credit required under the terms of this Lease; the creation of a
hazardous condition at the Premises which is not immediately remedied; or any
other default by Tenant which either threatens damage to the Building, the
Premises or its systems, threatens forfeiture of Landlord's estate in the
Building or part thereof or threatens a default under any mortgage or ground
lease affecting the Building.
4. ADDITIONAL RENT.
4.1 In addition to paying the Base Rent specified in Section 3 hereof,
Tenant shall pay as "Additional Rent" the amounts determined as hereinafter
set forth. The Base Rent and the Additional Rent are sometimes herein
collectively referred to as the "Rent". All amounts due under this paragraph
as Additional Rent shall be payable for the same periods and in the same
manner, time and place as the Base Rent; provided, however, that if Base Rent
only is abated by Landlord, no such abatement shall apply to Tenant's
obligation to pay Additional Rent. Without limitation on other obligations
of Tenant which shall survive the expiration of the Term, the obligations of
the Tenant to pay the Additional Rent provided for in this Paragraph 4 shall
survive the expiration of the Term. For any partial Calendar Year, Tenant
shall be obligated to pay only a pro rata share of the Additional Rent, based
on the number of days of the Term falling within such Calendar Year.
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4.2 As used in this Paragraph 4, the terms:
4.2.1 "Calendar Year" shall mean each calendar year in which any part of the
Term falls, through and including the year in which the Term expires.
4.2.2 "Tenant's Pro Rata Share" shall mean Eleven and One-tenths (11.10%)
percent, subject to increase in the event Tenant exercises any expansion
rights hereafter set forth.
4.2.3 "Taxes" shall mean all federal, state, county, or local governmental or
municipal taxes, fees, charges or other impositions of any kind and nature,
whether general, special, ordinary or extraordinary (including without
limitation, real estate taxes, general and special assessments, transit
taxes, leasehold taxes or taxes based upon the receipt of rent including
gross receipts or sales taxes applicable to the receipt of rent, unless
required to be paid by Tenant, personal property taxes imposed upon the
fixtures, machinery, equipment, apparatus, systems and equipment,
appurtenances, furniture and other personal property used in connection with
the Building) which Landlord shall be required to pay during any calendar
year (without regard to any different fiscal year used by such government or
municipal authority) because of or in connection with the ownership, leasing
and operation of the Building and the land associated therewith (the "Land").
Notwithstanding the foregoing, there shall be excluded from Taxes all excess
profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance
and succession taxes, estate taxes, federal and state income taxes, and other
taxes to the extent applicable to Landlord's general or net income (as
opposed to rents, receipts or income attributable to operations at the
Building). If the method of taxation of real estate prevailing at the time
of execution hereof shall be, or has been altered, so as to cause the whole
or any part of the taxes now, hereafter or heretofore levied, assessed or
imposed on real estate to be levied, assessed or imposed on Landlord, wholly
or partially, as a capital levy or otherwise, or on or measured by the rents
received therefrom, then such new or altered taxes attributable to the
Property shall be included within the term "Taxes", except that the same
shall not include any enhancement of said tax attributable to other income of
Landlord. Any expenses incurred by Landlord in attempting to protest, reduce
or minimize Taxes shall be included in Taxes in the calendar year such
expenses are paid. Tax refunds shall be deducted from Taxes in the year they
are received by Landlord. If Taxes for any period during the Term or any
extension thereof shall be increased after payment thereof by Landlord for
any reason, including without limitation error or reassessment by applicable
governmental or municipal authorities, Tenant shall pay Landlord upon demand
Tenant's Pro Rata Share of such increased Taxes. Tenant acknowledges that
the exclusive right to contest or appeal any Taxes shall be Landlord's, in
Landlord's sole discretion, and Tenant hereby waives any and all rights now
or hereafter conferred upon it by law to independently contest or appeal any
Taxes. In the event that Landlord shall receive a refund of Taxes covering
any period for which Tenant shall have paid its Pro Rata share of such Taxes,
Landlord shall pay to Tenant, or give Tenant a credit against the next due
installments of Basic Rent hereunder, an amount equal to Tenant's Pro Rata
Share of the net refund of such Taxes (after deducting the reasonable
expenses of Landlord in obtaining such refund).
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4.2.4 "Operating Expenses" shall mean all reasonable and necessary expenses,
costs and amounts (including Taxes) of every kind and nature which Landlord
shall pay during any Calendar Year because of or in connection with the
ownership, management, repair, replacement, restoration and operation of the
Building, incurred to maintain the Building in a first-class condition,
including without limitation, any amounts paid for: (a) utilities for the
Building, including but not limited to electricity, power, gas, steam, oil or
other fuel, water, sewer, lighting, heating, air conditioning and
ventilating, (b) permits, licenses and certificates necessary to operate,
manage and lease the Building, (c) insurance, not limited to the amount of
coverage Landlord is required to provide under this Lease, (d) supplies,
tools, equipment and materials used in the operation, repair and maintenance
of the Building, (e) accounting and professional services (including
inspection and consultation), (f) any equipment rental agreements or
management agreements (including the cost of any customary management fee and
the fair rental value of any office space provided thereunder), (g) wages,
salaries, and other compensation and benefits of all persons directly engaged
in the operation, maintenance or security of the Building (but not employees
above the grade of building manager) and employers Social Security taxes,
unemployment taxes or insurance, and any other taxes which may be levied on
such wages, salaries, compensation and benefits, (h) payments under any
easement, operating agreement, declaration, restrictive covenant, or
instrument pertaining to the sharing of costs by the Building, and (i)
operation, repair, maintenance and replacement of all Systems and Equipment
(defined in subparagraph 4.2.7) and components thereof, janitorial service,
alarm and security service, window cleaning, trash removal, cleaning of
walks, parking facilities and building walls, removal of ice and snow,
replacement of wall and floor coverings, ceiling tiles and fixtures in
lobbies, corridors, restrooms and other common or public areas or facilities,
maintenance and renovation of elevators, maintenance and replacement of trees
and other landscaped items, drainage facilities, curbs, and walkways,
separate operations, repair to roofs and re-roofing. Notwithstanding the
foregoing, Operating Expenses shall not, however, include:
(i) depreciation, interest and amortization on mortgages, and
other debt costs or ground lease payments, if any; legal fees
incurred in negotiating and enforcing tenant leases; real estate
brokers' leasing commissions; improvements or alterations to
tenant spaces; the cost of providing any service directly to and
paid directly by, any tenant; financing or refinancing costs; any
costs expressly excluded from Operating Expenses elsewhere in the
Lease; costs of any items to the extent Landlord receives
reimbursement from insurance proceeds (such proceeds to be
deducted from Operating Expenses in the year in which received
(or rebated to Tenant if the Lease term shall have expired),
except that any deductible amount under any insurance policy
shall be included within Operating Expenses) or from a third
party (other than Expense Adjustment Amount payments from tenants
of the Building); and
(ii) costs of capital improvements, except those: (a) intended to
and which reduce Operating Expenses, or minimize any increase
therein, or to comply with any governmental requirements, or (b)
for replacements (as opposed to additions or new improvements) of
items located in the common areas of the Building required to
keep
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such areas in good condition; provided for purposes of this
Lease, all such permitted capital expenditures shall be amortized
in accordance with generally accepted accounting procedures (even
if Landlord pays the entire cost when work is performed) over
their useful lives at an annual rate of interest which in 200
basis points above the "prime" or "base" rate of interest from
time to time charged by The First National Bank of Chicago.
4.2.5 "Systems and Equipment" shall mean any plant, machinery, transformers,
duct work, cable wires, and other equipment, facilities, and systems designed
to supply heat, ventilation, air conditioning and humidity or any other
services or utilities, or comprising or serving as any component or portion
of the electrical, gas, steam, plumbing, sprinkler, communications, alarm,
security, or fire/life/safety systems or equipment, or any other mechanical,
electrical, electronic, computer or other systems or equipment which serve in
whole or in part the Building.
4.3 Tenant shall pay to Landlord or Landlord's agent as Rent, in addition
to the Base Rent required by Paragraph 3 hereof, an amount ("Expense
Adjustment Amount") equal to Tenant's Pro Rata Share of the Operating
Expenses (subject to adjustment pursuant to Subparagraph 4.4 hereof) incurred
with respect to each Calendar Year. The Expense Adjustment Amount with
respect to each Calendar Year shall be paid in monthly installments, in an
amount estimated from time to time by Landlord and communicated by written
notice to Tenant. Landlord shall cause to be kept books and records showing
Operating Expenses in accordance with an appropriate system of accounts and
accounting practices, consistently maintained. Following the close of each
Calendar Year, Landlord shall cause the amount of the Expense Adjustment
Amount for such Calendar Year to be computed based on Operating Expenses for
such Calendar Year and Landlord shall deliver to Tenant a statement of such
amount and Tenant shall pay any deficiency to Landlord as shown by such
statement within thirty (30) days after receipt of such statement. If the
total of the estimated monthly installments paid by Tenant during any
Calendar Year exceed the actual Expense Adjustment Amount due from Tenant for
such Calendar Year, at Landlord's option such excess shall either be credited
against payments next due hereunder or refunded by Landlord, provided Tenant
is not then in default hereunder. Delay in computation or billing of the
Expense Adjustment Amount shall not be deemed a default hereunder or a waiver
of Landlord's right to collect the Expense Adjustment Amount.
Notwithstanding the foregoing, for and during the period commencing
upon the Commencement Date and ending upon the date which is the day
preceding the Third (3rd) Anniversary of the Commencement Date, Tenant shall
pay one-half of the Expense Adjustment Amount it would have otherwise paid
pursuant to the foregoing provisions of this Section 4.3.
4.4 If Landlord is not furnishing any particular work or service (the cost
of which, if performed by Landlord, would be included in Operating Expenses)
to a tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Expenses shall be deemed for the
purposes of this Paragraph to be increased by an amount equal to the
additional Operating Expenses which would reasonably have been incurred
during such period
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by Landlord if it had at its own expense furnished such work or service to
such tenant.
4.5 Tenant shall have the right, at its sole cost and expense and upon no
less than thirty (30) days' prior written notice, to examine Landlord's books
and records to the extent they solely relate to the computation of Operating
Expenses by Landlord in order to verify same. Such inspection shall take
place at Landlord's office or such other reasonable place as Landlord shall
designate, during reasonable business hours. In the event that it is
conclusively determined that Landlord had overstated the Operating Expenses
for any given period, Tenant's sole remedy shall be to obtain a credit or
refund for any such Expenses paid by Tenant which were not proper and
Landlord shall pay the reasonable cost of Tenant's audit.
5. USE OF PREMISES.
Tenant shall use and occupy the Premises solely as and for general and
executive offices only and for no other purpose. Tenant may utilize an
incidental portion of the Premises for retail stock brokerage services
provided the Certificate of Occupancy for the Building and Premises is not
violated thereby and such use does not create a flow of pedestrian traffic
within the Building greater than that created by ordinary office use, as
determined by Landlord.
6. CONDITION OF PREMISES.
Tenant's taking possession of the Premises or any portion thereof shall
be conclusive evidence that the Premises or any such portion was in good
order and satisfactory condition when the Tenant took possession, except for
any punchlist items as defined in Exhibit B. Tenant shall be responsible for
any items of damage to the Premises caused by Tenant or its agents,
employees, independent contractors or suppliers. No promise of the Landlord
to alter, remodel or improve the Premises or the Building and no
representation by Landlord or its agents respecting the condition of the
Premises or the Building have been made to Tenant or relied upon by Tenant
other than as may be contained in this Lease or in any written amendment
hereto signed by Landlord and Tenant.
7. SERVICES.
7.1 Landlord shall provide the following services on all days during the
Term, except Sundays and holidays observed by the New York Stock Exchange,
unless otherwise stated:
7.1.1 Subject to all governmental rules, regulations and guidelines
applicable thereto, heating and air conditioning when necessary for normal
comfort in the Premises, from Monday through Friday, during the period from 8
a.m. to 6 p.m. and on Saturday during the period from 8 a.m. to 1 p.m. Tenant
will pay for all heating and air conditioning requested and furnished prior
to or following such hours or required due to special heat-producing
equipment installed by Tenant at rates to be reasonably established generally
for all tenants at the Building from time to time by Landlord. Requests for
any additional services
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shall be in writing and delivered to Landlord no later than 2:00 P.M. the
previous day.
7.1.2 Adequate electrical wiring and facilities to the base building core
electrical closets for connection to Tenant's lighting fixtures and
incidental uses, provided that (a) the connected electrical load of the
incidental use equipment does not exceed an average of one (1) watt per
usable square foot of the Premises, (b) the electricity so furnished for
incidental uses will be at a nominal one hundred twenty (120) volts and no
electrical circuit for the supply of such incidental use will have a current
capacity exceeding twenty (20) amperes; (c) the connected electrical load of
Tenant's lighting fixtures does not exceed an average of three (3) watts per
usable square foot of the Premises, and (d) the electricity so furnished for
Tenant's lighting will be at a nominal one hundred twenty (120) volts. If
Tenant's requirements for electricity are in excess of those set forth in the
preceding sentence hereof, Landlord reserves the right to require Tenant to
install the conduit, wiring and other equipment necessary to supply
electricity for such excess use requirements at the Tenant's expense, or to
install same itself and bill Tenant for the costs thereof. Tenant shall bear
the cost of replacement of lamps, starters and ballasts for lighting fixtures
within the Premises.
7.1.3 City water (including heated water) from the regular Building outlets
for drinking, lavatory and toilet purposes.
7.1.4 Janitorial services Monday through Friday in and about the Premises and
window washing services both as set forth on Exhibit C attached hereto and
---------
made a part hereof.
7.1.5 Non-exclusive automatic passenger elevator service at all times.
7.1.6 Non-exclusive freight elevator services subject to scheduling by
Landlord. Tenant shall have the right to use such freight elevator services
prior to the Commencement Date in connection with its access pursuant to
Article 1 hereof and, in connection therewith, shall pay the building
standard fee for such usage as determined by Landlord.
7.2 Tenant agrees that Landlord shall not be liable for damages (by
abatement of Rent or otherwise) for interruption in or failure to furnish or
delay in furnishing any service, or for any diminution in the quality or
quantity thereof, when such failure or delay or diminution is occasioned, in
whole or in part, by repairs, replacements, or improvements, by any strike,
lockout or other labor trouble, by inability to secure electricity, gas,
water, or other fuel at the Building, by any accident or casualty whatsoever,
by act or default of Tenant or other parties, or by any other cause beyond
Landlord's reasonable control; and such interruption, failure, delay or
diminution shall never be deemed to constitute an eviction or disturbance of
the Tenant's use and possession of the Premises or relieve the Tenant from
paying Rent or performing any of its obligations under this Lease. If an
interruption of services occurs which is within Landlord's control, and if
such interruption continues for thirty (30) continuous days, then until
Landlord has caused such service to be resumed or such interruption is no
longer within Landlord's control, whichever is earlier,
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Basic Rent and Additional Rent shall abate to the extent the Premises are
rendered untenantable for Tenant's uses hereunder.
7.3 Charges for any service for which Tenant is required to pay from time
to time hereunder including but not limited to hoisting services or after
hours heating or air conditioning shall be due and payable at the same time
as the installment of Rent with which they are billed, or if billed
separately, shall be due and payable within ten (10) days after such billing.
If Tenant shall fail to make payment for any such services, Landlord may,
with notice to Tenant, discontinue any or all of such services and such
discontinuance shall not be deemed to constitute an eviction or disturbance
of Tenant's use and possession of the Premises or relieve Tenant from paying
Rent or performing any of its other obligations under this Lease.
7.4 Tenant shall pay for the use of all electrical service to the Premises
(other than the electrical service necessary for Landlord to fulfill its
obligation to provide heating and air conditioning as provided in
Subparagraph 7.1.1 hereof) provided that Landlord can make satisfactory
arrangements with the utility company supplying electricity to the Premises
for separate metering and billing. Tenant shall be billed directly by such
utility company and Tenant agrees to pay each bill promptly in accordance
with its terms. In the event that for any reason Tenant cannot be billed
directly, Landlord shall forward each bill received by it with respect to the
Premises to Tenant and Tenant shall pay it promptly in accordance with its
terms.
If the Premises cannot be separately metered for any reason, Tenant
shall pay Landlord as Additional Rent, in monthly installments at the time
prescribed for monthly installments of Rent, an annual amount, as estimated
by Landlord from time to time, which Tenant would pay for such electricity if
the same were separately metered to the Premises by the local utility company
and billed to Tenant at such utility company's then current rates.
8. REPAIRS.
Tenant will, at Tenant's own expense, keep the Premises, including all
improvements, fixtures and furnishings therein, in good order, repair and
condition at all times during the Term, except for repairs the necessity of
which shall have been occasioned by the acts or negligence of Landlord, its
agents, employees or contractors or of any other tenant at the Building in
occupancy of their space, and Tenant shall promptly and adequately repair all
damage to the Premises and replace or repair all damaged or broken fixtures
and appurtenances, under the supervision and subject to the approval of the
Landlord, not to be unreasonably withheld or delayed, and within any
reasonable period of time specified by the Landlord. If the Tenant does not
do so, Landlord may, but need not, make such repairs and replacements, and
Tenant shall pay Landlord the cost thereof, including a percentage of the
cost thereof (to be uniformly established for the Building) sufficient to
reimburse Landlord for all overhead, general conditions, fees and other costs
or expenses arising from Landlord's involvement with such repairs and
replacements forthwith upon being billed for same. Landlord may, but shall
not be required to, enter the Premises at all reasonable times and, except
for emergency, upon reasonable advance notice (which may be telephonic), to
make such repairs, alterations, improvements and additions
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to the Premises or to the Building or to any equipment located in the
Building as Landlord shall desire or deem necessary or as Landlord may be
required to do by governmental or quasi-governmental authority or court order
or decree.
9. ADDITIONS OR ALTERATIONS.
9.1 Tenant shall not, without the prior written consent of Landlord, make
any alterations, improvements or additions to the Premises. Landlord's
refusal to give said consent shall be conclusive. Landlord's consent shall
not be unreasonably withheld or delayed for any alterations, improvements or
additions to the Premises which are neither structural in nature nor affect
the Building's building systems. If Landlord consents to said alterations,
improvements or additions, it may impose such conditions with respect thereto
as Landlord deems appropriate, including, without limitation, requiring
Tenant to furnish Landlord with security for the payment of all costs to be
incurred in connection with such work, a lien waiver from Tenant's general
contractor, insurance against liabilities which may arise out of such work
and plans, specifications and permits necessary for such work. The work
necessary to make any alterations, improvements or additions to the Premises,
whether prior to or subsequent to the Commencement Date, shall be done at
Tenant's expense by employees of or contractors hired by Landlord except to
the extent Landlord gives its prior written consent to Tenant's hiring
contractors; such consent not to be unreasonably withheld or delayed with
respect to all contractors other than those which may be performing
structural work or other work at the Building affecting its building systems.
Tenant shall promptly pay to Landlord or Tenant's contractors, as the case
may be, when due, the cost of all such work and of all repairs to the
Building required by reason thereof. Tenant shall also pay to Landlord a
percentage of the cost of such work (such percentage to be established on a
uniform basis for the Building) sufficient to reimburse Landlord for all
overhead, general conditions, fees and other costs and expenses arising from
Landlord's involvement with such work; the foregoing provisions of this
sentence shall not apply to the initial Tenant's Work to be performed as of
the Commencement Date of this Lease. Upon completion of such work Tenant
shall deliver to Landlord, if payment is made directly to contractors,
evidence of payment, contractors' affidavits and full and final waivers of
all liens for labor, services or materials. Tenant shall defend and hold
Landlord harmless from all costs, damages, liens and expenses related to such
work. All work done by Tenant or its contractors pursuant to Paragraphs 8 or
9 shall be done in a first-class workmanlike manner using only good grades of
materials and shall comply with all insurance requirements and all applicable
laws and ordinances and rules and regulations of governmental departments or
agencies.
9.2 Unless otherwise agreed in writing by Landlord, all alterations,
improvements or additions to the Premises, whether temporary or permanent in
character, made or paid for by Landlord or Tenant, shall without compensation
to Tenant become Landlord's property at the termination of this lease by
lapse of time or otherwise and shall, unless Landlord requests their removal
(in which case Tenant shall remove the same as provided in Paragraph 17), be
relinquished to Landlord in good condition, ordinary wear excepted.
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10. COVENANT AGAINST LIENS.
Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant,
operation of law or otherwise, to attach to or be placed upon Landlord's
title or interest in the land, Building or Premises, and any and all liens
and encumbrances created by Tenant shall attach to Tenant's interests only.
Tenant covenants and agrees not to suffer or permit any lien of mechanics or
materialmen or others to be placed against the Land, Building or the Premises
with respect to work or services claimed to have been performed for or
materials claimed to have been furnished to Tenant or the Premises, and, in
case of any such lien attaching or notice of any lien, Tenant covenants and
agrees to cause it to be immediately released and removed of record. In the
event that such lien is not immediately released and removed, Landlord, at
its sole option, may take all action necessary to release and remove such
lien (without any duty to investigate the validity thereof) and Tenant shall
promptly upon notice reimburse Landlord for all sums, costs and expenses
(including reasonable attorney's fees) incurred by Landlord in connection
with such lien.
11. INSURANCE.
11.1 Landlord and Tenant each hereby waive any and every claim for recovery
from the other for any and all loss of or damage to the Building or Premises
or to the contents thereof, which loss or damage is covered by valid and
collectible physical damage insurance policies, to the extent that such loss
or damage is recoverable under said insurance policies. Inasmuch as this
mutual waiver will preclude the assignment of any such claim by subrogation
(or otherwise) to an insurance company (or any other person), Landlord and
Tenant each agree to give to each insurance company which has issued, or in
the future may issue, to it policies of physical damage insurance, written
notice of the terms of this mutual waiver, and to have said insurance
policies properly endorsed, if necessary, to prevent the invalidation of said
insurance coverage by reason of said waiver.
11.2 Tenant shall purchase and maintain insurance during the entire Term for
the benefit of Tenant and Landlord (as their interests may appear) with
terms, coverage and in companies satisfactory to Landlord, and with such
increases in limits as Landlord may from time to time reasonably request, but
initially Tenant shall maintain the following coverages in the following
amounts:
11.2.1 Comprehensive General Liability Insurance covering the insured
against claims of bodily injury, personal injury and property damage arising
out of Tenant's operation, assumed liabilities or use of the Premises, for
limits of liability not less than:
Personal Injury and $3,000,000 each occurrence
Property Damage Liability $3,000,000 annual aggregate
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11.2.2 Comprehensive Automobile Insurance covering all owned, non-owned
and hired automobiles of Tenant including the loading and unloading of any
automobile with limits of liability not less than:
Bodily Injury and $3,000,000 each person
Property Damage Liability $3,000,000 each accident
11.2.3 Physical Damage Insurance covering all office furniture, trade
fixtures, office equipment, merchandise and all other items of Tenant's
property on the Premises. Such insurance shall be written on an "all risks"
of physical loss or damage basis, for the full replacement cost value of the
covered items and in amounts that meet any co-insurance clauses of the
policies of insurance.
11.3 Tenant shall, prior to the commencement of the Term, and thereafter not
later than thirty (30) days prior to the expiration date of any insurance
coverage, furnish to Landlord certificates evidencing such coverage, which
certificates shall state that such insurance coverage may not be changed or
canceled without at least thirty (30) days prior written notice to Landlord
and Tenant and shall name Landlord, its partners, mortgagees, management
agent and such other parties as Landlord shall reasonably request as
additional insureds. Any policies purchased by Tenant shall contain a clause
pursuant to which the insurance carrier waives all rights of subrogation
against Landlord with respect to losses payable under such policies.
11.4 Landlord agrees to keep in force and effect insurance on the Building
(other than portions thereof which tenants are to insure under the terms of
their leases) against fire, vandalism, and malicious mischief, sprinkler
leakage and such other risks as may be included in extended coverage
insurance from time-to-time available in an amount not less than 100% of the
full insurable replacement value of the Building or such lesser amount as is
sufficient to prevent Landlord from becoming a co-insurer under the terms of
any applicable policies. Any policies purchased pursuant to said program
shall contain a replacement cost endorsement and a clause pursuant to which
the insurance carriers waive all rights of subrogation against Tenant with
respect to losses payable under such policies.
11.5 Tenant shall comply with all applicable laws and ordinances, all orders
and decrees of court and all requirements of other governmental or
quasi-governmental authorities, and shall not, directly or indirectly, make
any use of the Premises which may thereby be prohibited or be dangerous to
person or property or which may jeopardize any insurance coverage or may
increase the cost of insurance or require additional insurance coverage. If by
reason of the failure of Tenant to comply with the provisions of this
Subparagraph 11.5, any insurance coverage is jeopardized or insurance premiums
are increased, and Tenant shall not cease the non-complying activity within 48
hours or promptly agree to pay any increased insurance premiums by reason
thereof, as Landlord shall decide, Landlord shall have the option either to
terminate this Lease or to require Tenant to make immediate payment of the
increased insurance premium.
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12. FIRE OR CASUALTY.
12.1 If the Premises or any common areas of the Building necessary to the
enjoyment and occupancy of the Premises or serving the Premises or providing
access to the Premises shall be damaged by fire or other casualty, Landlord
shall promptly and diligently, subject to reasonable delays for insurance
adjustment or other matters beyond Landlord's reasonable control, restore the
Premises and such common areas. Such restoration shall be to substantially
the same condition of the Premises and common areas prior to the casualty,
except for modifications required by zoning and building codes and other
laws, or by the holder of a mortgage on the Building, or any other
modifications to the common areas deemed desirable by Landlord (provided,
with respect to all or any of the foregoing parties' requirements, to the
extent practical, essential common facilities shall not be materially
impaired, access to the Premises and any common restrooms serving the
Premises is not materially impaired and the character of the Building as a
first-class office building is not materially altered), and except that
Landlord shall not be required to repair or replace any of Tenant's
furniture, furnishing, fixtures or equipment. Landlord shall not be liable
for any inconvenience or annoyance to Tenant or its visitors, or injury to
Tenant's business resulting in any way from such damage or the repair
thereof, except that Landlord shall allow a proportionate abatement of Rent
during the time and to the extent the Premises are unfit for occupancy for
the purposes permitted under this Lease, and not occupied by Tenant as a
result thereof; provided, if the Premises or any other portion of the
Building is damaged by fire or other casualty caused in whole or in part by
Tenant or any of Tenant's agents, contractors, employees, or visitors, Rent
shall not be so abated.
12.2 Notwithstanding the foregoing to the contrary, Landlord may elect not
to perform restoration work, and instead terminate this Lease by notifying
the Tenant in writing of such termination within sixty (60) days after the
date of damage (such notice to include a termination date giving Tenant one
hundred twenty (120) days to vacate the Premises), but Landlord may so elect
only if the Building shall be damaged by fire or other casualty or cause
(whether or not the Premises are affected) such that: (a) repairs cannot be
reasonably completed within one hundred twenty (120) days after being
commenced without the payment of overtime or other premiums, (b) the holder
of any mortgage on the Building or ground lessor with respect to the Land
shall require that the insurance proceeds or any substantial portion thereof
be used to retire the mortgage debt (or shall terminate the ground lease, as
the case may be), or (c) the damage is not substantially covered by
Landlord's insurance policies, provided Landlord shall not have been in
default of maintaining its fire insurance policies, as set forth in Paragraph
11.4 above. Tenant hereby waives any rights it may have under any applicable
law to terminate the Lease by reason of damage to the Premises or the
Building. In the event that repairs or restoration for the Premises are
undertaken by Landlord and such repairs or restoration for the Premises are
not substantially complete within one hundred eighty (180) days after
commencement of same, Tenant shall have the right (subject to the following
provisions of this Paragraph) within thirty (30) days following the
expiration of said 180-day period to terminate this Lease as to the portions
of the Premises so affected by giving written notice of same to Landlord; it
being understood, however, that Landlord shall have the right to
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substantially complete the Premises within thirty (30) days after Landlord's
receipt of Tenant's said notice, and if the Premises are so substantially
completed, this Lease shall continue in full force and effect and Tenant's
said right to terminate shall be nullified. Landlord agrees to use
reasonable efforts to obtain all insurance proceeds and thereafter to
commence the performance of such repairs and restoration, both as soon as
reasonably practical.
13. WAIVER OF CLAIMS - INDEMNIFICATION.
To the extent not prohibited by law, and except for damage caused by
the gross negligence or wilful acts of Landlord, its agents, contractors or
employees, Landlord, its partners and their respective officers, agents,
servants and employees shall not be liable for any damage either to person or
property or resulting from the loss of use thereof sustained by Tenant or by
other persons claiming through Tenant due to Building or any part thereof or
any appurtenances thereof becoming out of repair, or due to the happening of
any accident or event in or about the Building, or due to any act or neglect
of any tenant or occupant of the Building, including the Premises or of any
other person. This provision shall apply particularly, but not exclusively,
to damage caused by gas, electricity, snow, frost, steam, sewage, sewer gas
or odors, fire, water or by the bursting or leaking of pipes, faucets,
sprinklers, plumbing fixtures and windows, and shall apply without
distinction as to the person whose act or neglect was responsible for the
damage and whether the damage was due to any of the causes specifically
enumerated above or to some other cause of an entirely different kind.
Tenant further agrees that all personal property upon the Premises, or upon
loading docks, receiving and holding areas, or freight elevators of the
Building, shall be at the risk of Tenant only, and that Landlord shall not be
liable for any loss or damage thereto or theft thereof. Without limitation
of any other provisions thereof, Tenant agrees to defend, protect, indemnify
and save harmless Landlord from and against all liability to third parties
(including but not limited to the officers, agents, contractors and business
associates of Tenant) arising out of Tenant's use and occupancy of the
Premises or the acts or omissions of Tenant (whether or not such acts or
omissions constitute a violation of applicable law or of this Lease) and its
servants, agents, employees, contractors, suppliers, workers and invitees.
14. NONWAIVER.
No waiver of any provision of this Lease shall be implied by any
failure of Landlord or Tenant to enforce any remedy on account of the
violation of such provision, even if such violation be continued or repeated
subsequently, and no express waiver shall affect any provision other than the
one specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt of moneys by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Term or of
Tenant's right of possession hereunder or after the giving of notice shall
reinstate, continue or extend the Term or affect any notice given Tenant
prior to the receipt of such moneys, it being agreed that after the service
of notice or the commencement of a suit or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due,
and the payment of said Rent shall not waive or affect said notice, suit or
judgment.
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15. CONDEMNATION.
If the whole or any substantial part of the Premises or Building shall
be taken by power of eminent domain or condemned by any competent authority
for any public or quasi-public use or purpose, or if any adjacent property or
street shall be so taken or condemned, or reconfigured or vacated by such
authority in such manner as to require the use, reconstruction or remodeling
of any part of the Premises or Building, or if Landlord shall grant a deed or
other instrument in lieu of such taking by eminent domain or condemnation
(any of the foregoing events is hereafter called an "Eminent Domain Event"),
Landlord shall have the option to terminate this Lease upon ninety (90) days
notice, provided such notice is given no later than one hundred eighty (180)
days after the date of such taking, condemnation, reconfiguration, vacation,
deed or other instrument. If more than ten percent (10%) of the rentable
area of the Premises is taken, or if access to the Premises is substantially
impaired, or if the Building can no longer be operated as a first class
office building, Tenant shall have the option to terminate this Lease upon
ninety (90) days notice, provided such notice is given no later than one
hundred eighty (180) days after the date of such taking. Landlord shall be
entitled to receive the entire award or payment in connection therewith,
except that Tenant shall have the right to file any separate claim available
to Tenant for any taking of Tenant's personal property and fixtures belonging
to Tenant and removable by Tenant upon expiration of the Term, and for moving
expenses (so long as such claim does not diminish the award available to
Landlord, its ground lessor with respect to the Land or its mortgagee, and
such claim is payable separately to Tenant). All Rent shall be apportioned
as of the date of such termination, or the date possession of the Premises or
Building, or portions thereof, is taken by the condemning authority,
whichever shall first occur. If any part of the Premises shall be taken, and
this Lease shall not be so terminated, the Rent shall be proportionately
abated. Notwithstanding anything contained hereinabove to the contrary, if
an Eminent Domain Event occurs to less than a substantial part of the
Premises or Building, Landlord may terminate this Lease if the amount of the
award resulting from such Eminent Domain Event shall not be sufficient to
reconstruct the part or parts of the Building or Premises so affected to its
original character, and if in Landlord's judgment it is no longer practical
or economically feasible to operate the Building as a first-class office
building in the manner and with the number of tenancies as originally
conceived.
16. ASSIGNMENT AND SUBLETTING.
16.1 Tenant shall not, without the prior written consent of Landlord as set
forth below (i) assign, mortgage, pledge, hypothecate, encumber, or permit
any lien to attach to, or otherwise transfer, this Lease or any interest
hereunder, (ii) permit any assignment or other such foregoing transfer of
this Lease or any interest hereunder by operation of law, (iii) sublet the
Premises or any part thereof, or (iv) permit the use of the Premises by any
persons other than Tenant and its employees (all of the foregoing are
hereinafter sometimes referred to collectively as "Transfers" and any person
to whom any Transfer is made or sought or be made is hereinafter sometimes
referred to as a "Transferee"). If Tenant shall desire Landlord's consent to
any Transfer, Tenant shall notify Landlord in writing, which notice shall
include: (a) the proposed effective date (which
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shall not be less than forty-five [45] days nor more than one hundred eighty
[180] days after the Tenant's notice), (b) the portion of the Premises to be
Transferred (herein called the "Subject Space"), (c) all of the terms of the
proposed Transfer and the consideration therefor, the name and address of the
proposed Transferee, and a copy of all documentation pertaining to the
proposed Transfer, and (d) current financial statements of the proposed
Transferee certified by an officer, partner or owner thereof, and any other
information to enable Landlord to determine the financial responsibility,
character, and reputation of the proposed Transferee, nature of such
Transferee's business and proposed use of the Subject Space, and other such
information as Landlord may reasonably require. Any Transfer made without
Landlord's prior written consent shall, at Landlord's option, be null, void,
and of no effect, and any acceptance of rent by Landlord from any purported
Transferee shall not be deemed a consent to a Transfer or a waiver of any of
Landlord's rights or remedies hereunder. Whether or not Landlord shall grant
consent, Tenant shall pay $500.00 towards Landlord's review and processing
expenses, as well as any reasonable legal fees incurred by Landlord, within
thirty (30) days after written request by Landlord.
16.2 Landlord will not unreasonably withhold or delay its consent to any
proposed Transfer of the Subject Space to the Transferee on the terms
specified in Tenant's notice. The parties hereby agree that it shall be
reasonable under this Lease and under any applicable law for Landlord to
withhold consent to any proposed Transfer where one or more of the following
applies (without limitation as to other reasonable grounds for withholding
consent): (i) the Transferee is of a character or reputation or engaged in a
business which is not consistent with the quality of the Building, or would
be a significantly less prestigious occupant of the Building than Tenant,
(ii) the Transferee intends to use the Subject Space for purposes which are
not permitted under this Lease, (iii) the Transfer will result in more than a
reasonable and safe number of occupants per floor with the Subject Space, or
will result in insufficient parking for the Building, (iv) the Subject Space
is not regular in shape with appropriate means of ingress and egress suitable
for normal renting purposes, (v) the Transferee is either a government (or
agency or instrumentality thereof) or an occupant of the Building, (vi) the
Transfer will involve any transaction other than an assignment of the Lease
for the entire Premises and the remaining Term, or other than a sublease of
all or a portion of the Premises for a term of at least one year, or such
lesser time as remain in the Term, (vii) the proposed Transferee is not
solvent or does not in Landlord's reasonable judgment have an adequate net
worth, (viii) Tenant has committed a default under this Lease not cured at
the time Tenant requests consent to the proposed transfer, or (ix) the
proposed Transfer would cause Landlord to be in violation of any other leases
or agreements to which Landlord is a party, or would give any occupant of the
Building a right to cancel its lease.
16.3 If Landlord consents to a Transfer, and as a condition thereto which
the parties hereby agree is reasonable, Tenant shall pay Landlord ninety
percent (90%) of any Transfer Premium received by Tenant from such Transfer.
"Transfer Premium" shall mean all rent, additional rent or other
consideration payable by such Transferee in excess of the Rent payable by
Tenant under this Lease (on a monthly basis during the Term, and prorated on
a per rentable square foot basis, if less than all of the Premises is
transferred), after amortizing in equal monthly installments of the period of
the Transfer the reasonable expenses
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incurred by Tenant for any changes, alterations and improvement to the
Premises and any brokerage commissions in connection with the Transfer. If
part of the consideration for such Transfer shall be payable other than in
cash, Landlord's share of such non-cash consideration shall be in the form as
is reasonably satisfactory to Landlord. Such percentage of the Transfer
Premium shall be paid promptly by Tenant upon Tenant's receipt from time to
time of periodic payments from such Transferee or such other time as Tenant
shall realize a Transfer Premium from such Transferee. In lieu of accepting
such percentage of the Transfer Premium, Landlord may elect in writing within
ninety (90) days after Tenant's notice, to increase the monthly Base Rent
hereunder during the Term of the Transfer by an amount equal to Landlord's
share of such Transfer Premium.
16.4 Notwithstanding anything to the contrary in this Paragraph 16, Landlord
shall have the option, by giving written notice to Tenant within thirty (30)
days after receipt of Tenant's notice of any proposed Transfer, to recapture
the Subject Space. Such recapture notice shall cancel and terminate the
Lease with respect to the Subject Space as of the date stated in Tenant's
notice as the effective date of the proposed Transfer, unless Tenant shall,
within five (5) business days after receipt of notice from Landlord of
Landlord's intent to recapture, deliver to Landlord a notice in which Tenant
shall nullify its request for Landlord to consent to any Transfer. If this
Lease shall be canceled with respect to less than the entire Premises, the
Rent reserved herein shall be prorated on the basis of the number of rentable
square feet retained by Tenant in proportion to the number of rentable square
feet contained in the Premises, this Lease as so amended shall continue
thereafter in full force and effect, and upon request of either party, the
parties shall execute written confirmation of the same.
16.5 Notwithstanding anything to the contrary set forth in Sub-paragraphs
16.1 and 16.4 above and only during the period from the Commencement Date to
and including the Third (3rd) anniversary thereof, no consent shall be
required from Landlord with respect to the subletting by Tenant of no more
than ten thousand (10,000) rentable square feet of single-floor contiguous
space at the Premises (the "Permitted Sublease"); provided that (a) Tenant
shall not be in default under the terms, provisions and conditions of this
Lease, (b) the proposed subtenant shall be either a professional or
non-governmental institutional office user, and (c) at least twenty (20) days
prior to the effective date of the proposed subletting Landlord shall have
received the names and addresses of the proposed subtenant and its key
principals, a diagram showing the location within the Premises of the
proposed sublet space, a description of the proposed use of the sublet space,
and such other information or documentation (including, without limitation, a
photocopy of the proposed sublease) Landlord may reasonably require regarding
the proposed subtenant and proposed sublease transaction. No Transfer
Premium shall be due Landlord which results from the Permitted Sublease.
16.6 If Landlord consents to a Transfer: (a) the terms and conditions of
this Lease, including among other things, Tenant's liability for the Subject
Space, shall in no way be deemed to have been waived or modified, (b) such
consent shall not be deemed consent to any further Transfer by either Tenant
or a Transferee, (c) no Transferee shall succeed to any rights provided in
this Lease or any amendment hereto to extend the Term of this Lease, expand
the Premises, or lease additional space, any such rights being deemed
personal to Tenant, (d) as a
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condition thereto Tenant shall first deliver to Landlord an original executed
copy of all documentation pertaining to the Transfer, including but not
limited to an assumption agreement by the Transferee, in form reasonably
acceptable to Landlord, and (e) Tenant shall furnish upon Landlord's request
a complete statement, certified by an independent certified public
accountant, or Tenant's chief financial officer, setting forth in detail the
computation of any Transfer Premium Tenant has derived and shall derive from
such Transfer. Landlord or its authorized representatives shall have the
right at all reasonable times and, except for an emergency, upon prior
advance notice which may be telephonic, to audit the books, records and
papers of Tenant relating to any Transfer, and shall have the right to make
copies thereof. If the Transfer Premium respecting any Transfer shall be
found understated, Tenant shall within thirty (30) days after demand pay the
deficiency, and Landlord's costs of such audit, and if understated by more
than five percent (5%), Landlord shall have the right to cancel this Lease
upon thirty (30) days notice. Any sublease hereunder shall be subordinate
and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any sublease, Landlord shall have the right to
(i) treat such sublease as canceled and repossess the Subject Space by any
lawful means, or (ii) require that such subtenant attorn to and recognize
Landlord as its landlord under such sublease.
16.7 For purposes of this Lease, the term "Transfer" shall also include (a)
if Tenant is a partnership, the withdrawal or change, voluntary, involuntary
or by operation of law, of a majority of the partners, or transfer of a
majority of partnership interests, within a twelve (12) month period, or the
dissolution of the partnership, and (b) if Tenant is a closely held
corporation (i.e. whose stock is not publicly held and not traded through an
exchange or over the counter), the dissolution, merger, consolidation or
other reorganization of Tenant, or within a twelve (12) month period: (i) the
sale or other transfer of more than an aggregate of fifty percent (50%) of
the voting shares of Tenant (other than to immediate family members by reason
of gift or death) or (ii) the sale of more than an aggregate of fifty percent
(50%) of the value of the unencumbered assets of Tenant.
16.8 Notwithstanding anything to the contrary contained in this Article and
provided that Tenant shall not be in default under any of the terms,
provisions, or conditions under this Lease, and provided further that
Landlord shall have first received notice of the occurrence of any of the
following (which notice shall specify the occupant in detail) Landlord agrees
to consent to any Affiliate of Tenant (hereinafter defined) occupying all or
any portion of the Premises. If such occupancy is pursuant to either a
sublease agreement or an assignment of this Lease, the terms and provisions
of Section 16.6 above shall control, except that such Affiliate shall be
deemed to be a "named Tenant" hereunder. As used herein, the term
"Affiliate" shall mean any corporation or other entity controlled by, under
common control with, or controlling any of the entities comprising the named
Tenant hereunder. The term "control" or similar term used above shall mean
holding no less than fifty-one (51%) percent of the voting control and
interest of the applicable entity, sufficient to direct management policy.
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17. SURRENDER OF POSSESSION.
Upon expiration of the Term or upon the termination of Tenant's right
of possession, whether by lapse of time or otherwise, Tenant shall forthwith
surrender the Premises to Landlord in good order, repair and condition,
ordinary wear excepted, and shall, if Landlord so requires, restore the
Premises to the condition existing at the beginning of the Term, ordinary
wear and tear excepted and improvements consented to by Landlord excepted.
Unless hereafter agreed to by Landlord in writing, any interest of Tenant in
the alterations, improvements and additions to the Premises made or paid for
by Landlord or Tenant shall, without compensation to Tenant, become
Landlord's property at the termination of this Lease by lapse of time or
otherwise and such alterations, improvements or additions shall be
relinquished to Landlord in good condition, ordinary wear excepted. Upon the
termination of the Term or of Tenant's right of possession, Tenant shall
remove office furniture, trade fixtures, office equipment and all other items
of Tenant's property on the Premises. Tenant shall pay Landlord upon demand
the cost of repairing any damage to the Premises and to the Building caused
by such removal. If Tenant shall fail or refuse to remove any such property
from the Premises, Tenant shall be conclusively presumed to have abandoned
the same, and title thereto shall thereupon pass to Landlord without any
cost either by set-off, credit, allowance or otherwise, and Landlord may at
its option accept the title to such property or at Tenant's expense may (i)
remove the same or any part thereof in any manner Landlord shall choose, (ii)
repair any damage to the Premises caused by such removal, and (iii) store,
destroy or otherwise dispose of the same without incurring liability to
Tenant or any other person.
18. HOLDING OVER.
In addition to performing all of Tenant's other obligations hereunder,
Tenant shall pay to Landlord an amount as Rent equal to the greater of (i)
the market rental rate or (ii) two hundred percent (200%) if one-twelfth the
Base Rent and one hundred percent (100%) of one-twelfth the Additional Rent
paid by Tenant during the previous Calendar Year herein provided during each
month or portion thereof for which Tenant shall retain possession of the
Premises or any part thereof after the termination of the Term or of Tenant's
right of possession, whether by lapse of time or otherwise, and also shall
pay all damages sustained by Landlord, whether direct or consequential, on
account thereof. At the option of Landlord, expressed in a written notice to
Tenant and not otherwise, such holding over shall constitute a renewal of
this Lease for a period of one year at such Base Rent and Additional Rent as
would be applicable for such year. The provisions of this Paragraph 18 shall
not be deemed to limit or constitute a waiver of any other rights or remedies
of Landlord provided herein or at law.
19. ESTOPPEL CERTIFICATE.
Tenant agrees that, from time to time upon not less than fifteen (15)
days prior request by Landlord, the Tenant, or Tenant's duly authorized
representative having knowledge of the following facts, will deliver to
Landlord a certificate in writing certifying (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the Lease as modified is in
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full force and effect); (ii) the dates to which Rent and other charges have
been paid; (iii) that the Landlord is not in default under any provision of
this Lease, or if in default, the nature thereof in detail and (iv) such
further matters as may reasonably be requested, it being intended that any
such statement may be relied upon by any mortgagees or prospective mortgagees
of the Land or Building, or any prospective assignee of any mortgage thereof
or any prospective or actual purchaser of the Land or Building or an interest
therein. Tenant shall execute and deliver whatever other instruments may be
reasonably required for such purposes, and in the event Tenant fails to do so
within fifteen (15) days after demand in writing, Tenant shall be considered
in default under this Lease.
20. SUBORDINATION.
20.1 This Lease is subject and subordinate to all present and future ground
or underlying leases of the Land and to the lien of any mortgages or trust
deeds, now or hereafter in force against the Land and Building, or either,
and to all renewals, extensions, modifications, consolidations and
replacements thereof, and to all advances made or hereafter to be made upon
the security of such mortgages or trust deeds, unless the holders of such
mortgages or trust deeds, or the lessors under such ground lease or
underlying leases require in writing that this Lease shall be superior
thereto. Tenant covenants and agrees in the event any proceedings are
brought for the foreclosure of any such mortgage, to attorn, without any
deductions or set-offs whatsoever, to the purchaser upon any such foreclosure
sale if so requested to do so by such purchaser, and to recognize such
purchaser as the lessor under this Lease. Tenant shall at Landlord's request
execute such further instruments or assurances as Landlord may reasonably
deem necessary to evidence or confirm the subordination or superiority of
this Lease to any such mortgages, trust deeds, ground leases or underlying
leases.
20.2 Landlord agrees to use reasonable and diligent efforts to obtain from
any mortgagee or ground lessor a "Non-Disturbance Agreement". A
Non-Disturbance Agreement shall mean an agreement in which Tenant agrees to
attorn to and recognize, as Landlord, the purchaser at a foreclosure sale or
the mortgagee or its nominee in the event the mortgagee or such nominee
accepts the deed in lieu of foreclosure, or the ground or underlying lessor
in the event of the termination of such underlying or ground lease in return
for an agreement, by such mortgagee or ground or underlying lessor, as the
case may be, in the form customarily used by Landlord's mortgagee or ground
lessee agreeing that in the event of a foreclosure of such mortgage or the
giving of a deed in lieu of foreclosure or termination of such ground or
underlying lease, Tenant may remain in possession of the Premises pursuant to
the terms of this Lease and retain all rights, options and privileges granted
to Tenant hereunder so long as Tenant is not in default hereunder and
continues to perform its obligations hereunder and further agreeing that the
purchaser at a foreclosure sale or transferee in the case of a deed in lieu
of foreclosure or ground or underlying lessor as the case may be, will assume
all of the obligations of Landlord in such case; provided, however, that in
no event shall any such party acting as Landlord hereunder have any personal
liability hereunder or any liability whatsoever for the acts of Landlord
prior to such transfer or any liability for any deposits made by Tenant
hereunder unless such deposits have been transferred to such parties;
provided, however, that such parties shall have the liability to perform all
of Landlord's
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continuing obligations, if any, to be performed from and after the date of
transfer. Such agreement may, among other things, require Tenant to notify
the mortgagee of any default by Landlord and afford such mortgagee or ground
lessor a reasonable opportunity to cure such default prior to any termination
of this Lease by Tenant. Tenant agrees to accept any such mortgagee's or
lessor's customary form of Non-Disturbance Agreement, and the delivery of
such form to Tenant shall release Landlord from any further obligation
hereunder to Tenant with respect to such mortgagee or lessor. Tenant, at its
own expense, shall be solely responsible for all negotiations concerning any
Non-Disturbance Agreement.
21. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord shall have the following rights, each of which Landlord may
exercise without notice to Tenant and without liability to Tenant for damage
or injury to property, person or business on account of the exercise thereof,
and the exercise of any such rights shall not be deemed to constitute an
eviction or disturbance of Tenant's use or possession of the Premises and
shall not give rise to any claim for set-off or abatement of rent and any
other claim:
21.1 To change the Building's name or street address; provided, however,
that Landlord shall endeavor to keep the current street address (that is, 185
Asylum Street) as an alternative address for the Building, unless otherwise
directed by law or requirement or recommendation of any applicable authority.
21.2 To install, affix and maintain any and all signs on the exterior and on
the interior of the Building.
21.3 To decorate or make repairs, alterations, additions, or improvements,
whether structural or otherwise (including alterations in the configuration
of the common areas), in and about the Building, or any part thereof,
provided that the character of the Building as a first-class office building
is not materially and adversely affected as a result of the foregoing, and
for such purposes to enter the Premises, and during the continuance of any
said work, to temporarily close doors, entryways, public space and corridors
in the Building and to interrupt or temporarily suspend services or use of
facilities, all without affecting any of Tenant's obligations hereunder, so
long as the Premises are reasonably accessible and usable.
21.4 To furnish door keys or other entry devices for the entry door(s) in
the Premises at commencement of the Term and to retain at all times, and to
use in appropriate instances, keys to all doors within and into the Premises.
Tenant agrees to purchase only from Landlord or Landlord's designee
additional duplicate keys as required, to change no locks, and to affix no
locks on doors without the prior written consent of Landlord.
Notwithstanding the provisions for Landlord's access to the Premises, Tenant
relieves and releases Landlord of all responsibility arising out of theft,
robbery, pilferage, and personal assault, except for the wilful acts or
negligence of Landlord, its agents, employees and contractors. Upon the
expiration of the Term or of Lessee's right to possession, Tenant shall
return all keys to Landlord and shall disclose to Landlord the combination of
any safes, cabinets or vaults left in the Premises.
21.5 To designate and approve all window coverings used in the Building.
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21.6 To approve the weight, size and location of safes, vaults and other
heavy equipment and articles in and about the Premises and the Building so as
not to exceed the live load per square foot designated by the structural
engineers for the Building, and to require all such items and furniture and
similar items to be moved into or out of the Building and Premises only at
such times and in such manner as Landlord shall direct in writing. Tenant
shall not install or operate machinery or any mechanical devises of a nature
not directly related to Tenant's ordinary use of the Premises without the
prior written consent of Landlord. Tenant's movement of property into or out
of the Building or Premises and within the Building are entirely at the risk
and responsibility of the Tenant, and Landlord reserves the right to require
permits before allowing any property to be moved into or out of the Building
or Premises.
21.7 To establish controls for the purpose of regulating all property and
packages, both personal and otherwise, to be moved into or out of the
Building and Premises and all persons using the Building after normal office
hours.
21.8 To regulate delivery and service of supplies in order to insure the
cleanliness and security of the Premises and to avoid congestion of the
loading docks, receiving areas and freight elevators.
21.9 To show the Premises to prospective tenants at reasonable hours and,
except for emergencies, upon prior reasonable notice which may be telephonic,
during the last twelve months of the Term and, if vacated or abandoned, to
show the Premises at any time and to prepare the Premises for re-occupancy.
21.10 To erect, use and maintain pipes, ducts, wiring, and conduits, and
appurtenances thereto, in and through the Premises at reasonable locations.
21.11 To enter the Premises at any reasonable time and, except for
emergencies, upon prior reasonable notice which may be telephonic, to inspect
the Premises.
21.12 To grant any person or to reserve unto itself the exclusive right to
conduct business or render any service in the Building. If Landlord elects
to make available to tenants in the Building any services or supplies, or
arranges a master contract therefor, Tenant agrees to obtain its
requirements, if any therefore from Landlord or any such contract, provided
that the changes therefor are reasonable. Landlord agrees to place in the
vicinity of each of the two entrances at the Building, an electronic
directory which shall set forth Tenant's name.
22. RULES AND REGULATIONS.
Tenant shall, and shall cause all of its subtenants and occupants, its
and their agents, employees, invitees and licensees to observe faithfully and
comply strictly with the following rules and regulations, as they may be
supplemented and revised by Landlord from time to time, and such other rules
and regulations promulgated from time to time by Landlord, as in the
Landlord's judgment may be desirable for the safety, care and cleanliness of
the Building and the Premises, or for the preservation of good order therein.
Landlord shall not be liable to Tenant for violation of such rules and
regulations by, or for
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Landlord's failure to enforce the same against, any other tenant, its
subtenants and occupants and its and their agents, employees, invitees or
licensees, nor shall any such violation or failure constitute, or be treated
as contributing to, an eviction, actual or constructive, or affect Tenant's
covenants and obligations hereunder, or allow Tenant to reduce, abate or
offset the payment of Rent or other sum under this Lease.
22.1 Any sign, lettering, picture, notice, or advertisement installed within
the Tenant's Premises which is visible to the public from within the Building
shall be installed at Tenant's cost and in such manner, character and style
as Landlord may approve in writing. No sign, lettering, picture, notice or
advertisement shall be placed on any outside window or in any position so as
to be visible from outside the Building.
22.2 Tenant shall not use the name of the Building or use pictures or
illustrations of the Building in advertising or other publicity, without
prior written consent of Landlord.
22.3 Tenant, its subtenants and its and their agents, employees, customers,
invitees, licensees, and guests shall not obstruct sidewalks, entrances,
passages, courts, corridors, vestibules, halls, elevators, and stairways in
and about the Building. Each of said parties shall lend its full cooperation
to keep such areas free from all obstruction and in a clean and sightly
condition, and move all supplies, furniture and equipment as soon as received
directly to the Premises, and shall move all such items and waste (other than
waste customarily removed by Building employees) that are at any time being
taken from the Premises directly to the areas designated for disposal.
Landlord shall in all cases retain the right to control and prevent access to
all courts, passageways, entrances, exits, loading or shipping areas,
elevators, stairways, corridors, halls and roofs by all persons whose
presence in the judgment of Landlord shall be prejudicial to the safety or
security of the Building or its occupants. None of said parties shall enter
into areas reserved for the exclusive use of Landlord or its agents,
employees, licensees, or invitees.
22.4 Tenant shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electrical or electronic devices
or other devices that emit sound waves or are dangerous to other tenants and
occupants of the Building or that would interfere with the operation of any
device or equipment or radio or television broadcasting or reception from or
within the Building or elsewhere, and shall not place or install any
projections, antennae, aerials, or similar devices inside or outside of the
Premises.
22.5 Tenant shall not make any room-to-room canvass to solicit business from
other tenants in the Building, and shall not exhibit, sell or offer to sell,
use, rent or exchange any item or services in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises as specified in
its lease.
22.6 Tenant shall not waste electricity or water and agrees to cooperate
fully with Landlord to assure the most effective operation of the Building's
heating and air conditioning and shall refrain from attempting to adjust any
controls. Tenant shall keep public corridor doors closed.
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22.7 Bicycles shall not be permitted in the Building in other than
Landlord-designated locations.
22.8 Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed and secured.
22.9 Peddlers, solicitors and beggars shall be reported to the office of the
Building or as Landlord otherwise requests.
22.10 Tenant shall neither install nor operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without the written permission of the Landlord.
22.11 No person or contractor not employed by Landlord shall be used to
perform window washing, cleaning, decorating, repair or other work in the
Premises, except as otherwise provided in this Lease.
22.12 Unless Landlord so consents, Tenant shall not, and Tenant shall not
permit or suffer anyone to:
(i) Place vending or dispensing machines of any kind in
or about the Premises except for soda and candy
vending machines for use by its employees; or
(ii) Cook in the Premises (except that Tenant may install
at the Premises a small "kitchenette", without oven
or other cooking facility other than a microwave
oven, Dwyer type of unit, and a coffee maker); or
(iii) At any time sell, purchase or give away, or permit
the sale, purchase or gift of, food in any form,
except as an incidental use to its stock brokerage
practice, to its own employees, guests, and clients
at the Premises and then only for client receptions,
seminars and similar functions (collectively,
"Functions") or to provide daily meals.
22.13 Tenant shall not:
(i) Use the Premises for lodging or for any immoral or
illegal purposes.
(ii) Use the Premises to engage in the manufacture or sale
of, or (except if incidental to a Function) permit
the use of, any spirituous, fermented, intoxicating
or alcoholic beverages on the Premises.
(iii) Use the Premises to engage in the manufacture or sale
of, or permit the use of, any illegal drugs on the
Premises.
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22.14 In no event shall any person bring into the Building inflammables such
an gasoline, kerosene, naphtha and benzene, or explosives or firearms or any
other article of intrinsically dangerous nature. If by reason of the failure
of Tenant to comply with the provision of this paragraph, any insurance
premium payable by Landlord for all or any part of the Building shall at any
time be increased above normal insurance premiums for insurance not covering
the items aforesaid, Landlord shall have the option to terminate the Lease if
Tenant shall not make immediate payment for the whole of the increased
insurance premium or immediately cease such activity, as Landlord shall
direct.
22.15 Tenant shall cooperate and participate in all security programs
affecting the Building.
22.16 Tenant shall cause all floors within the Premises to be carpeted;
provided that areas such as kitchens, utility closets, entrances,
photocopying areas and other similar areas may contain another type of floor
covering if Tenant first obtains written approval from Landlord.
22.17 Tenant shall not drill, or permit to be drilled, any holes in any
window frames (mullions) located within the Premises.
22.18 Furniture, freight and other large or heavy articles may be brought
into the Building only at times and in the manner (including use of freight
elevators and the loading area) designated by Landlord, and always at
Tenant's sole responsibility. Landlord may direct and control the location
of safes and all other heavy articles and, if considered necessary by
Landlord, require supplementary supports at the expense of Tenant of such
material and dimensions as Landlord may deem necessary to property distribute
the weight. Any damage done to the Building by moving or maintaining such
furniture, freight, safes or any other articles shall be repaired at the
expense of Tenant.
All furniture, equipment, cartons and similar articles desired to be
removed from the Premises or the Building shall be listed in writing by
Tenant with Landlord and a removal permit therefor shall first be obtained
from Landlord.
Landlord shall have the right from time to time to prescribe additional
rules and regulations which, in its judgement, may be desirable for the use,
entry, operation and management of the Premises and Building, each of which
rules and regulations and any amendments thereto shall become a part of this
Lease without further action of the parties. Tenant shall comply with all
such rules and regulations; provided, however that such rules and regulations
shall not substantially diminish any right or privilege herein expressly
granted Tenant.
23. LANDLORD'S REMEDIES.
If default shall be made in the payment of the Rent or any installment
thereof or in the payment of any other sum required to be paid by Tenant
under this Lease or under the terms of any other agreement between Landlord
and Tenant and such default shall continue for five (5) days after written
notice to Tenant, or if default shall be made in the observance or
performance of any of the other
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covenants or conditions in this Lease which Tenant is required to observe and
perform and such default shall continue for ten (10) days after written
notice to Tenant (provided, however, if such default is non-monetary and not
reasonably susceptible of cure by Tenant within 10 days, Tenant shall not be
deemed to be in default hereunder if Tenant shall commence such cure within
said 10 day period and thereafter diligently and expeditiously prosecute such
cure to completion on or before the 60th day following the initial
notification of default by Landlord, or if a default involves a hazardous
condition and is not cured by Tenant immediately upon written notice to
Tenant, or if the interest of Tenant in this Lease shall be levied on under
execution or other legal process, or if any voluntary petition in bankruptcy
or for corporate re-organization or any similar relief shall be filed by
Tenant, or if any involuntary petition in bankruptcy shall be filed against
Tenant under any federal or state bankruptcy or insolvency act and shall not
have been dismissed within forty-five (45) days from the filing thereof, or
if a receiver shall be appointed for Tenant or any of the property of Tenant
by any court and such receiver shall not have been dismissed within thirty
(30) days from the date of his appointment, or if Tenant shall make an
assignment for the benefit of creditors, or if Tenant shall admit in writing
Tenant's inability to meet Tenant's debts as they mature, or if Tenant shall
cease to occupy the Premises for a period of seven (7) days during the Term,
then Landlord may treat the occurrence of any one or more of the foregoing
events as a breach of this Lease, and thereupon at its option may, without
notice or any demand of any kind to Tenant or any other person, have any one
or more of the following described remedies in addition to all other rights
and remedies provided at law or in equity or elsewhere herein:
(i) Landlord may terminate this Lease and the Term
created hereby by giving Tenant written notice of
Landlord's election to do so and the effective date
thereof, in which event Landlord may forthwith
repossess the Premises and may be entitled to recover
forthwith, in addition to any other sums or damages
for which Tenant may be liable to Landlord, as
liquidated damages a sum of money equal to the excess
of the value of the Rent provided to be paid by
Tenant for the balance of the Term over the fair
market rental value of the Premises, after deduction
of all anticipated expenses of reletting, for said
period. Should the fair market rental value of the
Premises, after deduction of all anticipated expenses
of reletting, for the balance of the Term exceed the
value of the Rent provided to be paid by Tenant for
the balance of the Term, Landlord shall have no
obligation to pay to Tenant the excess or any part
thereof or to credit such excess or any part thereof
against any other sums or damages for which Tenant
may be liable to Landlord.
(ii) Landlord may terminate the right of Tenant to
possession of the Premises without terminating this
Lease by giving written notice to Tenant that
Tenant's right to possession shall end upon the date
stated in such notice, whereupon the right of Tenant
to possession of the Premises or any part thereof
shall cease on the date stated in such notice. If
Landlord terminates the right of Tenant to possession
of the Premises without terminating this Lease, such
termination of possession
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shall not release Tenant, in whole or in part, from
Tenant's obligation to pay the Rent hereunder for the
full Term, or the present value of the Rent (at the
then current rates therefor) for the period from the
date stated in the notice terminating possession to
the Terminating Date (such present value to be
computed on the basis of a per annum discount rate
equal to 200 basis points above the effective annual
yield on U.S. Treasury obligations maturing closest
to the Termination Date calculated on the date
specified in said notice) shall, at the option of
Landlord, be immediately due and payable by Tenant to
Landlord together with other monies due hereunder,
and Landlord shall have the right of immediate
recovery of all such amounts. In the alternative,
Landlord shall have the right from time to time to
recover from Tenant, and Tenant shall remain liable
for all Rent not theretofore accelerated and paid
pursuant to the foregoing sentence and any other sums
thereafter accruing as they become due under this
Lease during the period from the date of such notice
of termination of possession to the Termination Date.
In any such case, Landlord may (but shall be under no
obligation to, except as required by law) relet the
Premises or any part thereof for the account of
Tenant, for such rent, from time to time (which may
be for a term extending beyond the Term of this
Lease) and upon such terms as Landlord in Landlord's
sole discretion shall determine, and Landlord shall
not be required to accept any tenant offered by
Tenant or to observe any instructions given by Tenant
relative to such reletting. Also, in any such case,
Landlord may change the locks or other entry devices
of the Premises and make repairs, alterations and
additions in or to the Premises and redecorate same
to the extent deemed by Landlord necessary or
desirable, and Tenant shall upon written demand pay
the cost thereof together with Landlord's expenses of
reletting, including without limitation, brokerage
commissions payable to Landlord's agent or to others.
Landlord may collect the rents from any such
reletting and apply the same first to the payment of
expenses of reentry, redecoration, repair and
alterations and the expenses of reletting and second
to the payment of Rent therein provided to be paid by
Tenant, and any excess or residue shall operate only
as an offsetting credit against the amount of Rent
due and owing or paid as a result of acceleration or
as the same thereafter becomes due and payable
hereunder, but the use of such offsetting credit to
reduce the amount of Rent due Landlord, if any, shall
not be deemed to give Tenant any right, title or
interest in or to such excess or residue shall belong
to Landlord solely; provided that in no event shall
Tenant be entitled to a credit on its indebtedness
to Landlord in excess of either the aggregate sum due
and owing or paid as a result of acceleration or
which would have been paid by Tenant for the period
for which the credit to Tenant is being determined,
had no default occurred, as applicable. No such
reentry, repossession, repairs, alterations,
additions or reletting shall be construed
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41
as an eviction or ouster of Tenant or as an election
on Landlord's part to terminate this Lease, unless a
written notice of such intention is given to Tenant,
or shall operate to release Tenant in whole or in
part from any of Tenant's obligations hereunder, and
Landlord may, at any time and from time to time, sue
and recover judgment for any deficiencies from time
to time remaining after the application from time to
time of the proceeds of any such reletting.
(iii) Landlord, without thereby waiving such default, may
perform the same for the account and at the expense
of Tenant, without notice in a case of emergency or
in case of correction of a dangerous or hazardous
condition, and in any other case if such default
continues after ten (10) days from the date of the
giving by Landlord to Tenant of written notice of
intention to do so. Bills for any expense incurred
by Landlord in connection with any such performance
by Landlord for the account of Tenant, and shall be
due and payable in accordance with the terms of said
bills, and if not paid when due, the amounts thereof
shall immediately become due and payable as
Additional Rent under this Lease.
24. EXPENSES OF ENFORCEMENT.
The Tenant shall pay upon demand all Landlord's reasonable costs,
charges and expenses including the fees and out-of-pocket expenses of
counsel, agents and others retained by Landlord incurred in enforcing the
Tenant's obligations hereunder or incurred by the Landlord in any litigation,
negotiation or transaction in which the Tenant causes the Landlord without
the Landlord's fault to become involved and concerned.
25. COVENANT OF QUIET ENJOYMENT.
Landlord covenants that the Tenant, on paying the Rent, charges for
services and other payments herein reserved and on keeping, observing and
performing all other terms, covenants, conditions, provisions and agreements
herein contained on the part of the Tenant to be kept, observed and
performed, shall, during the Term, peaceably and quietly have, hold and enjoy
the Premises subject to the terms, covenants, conditions, provisions and
agreements hereof without interference by any persons lawfully claiming by or
through the Landlord. The foregoing covenant is in lieu of any other
covenant express or Implied.
26. FINANCIAL REPORTS.
26.1 Upon Landlord's request, Tenant will at its own cost and expense
deliver to Landlord with reasonable promptness, complete annual audited and
certified (by a certified public accountant acceptable to Landlord) financial
statements of Tenant and its business operation, prepared in accordance with
generally acceptable accounting principles.
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27. REAL ESTATE BROKER.
The Tenant represents that Tenant has dealt with (and only with) The
Farley Company as broker in connection with this Lease, and insofar as the
Tenant knows, no other broker negotiated this Lease or is entitled to any
commission in connection therewith. Tenant agrees to indemnify, defend and
hold Landlord and its beneficiaries, employees, agents, their officers and
partners, harmless from and against any successful claims made by any broker
or finder other than the broker named above for a commission or fee in
connection with this Lease, provided that Landlord has not in fact retained
such broker or finder.
28. RIGHTS CUMULATIVE.
All rights and remedies of Landlord under this Lease shall be
cumulative and none shall exclude any other rights and remedies allowed by
law.
29. INTEREST.
All payments becoming due under this Lease and remaining unpaid when
due shall bear interest until paid at the rate of the greater of (i) fourteen
percent (14%) per annum or (ii) four hundred basis points above the "prime"
or "base" rate charged from time to time by The First National Bank of
Chicago (but in no event at a rate which is more than the highest rate which
is at the time unlawful in the State of Connecticut).
30. TERMS.
The necessary grammatical changes required to make the provisions hereof
apply either to corporations or partnerships or individuals, men or women as
the case may require, shall in all cases to be assumed as though in each case
fully expressed.
31. BINDING EFFECT.
Each of the provisions of this Lease shall extend to and shall, as the
case may require, bind or inure to the benefit not only of the Landlord and of
Tenant, but also of their respective successors or assigns, provided this
clause shall not permit any assignment by Tenant contrary to the provisions
of Paragraph 16 hereof. The obligations and liabilities of each of the
entities comprising Tenant hereunder shall be joint and several. As used
herein, the term "named Tenant" shall mean, collectively, Conning & Co.,
Conning International and Conning Corporation.
32. LEASE CONTAINS ALL TERMS.
All of the representations and obligations of Landlord are contained
herein, and no modification, waiver or amendment of this Lease or of any of
its conditions or provisions shall be binding upon the Landlord unless in
writing signed by Landlord or by a duly authorized agent of the Landlord
empowered by a written authority signed by Landlord.
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33. DELIVERY FOR EXAMINATION.
Submission of the form of the Lease for examination shall not bind
Landlord in any manner, and no Lease or obligation of the Landlord shall
arise until this instrument is signed by both Landlord and Tenant and
delivery is made to each.
34. NO AIR RIGHTS.
No rights to any view or to light or air over any property, whether
belonging to Landlord or any other person, are granted to Tenant by this
Lease.
35. MODIFICATION OF LEASE.
Should the first mortgagee to place a mortgage lien on the Building or
part thereof, after the date of this Lease, require a modification or
modifications of this Lease, which modification or modifications will not
cause an increased Rent, cost or expense to Tenant or in any other way
materially and adversely change the rights and obligations of Tenant
hereunder and will not materially increase the benefits of Landlord
hereunder, then and in such event, Tenant agrees that this Lease shall be so
modified and agrees to execute whatever documents are reasonably required
therefor and deliver the same to Landlord within ten (10) days following the
request therefor. Should any such prospective mortgagee or ground lessor
require execution of a short form of lease for recording (containing, among
other customary provisions, the names of the parties, a description of the
Premises and the term of this Lease), Tenant agrees to execute such short
form of Lease and deliver the same to Landlord within ten (10) days following
the request therefor. In the event Tenant shall fail to execute any document
under this paragraph within the time periods herein provided, Landlord shall
have the right to terminate this Lease upon not less than 60 days' notice.
36. PARKING.
Landlord shall provide (a) five (5) reserved and five (5) general
non-exclusive indoor parking spaces for the use of Tenant or its employees at
the on-site building garage, and (b) twenty-five (25) general non-exclusive
parking spaces at locations selected by Landlord in the existing municipal
parking garage located on Church Street, Hartford, Connecticut and being
adjacent to the existing Sheraton Hotel. Landlord and Tenant hereby agree
that Landlord shall not be obliged to administer or police the use of any
parking spaces and shall not be liable to Tenant in any manner for the
unauthorized use by others of any parking spaces specifically reserved to
Tenant or its employees.
Tenant shall pay to Landlord, as Additional Rental, together with its
installments of Base Rent, a charge for each such space equal to the then
current rates being charged at the respective garages to the general public,
as the same may hereafter increase from time to time. All parking rights
granted hereunder shall be personal to the named Tenant only and may not be
assigned, sublet or transferred in any manner whatsoever.
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37. TRANSFER OF LANDLORD'S INTEREST.
Tenant acknowledges that Landlord has the right to transfer all or any
portion of its interest in the Land and Building and in this Lease and Tenant
agrees that in the event of any such transfer Landlord shall automatically be
released from all liability under this Lease and Tenant agrees to look solely
to such transferee for the performance of Landlord's obligations hereunder
after the date of transfer. Such transferee shall have no liability under
this Lease with regard to Landlord's obligations prior to such date of
Transfer. The liability of any transferee of Landlord shall be limited to
the interest of such transferee in the Land and Building and such transferee
shall be without personal liability under this Lease, Tenant hereby expressly
waiving and releasing said personal liability on behalf of itself and all
persons claiming by, through or under Tenant. Tenant further acknowledges
that Landlord may assign its interest in this Lease to a mortgage lender as
additional security and agrees that such an assignment shall not release
Landlord from its obligations hereunder and that Tenant shall continue to
look to Landlord for the performance of its obligations hereunder.
38. LANDLORD'S TITLE.
Landlord's title is and always shall be paramount to the title of
Tenant. Nothing herein contained shall empower Tenant to do any act which
can, shall or may encumber the title of Landlord.
39. PROHIBITION AGAINST RECORDING.
This Lease shall not be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant, and the recording thereof in violation of this
provision shall make this Lease null and void at Landlord's election.
However, at the request of either party, Landlord and Tenant shall execute
and record a notice of lease in form mutually agreeable to each party.
40. CAPTIONS.
The captions of Paragraphs and subparagraphs arm for convenience only
and shall not be deemed to limit, construe, affect or alter the meaning of
such Paragraphs or subparagraphs.
41. COVENANTS AND CONDITIONS.
All of the covenants of Tenant hereunder shall be deemed and construed
to be "conditions" if Landlord so elects, as well as "covenants" as though
the words specifically expressing or importing covenants and conditions were
used in each separate instance.
42. RELATIONSHIP OF PARTIES.
Nothing contained in this Lease shall be deemed or construed by the
parties hereto or by any third party to create the relationship of principal
and agent, partnership, joint venturer or any association between Landlord
and Tenant it being expressly understood and agreed that neither the method
of computation of
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Rent nor any act of the parties hereto shall be deemed to create any
relationship between Landlord and Tenant other than the relationship of
landlord and tenant.
43. APPLICATION OF PAYMENTS.
Landlord shall have the right to apply payments received from Tenant
pursuant to this Lease (regardless of Tenant's designation of such payments)
to satisfy any obligations of Tenant hereunder, in such order and amounts, as
Landlord in its sole discretion, may elect.
44. TIME OF ESSENCE.
Time is of the essence of this Lease and each of its provisions
45. GOVERNING LAW.
Interpretation of this Lease shall be governed by the Law of the state
in which the Premises is located.
46. PARTIAL INVALIDITY.
If any term, provision or condition contained in this Lease shall, to
any extent, be invalid or unenforceable, the remainder of this Lease (or
application of such term, provision or condition to persons or circumstances
other than those in respect of which it is invalid or unenforceable) shall
not be affected thereby, and each and every other term, provision and
condition of this Lease shall be valid and enforceable to the fullest extent
possible permitted by law.
47. NOTICES.
All notices to be given under this Lease shall be in writing and either
hand delivered or deposited in the United States mail, certified or
registered mail with return receipt requested, postage prepaid, addressed as
follows:
If to Landlord:
JMB/Urban Development Co.
185 Asylum Street
Hartford, Connecticut 06103
copy to:
JMB/Urban Development Co.
900 North Michigan Avenue
Chicago, Illinois 60611
Attn: Law Department
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or to such other person or such other address designated by notice sent by
Landlord to Tenant.
If to Tenant:
c/o Conning Corporation
101 Pearl Street
Hartford, Connecticut 06103
Attn.; Fred M. Schpero, Vice President
Copy to:
Shipman & Goodwin
799 Main Street
Hartford, Connecticut
Attn: Coleman H. Casey, Esq.
and after occupancy of the Premises by Tenant, at the Premises, or to such
other address as is designated by Tenant in a notice to Landlord.
Notice by mail shall be deemed to have been given two business days
after mailing as aforesaid. Notice by hand delivery shall be deemed to have
been given at the time of delivery.
Notwithstanding anything to the contrary which may be contained in this
Lease Agreement, any payments to be made under this Lease by Landlord to
Tenant shall be deemed sufficiently and validly given if made by Landlord
directly to and to the order of Conning Corporation with the same force and
effect as if otherwise paid to all persons constituting the Tenant hereunder.
Any notice required to be given by Tenant to Landlord under this Lease shall
be deemed sufficient, valid and binding and given with the full authority of
Tenant if delivered by Conning Corporation. Additionally, any notice
required to be given by Landlord to Tenant hereunder shall be deemed
sufficient, valid, and binding and given with the full authority of Landlord
if delivered to Conning Corporation, at the address given above.
48. NO WARRANTY.
In executing and delivering this Lease, Tenant has not relied on any
representation (including, but not limited to, any representation whatsoever
as to the amount of any item comprising Additional Rent or the amount of the
Additional Rent in the aggregate or that Landlord is furnishing the same
services to other tenants, at all, on the same level or on the same basis),
warranty or any statement or Landlord which in not set forth herein or in one
of more of the Exhibits attached hereto.
49. LANDLORD EXCULPATION.
It is expressly understood and agreed that notwithstanding anything in
this Lease to the contrary, the liability of Landlord hereunder and any
recourse by Tenant against Landlord shall be limited solely and exclusively
to the interest of Landlord in and to the Land and Building, and neither
Landlord, nor any of its constituent partners, shall have any personal
liability therefor,
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Tenant hereby expressly waiving and releasing said personal liability on
behalf of itself and all persons claiming by, through or under Tenant.
50. OPTIONS TO EXTEND.
Provided Tenant shall not be in default under any of the terms,
provisions or conditions of this Lease, Tenant is hereby granted two separate
and successive options to extend the Term for two (2) additional periods of
five (5) consecutive Lease Years each (each such period being referred to
herein as an "Extension Period"), on the same terms and conditions in effect
under the Lease immediately prior to the applicable Extension Period, except
that the monthly Base Rent for each applicable Extension Period shall be
increased to the "Prevailing Rental Rate". "Prevailing Rental Rate" means
ninety-five (95%) percent of the average per square foot rental rate per
month for all leases approximately as long as the applicable Extension
Period, executed by tenants for similar uses for comparable space in the
Building during the six (6) months immediately prior to the date upon which
such Prevailing Rental Rate is to become effective, where such renewal rates
were not set by the terms of such leases, subject to reasonable adjustments
for comparable space on more desirable, or less desirable, floors or areas of
the Property. If leases for no such comparable space have been renewed
during such six (6) month period, the rental rates used for purposes of this
provisions shall be adjusted to the amounts Landlord would reasonably have
used had leases for such comparable space been renewed. The option to extend
may be exercised only by giving Landlord irrevocable and unconditional
written notice thereof no earlier than twenty-four (24) months and no later
than eighteen (18) months prior to the commencement of the applicable
Extension Period, and said exercise shall, at Landlord's election, be null
and void if Tenant is in default under the Lease at the date of said notice
or at any time thereafter and prior to commencement of the applicable
Extension Period. In all cases, the Prevailing Rental Rate shall be
determined without regard to any free rent periods, improvement allowances,
take-over lease obligations, or other economic incentives.
If Tenant disputes Landlord's determination of the Prevailing Rental
Rate as unreasonable, within sixty (60) days after its receipt of such
determination, Tenant must request that the Prevailing Rental Rate be
determined by arbitration, under the Commercial Arbitration Rules of the
American Arbitration Association then in effect. Such determination shall be
final and binding upon the parties. In recognition that the Prevailing
Rental Rate will not be determined until after the Commencement of the
Extension Period, Tenant shall pay, during each applicable Extension Period
until the Prevailing Rental Rate is determined, one hundred fifteen percent
(115%) of the amount of Rent then in effect immediately prior thereto,
(including Base Rent and all other charges). If the Prevailing Rental Rate
is determined to be greater or lesser than such amount, Tenant shall pay
Landlord, or Landlord shall pay Tenant, as the case may be, within thirty
(30) days after written request therefor, the difference between the amount
required by such determination of the Prevailing Rental Rate, and the amount
of Rent theretofore paid by Tenant for the applicable Extension Period. In
no event shall the Prevailing Rental Rate be less than the Base Rent payable
by Tenant under this Lease for the immediately preceding period.
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If Tenant shall fail to exercise either of the options herein provided,
said option shall terminate, and shall be null and void and of no further
force and effect. Tenant's exercise of any of said options shall not operate
to cure any default by Tenant of any of the terms or provisions in the Lease,
nor to extinguish or impair any rights or remedies of Landlord arising by
virtue of such default. If the Lease or Tenant's right to possession of the
Premises shall terminate in any manner whatsoever before Tenant shall
exercise any of the options herein provided, or if Tenant shall have
subleased or assigned all or any portion of the Premises, then immediately
upon such termination, sublease, or assignment, the said option herein
granted to extend the Term, shall simultaneously terminate and become null
and void. Such options are personal to the named Tenant. Under no
circumstances whatsoever shall the assignee under a partial assignment of the
Lease, or a subtenant under a sublease of the Premises, have the right to
exercise the option to extend granted herein provided Tenant shall not be in
default under any of the terms, provisions or conditions of this Lease. Time
is of the essence of this provision.
As used in this Article 50, the term "Lease Year" shall mean a period
of twelve consecutive calendar months. The parties acknowledge that the
first day of the first Extension Period, if the option for same is validly
exercised, shall be April 1, 2005; provided the Commencement Date is April 1,
1990 (it being understood that, if the Commencement Date is subsequent to
April 1, 1990, said first day shall be extended accordingly).
Tenant shall have no further or additional options to extend this
Lease, not heretofore expressly set forth.
51. OPTION TO EXPAND
Subject to the provisions of this Paragraph and provided Tenant shall
not be in default under any of the terms, provisions or conditions of this
Lease, Tenant shall have two separate expansion rights to lease, in each
instance, eight thousand two hundred (8,200) square feet (+/- 20%) of
rentable area on the seventh (7th) floor of the Building (the exact location
and configuration in each instance to be determined by Landlord
(respectively, the "First Expansion Space" and the "Second Expansion Space"),
each in an "as is" condition, on the same terms and provisions then in effect
under the Lease, except that the monthly Base Rent (as to such Expansion
Space) shall be increased to reflect the Expansion Prevailing Rental Rate.
Tenant's Pro Rata Share shall be increased to reflect the increased rentable
area of the Premises resulting from the addition of the applicable Expansion
Space. "Expansion Prevailing Rental Rate" means One Hundred (100%) percent
of the average per square foot rental rate per month for all leases for
comparable space and approximately the same number of months, executed by
tenants during the six (6) months immediately prior to the date upon which
such Expansion Prevailing Rental Rate is to become effective and payable
under the terms of this Lease, where the rates for such expansions were not
set in such leases, subject to reasonable adjustments for comparable space on
more desirable, or less desirable floors or areas of the Building. If leases
for no such comparable space has been leased during such six (6) month
period, the rental rates used for purposes of this provision shall be
adjusted to the amounts Landlord would reasonably have used had leases for
such comparable space been entered. In all cases, such rates shall be
determined without regard to any
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free rent periods, improvement allowances, take-over lease obligations, or
other economic incentives. In any event, the Expansion Prevailing Rental
Rate per square foot of rentable floor area for the First Expansion Space
shall not be less than $28.00 per square foot of rentable floor area and the
Expansion Prevailing Rental Rate per square foot of rentable floor area for
the Second Expansion Space shall not be less than $32.50 per square foot of
rentable floor area.
Tenant shall notify Landlord in writing exercising Tenant's respective
rights to lease the First Expansion Space on the terms described above no
earlier than twenty-four (24) months and no later than fifteen (15) months
prior to the Fifth (5th) anniversary of the Commencement Date, and the Second
Expansion Space on the terms described above no earlier than twenty-four (24)
months and no later than fifteen (15) months prior to the Tenth (10th)
anniversary of the Commencement Date. If Tenant exercises the right to lease
the First Expansion Space or Second Expansion Space, as the case may be, said
lease shall continue for the duration of the Term of the Lease. After Tenant
validly exercises the respective expansion rights provided herein, the
parties shall execute an amendment to the Lease, adding the applicable
Expansion Space, or a new lease for the applicable Expansion Space, or such
other documentation as Landlord shall require, promptly after Landlord shall
prepare the same, in order to confirm the leasing expansion rights contained
herein shall be fully effective, whether or not such confirmatory
documentation is executed. The commencement dates for the leasing of each
such Expansion Date shall be approximately six (6) months before or after
Fifth (5th) anniversary of the Commencement Date (as regards the First
Expansion Space) and the Tenth (10th) anniversary of the Commencement Date
(as regards the Second Expansion Space), as determined by Landlord.
If Tenant disputes Landlord's determination of the Expansion Prevailing
Rental Rate as unreasonable, within sixty (60) days after its receipt of such
determination Tenant must request that the Expansion Prevailing Rental Rate
be determined by arbitration, under the Commercial Arbitration Rules of the
American Arbitration Association then in effect. In recognition that the
Expansion Prevailing Rental Rate may not be determined until after the
Commencement of the lease for the Expansion Space, Tenant shall pay, as Rent
for the Expansion Space, until the Expansion Prevailing Rental Rate is
determined, one hundred fifteen percent (115%) of the amount of Rent then in
effect under the Lease on a per rentable square foot basis (including Base
Rent and all other charges). If the Expansion Prevailing Rental Rate is
determined to be greater or lesser than such amount, Tenant shall pay
Landlord, or Landlord shall pay Tenant, as the case may be, within thirty
(30) days after written request therefor, the difference between the amount
required by such determination of the Expansion Prevailing Rental Rate, and
the amount theretofore paid by Tenant for the Expansion Space.
The foregoing expansion right shall apply only with respect to the
entire applicable Expansion Space and may not be exercised with respect to
only a portion thereof. If Tenant shall fail to exercise such expansion
right within the time period stated herein, such right shall be deemed to
have lapsed and expired, and shall be of no further force or effect.
Landlord may thereafter freely lease all or a portion of the applicable
Expansion Space to any other party, at any time, on any terms, in Landlord's
sole discretion.
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If Tenant shall exercise any of its expansion rights granted herein,
Landlord does not guarantee that the Expansion Space will be available on the
commencement date for the lease thereof if the then existing occupants of the
Expansion Space shall hold-over or for any other reason beyond Landlord's
reasonable control. In such event, rent with respect to the Expansion Space
shall be abated until Landlord delivers the same to Tenant, as Tenant's sole
recourse. Tenant's exercise of such expansion right shall not operate to
cure any default by Tenant of any terms or provisions in the Lease, nor to
extinguish or impair any rights or remedies of Landlord arising by virtue of
such default. If the Lease or Tenant's right to possession of the Premises
shall terminate in any manner whatsoever before Tenant shall exercise the
right herein provided, or if Tenant shall have subleased or assigned all or
any portion of the Premises, then immediately upon termination, sublease or
assignment, the right to lease the expansion space herein granted shall
simultaneously terminate and become null and void. Such right to expand is
personal to the named Tenant. Under no circumstances whatsoever shall the
assignee under a partial assignment of the Lease, or a subtenant under a
sublease of the Premises, have any right to exercise the expansion right
granted herein. Tenant agrees that time is of the essence of this provision.
Upon the addition of any Expansion Space, the L.C. held by Landlord pursuant
to Article 53 hereof shall be increased by an amount which equals $10.62 per
each square foot of Floor Area contained in the Expansion Space.
52. CONSENTS.
Landlord's consent under this Lease to any matter or thing may be
arbitrarily withheld, unless expressly set forth herein to the contrary. In
no event shall Tenant be entitled to make, nor shall Tenant make any claim,
and Tenant hereby waives any claim for money damages, nor shall Tenant claim
any money damages by way of set-off, counterclaim or defense, based upon any
claim or assertion by Tenant that Landlord has unreasonably withheld or
unreasonably delayed any consent or approval it is required to give herein,
but Tenant's sole remedy shall be an action or proceeding to enforce any such
provision, or for specific performance, injunction or declaratory judgment.
53. INITIAL SECURITY DEPOSIT.
53.1 Upon the execution and delivery of this Lease, Tenant shall deposit
with Landlord a clean transferable, irrevocable, unconditional letter of
credit (the "$300,000 L.C.") in the amount of Three Hundred Thousand
($300,000) Dollars, and upon the Commencement Date, Tenant shall further
deposit another clean transferable irrevocable letter of credit (the "$325,000
L.C.") in the amount of Three Hundred Twenty-Five Thousand ($325,000) Dollars,
all as security for the full and faithful performance and observance by Tenant
of Tenant's covenants and obligations under this Lease, including without
limitation the payment of all Base Rent and Additional Rent. Each of the
$300,000 L.C. and the $325,000 L.C. are hereafter referred to as the "L.C.".
Each L.C. shall be issued by and drawn on a Connecticut bank reasonably
satisfactory to Landlord, with offices in the City of Hartford, in a form
satisfactory to Landlord. Each L.C. shall be for a minimum term of not lees
than one (1) year and shall provide that it is automatically transferable
without the consent of the issuing bank, at no charge to Landlord. Subject
to the provisions of Section 53.6, Tenant shall
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renew or replace each L.C. with an equivalent letter of credit on the First
anniversary of the Commencement Date and upon each and every anniversary of
the Commencement Date thereafter until the term of this Lease shall be
terminated and Tenant delivers to Landlord possession of the Premises. Each
renewal or replacement letter of credit shall be delivered to Landlord not
less than thirty (30) days prior to the expiration of the then current letter
of credit. Failure to deliver such renewal or replacement letter of credit
on or before said date shall be deemed to constitute a material breach of
this Lease and Landlord shall have the right, inter alia, to present all the
----------
then current letters of credit held by Landlord hereunder for payment.
53.2 If Tenant fails to perform any of its obligations hereunder within
applicable grace periods, Landlord may use, apply or retain the whole or any
part of each L.C. for the payment of (i) any Rent or other sums of money
which Tenant may not have paid when due, (ii) any sum expended by Landlord on
Tenant's behalf in accordance with the provisions of this Lease, and/or (iii)
any sum which Landlord may expend or be required to expend by reason of
Tenant's default or any loss or damage Landlord may incur as a result
therefrom, including, without limitation, any damage or deficiency in or from
the reletting of the Premises as provided in Paragraph 23. The use,
application or retention of each L.C., or any portion thereof, by Landlord
shall not prevent Landlord from exercising any other right or remedy provided
by this Lease or by law (it being intended that Landlord shall not first be
required to proceed against any L.C.) and shall not operate as a limitation
on any recovery to which Landlord may otherwise be entitled. If any portion
of any L.C. is drawn down, used, applied or retained by Landlord for the
purposes set forth above, Tenant agrees, within ten days after the written
demand therefor is made by Landlord, to deposit cash with the Landlord in an
amount sufficient to restore the sums held by Landlord hereunder to the
original amount of such L.C.
53.3 If Tenant shall fully and faithfully comply with all of the provisions
in this Lease, each L.C., or any of the balance thereof, shall be returned to
Tenant without interest after the expiration of the Term or upon any later
date after which Tenant has vacated the Premises. In the absence of evidence
satisfactory to Landlord of any permitted assignment of the right to receive
each L.C., or of the remaining balance proceeds thereof, Landlord may return
the same to the original Tenant, regardless of one or more assignments of
Tenant's interest in this Lease or such L.C. In such event, upon the return
of each L.C., or the remaining balance thereof to the original Tenant,
Landlord shall be completely relieved of liability under this Paragraph 53 or
otherwise with respect to such L.C.
53.4 Tenant acknowledges that Landlord has the right to transfer or mortgage
its interest in the Land and the Building and in this Lease and Tenant agrees
that in the event of such transfer or mortgage, Landlord shall have the right
to transfer or assign each L.C. or proceeds thereof to the transferee or
mortgagee. Upon, and only upon, written acknowledgement of transferee's or
mortgagee's receipt of such L.C. or proceeds thereof, Landlord shall thereby
be released by Tenant from all liability or obligation for the return of such
L.C. or proceeds thereof and Tenant shall look solely to such transferee or
mortgagee for the return of each L.C. or proceeds thereof.
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52
53.5 Each L.C. or proceeds thereof shall not be mortgaged, assigned or
encumbered in any manner whatsoever by Tenant without the prior written
consent of Landlord.
53.6 Notwithstanding anything contained in this Article 53 to the contrary,
Landlord agrees that the aggregate amount of all letters of credit to be held
by Landlord hereunder shall be in the amounts set forth below as of the dates
set forth below:
Date L.C. Amount
---- -----------
First anniversary of Commencement Date $500,000
Second anniversary of Commencement Date 375,000
Third anniversary of Commencement Date 350,000
to and including the end of the term hereof
(including renewal terms)
54. OTHER PREMISES.
Pursuant to a Sublease ("Sublease") dated May 23, 1985, the named
Tenant is currently the subtenant of Urban Investment and Development Co.
("Urban") of certain demised premises ("Other Premises") at 101 Pearl Street,
Hartford, Connecticut, which Other Premises are more particularly described
in that certain lease ("Other Lease") dated September 29, 1970, made by 101
Pearl Associates, as landlord, to Murtha, Cullina, Richter and Pinney
("Murtha"), as tenant, which Other Lease was assigned from Murtha to Urban by
Assignment of Lease dated April 19, 1985.
Provided the named Tenant is still the Tenant hereunder, and provided
further that Tenant shall not be in default under any of the terms,
provisions or conditions of this Lease, (a) Landlord shall cause Urban to
terminate the Sublease, as of the Commencement Date of this Lease, provided
all rental and other obligations under the Sublease on the part of the
subtenant thereunder have been fully paid and performed to such date; and (b)
Landlord agrees to negotiate in good faith with the owner of 101 Pearl
Street, Hartford, Connecticut ("Owner") for a termination of the Other Lease
in consideration of a cash settlement by Owner to Landlord. Landlord makes
no representations or warranties that a settlement of any nature may be
obtained. If any settlement (cash or otherwise) is reached regarding the
Other Lease, the same shall be disbursed in the following priority and in the
following manner:
A. First, any settlement obtained having a value of up to Three
Hundred Thousand ($300,000) Dollars shall be divided between
Landlord and Conning and Co. with Landlord receiving 75% of such
amount and Tenant receiving 25% of such amount, if, as and when
received;
B. Thereafter, any value of such settlement in excess of Three
Hundred Thousand ($300,000) Dollars but not to exceed Six Hundred
Thousand ($600,000) Dollars, shall be divided between Landlord
and Conning & Co., with Landlord receiving 25% of such amount and
Tenant receiving 75% of such amount, if, as and when received;
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53
The right of the named Tenant hereunder to receive any portion of any
settlement is personal to it and shall not be transferred, assigned or
pledged by it to any person or entity.
Notwithstanding anything to the contrary set forth above, to the extent
that any such settlement (cash or otherwise) in disbursed to Aetna Life &
Casualty in an amount not to exceed $75,000, Landlord and Tenant agree that
neither shall have any rights to receive a share in such settlement.
55. RIGHT OF FIRST OFFER.
In addition to the rights of Tenant set forth in Article 51 hereof, if,
at any time, and from time to time during the term of this Lease, Landlord
desires to lease all or any part of the seventh floor of the Building,
Landlord shall first offer to lease such portion of the seventh floor to the
named Tenant if it is then the Tenant hereunder in occupancy of the Premises,
for a specific rental and on specific terms and conditions. For a period of
thirty (30) days following the named Tenant's receipt of Landlord's offer to
lease the seventh floor or part thereof, as aforesaid, the named Tenant shall
have the right to accept, by delivery to Landlord within said thirty (30) day
period of a written instrument binding upon Tenant, Landlord's offer to so
lease the seventh floor, or portion thereof, as aforesaid. After Landlord
receives the written decision of the named Tenant not to accept Landlord's
offer or after the expiration of said thirty (30) day period without
Landlord's receipt of a written acceptance, whichever occurs earlier,
Landlord shall have the right to lease such portions of the seventh floor to
third parties. In the event the named Tenant shall accept said offer, said
Tenant agrees to execute and deliver an amendment of this Lease or a new
Lease incorporating the terms and conditions as accepted by Tenant, as
aforesaid, in such form as Landlord shall require; it being agreed, however,
that the rent commencement date for such space shall be as soon as reasonably
possible (giving due consideration to the amount of tenant finish work
reasonably required) but in no event later than 90 days following the date of
Tenant's acceptance. Otherwise, Tenant agrees to execute and deliver to
Landlord an instrument of confirmation in recordable form evidencing Tenant's
waiver of its rights under this Article and rejection of Landlord's offer, as
the case may be, at the request of Landlord. This Article shall not preclude
preliminary discussions, whether oral or in writing, between Landlord and any
prospective tenant(s) concerning terms and conditions for the leasing of all
or any part of the seventh floor. The provisions of this paragraph shall
expire upon the earlier to occur of an assignment of this Lease, or the
expiration or sooner termination of this Lease. Upon the timely delivery of
said instrument to Landlord, the seventh floor or portion thereof as offered
by Landlord shall immediately become a part of the Premises, and the rental,
terms and conditions set forth in said offer shall be deemed incorporated
into this Lease.
56. FORCE MAJEURE
The obligations of Tenant and Landlord hereunder (except with respect
to the obligations of Tenant to pay any and all Rent hereunder) may be
deferred for so long as a Force Majeure Event is occurring. "Force Majeure
Event" shall mean any delay resulting from strikes, riots, fire, acts of God,
governmental
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54
intervention, shortages of labor or materials or other circumstances or
occurrences which are not within the reasonable control of the performing
party.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
LANDLORD:
JMB/URBAN CITYPLACE LIMITED PARTNERSHIP
BY: JMB CITYPLACE CO., INC.
By: /s/ Thomas G. Omundson
-------------------------------
Thomas G. Omundson
Its Vice President
TENANT:
CONNING & COMPANY
By: /s/ M. W. Slayton
-------------------------------
M. W. Slayton
Its President
CONNING CORPORATION
By: /s/ M. W. Slayton
-------------------------------
M. W. Slayton
Its President
CONNING INTERNATIONAL, INC.
By: /s/ M. W. Slayton
-------------------------------
M. W. Slayton
Its President
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