=======
LEASE
=======
LANDLORD: EIGHT FARM SPRINGS ROAD ASSOCIATES, L.L.C.
and
TENANT: HARTFORD FIRE INSURANCE COMPANY
TABLE OF CONTENTS
SECTION PAGE
1. Premises............................................................
2. Term................................................................
3. Preparation for Occupancy...........................................
4. Rent................................................................
5. Maintenance and Repairs. Taxes and Operating Expenses...............
6. Services............................................................
7. Alterations and Improvements........................................
8. Inspection..........................................................
9. Casualty ...........................................................
10. Insurance and Indemnity ............................................
11. Condemnation........................................................
12. Default ............................................................
13. Holdover............................................................
14. Assignment and Subletting ..........................................
15. Quiet Enjoyment ....................................................
16. Subordination ......................................................
17. Rules and Regulations ..............................................
18. Estoppel Certificate ...............................................
19. Change of Name .....................................................
20. Mechanics Liens ....................................................
21. Extension ..........................................................
22. Option to Terminate.................................................
23. Intentionally Omitted...............................................
24. Intentionally Omitted...............................................
25. Intentionally Omitted ..............................................
26. Attachments ........................................................
27. Notices ............................................................
28. Miscellaneous ......................................................
29. Brokerage Fees .....................................................
30. Transfer by Landlord ...............................................
31. Landlord's Liability ...............................................
32. Applicable Law .....................................................
33. Arbitration ........................................................
ATTACHMENTS
Exhibit A - Space
Exhibit B - Land
Exhibit C - Hazardous Material Disclosure
Exhibit D - Work Letter
Exhibit E - Intentionally omitted
Exhibit F - Rules and Regulations
Exhibit G - Nationwide Lease
Exhibit H - Subordination, Non-Disturbance and Attornment Agreement
Exhibit I - Memorandum of Lease
Exhibit J - Form of Assignment and Assumption Agreement
Exhibit K - Estoppel certificate
LEASE
THIS LEASE, made as of the l5thofNOVember, 1996, between EIGHT FARM SPRINGS
ROAD ASSOCIATES, L.L.C., a Connecticut limited liability company, having an
office at do Edward Savides, 1709 Page Boulevard, Springfield, Massachusetts
01104 (Landlord), and HARTFORD FIRE INSURANCE COMPANY, a Connecticut corporation
having its principal office at Hartford Plaza, Hartford, Connecticut 06115
(Tenant).
1. Premises
(a) Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord the following: a building consisting of approximately 107,654 square
feet of rentable area (the "Building") shown on Exhibit A, located on real
property known as 8 Farm Springs Road, Farmington, Connecticut, as more
particularly described in Exhibit B (the "Land"), together with all hallways,
corridors, lobbies, lavatories, elevators, stairways, entrances, exits,
sidewalks, driveways and the parking areas and all other areas and facilities of
the Building and Land appurtenant thereto (the "Appurtenances") and all
improvements located thereon. The Building, the Land and the Appurtenances are
hereinafter collectively referred to as the "Premises". This Lease confers no
right or obligation (except as otherwise may be expressly set forth in this
Lease) either with respect to subsurface of the Land beneath the Building or the
air space above the Building, except that Tenant shall have a license to access
the subsurface areas to repair utility lines and for other matters incidental to
Tenant's rights and obligations under this Lease.
(b) Subject to the rights of Nationwide Mutual Insurance Company,
referenced below, Landlord warrants that it and no other person or entity has
the right to lease the Premises to Tenant. Except for any express
representations of Landlord contained herein and those matters which Landlord
has expressly retained liability for under the terms of this Lease, Tenant
acknowledges and agrees that it has accepted the Premises in its "As Is, Where
Is and with All Defects" condition. Tenant represents that it has not relied
1
upon any representations and warranties of Landlord or its agents except for
those representations expressly set forth in this Lease.
(c) (i) Landlord has executed a lease dated August 27, 1996, with
Nationwide Mutual Insurance Company (Nationwide), as tenant, for approximately
8,625 square feet of rentable area in the Building (Nationwide Lease), and
Landlord represents to Tenant that a true, accurate and complete copy of the
Nationwide Lease, including any and all amendments thereto, is attached and made
a part of this Lease as Exhibit G. Landlord shall pay all brokerage commissions
or fees arising from the execution of the Nationwide Lease, if any. Tenant will,
at its expense, complete the improvements of Nationwide's premises in the
Building as required under the Nationwide Lease (Nationwide work). Effective as
of the execution date of this Lease, Landlord shall be deemed to have assigned
to Tenant all of Landlord's right, title and interest in and to the Nationwide
Lease (except to cure any default of Landlord under the Nationwide Lease
preceding the assumption of the Nationwide Lease by Tenant) and except for the
item listed in the preceding parenthesis, Tenant shall, effective as of the
execution date of this Lease, be deemed to have assumed all of Landlord's rights
and obligations under the Nationwide, and Tenant will perform and observe all
the covenants and conditions therein contained on Landlord's part to be
performed and observed, which shall accrue from and after the date of such
assumption. without limitation to Tenant's other rights as landlord under the
Nationwide Lease, Tenant shall be entitled to collect the rent (fixed minimum
rent and additional rent) from Nationwide. Landlord and Tenant shall execute an
instrument confirming such assignment and assumption in the form of Exhibit J
hereto, promptly following the execution date of this Lease, however such
instrument shall not be deemed a pre-condition to the consummation of the
assignment and assumption of the Nationwide Lease as the assignment and
assumption provisions hereof shall be deemed self-operative. Such instrument of
assignment and assumption of the Nationwide Lease shall promptly be recorded of
2
record and if this Lease shall terminate prior to the termination of the
Nationwide Lease, then the Nationwide Lease shall automatically be deemed
re-assigned to Landlord without the formality of a signed writing of assignment.
Tenant agrees, however, that in such event it shall execute a reasonable
instrument in recordable form reassigning the Nationwide Lease to Landlord in
confirmation of such assignment. Tenant shall indemnify and hold Landlord
harmless from and against any breach by Tenant of its obligations as landlord
under the Nationwide Lease, which indemnity shall survive the termination of
this Lease. Tenant further agrees to exercise its rights as landlord thereunder
to require Nationwide to comply with Nationwide's obligations thereunder to
provide subordination agreements. estoppel certificates, notice and opportunity
to cure to Landlord and its lenders and any other matters that may expose
Landlord to liability. Landlord shall have, and hereby reserves, the right to
cure defaults of Landlord under the Nationwide Lease occurring prior to the date
that the Nationwide Lease is assumed by Tenant and those obligations of Landlord
which are not being assigned to Tenant and Landlord also reserves the right, at
its option. to enforce the landlord's rights under the Nationwide Lease to the
extent such enforcement is necessary to the preservation of Landlord's rights
hereunder and with respect to the Premises, including Nationwide's obligation to
provide subordination agreements and estoppel certificates. Once the Nationwide
Lease is assigned to Tenant, Landlord shall have the right to look to Tenant as
the tenant of the entire Building pursuant to this Lease, and Tenant shall
enforce the Nationwide Lease in the manner necessary for Tenant comply with this
Lease.
(ii) Intentionally omitted.
(iii) Tenant and Nationwide may agree to terminate or amend the Nationwide
Lease without consent of the Landlord, unless any such amendment would create
any obligation on the part of Landlord, alter any rights of Landlord thereunder
which might effect Landlord's ability to finance the Premises or such amendment
3
would survive any termination of this Lease. Notwithstanding the foregoing,
Landlord agrees that it shall not unreasonably withhold, delay or condition its
consent to any such amendment, and if Tenant requests that Landlord approve an
amendment and Landlord fails to notify Tenant whether Landlord has consented or
denied such amendment within 20 days after receipt of such request, then such
failure shall be deemed to be an approval of such amendment. Any such amended
Nationwide Lease must remain fully subordinated to any present or future
mortgage and other rights and interests of Landlord's present and future lenders
and any present or future ground leases.
(d) The Premises shall be used only for general office purposes and all
lawful uses incidental or related thereto.
2. Term
The term of this Lease shall commence on the execution date of this Lease
(the "Commencement Date") and end on December 31, 2006 (the Expiration Date"),
both dates inclusive (the "Original Term"), unless the original Term is extended
as provided in Section 21. "Term", as used in this Lease, shall be deemed to
include the Original Term and any extensions thereof (such extensions, or any of
them, being sometimes referred to as the "Extended Term").
3. Preparation for Occupancy
(a) On the execution date of this Lease, Landlord shall deliver possession
of the Premises to Tenant in an "as is, where is, with all defects condition"
(except as otherwise maybe expressly set forth in this Lease) free and clear of
all tenants except Nationwide.
(b) Upon delivery of possession of the Premises, Tenant shall proceed to
prepare the Premises in accordance with the Work Letter attached hereto as
Exhibit D.
4. Rent
(a) Commencing January 1, 1997, Tenant shall pay, without notice from
Landlord, an annual Fixed Rent in equal monthly installments in advance on the
first day of each calendar month during the original Term in lawful money of the
4
United States without demand, right of set off, abatement, counterclaim or
demand (except as maybe expressly permitted in this Lease), to Landlord at P.O.
Box 3097, Springfield. Massachusetts 01101-3097 (or for overnight courier
delivery to 1709 Page Boulevard, Springfield, Massachusetts 01104), or at such
other address as Landlord shall give notice of from time to time in accordance
with the following schedule (or pursuant to electronic transfer of funds as may
be subsequently agreed to between Landlord and Tenant)
Lease Fixed Rent Monthly installment
Period Per Annum of Fixed Rent
------ --------- -------------------
1997 $ 975,345.24 $ 81,278.77
1998 1,007,641.40 83,970.12
1999 1,039,937.64 86,661.47
2000 1,072,233.84 89,352.47
2001 1,104,530.04 92,044.17
2002 1,136.826.24 94,735.52
2003 1,169,122.44 97,426.87
2004 1,201,418.64 100,118.22
2005 1,233,714.84 102,809.57
2006 1,266,011.04 105,500.92
The Fixed Rent for any period of less than one (1) month shall be
apportioned based on the number of days in that month and shall be payable on
the first day of such period. Except for those items expressly set forth in this
Lease that Landlord is responsible for, Tenant shall pay all other costs
associated with the Premises including, without limitation, the repair,
replacement, maintenance and operation of the Premises, real estate taxes,
assessments and special assessments (which Tenant shall be permitted to pay over
the longest period permitted by the assessing authority and except for
assessments directly attributable to Tenant's actions (which shall remain the
responsibility of Tenant even after the Expiration Date or earlier termination
of this Lease), Tenant shall be responsible only for payments of assessments due
during the Term), insurance and all other costs and expenses, as additional
rent, but Tenant shall have no obligation to pay for Landlord's Structural
5
Repair Obligation (as defined in Section 5) unless resulting from Tenant's
negligence or willful misconduct (exclusive of matters covered and paid for by
Landlord's casualty insurance) . Tenant shall pay the Fixed Rent, additional
rent and all other charges payable by Tenant pursuant to this Lease
(collectively the "Rent") to Landlord at the address set forth above or, in the
case of items other than Fixed Rent, Taxes and Insurance Premium Cost (as both
terms are defined below), directly to the party charged with the collection
thereof or to such other place as Landlord may designate by notice to Tenant. in
the case of payments directly to other parties, Tenant shall, upon request of
Landlord, provide Landlord with reasonable evidence of such payment.
(b) Upon notice from Landlord, Tenant shall pay, on the first day of each
month of the Term, one twelfth (1/12) of Taxes and Insurance Premium Cost as
reasonably estimated by Landlord. Landlord shall notify Tenant of the amount of
such monthly payments. and Landlord may change the amount of such monthly
payments from time to time during the Term to more closely reflect the actual
anticipated cost thereof. On or before March 30th of each calendar year (or as
soon thereafter as Landlord deems practical). Landlord shall deliver to Tenant a
statement of Taxes and Insurance Premium Costs for the preceding calendar year,
together with such documentation as Tenant may reasonably require to confirm the
amount of such monthly payments. Landlord reserves the right, however, to
deliver such statements on a quarterly basis rather than yearly basis. If actual
Taxes and insurance Premium Costs for the immediately preceding calendar year
(or quarter. as applicable) exceeds the aggregate of the estimated monthly
payments made by Tenant for such year (or quarter. as applicable). Tenant shall
within thirty (30) days of the receipt of such statement, tender to Landlord an
amount equal to such excess as additional rent. If such aggregate of the
estimated monthly payments exceeds the actual costs therefor for such preceding
calendar year (or quarter. as applicable), then Landlord shall credit against
Tenant's next ensuing monthly installment or installments of Rent an amount
6
equal to such difference until the credit is exhausted, or at Tenant's election,
Landlord shall refund such excess to Tenant within 30 days after any such
reconciliation.
(c) Tenant covenants and agrees to pay to Landlord interest on all
installments of Fixed Rent and additional rent not paid - then due, from the due
date through the date of payment, such interest to be at the rate of three
percent (3%) plus the "Prime Rate" (as used herein, "Prime Rate" shall mean the
rate of interest per annum published from time to time by the Wall Street
journal as the prime commercial lending rate); provided, however, that Tenant
shall not pay such interest on any two (2) occasions during a calendar year
unless five (5) business days have passed after written notice of Tenant's
delinquency.
5. Maintenance and Repairs, Taxes and Operating Expenses
(a) With the exception of Landlord's structural Repair Obligation and any
other matter which this Lease expressly provides that Landlord is, or shall
remain, responsible for, this is an absolute net lease; the Fixed Rent due
Landlord hereunder being absolute net to Landlord and it is the express
agreement of the parties that (except as otherwise maybe expressly required by
this Lease) Landlord shall have no financial obligations whatsoever with respect
to the Premises during the Term. Except for those matters which this Lease
expressly provides that Landlord is, or shall remain, responsible for, Tenant
shall pay as additional rent as and when due and before the occurrence of any
late charge or :ate payment penalty, all costs and expenses of every kind
whatsoever with respect to the Premises, known, unknown, absolute, contingent,
present and future, as though Tenant were the sole owner of the Premises, and
Landlord shall have no obligation whatsoever with respect thereto. Except as
expressly set forth in this Lease, no failure of services, utility shortages or
outages, casualty, condemnation or any other matter whatsoever shall release
Tenant from its obligations to pay all Fixed Rent and additional rent under this
Lease. Except as expressly set forth in this Lease, there are no circumstances,
foreseeable or unforeseeable, under which Tenant shall be permitted or shall
7
have the right or power to abate or set off against Fixed Rent or additional
rent, or terminate this Lease. Tenant shall, however, be permitted to pursue,
judicially, remedies available to it at law or equity for a breach by Landlord
of any Landlord obligations hereunder. Without limitation to the broad
undertaking of the Tenant herein to pay for all costs and expenses of the
Premises as though Tenant were the owner thereof:
(i) Tenant covenants and agrees to discharge and pay to Landlord or its
lender (or if required by Landlord to the authority charged with the collection
thereof) before the same become delinquent and before any fine, penalty or
interest may be added for nonpayment of any and all real estate taxes with
respect to the Premises, unless Landlord shall have exercised its option to
accrue for Real Estate Taxes as set forth in Section 4 (b). "Real Estate Taxes'
or "Taxes" are defined as all real estate taxes and assessments (subject to the
qualification set forth in section 4), license or permit fees, excises, imposts
and charges of any kind that are levied or assessed against the Premises, this
Lease or the leasehold estate created hereby or any taxes which shall be levied
on the rentals of the Premises in lieu of any such real estate taxes. Taxes for
any portion of the Term shall be the amount of the real estate taxes as are
finally determined to be legally payable by legal proceedings or otherwise. if
the Real Estate Taxes for any portion of the Term are reduced after Tenant has
paid them, Tenant shall be entitled to receive all credits or refunds therefrom.
Landlord and Tenant shall each promptly furnish to the other copies of any bill
received for Real Estate Taxes. If Tenant fails to pay any Real Estate Taxes
when due, Landlord, without declaring a default hereunder and without relieving
Tenant of any liability hereunder, may, but shall not be obligated to, pay any
such Real Estate Taxes and any amount so paid by Landlord, together with all
reasonable costs and expenses incurred by Landlord in connection therewith,
shall constitute additional rent hereunder and shall be paid immediately by
Tenant to Landlord on demand with interest. Tenant's obligation to pay Real
8
Estate Taxes and any other charges hereunder which accrue during the Term shall
survive any termination of this Lease. Anything in the foregoing to the contrary
notwithstanding, Landlord shall be liable for and shall pay any fees, interest
or penalties incurred by Tenant due to Landlord's failure to promptly furnish
Tenant with a copy of any bill so received by Landlord.
(ii) Tenant covenants and agrees that it shall pay when due all charges for
all public or private utility services incurred with respect to the Premises
including, but not limited to, water, sewer, gas, light, heat and air
conditioning, telephone, electricity, cable television, trash removal, power and
other utility and communications services that are rendered to the Premises at
any time during the Term.
(iii) Tenant shall also be solely responsible for and shall pay when due
all charges for cleaning and janitorial services with respect to the Premises,
pest control and extermination services, removal of ice and snow from the
driveways and parking areas and for security services.
(iv) Except as otherwise may be expressly set forth in this Lease, Tenant
shall, at all times during the Term, maintain the premises in good condition and
repair, and consistent with the condition of such items in other first class
office buildings located in the area in which the Building is located
("Reasonably Good Condition"), and except for Landlord's structural Repair
Obligations, perform all maintenance, non-structural repairs and non-structural
replacements to the Premises, including grounds keeping, landscape maintenance,
janitorial and security services and exterior lighting necessary to keep the
Premises in Reasonably Good Condition and the parking lots, all Building
systems, sewer and septic systems, elevators, plumbing, electrical and all
heating, air-conditioning and ventilation systems and equipment, and all other
improvements which are structural components of the Land, the Building and
Appurtenances in a commercially reasonable manner and Tenant shall pay all costs
9
and expenses therefor, and except as otherwise may be expressly set forth in
this Lease, Landlord shall have no responsibility for any such repairs,
replacements and maintenance items.
Landlord shall, at its sole cost and expense, maintain in good condition
and repair throughout the Term, the major structural components of the Building
which shall be deemed to consist solely of the sub-roof, load bearing structural
steel, foundation, footings, structural roof deck (excluding the roof skin),
major repairs of a capital nature to the exterior skin of the Building, and
shall also include the repair of any and all damage caused by the maintenance or
repair of any of the above listed items, but shall exclude, without limitation,
ordinary and necessary repairs to any such items such as nonstructural cracking
of the Building skin, caulking, windows, window frames, doors, door frames,
penetrations, appearance and cosmetic matters, painting, cleaning, utility lines
(interior and exterior), parking lot and any matters resulting from the
negligence, failure to properly maintain in a commercially reasonable manner or
willful misconduct by Tenant (the preceding obligation of Landlord being
referred to herein as "Landlord's Structural Repair Obligation"). Landlord
shall, at Landlord's sole cost and expense, perform Landlord's structural Repair
Obligation so that such items are maintained in good repair and condition and
consistent with the condition of such items in other first class office
buildings located in the area in which the Building is located, and all
replacement installations shall be at least equal in quality to the quality in
place as of the date of this Lease. Landlord shall perform such repairs,
maintenance and replacements at a time and in a manner so as to minimize, to the
extent reasonably possible, any disruption of or interference with Tenant's
business or access to the Premises (although such efforts shall not obligate
Landlord to pay overtime or nighttime. weekend or holiday rates in order to
perform such work).
(v) Except for Landlord's structural Repair Obligation and all other
matters which this Lease expressly provides that Landlord remains responsible,
Tenant shall at its sole cost and expense, comply with all rules, regulations,
10
orders, laws, ordinances and legal requirements (including the Occupational
safety and Health Act, as amended) and standards issued thereunder by any
governmental authority or fire rating organization ("Laws") which affect the
Premises, Appurtenances. Land, Building, and equipment and improvements or that
require repairs, alterations, changes or additions thereto, including structural
repairs, alterations, changes or additions. All boilers and other pressure
vessel equipment, if any, shall be maintained by Tenant and repaired or replaced
(in part or whole) in accordance with current ASME standards and Code.
(vi) (A) As of the Commencement Date, Landlord represents that it has
reviewed a Phase I environmental site assessment of the Building and Land
performed during the calendar year of 1995, and to the best of Landlord's
knowledge except for those matters disclosed on' the attached Exhibit C, there
is no "Hazardous Material" in. on or under the Premises, Building or Land,
"Hazardous Material" shall mean: (1) asbestos or asbestos containing material,
(2) polychlorinated biphenyls in concentrations greater than 50 parts per
million and (3) any other material or substance, whether solid, gaseous or
liquid, which ~ay pose a present or potential hazard to human health or the
environment when improperly disposed of, treated, stored, transported, or
otherwise managed, including (a) hazardous waste identified in accordance with
section 3001 of the Federal Resource Conservation and Recovery Act of 1976, as
amended, and (b) hazardous waste or material identified by regulation of any
governmental authority regulating environmental or health matters. Tenant
acknowledges and accepts, in its "As Is, Where Is and with All Defects
Condition", asbestos containing materials known to exist in the roof flashing
material and in boiler gaskets.
(B) Except for Hazardous Materials discovered in or on the Premises due to
the acts or omissions of Landlord, or Landlord's agents, employees or
contractors or Hazardous Materials discovered subsurface of the Land beneath the
Building (unless due to the acts or omission of Tenant or its agents, employees
11
or contractors) which Landlord has retained liability therefor and which
Landlord shall cause to be removed or remediated to the extent required by and
in compliance, with all applicable Laws and in accordance with the requirements
of this section; if any Hazardous Material is discovered in or on the Premises
during the Term, Tenant shall, at its sole cost and expense, completely remove
or remediate all of such Hazardous Material strictly in accordance with all Laws
within 30 days after Tenant is notified or becomes aware of such discovery. If
Tenant discovers Hazardous Material (or is given notice thereof) in the
premises, Tenant shall give Landlord prompt notice of the same. If the removal
or remediation of such Hazardous Material cannot be completed within such 30-day
period, this period shall be extended for a reasonable additional time, provided
Tenant has commenced the removal or remediation or has commenced the process for
determining the method of such removal or remediation and the receipt of
approvals, if required, for any such removal, within 30 days after notice of
discovery and proceeds diligently thereafter to effect such removal or
remediation. If either the presence, removal or remediation of any Hazardous
Material which Landlord has retained liability for under this Lease will prevent
Tenant from carrying on its normal business operations, in Tenant's reasonable
judgment, for a period of more than 365 days, then Tenant may terminate this
Lease by giving notice to Landlord. If Landlord shall, in good faith, dispute
Tenant's determination that the presence, removal or remediation of such
Hazardous Material will prevent Tenant from carrying on its normal business
operations, in Tenant's reasonable judgment, during such 365-day period, then
Landlord shall have the right to require the matter to be arbitrated pursuant to
the arbitration provisions of Section 33 and any termination by Tenant shall not
be deemed effective until a final decision is rendered pursuant thereto. The
Rent shall abate equitably based on the practical nonavailability of any portion
of the premises for the purposes permitted by this Lease due to the presence,
removal or remediation of the Hazardous Material. Upon any such termination,
12
Tenant's obligations hereunder, including the obligation to pay Rent, shall
cease as of the date specified in the notice as though this Lease had expired by
lapse of time. Rent shall be apportioned as of the date of termination and all
prepaid Rent shall be repaid to Tenant. Each party shall provide the other
prompt notice of the discovery of Hazardous Material of which such party becomes
aware.
(C) Landlord shall indemnify Tenant and hold it harmless against any
claims, damages, losses or liabilities (including reasonable attorneys' fees)
incurred by Tenant and arising from the installation, presence or removal of
Hazardous Material which Landlord has retained liability for under this Lease
and, further, if Landlord has received from any state, federal or local
governmental authority or agency notice of a violation by Landlord of any
Hazardous Material Laws or has received an order from any such governmental
authority or agency to comply with any such Hazardous Material Laws and such
violation relates to Hazardous Material which Landlord has retained liability
for under this Lease, then if Landlord fails to remedy or to comply with any
such order, Landlord shall indemnify Tenant and hold it harmless against any
claims damages, losses or liabilities (including reasonable attorneys' fees)
incurred by Tenant as a result of Landlord's failure to so comply; provided
however, the foregoing indemnity shall not apply to (i) any substance currently
in the Premises but determined to be a Hazardous Material after the Commencement
Date or (ii) any substance installed by Landlord, its agents, contractors or
employees in or on the Premises after the Commencement Date and subsequently
determined to be Hazardous Material except insofar as any claims, damages,
losses or liabilities (including reasonable attorneys' fees) arise from the
removal thereof.
(D) Tenant represents and warrants that Tenant, its agents, contractors or
employees shall not bring, keep, store or discharge any Hazardous Material on or
in the Premises, the Building or the Land, except that Tenant shall be expressly
13
permitted to use such quantities of such Hazardous Material as is customarily
found and used in the operation of a business office or in the management of an
office building, provided the same are used in accordance with applicable Laws.
Tenant shall indemnify Landlord and hold it harmless against any claims,
damages, losses or liabilities (including reasonable attorneys' fees) incurred
by Landlord and arising from any breach of the foregoing representation and
warranty of Tenant and from the installation, presence or removal of the
Hazardous Material by Tenant, its agents, contractors or employees; provided,
however, the foregoing indemnity shall not apply to any substance installed by
Tenant, its agents, contractors or employees in or on the Premises and
subsequently determined to be Hazardous Material, except insofar as any claims,
damages, losses or liabilities (including reasonable attorneys' fees) arise from
the presence or removal thereof.
6. Services
(a) Tenant shall, at its sole cost and expense, contract directly with the
appropriate utility company or governmental entity for the following utilities,
as well as all other services necessary for Tenant's specifications and the
legal use and occupancy of the Premises:
(i) Running water.
(ii) Electricity.
(iii) Sanitary sewer service.
(iv) Natural Gas.
(b) Landlord represents that the foregoing services are available to the
Building and are adequate for general office use of the Premises.
7. Alterations and Improvements
(a) Tenant at its own expense may, without Landlord's consent, make from
time to time such nonstructural alterations, additions and improvements
("Nonstructural Alterations") in and to the Premises as it may deem necessary or
desirable; provided any such Nonstructural Alterations does not adversely affect
the base Building systems and such Nonstructural Alterations will not reduce the
14
fair market value of the Premises. Landlord shall cooperate with Tenant in
securing any necessary building and other permits, the cost thereof being borne
by Tenant. Tenant at its own expense may, with Landlord's consent, such consent
not to be unreasonably withheld, conditioned or delayed (but subject to
Landlord's rights to disapprove such alterations as provided in section 1 of the
Work Letter), make such structural alterations, additions and improvements
("Structural Alterations") in and to the Premises as it may deem necessary or
desirable provided, however, that if Landlord fails to respond to Tenant's
request for consent within 20 days, then Landlord's consent shall be deemed
approved, provided that such notice clearly states that Landlord's failure to
respond within 20 days of receipt of such notice shall constitute consent by
Landlord, and Tenant may proceed with such alterations or improvements.
Notwithstanding the foregoing, Landlord may condition the approval of Structural
Alterations upon the requirement that such alterations be removed by Tenant at
the expiration of the Term, which requirement shall be stated in writing to
Tenant at the time that Landlord gives its permission to make such alterations
and Tenant shall at its expense repair any damage to the Premises or the
Building caused by the removal. Work shall be done in good and workmanlike
manner and Tenant shall keep the Premises free of all materialmen's or
mechanic's liens in connection with any such work by Tenant and Tenant shall
maintain worker's compensation insurance for the work being performed. In
connection with Structural Alterations and nonstructural Alterations, Tenant
shall select a reputable general contractor to perform the work and Tenant
agrees to permit Landlord to submit a bid for any work costing in excess of
$50,000.00 during the first 365 days after possession of the Premises is
delivered to Tenant, however the parties understand and agree that Tenant shall
not be required to award the work to Landlord in its sole discretion.
(b) Tenant may, at its option, remove from the Premises any furniture,
furnishings, trade fixtures, business equipment or other property which are not
built into the Premises and were installed by or for Tenant at its expense
15
("Tenant's Property") Tenant at its expense shall repair any damage caused by
such removal.
8. Inspection
Landlord shall, upon advance notice to Tenant (except in an emergency),
have the right at all reasonable times to inspect the Premises, to make repairs
and improvements thereto (as expressly required or permitted in this Lease) and
to bring and place materials in the Premises related thereto and to show the
same to prospective and current mortgagees and purchasers; provided, however,
that Landlord shall use all reasonable efforts to minimize disturbance to
Tenant's use and occupancy of the Premises (although such efforts shall not
obligate Landlord to pay overtime or nighttime, weekend or holiday rates in
order to perform such work). During the last year of the Term, Landlord shall
also have the right to show the Premises to prospective tenants.
9. Casualty
(a) (i) If the Building, the Premises, or the Appurtenances are damaged by
fire or other casualty, Tenant shall provide Landlord with immediate notice and
Landlord shall promptly obtain a bid for the repair or restoration (but not with
respect to Tenant's Property) and shall deliver to Tenant notice, together with
a statement prepared by a reputable contractor or architect setting forth the
contractor's or architect's estimate, of the time required to repair the damage
(the "Repair period"), said notice being given to Tenant within 30 days after
the date of the damage (unless Landlord completes such repairs within the 30
days) . For purposes of determining the Repair period, it shall be deemed to
commence on the date of Landlord's receipt from Tenant of notice of the damage.
If the Repair period is determined to be longer than 365 days (such estimate
being referred to as the "outside Repair Period") and if such damage will
prevent Tenant's ability to carry on its business operations during the outside
Repair period as reasonably determined by Tenant, Tenant shall give Landlord
notice thereof ("Interruption Notice") within 30 days after notice of the
16
outside Repair period. If Tenant gives Landlord the Interruption Notice, either
Landlord or Tenant may elect to terminate this Lease by giving notice to the
other ("Termination Notice") within 15 days after the Interruption Notice, of a
date on which the termination shall be effective, which date shall be not less
than 30 days nor more than 90 days after the Termination Notice. If Landlord
shall, in `good faith, dispute Tenant's determination that the damage will
prevent Tenant's ability to carry on its business operations during the outside
Repair period, then Landlord shall have the right to require the matter to be
arbitrated pursuant to the arbitration provisions of Section 33 and any
termination by Tenant shall not be deemed effective until a final decision Is
rendered pursuant thereto. Upon such termination, this Lease, including the
obligation of Tenant to pay the Rent, shall cease as of the date of termination
as though by lapse of time, provided, however, that the Rent shall equitably
abate from the date of the damage.
(ii) If the Lease Is not terminated and Landlord undertakes to repair and
restore and comply with the provisions of Section 91b1 below, and the outside
Repair period is longer than 365 days, then Landlord shall deliver to Tenant
between the 90th and 120th day a statement prepared by the contractor or
architect of the time remaining to complete the repair and restoration ("Second
Repair Notice"). If the Second Repair Notice indicates that the period for
repair will extend more than 90 days after the original estimated outside Repair
period (except for delays due to Force Majeure and except that the period shall
be extended one day for each day of delay caused by Tenant's acts or omissions),
then Tenant shall have a right to terminate this Lease by notice to Landlord and
upon such termination, Tenant's obligations hereunder, including the obligation
to pay Rent, shall cease as ,of the day of such termination, provided, however,
Rent shall abate equitably for that portion of the Premises so damaged or
rendered untenantable from the date of the damage.
(b) If the Lease is not terminated: (I) the Rent shall abate for the period
the Premises are untenantable, and if a portion of the premises are tenantable,
17
Tenant shall pay the Rent for only such portion of the Premises which Tenant in
its reasonable judgment may reasonably occupy; and (ii) all repairs necessary to
restore the Premises to their original condition (subject, however, to the
limitations of law and the availability of materials) shall be: (1) commenced
within 30 days after the occurrence of such damage (obtaining plans,
specifications, estimates and permits and demolition work shall be deemed part
of Landlord's commencement); (2) performed in a diligent and workmanlike manner
with material at least consistent with that in the Building (subject, however,
to the limitations of law and the availability of materials), the Premises, and
the Appurtenances as of the date of this Lease; (3) completed by Landlord at its
expense and, to the extent practicable, with minimum interference to Tenant's
normal business operations. Anything in the foregoing to the contrary
notwithstanding, Landlord shall have no obligation to restore and repair if the
event which causes the damage or destruction is one which cannot be insured by
the policy of insurance described in Section 10 below, or if the insurance
company issuing coverage fails to fund the proceeds of the applicable policy due
to its insolvency or with respect to any claims involving Tenant; provided that
Landlord's failure to restore and repair for such reasons shall not affect
Tenant's right to terminate this Lease for failure to repair and restore as
provided in this Lease.
(c) Landlord shall carry for the benefit of Landlord, Landlord's lender and
Tenant rent loss insurance sufficient to cover the Fixed Rent and additional
rent at least equal to the real estate taxes, and operating expenses for the
prior year, payable for a period of 12 months, or such greater coverage as
Landlord may elect. Landlord shall obtain such insurance from an insurance
company licensed to do business in the State of Connecticut with one of the
following ratings: Best's rating of at least A:XII, or Moody's of at least Aa2,
or a standard and Poor's rating of at least AA. Landlord shall provide Tenant
evidence of such coverage, upon request. The cost of such insurance maintained
18
by Landlord shall be paid by Tenant to Landlord, as additional rent hereunder
(together with the cost of the other Landlord insurances described herein being
referred to as "Insurance Premium Costs"), as provided in Section 10(f).
10. Insurance and Indemnity
(a) Landlord shall, from and after the date hereof, maintain insurance
policies covering the Building and the Appurtenances against loss, damage, or
destruction caused by boiler explosion or machinery breakdown, fire and the
perils specified in the standard extended coverage endorsement, by vandalism and
malicious mischief, and by sprinkler, gas, water, steam and sewer leakage, and
shall also maintain when appropriate builder's risk insurance. Fire and extended
coverage shall equal at least 80 percent of the full replacement cost (valued at
the full replacement cost without deduction for depreciation) of the Building
and the Appurtenances, exclusive of architectural and engineering fees,
excavation, footings and foundations, but in any event sufficient to prevent
application of any coinsurance provision, and shall include an inflation guard
endorsement, or such greater coverage as Landlord shall reasonably determine.
Such policies shall provide for a deductible not greater than $10,000.00 from
any loss payable and shall contain appropriate endorsements denying Landlord's
insurers the right of subrogation against Tenant and providing Tenant 30 days
notice of cancellation. Tenant may inspect the policies upon request.
(b) Landlord shall, from and after the date hereof, maintain insurance
policies covering Landlord's liability for all claims or losses (other than
those for which liability is waived by express provision in this Lease)
resulting from any injury on the Land or Building to property or persons from
any cause whatsoever in a single limit of not less than $5,000,000.
(c) During the Term, Tenant shall keep its personal property in and about
the Premises insured against loss or damage caused by peril covered under fire,
extended coverage and all risk insurance in an amount equal to at least 80
19
percent of the full insurable value thereof. The proceeds of such insurance
shall be used only for the replacement or restoration of such personal property.
Such policies shall contain appropriate endorsements denying Tenant's insurer
the right of subrogation against Landlord and providing Landlord 30 days notice
of cancellation. Landlord may inspect Tenant's policies upon request.
Notwithstanding the foregoing, this section 10(c) shall be suspended and of no
force and effect for so long as the named Tenant or any affiliate thereof
remains a tenant hereunder. Tenant agrees that Landlord shall have no liability
or responsibility whatsoever for any damage to any person or property within the
Premises due to Landlord or its agents, employees or contractors, except to the
extent that the insurance policies listed in Sections 10(a) and (b) cover, and
then only to the extent of such coverage ("Insured Risks"); provided, however,
that Landlord shall continue to remain liable for claims and losses that are not
covered by the terms of such policies ("Uninsured Risks").
(d) During the Term, Tenant shall procure, keep in force and pay for
comprehensive general liability insurance insuring Tenant on an occurrence basis
against all claims and demands for personal liability including bodily injury,
sickness, disease and death) or damage to property which may be claimed to have
occurred from and after the time Tenant entered the Premises of not less than
$5,000,000.00 in the event of personal injury to any number of persons or damage
to property, arising out of any one occurrence. Such insurance shall provide
that it shall not be canceled or modified without at least 30 days prior written
notice to each insured named therein. Landlord may inspect the policies upon
request. Notwithstanding the foregoing, this Section 10(d) shall be suspended
and of no force and effect for so long as the named Tenant or any affiliate
thereof remains a tenant hereunder.
(e) Tenant indemnifies and agrees to hold harmless Landlord from all claims
or losses (other than those for which liability is waived by express provision
in this Lease) resulting from any injury upon the Premises to property or
20
persons due to any negligence of Tenant, its agents, employees or contractors,
Landlord indemnifies and agrees to hold harmless Tenant from all claims and
losses (other than those for which liability is waived by express provision in
this Lease) resulting from any injury in or upon the Land or the Building to
property or persons due to any negligence of Landlord, its agents, employees or
contractors, but only to the extent that such claims and losses are, or would
be, covered by the policies of insurance required to be carried by Landlord
hereunder (also "Insured Risks"); provided, however, that Landlord shall
continue to remain liable for claims and losses that are not, or would not be,
covered by the terms of such policies (also "uninsured Risks"). Neither party's
indemnification of the other party as provided in this Section 10 shall be
applicable to the extent that such claims result in whole or in part from the
negligence or the breach of this Lease by the other party, nor in any event
shall either party be liable to the other for indirect or consequential damages.
(f) The costs of all insurance pursuant to this section maintained by
Landlord for the benefit of Landlord and Tenant shall be paid by Tenant to
Landlord, as additional rent hereunder, within 30 days of a written request
therefor from Landlord to Tenant accompanied by a statement setting forth the
premium for such insurance, or as set forth in Section 4.
11. Condemnation
(a) (i) If all of the Land, the Building, the premises and the
Appurtenances shall be permanently condemned for public use, or voluntarily
transferred by Landlord to a public or quasi-public body in lieu of condemnation
(any of which occurrences is hereafter referred to as a "Taking"), this Lease
shall terminate as of the date such taking is final and the Rent shall be
adjusted to the date of termination.
(ii) If a material portion of the Building, the Premises, or the
Appurtenances shall be taken as a result of a Taking, Tenant shall provide
Landlord with immediate notice and Landlord shall promptly obtain a bid for the
21
repair or restoration and shall deliver to Tenant notice, together with a
statement prepared by a reputable contractor or architect setting forth the
contractor's or architects' estimate, of the time required to repair the damage
(the "Condemnation Repair period"), said notice being given to Tenant within 30
days after Landlord receives notice from Tenant of the Taking (unless Landlord
completes such repairs within the 30 days). For purposes of determining the
condemnation Repair period, it shall be deemed to commence on the date of the
Taking. If the condemnation Repair period is determined to be longer than 365
days ("Outside Condemnation Repair period') and if such Taking will prevent
Tenant's ability to carry on its business operations during the outside
condemnation Repair period as reasonably determined by Tenant, Tenant shall give
Landlord notice thereof ("Condemnation Interruption Notice") within 30 days
after notice of the outside Condemnation Repair Period. If Tenant gives Landlord
the Condemnation Interruption Notice, either Landlord or Tenant may elect to
terminate this Lease by giving notice to the other ("Condemnation Termination
Notice") within 15 days after the condemnation Interruption Notice, of a date on
which the termination shall be effective, which date shall be not less than 30
days nor more than 90 days after the condemnation Termination Notice. If
Landlord shall, in good faith, dispute Tenant's determination that the Taking
will prevent Tenant's ability to carry on its business operations during the
outside Repair period, then Landlord shall have the right to require the matter
to be arbitrated pursuant to the arbitration provisions of Section 33 and any
termination by Tenant shall not be deemed effective until a final decision is
rendered pursuant thereto. Upon such termination, this Lease shall terminate as
though by lapse of time, including the obligation to pay the Rent, shall cease
as of the date of termination, provided, however, that the Rent shall equitably
abate from the date of the Taking.
(iii) If the Lease is not terminated and Landlord undertakes to repair and
restore and comply with the provisions of Section 11(b) below, and the outside
22
Condemnation Repair period is longer than 365 days, then Landlord shall deliver
to Tenant between the 90th and 120th day a statement prepared by the contractor
or architect of the time remaining to complete the repair and restoration
("Second Condemnation Repair Notice"). If the Second Repair condemnation Notice
indicates that the period for repair will extend more than 90 days after the
original estimated outside Condemnation Repair Period (except for delays due to
Force Majeure and except that the Period shall be extended one day for each day
of delay caused by Tenant's acts or omissions) then Tenant shall have a right to
terminate this Lease by notice to Landlord and upon such termination, this Lease
shall be deemed terminated as though by lapse of time, including the obligation
to pay Rent as of the date of such Taking and the Rent shall abate equitably for
any portion of the Premises so damaged or rendered untenantable by the Taking.
(b) If the Lease is not terminated: (i) the Rent shall abate for the period
the Premises are untenantable, and if a portion of the premises or the portion
not so Taken are tenantable, Tenant shall pay the Rent for only such portion of
the Premises which Tenant in its reasonable judgment may reasonably occupy
(except that if Landlord, in good faith, disputes Tenant's conclusion, the
matter shall be arbitrated pursuant to the arbitration provision of Section 33
and all Rent shall continue to be paid pending the outcome thereof); and (ii)
all repairs necessary to restore the Premises (or the portion thereof remaining
following such Taking) to their original condition (subject, however, to the
limitations of law and the availability of materials) shall be (1) commenced
within 30 days after Landlord receives notice of the occurrence of such Taking
(obtaining plans, specifications, estimates and permits and demolition work
shall be deemed part of Landlord's commencement); (2) performed in a diligent
and workmanlike manner with material at least consistent with the improvements
in the Building (subject, however, to the limitations of law and the
availability of materials), the Premises, and the Appurtenances as of the date
23
of this Lease; (3) completed by Landlord at its expense and, to the extent
practicable, with minimum interference to Tenant's normal business operations.
(c) Tenant shall not be entitled to any portion of the award or settlement
resulting from the Taking. provided the same shall not result in a reduction to
Landlord's claim, Tenant shall have the right to bring a separate claim against
the Taking authority for Tenant's moving costs and the unamortized book value of
tenant improvements paid for by Tenant and not reimbursed by Landlord (and in
such case, Landlord shall have no obligations to rebuild any such tenant
improvements)
12. Default
(a) If Tenant shall default in the payment of the Rent and additional rent
(provided, however, that the first two (2) times during any calendar year,
Tenant shall not be in default of this provision and no interest shall be due
unless such failure to pay Rent continues for ten (10) days after notice thereof
from Landlord) or if Tenant shall default in the performance of any of its other
obligations under this Lease and such default shall continue for 30 days after
notice from Landlord specifying Tenant's default (except that if such default
cannot be cured within said 30-day period, this period shall be extended for a
reasonable additional time, provided that Tenant commences to cure such default
within the 30-day period and proceeds diligently thereafter to effect such cure)
or if Tenant shall file a petition commencing or a proceeding under any
bankruptcy or similar laws, or if such a proceeding is filed against Tenant and
not dismissed within 60 days after the filing thereof, or if Tenant shall be
adjudged bankrupt or shall make an assignment for the benefit of its creditors
or if the Premises or any portion thereof or any interest therein become subject
to a lien resulting from the entry of a final, non- appealable judgment against
Tenant and Tenant shall have failed to release, discharge or otherwise bond such
lien within 60 days after written notice of such lien has been given by Landlord
to Tenant but in any event prior to foreclosure of such lien, or if a receiver
24
of any property of Tenant in or upon the Premises shall be appointed in any
action, suit or proceeding by or against Tenant and is not removed within 30
days after appointment, then, in any of such events, Landlord shall have the
immediate option to:
(1) cure such default and any reasonable costs and expenses incurred by
Landlord therefor shall be deemed additional rent payable on demand; or
(2) with or without terminating this Lease, reenter the Premises and take
possession thereof from Tenant by legal proceedings or otherwise. If Landlord
takes possession of the Premises and terminates this Lease, thereafter Landlord
may recover from Tenant: (i) the worth at the time of award of any unpaid Rent
which had been earned at the time of such termination; plus (ii) the worth at
the time of award of the amount by which the unpaid Rent which would have been
earned after termination until the time of award exceeds the amount of such
rental loss Tenant proves could have been reasonably avoided (assuming that
Landlord is not required to prefer the rental of Tenant's space over other
available space in the Building); plus (iii) the worth at the time of award of
the amount by which the unpaid Rent for the balance of the term after the time
of award exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided (assuming that Landlord is not required to prefer the rental
of Tenant's space over other available space in the Building); plus (iv) at
Landlord's election, such other amounts in addition to or in lieu of the
foregoing necessary to compensate Landlord for all detriment caused by Tenant's
failure to perform its obligations under the Lease or which in the ordinary
course of things would be likely to result therefrom. The remedies for default
contained herein are in addition to and not in limitation of any rights and
remedies available to Landlord at law or equity. As used in subparagraphs (i)
and (ii) above, the "worth at the time of award" is computed by allowing
interest at the rate of 1% per month from and after the first day following the
date(s) Rent becomes due. As used in subparagraph (iii) above, the "worth at the
25
time of award" is computed by discounting such amount at the "Discount Rate"
published from time to time in The Wall Street Journal at the time of award plus
one percent (1%)
If Landlord shall re-enter the Premises and take possession from Tenant
without terminating this Lease, provided that Tenant has vacated the Premises
and is not contesting Landlord's right to possession of the premises, Landlord
will use reasonable efforts to relet the Premises and thereby mitigate the
damages which Landlord shall incur. Tenant hereby agrees that Landlord's
agreement to use reasonable efforts to relet the Premises in order to mitigate
its damages shall not be deemed to impose upon Landlord any obligation to relet
the premises (i) for any purpose other than the use permitted under this Lease,
or (ii) to any tenant who is not financially capable of performing the duties
and obligations imposed upon such tenant under the applicable lease, or (iii) to
prefer the Premises over any other space available in the Building (if this
Lease has been modified by Landlord and Tenant such that Tenant then occupies
less than the entire building). In such event. Tenant shall pay to Landlord
monthly the Rent due and payable under this Lease, less the net proceeds of any
such reletting after deducting Landlord's reasonable costs and expenses incurred
in connection with such reletting, including, without limitation, reasonable
brokerage and attorneys' fees and expenses and the reasonable costs of
alterations or repairs. Any excess proceeds from reletting shall be held by
Landlord and applied in payment of future Rent due hereunder.
(3) continue this Lease in full force and effect for so long as Landlord
does not exercise Landlord's right to terminate this Lease and Landlord may
enforce all Landlord's rights and remedies under this Lease, including the right
to recover the Rent as it becomes due.
In all events where this Lease has been terminated by Landlord, Landlord
shall use reasonable efforts to mitigate its damages in the event of Tenant's
default, but shall not be required to prefer the rental of Tenant's space over
26
other available space in the Building or to relet for any purpose other than the
use permitted under this Lease, or to any tenant who is not financially capable
of performing the obligations imposed upon such tenant under the applicable
lease.
(b) If Landlord shall default in the performance of any of its obligations
under this Lease, and such default shall continue for 30 days after notice from
Tenant specifying Landlord's default (except that if such default cannot be
cured within said 30-day period, this period shall be extended for a reasonable
additional time, provided that Landlord commences to cure such default within
the 30-day period and proceeds diligently thereafter to effect such cure),
Tenant may, without prejudice to any of its other rights under this Lease,
correct or cure such default by Landlord and invoice Landlord for the cost and
expenses incurred by Tenant therefor, and Landlord shall reimburse Tenant within
30 days following receipt of such invoice and data supporting the sum requested.
13. Holdover
Any holding over after the expiration of the Term shall be deemed and
construed to be a tenancy at sufferance with the Fixed Rent equal to 150% of
said Fixed Rent for any succeeding months of holdover and shall otherwise be on
the terms and conditions herein specified so far as applicable.
14. Assignment and Subletting
Tenant may assign this Lease or sublet the premises in whole or in part at
any time during the Term with the prior consent of Landlord (which consent shall
not be unreasonably withheld, conditioned or delayed), provided that any such
assignment or sublease shall limit use of the Premises in accordance with
Section 1(c) of this Lease and shall otherwise be in compliance with the terms
hereof to the extent applicable. In such event, Tenant shall notify Landlord
thereof, and shall provide Landlord with a copy of such assignment or sublease
and shall remain responsible for the faithful performance of all of the
covenants, terms and conditions hereof on Tenant's part to be performed. Any
27
such sublessee or assignee shall execute and deliver to Landlord, a commercially
reasonable form of Landlord consent. Landlord agrees that if Tenant assigns this
Lease and the assignee defaults under a non-monetary obligation under this Lease
and fails to cure such default within the applicable grace period. Landlord
shall not prevent Tenant from recovering possession of the Premises and curing
the assignee's default within 30 days after the expiration of the applicable
cure period under this Lease, but nothing herein shall be deemed to extend any
period for cure by more than thirty (30) days. In the case of default by such
assignee, Landlord agrees to give notice thereof to Tenant. Landlord shall have
the right to approve all signage proposed to be placed on the Premises in
connection with any such assignment or sublease (subject to the provisions of
section 19), such approval not to be unreasonably withheld.
15. Quiet Enjoyment
So long as Tenant is not in default beyond the applicable grace periods in
the payment of the Rent or in the performance of any other covenant or agreement
herein contained, Landlord covenants that Tenant may peaceably and quietly have,
hold, occupy and enjoy the premises free and clear of claims arising through
Landlord, subject, nevertheless, to the terms of this Lease.
16. Subordination
This Lease, and all of the rights of Tenant hereunder are and shall be
subordinate to (i) the lien of any mortgage which may now or hereafter affect
the Premises and to all renewals, modifications, consolidations, replacements
and extensions thereof and to any and all advances now or hereafter made
thereunder, (ii) all future ground leases of the premises, and (iii) all
encumbrances hereafter of record (each holder of such superior interest being
referred to herein as a "Mortgagee"); providing such Mortgagee executes and
delivers to Tenant a commercially reasonable nondisturbance agreement (and the
parties agree a form of nondisturbance agreement substantially similar to that
attached hereto as Exhibit H is a reasonable form thereof). Landlord shall be
28
responsible for any fees charged by Mortgagee in connection with Mortgagee's
review and approval of an amendment to this Lease. In confirmation of such
subordination, within ten (10) days next following Landlord's request, Tenant
shall execute and deliver such certificate in recordable form. In the event that
Tenant shall fail or refuse to execute such certificate or document within the
aforesaid time period, then Landlord shall send Tenant a second request therefor
(Second Request). If Tenant fails to deliver such certificate or document within
5 days after Tenant's receipt of the Second Request then Tenant's failure to do
so within such 5-day period shall be an event of default, and without limitation
to Landlord's remedies for Tenant's defaults hereunder, Tenant hereby appoints
the Landlord as its attorney-in-fact, coupled with an interest, to execute the
same on behalf of Tenant, agrees that such appointment shall be binding upon
Tenant, and further agrees to hold Landlord harmless of and from any and all
liability or loss which the Landlord may sustain by reason of Tenant's failure
to execute said certificate or document.
Tenant agrees to give to any Mortgagee by certified mail, return receipt
requested. or by reputable overnight courier, a copy of any notice of default
served upon the Landlord, provided that prior to such notice Tenant has been
notified in writing (by way of Notice of Assignment of Rents and Leases, or
otherwise delivered to Tenant pursuant to the notice provisions hereof) of the
address of such Mortgagee. `Tenant further agrees that if Landlord shall have
failed to cure such default within the time permitted therefor, then such
Mortgagee shall have an additional thirty (30) days within which to cure such
default or if such default cannot reasonably be cured within that time, then
such reasonable additional time as may be necessary to cure such default
providing that within such thirty (30) days, such lender has commenced and is
diligently pursuing the remedies necessary to cure such default, in which event
this Lease shall not be terminated while such remedies are being so diligently
pursued.
29
If the Mortgagee or any other party shall succeed to the rights of the
Landlord under the Lease, then at the request of such party so succeeding to
Landlord's rights, Tenant shall attorn to and recognize such successor landlord
as Tenant's landlord under this Lease providing such successor shall recognize
Tenant's rights under this Lease, subject to the limitation of any
subordination, nondisturbance and attornment agreement between the parties, and
shall, within fifteen (15) days next following such landlord's request, execute
and deliver any commercially reasonable instrument that such successor landlord
may reasonably request to evidence such attornment. In the event that Tenant
shall fail or refuse to execute such instrument within the aforesaid time
period, then such landlord shall send Tenant a Second Request therefor). If
Tenant fails to deliver such instrument within such 5-day period, then Tenant
hereby appoints Landlord as its attorney-in-fact, coupled with an interest to
execute the same on behalf of Tenant, and agrees that such instrument shall be
binding upon Tenant, and further agrees to hold Landlord harmless of and from
any and all liability or loss which Landlord may sustain by reason of Tenant's
failure to execute said instrument. Upon such attornment, this Lease shall
continue in full force and effect as if it were a direct Lease between the
successor landlord and Tenant upon all of the terms conditions and covenants as
are set forth in this Lease and shall be applicable after such attornment;
subject, however, to the limitations of any non-disturbance agreement between
the parties, if any.
17. Rules and Regulations
Tenant shall abide by and observe the rules and regulations attached hereto
as Exhibit_7, as well as such other reasonable rules and regulations as may be
promulgated from time to time by Landlord for the operation, safety, security
and maintenance of the Building, the same being in conformity with common
practice and usage in similar buildings and not inconsistent with the provisions
of this Lease.
18. Estoppel Certificate
30
Tenant shall, at any time and from time to time, upon not less than 15
business days prior notice from Landlord, deliver to Landlord a commercially
reasonable estoppel certificate. Tenant agrees the estoppel certificate attached
hereto as Exhibit K is a commercially reasonable estoppel certificate. Landlord
shall, at any time and from time to time upon not less than 15 business days
prior notice from Tenant, deliver to Tenant an estoppel certificate, in
substance and form similar to that described above, relative to the status of
this Lease and any ground lease, underlying lease or mortgage encumbering the
Building or Land.
19. Change of Name
Landlord shall not change the name of the Building or Premises without
Tenant's consent. If Landlord proposes a change to the name of the Building or
the exterior signs affixed to the Building or the Land, Landlord shall notify
Tenant at least 60 days prior to the date of the proposed change. If the
proposed new name or sign identifies, or in Tenant's reasonable judgment may be
associated with, a competitor of Tenant and Landlord denies Tenant's written
request, made within 30 days after notification of the proposed change, not to
use the proposed name or install the new sign, Tenant shall have the right and
power to obtain injunctive relief requiring Landlord to alter the name of the
Building so as to not violate the provisions hereof. This Section 19 shall only
be effective for so long as the named Tenant or its affiliate is a tenant under
this Lease.
20. Mechanics' Liens
Tenant shall promptly discharge by payment, bond or otherwise, mechanics'
liens filed against the Premises for work, labor. services or materials claimed
to have been performed at or furnished to the Premises for or on behalf of
Tenant, except when the mechanics' liens are filed by a contractor,
subcontractor, materialman or laborer of Landlord, in which event Landlord shall
discharge the liens by payment, bond or otherwise. If, however, Tenant notifies
Landlord in writing that Tenant desires to contest the same, Tenant shall not be
required to discharge such lien, so long as no forfeiture or foreclosure of
31
Landlord's or Tenant's interests occurs and Landlord shall not be placed in
default of any mortgage encumbering title to the Premises, but shall diligently
prosecute the contest thereof to final judgment and decision, and shall pay any
judgment that may be rendered on account thereof, and shall cause the Premises
to be freed and discharged from any lien or charge adjudged against the same.
21. Extension
Provided the Tenant shall not be in default hereof beyond any applicable
grace period as of the date of exercise or the date of commencement of the
Extended Term, Tenant shall have the right to extend the Term for an additional
period of 5 years, upon the same terms and conditions contained herein, except
that the Fixed Rent during the Extended Term shall be $1,298,307.24 per annum,
payable in monthly installments in the amount of $108,192.27 by giving notice of
its intention to extend to Landlord at least 12 months prior to the Expiration
Date, and thereupon the original Term and the Expiration Date shall be so
extended without any further action by either party.
22. Intentionally Omitted.
23. Intentionally Omitted.
24. Intentionally Omitted.
25. Intentionally Omitted.
26. Attachments
Exhibits A, B, D, F, C, H, I. J and K are attached to this Lease and made a
part hereof.
27. Notices
All notices, demands or other communications ("notices") permitted or
required to be given hereunder shall be in writing and, shall be deemed given on
the date of actual receipt. Notices shall be addressed as follows: (a) if to
Eight Farm Springs Road Associates, LLC, 2150 Post Road, Fairfield, Connecticut
06430 with a copy to Edward Savides at P.O. Box 3097, Springfield, Massachusetts
01101-3097 (or for overnight delivery to Edward Savides at 1709 Page Boulevard,
Springfield, Massachusetts 01104) and (b) if to Tenant, to Hartford Fire
32
Insurance Company, Hartford plaza, Hartford, Connecticut 06115 Attention:
Corporate Real Estate Department, with a copy mailed to Tenant at the Premises.
Landlord and Tenant may from time to time by notice to the ocher designate such
other place or places for the receipt of future notices. The inability to
deliver because of a changed address of which no notice was given or rejection
or other refusal to accept any notice shall be deemed to be the receipt of the
notice as of the date of such inability to deliver or rejection or refusal to
accept.
28. Miscellaneous
(a) The language of this Lease shall be construed according to its normal
and usual meaning and not strictly for or against either Landlord or Tenant.
(b) No remedy or election given by any provision in this Lease shall be
deemed exclusive unless so indicated, but each shall, wherever possible, be
cumulative in addition to all other remedies in law or equity which either party
may have arising out of the default of the other party and failure to cure such
default within the applicable grace period.
(c) Failure of either party to cure a default of the other under this Lease
shall not render such non-defaulting party in any way liable therefor, or
relieve the defaulting party from any of its obligations hereunder.
(d) The acceptance of possession of the premises by Tenant shall not be
deemed a waiver of any of the obligations under this Lease to be performed by
Landlord.
(e) Landlord hereby covenants that, subject to the terms of this Lease,
Tenant may deal with any person, firm or corporation for services, supplies,
materials, labor, equipment, transportation, tools, machinery and any other
similar or dissimilar services or items in connection with the use and
occupation of the Premises and any work performed therein.
(f) Intentionally Omitted.
(g) Intentionally Omitted.
33
(h) Subject to Section 7, upon any termination or expiration of this Lease,
Tenant shall surrender the Premises in Reasonably Good Condition, except for
that degree of wear and tear occurring in the ordinary course of operating the
Building for extended hours with all appropriate commercially reasonable
maintenance and repair maintained throughout the Term, damage caused by any
casualty and matters which Landlord has retained express liability under this
Lease.
(i) Intentionally Omitted.
(j) If any clause or `provision of this Lease is or becomes illegal,
invalid, or unenforceable because of present or future laws or any rule or
regulation of any governmental body or entity, effective during the Term, the
intention of the parties hereto is that the remaining parts of this Lease shall
not be affected thereby.
(k) As used in this Lease, any list of 1 or more items preceded by the word
"including" shall not be deemed limited to the stated items but shall be deemed
without limitation,
(1) This Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective executors, heirs, representatives,
successors and permitted assigns.
(m) This Lease contains the entire agreement of the parties and may not be
modified except by an agreement in writing signed by both parties.
(n) The captions appearing within the body of this Lease have been inserted
as a matter of convenience and for reference only and in no way define, limit or
enlarge the scope or meaning of this Lease or of any provision hereof.
(o) This Lease has been executed in several counterparts, all of which
constitute one and the same instrument.
(p) Landlord and Tenant shall be excused for the period of any delay in the
performance of any obligation hereunder when prevented from so doing by an event
of "Force Majeure". Force Majeure shall mean any cause beyond its control,
including acts of God, labor disputes, civil commotion, hostilities, sabotage,
34
governmental regulations or controls, fire or other casualty, inability to
obtain any material or services (except those due to failure to timely order, or
due to improper scheduling of work), accidents (provided such accidents are not
due to such party's negligence), but excepting therefrom both the inability to
obtain financing and any other matter which can be corrected by the payment of a
commercially reasonable sum of money. In no event, however, shall an event of
Force Majeure be deemed to exceed 90 days. Neither party shall be entitled to
rely upon this Section unless it shall give the other party notice of the
existence of an event of Force Majeure preventing its performance of its
obligation hereunder within a reasonable period of time after the commencement
of the event of such Force Majeure.
(q) Either Landlord or Tenant shall, at the request of the other, execute a
Memorandum or Notice of Lease in recordable form in substantially the same form
as Exhibit I attached specifying the date of this Lease and such other
information as may be required by statute. Either Landlord or Tenant may at its
expense record said Memorandum or Notice of Lease.
(r) The use of the neuter singular pronoun to refer to either party shall
be deemed a proper reference even though it may be an individual, partnership,
corporation or a group of 2 or more individuals or corporations. The necessary
grammatical changes required to make the provisions of this Lease apply in the
plural number where there is more than 1 Landlord or Tenant and to either
corporations, associations, partnerships or individuals, males or females, shall
in all instances be assumed as though in each carefully expressed.
(s) In any action or proceeding which Landlord or Tenant may be required to
prosecute to enforce its respective rights hereunder, the unsuccessful party
agrees to pay all costs incurred by the prevailing party therein, including
reasonable attorneys' fees.
35
(t) Tenant may install Tenant's name and suite numerals at the main
entrance door to the Premises in conformance with the Building standard.
(u) Time shall be of the essence in this Lease with respect to the payment
of all monies by one party to the other and as to the exercise of any options to
extend the Term of this Lease granted herein by Landlord to Tenant.
29. Brokerage Fees
Landlord and Tenant each represent and warrant each to the other that they
have only dealt with Colliers, Dow & Condon, Inc. (representing Landlord) and
Farley Whittier Partners (representing Tenant) in connection with this Lease and
each party indemnifies and shall defend the other party from any claims,
expenses, liabilities, and losses (including reasonable attorneys' fees)
resulting from any breach of the foregoing representation and warranty.
30. Transfer by Landlord
In the event Landlord shall transfer or assign or otherwise dispose of its
interest in the Premises or in this Lease, Landlord shall thereupon be released
and discharged from, any and all liabilities and obligations under this Lease
(except those accruing prior to such transfer, assignment or other disposition)
and such liabilities and obligations thereafter accruing shall be binding upon
the assignee of Landlord's interest under this Lease.
31. Landlord's Liability
Landlord shall have no personal liability with respect to any of the
provisions of this Lease. If Landlord is in default with respect to its
obligations under this Lease, Tenant shall look solely to the equity of Landlord
in and to the Premises for satisfaction of Tenant's remedies, if any. It is
expressly understood and agreed that Landlord's liability under the terms of
this Lease shall in no event exceed the amount of its interest in and to said
Premises. In no event shall any partner of Landlord nor any joint venturer in
Landlord, nor any officer, director, member, agent or shareholder of Landlord or
any such partner, member or joint venturer of Landlord be personally liable with
36
respect to any of the provisions of this Lease.
32. Applicable Law
This Lease shall be construed under and enforced in accordance with the
laws of the State of Connecticut.
33. Arbitration
Unless otherwise expressly set forth herein and expressly excluding summary
process proceedings, every dispute between the parties with respect to this
Lease shall be determined by arbitration in the manner provided in this
Subsection.
The party requesting arbitration shall do so by giving written notice to
that effect to the other party (the "Arbitration Notice"). The Arbitration
Notice shall specify the name and address of the person designated to act as an
arbitrator on its behalf. Within ten (10) days after the service of the
Arbitration Notice, the other party shall give notice to the first party
specifying the name and address of the person designated to act as an arbitrator
on its behalf. If the second party fails to notify the first party of the
appointment of its arbitrator, as aforesaid, within the time above specified,
then the appointment of the second arbitrator shall be made in the same manner
as hereinafter provided for the appointment of a third arbitrator in a case
where the two arbitrators appointed hereunder and the parties are unable to
agree Upon such appointment. If, within ten (10) days after the second
arbitrator is appointed, the two arbitrators shall not have determined the
dispute, they shall together appoint a third arbitrator. In the event of their
being unable to agree upon such appointment within fifteen (15) days after the
appointment of the second arbitrator, the third arbitrator shall be selected by
the parties themselves if they can agree thereon within a further period of ten
(10) days. If the parties do not so agree, then either party, on behalf of both
or on notice to the other, may request such appointment' by the American
Arbitration Association, or any successor organization thereto in accordance
with its rules then prevailing. If the American Arbitration Association, or such
37
successor organization, shall fail to appoint a third arbitrator within ten (10)
days after such request is made, then either party may apply on notice to the
other, to the Superior Court for Hartford County, Connecticut, or to any other
court having jurisdiction and exercising functions similar to those now
exercised by said court, for the appointment of such third arbitrator, and the
other party shall not raise any question as to such court's full power and
jurisdiction to entertain the application and make the appointment. Each
arbitrator chosen or appointed pursuant to this Section shall be a disinterested
person having at least ten (10) years experience in the State of Connecticut in
a calling connected with the dispute.
Arbitration shall be conducted by three arbitrators appointed in accordance
with the provisions hereof and, to the extent consistent with this Section. in
accordance with the then prevailing rules of the American Arbitration
Association, or any successor organization thereto, for Hartford County. The
arbitrators have the right to retain and consult experts and competent
authorities skilled in the matters under arbitration. The arbitrators shall
render their decision and award, upon the concurrence of at least two of their
number, within thirty (30) days after the appointment of the third arbitrator or
fifteen (15) days after the final hearing of the arbitrators, whichever is
later. Such decision and award shall be in writing and counterpart copies
thereof shall be delivered to each of the parties. In rendering such decision
and award, the arbitrators shall not add to, subtract from or otherwise modify
the provisions of this Lease. Judgment may be entered on the determination and
award made by the arbitrators in any court of competent jurisdiction and may be
enforced in accordance with the laws of the State of Connecticut.
If for any reason `whatsoever the written decision and award of the
arbitrators shall not be rendered within the time limits set forth in this
Section, but in any case no later than 180 days following the Arbitration
Notice, either party may apply to the Superior Court for Hartford County,
Connecticut, or to any other court having jurisdiction and exercising the
38
functions similar to those now exercised by such court, by action, proceeding or
otherwise (but not by a new arbitration proceeding) as may be proper to
determine the question in dispute consistently with the provisions of this
Lease.
Each party shall pay the fees and expenses of the one of the two original
arbitrators appointed by or for such party and the fees and expenses of the
third arbitrator and all other expenses of the arbitration shall be borne by the
parties equally. However, each party shall bear the expense of its own counsel,
experts and presentation of proof.
Notwithstanding anything to the contrary elsewhere provided in this Lease,
if the subject matter of a dispute which is provided in this Lease to be
determined by arbitration is one which would directly affect the liability of an
insurer under any of the policies of insurance referred to herein or a Mortgagee
and, the party which is the insured under such policy or is the mortgagor to
such Mortgagee so notifies the other party, then unless such insurer or
Mortgagee gives its written consent to the determination of such matter by
arbitration pursuant to the provisions of this Lease, the dispute shall not be
determined by arbitration and the parties shall be left to such other remedies
as they may have.
IN WITNESS WHEREOF, the parties have executed or caused to be executed this
Lease.
(TENANT) (LANDLORD)
HARTFORD FIRE INSURANCE COMPANY EIGHT FARM SPRINGS ROAD
ASSOCIATES, L.L.C.
By: /s/ Peter L. Holland By: /s/ Edward Savides
----------------------------- --------------------------
Peter L. Holland Edward Savides
Its Assistant Vice President Its Member
By: /s/ Anthony F. Izzo
---------------------------
Anthony F. Izzo
Its Member
39
[EXHIBITS INTENTIONALLY OMITTED]
40
FIRST LEASE AMENDMENT
This First Lease Amendment (Amendment) is made as of July 2, 1997 between
EIGHT FARM SPRINGS ROAD ASSOCIATES, L.L.C. (Landlord) and HARTFORD FIRE
INSURANCE COMPANY (Tenant).
RECITALS:
Landlord and Tenant entered into a lease dated as of November 15, 1996
(Lease) for certain premises known as 8 Farm Springs Road, Farmnington,
Connecticut (Building).
The parties desire to amend the Lease, subject to the terms hereof.
Any capitalized term used herein and not otherwise defined herein shall
have the same meaning given to it in the Lease.
NOW THEREFORE, the parties agree as follows:
1. The parties acknowledge that Hartford Fire Insurance Company, as
assignee of Landlord's right, title and interest in and to that certain lease
dated August 27, 1996 between Eight Farm Springs Road Associates, LLC and
Nationwide Mutual Insurance Company for space in the Building (Nationwide
Lease), terminated the Nationwide Lease effective December 19, 1996, and all
references to the Nationwide Lease and provisions relating thereto are deemed
deleted and of no further force or effect.
2. The Expiration Date (as defined in Section 2 of the Lease) shall be
extended to August 31, 2012. The Original Term (as defined in Section 2 of the
Lease) shall be amended to end on August 31, 2012.
3. Section 4(a) of the Lease shall be modified as follows:
(a) The reference to "1709 Page Boulevard, Springfield, Massachusetts
01104" for delivery of overnight courier packages is deleted and "do ESCO
Realty, Inc., 330 Whitney Avenue, Suite 450, Holyoke, Massachusetts 01040" is
inserted in lieu thereof
(b) The rent schedule set forth in Section 4(a) of the Lease shall be
modified as follows
Fixed Rent Monthly Installments
Lease Period Per Annum of Fixed Rent
------------ ---------- --------------------
1/1/97-8/31/97 $ 975,345.24 $ 81,278.77
9/1/97-8/31/98 1,838,730.32 153,227.53
Fixed Rent Monthly Installments
Lease Period Per Annum of Fixed Rent
------------ ---------- --------------------
9/1/98-8/31/99 $1,871,026.52 $155,918.88
9/1/99-8/31/00 1,903,322.72 158,610.23
9/1/00-8/31/01 1,935,618.92 161,301.58
9/1/01-8/31/02 1,967,915.12 163,992.93
9/1/02-8/31/03 2,000,211.32 166,684.28
9/1/03-8/31/04 2,032,507.52 169,375.63
9/1/04-8/31/05 2,064,803.72 172,066.98
9/1/05-8/31/06 2,097,099.92 174,758.33
9/1/06-8/31/07 2,129,396.12 177,449.68
9/1/07-8/31/08 2,161,692.32 180,141.03
9/1/08-8/31/09 2,193,988.52 182,832.38
9/1/09-8/31/10 2,226,284.72 185,523.73
9/1/10-8/31/11 2,258,580.92 188,215.08
9/1111-8/31/12 2,290,877.12 190,906.43.
4. At the end of Section 20 add: "In addition, Tenant shall, upon request
of Landlord but not more than 2 times per 12-month period (or if more are
requested, then Landlord shall pay Tenant its reasonable costs to process such
requests (which costs may include the costs attributable to in-house counsel),
execute and deliver to Landlord, Landlord's title insurance company's standard
owner's affidavit with respect to parties in possession and the absence of facts
which could give rise to mechanics liens, but subject to the reasonable
modifications of Tenant; provided such modifications do not result in such title
company reasonably refusing to delete the tenant (but subject to Tenant's
possession of the Property, or any assignee or subtenant's possession of the
Property as may be permitted under the Lease)) and mechanics liens exceptions in
such policy of title insurance, or increasing the premium therefor (unless
Tenant agrees to pay for any increase in the premium attributable to Tenant's
modifications), If Tenant has caused work to be performed or materials to be
supplied to the Premises within the applicable mechanics lien period (currently
90-days) preceding Landlord's request and Tenant is unable to certify as to the
absence of such work or materials within such period, then at Landlord's request
Tenant shall enter into an indemnity or other agreement with such title company
which is reasonably acceptable to such title company so as to allow such title
insurance company to insure over and thus delete from the policy any exception
for mechanic's liens, with such indemnity or other agreement being reasonably
2
acceptable to Tenant in form and substance."
5. Delete Section 21 of the Lease and substitute: "Provided Tenant is not
in default of this Lease beyond any applicable grace period as of the date of
exercise or the date of commencement of the Extended Term, Tenant may extend the
Original Term for a further term of 10 years at a Fixed Rent equal to the market
rental rate for the Premises and otherwise upon the same terms and conditions
contained herein, by giving notice to Landlord of its intention to extend at
least 12 months prior to the Expiration Date. Determination of the market rental
rate shall include, without limitation, consideration of: the reputation and
creditworthiness of Tenant; the location, size and as-is condition of the
Premises and the lack of added inducements; the amount of the brokerage
commission payable on the extension; and the manner for paying taxes, operating
costs, electricity and repair and maintenance obligations remaining the same;
for these purposes also, the market shall be other comparable first class office
buildings in the area in which the Building is located (the. "Market Rental
Rate"). Pursuant to this option and not later than 15 months prior to the
Expiration Date, Tenant shall request Landlord's designation of the Market
Rental Rate for the Extended Term (such designation, when received, hereinafter
referred to as the "Rate Notice") and Tenant may extend the Term based on the
Market Rental Rate set forth in the Rate Notice. Landlord shall designate the
Market Rental Rate within 30 days of Tenant's request therefore and the parties
shall, not later than 30 days after Tenant's receipt of the Market Rental Rate,
negotiate the Market Rental Rate. if the parties agree on the Market Rental Rate
within such 30-day period, the parties shall promptly thereafter execute an
agreement modifying the Fixed Rent, the Expiration Date and all other necessary
terms. If the parties are unable to agree on the Market Rental Rate within such
30-day period, then this Lease shall terminate on the original Expiration Date
as if the Rate Notice was never given, Tenant shall have no further option to
extend the Term and the Term shall terminate as provided in this Lease;
provided, however, if Tenant disapproves the Market Rental Rate, Tenant can
avoid termination of this option by giving Landlord notice (Appraisal Notice)
not later than 15 days after the expiration of the 30-thy period that Tenant
elects to determine the Market Rental Rate by appraisal. The appraisal shall be
made as follows:
(a) The Appraisal Notice must contain the name of the appraiser appointed
by Tenant to determine the Market Rental Rate. Within 15 days after Landlord
3
receipt of the Appraisal Notice, Landlord shall give Tenant notice of the name
of the appraiser appointed by Landlord to determine the Market Rental Rate. The
two appraisers so appointed shall promptly appoint a third appraiser; if they
fail to appoint such third appraiser within 15 days after they receive notice of
their joint appointment, then either Landlord or Tenant, upon notice to the
other, may request the assignment of a third appraiser by the then President of
the local chapter of the American Institute of Real Estate Appraisers. All
appraisers shall have at least 10 years experience and be familiar with
commercial office rentals in buildings comparable to the Building which are
located in the area in which the Building is located.
(b) The 3 appraisers shall jointly establish the Market Rental Rate within
30 days after the appointment of the third appraiser and if they cannot agree,
the average of the 2 closest estimates will be accepted by the parties as the
Market Rental Rate, unless the avenge of all 3 estimates equals one of the 3
estimates, in which case such average estimate shall be accepted by the parties
as the Market Rental Rate.
(c) if Landlord fails to appoint an appraiser within the period permitted
above, then the appraiser appointed by Tenant shall have the power to proceed as
sole appraiser to establish the Market Rental Rate.
(d) Landlord and Tenant shall each pay the fees of the appraiser appointed
by it and one-half of the fees of the third appraiser and the general expenses
of the appraisal except that Tenant may elect to reject the Market Rental Rate,
and if Tenant does so reject, then Tenant shall pay the fees of all three
appraisers and the general expenses of the appraisal.
(e) After determination of the Market Rental Rate, the parties shall
execute an agreement, in form reasonably satisfactory to both, modifying the
Expiration Date, the Fixed Rent, the Monthly Installments of Fixed Rent and all
other relevant mailers."
6. Section 27 of the Lease is hereby amended by deleting the reference
therein to "1709 Page Boulevard, Springfield, Massachusetts 01104" and inserting
in lieu thereof the following: "do ESCO Realty, Inc., 330 Whitney Avenue, Suite
450, Holyoke, Massachusetts 01040".
7. In Exhibit D of the Lease:
4
(a) Delete the last sentence of Section 1(b); and
(b) At the end of Section 3 add: "Tenant acknowledges receipt from Landlord
of the sum of One Million Five Hundred One Thousand Four Hundred Sixty-Three
Dollars and eight cents ($1,501,463.08)(the Initial Sum). Provided that Tenant
shall not be in material default hereunder beyond any applicable grace period,
in consideration for Tenant's entering into this Amendment, Landlord shall pay
to Tenant, on or before September 1, 1997 (or if Tenant shall be in material
default hereunder on September 1, 1997, then on the fifth business day after
Landlord after Tenant has cured such default and Landlord has received notice
from Tenant that such default has been cured), such date of payment being
hereinafter referred to as the "Payment Date", an additional sum of Seven
Million Five Hundred Fifty-Six Thousand Five Hundred Twenty-One Dollars and no
cents ($7,556,521.00)(the Additional Sum)."
8. Add new Section 4 to Exhibit D of the Lease: "Tenant desires to
construct a parking garage at the rear of the Property containing at least one
hundred fifty (150) additional parking spaces and consisting of at least a
one-story above ground parking deck (Parking Garage). Tenant shall construct the
Parking Garage substantially in accordance with the terms of this Work Letter as
modified herein and except that Sections 1 and the portion of 3 attributable to
the Initial Allowance shall not be applicable, and the Architect shall be an
reputable architect, licensed in the State chosen by Tenant and approved by
Landlord, If Tenant shall determine that it cannot or chooses not to construct
the Parking Garage, then Tenant shall pay Landlord the sum of $560,000.00 (the
Tenant Payment) on September 1, 1998. If Tenant has elected to construct the
Parking Garage and the construction of the Parking Garage has not been
substantially completed by January 1, 1999 (as such date shall be delayed one
thy for each thy of delay due to Landlord or events of Force Majeure; provided
that such events of Force Majeure shall not be deemed limited to 90 days and
events of Force Majeure shall be deemed to include delays in obtaining all
appropriate permits, approvals and licenses from the appropriate governmental
authorities for the Parking Garage), then Tenant shall deliver the Tenant
Payment to Landlord on January 1, 1999 (as such date may be extended in
accordance with this Section), increased by interest accrued on such sum at 9
percent per annum for the period from September 1, 1998 through the date that
such payment is received by Landlord; provided, however, if Tenant has commenced
such construction by such date and is diligently pursuing the same to completion
5
on such date, then Landlord shall extend such date for reasonable additional
time to enable Tenant to substantially complete such construction."
9. This Amendment is conditioned upon Tenant's receipt of the Additional
Sum on or before the Payment Date. If Landlord fails to deliver the Additional
Sum to Tenant by such date then this Amendment shall be null and void and of no
force or effect whatsoever.
10. Delete Exhibit K attached to the Lease and substitute Exhibit K
attached hereto.
11. This Amendment shall be binding upon the parties, and their respective
heirs, successor and assigns, as the case may be.
12. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original.
13. This Amendment contains the entire understanding of the parties with
respect to the matters contained herein. There are no representations,
warranties, promises, covenants or undertakings other than those expressly set
forth herein. This Amendment may not altered or modified except by a writing
executed by the parties hereto.
14. This Amendment shall be governed in all respects by and construed in
accordance with laws of the State of Connecticut.
15. Except as modified herein, the Lease is ratified and confirmed and
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment.
(Landlord) (Tenant)
EIGHT FARM SPRINGS ROAD HARTFORD FIRE INSURANCE COMPANY
ASSOCIATES, L.L.C.
By /s/ Anthony Izzo By /s/ Peter L. Holland
--------------------------------- -----------------------------
Anthony Izzo Peter L. Holland
Its Member Its Assistant Vice President
By /s/ Edward Savides
---------------------------------
Edward Savides
Its Member
[Consent of Mortgagee appears on the next page]
6
Agreed:
AETNA LIFE INSURANCE COMPANY
By
--------------------------------
- -----------------------------------
[Print Name]
Its
--------------------------------
[Title]