Exhibit 10.3
OFFICE LEASE AGREEMENT
SHORT FORM LEASE
THIS OFFICE LEASE AGREEMENT (the "LEASE") is made and entered into as of
the 29 day of January 2004, by and between CT-STAMFORD ATLANTIC FORUM, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("LANDLORD") and CLEAN DIESEL TECHNOLOGIES,
INC., A DELAWARE CORPORATION ("TENANT"). Pursuant to the terms of this Lease,
Landlord agrees to lease the Premises (hereinafter defined) to Tenant and Tenant
agrees to lease the Premises from Landlord. The Lease includes the following
exhibits and attachments: EXHIBIT A (Outline and Location of Premises), EXHIBIT
B (Expenses and Taxes), EXHIBIT C (Work Letter), EXHIBIT D (Building Rules and
Regulations), EXHIBIT E (Additional Provisions) and EXHIBIT F (Outline and
Location of Temporary Space).
1. BASIC LEASE INFORMATION
1.01 "BUILDING" shall mean the building located at 300 Atlantic Street,
Stamford, Connecticut 06901, commonly known as 300 Atlantic Street. "RENTABLE
SQUARE FOOTAGE OF THE BUILDING" is deemed to be 272,458 square feet. "PROPERTY"
shall mean the Building and the parcel(s) of land on which it is located.
"COMMON AREAS" shall mean the portion of the Building and Property that are
designated by Landlord for the common use of tenants and others.
1.02 "PREMISES" shall mean the area shown on EXHIBIT A to this Lease. The
Premises are located on the 7th floor and known as suite number 702. The
"RENTABLE SQUARE FOOTAGE OF THE PREMISES" is deemed to be 3,928 square feet.
1.03 "BASE RENT":
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PERIOD OR MONTHS OF TERM ANNUAL RATE PER SQUARE FOOT MONTHLY BASE RENT
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04/01/04 - 03/31/09 $ 29.50 $ 9,656.33
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1.04 "TENANT'S PRO RATA SHARE": 1.4417%. Tenant shall pay Tenant's Pro
Rata Share of Taxes and Expenses in accordance EXHIBIT B of this Lease
1.05 "BASE YEAR" for Taxes (as defined in EXHIBIT B): 2004; "BASE YEAR"
for Expenses(as defined in EXHIBIT B: 2004.
1.06 "TERM": A period of 60 months. Subject to Section 2, the Term shall
commence on April 1, 2004 (the "COMMENCEMENT DATE") and, unless terminated early
in accordance with this Lease, end on March 31, 2009 (the "TERMINATION DATE").
1.07 "SECURITY DEPOSIT": $19,967.00.
1.08 "BROKER": None.
1.09 "PERMITTED USE": general office use.
1.10 "NOTICE ADDRESSES":
Landlord: Tenant:
CT-Stamford Atlantic Forum, L.L.C. ____________________________
c/o Equity Office ____________________________
One Canterbury Green ____________________________
Stamford, Connecticut 06901 ____________________________
Attention: Property Manager ____________________________
A copy of any notices to Landlord shall be sent to Equity Office, Two
North Riverside Plaza, Suite 2100, Chicago, IL, 60606, Attn: New York
General Counsel
1.11 "LANDLORD WORK" means the work that Landlord is obligated to perform
in the Premises pursuant to a separate work letter agreement (the "WORK LETTER,
") attached to this Lease as EXHIBIT C.
1.12 Notwithstanding anything to the contrary contained in Article 6 of
this Lease, all electricity consumed by Tenant in the Premises shall be paid for
by Tenant as Additional Rent in accordance with the terms of this Lease. During
each calendar year, or portion thereof, falling within the Term, Tenant shall
pay to Landlord a Premises Electric Charge (hereinafter defined) of $1.75 per
square foot per annum (i.e. assuming 3,928 square feet, the Premises Electric
Charge would be $572.83 per month/$6,874.00 per annum). The Premises Electric
Charge may be adjusted from time to time as provided hereinafter, provided,
however that in no event shall the Premises Electric Charge be reduced below the
annual per square foot amount stated above. For the purposes of this Lease, the
term "PREMISES ELECTRIC CHARGE" shall mean the amount determined by applying the
estimated connected electrical load and usage thereof in the Premises (as
initially estimated by Landlord or thereafter determined by the electrical
consultant) to the rate charged for such load and usage in the service
classification in effect from time to time pursuant to which Landlord then
purchased electric current for the entire Building. If the cost to Landlord of
electricity shall have been, or shall be, increased subsequent to the
Commencement Date (whether by change in Landlord's electric rates, charges, fuel
adjustment, or service classification, or by taxes or charges of any kind
imposed thereon, or for any other such reason), then the Premises Electric
Charge shall be increased in the same percentage. Landlord's electrical
consultant may from time to time conduct surveys in the Premises covering the
electrical equipment and fixtures and use of current therein, and, based upon
such surveys, may adjust the Premises Electric Charge. Electrical service to
the Premises may be furnished by one or more companies providing electrical
generation, transmission and distribution services, and the cost of electricity
may consist of several different components or separate charges for such
services, such as generation, distribution and stranded cost charges. Landlord
shall have the exclusive right to select any company providing electrical
service to the Premises, to aggregate the electrical service for the Property
and Premises with other buildings, to purchase electricity through a broker
and/or buyers group and to change the providers and manner of purchasing
electricity. Landlord shall be entitled to receive a fee (if permitted by Law)
for the selection of utility companies and the negotiation and administration of
contracts for electricity, provided that the amount of such fee shall not exceed
50% of any savings obtained by Landlord.
2. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.
2.01 Landlord is required to perform Landlord Work prior to the
Commencement Date and therefore: (a) the date set forth in Section 1.06 as the
Commencement Date shall instead be defined as the "TARGET COMMENCEMENT DATE";
(b) the actual Commencement Date shall be the date on which the Landlord Work is
substantially complete, as reasonably determined by Landlord; and (c) the
Termination Date will be the last day of the Term as determined based upon the
actual Commencement Date. If the Termination Date does not fall on the last day
of a calendar month, Landlord and Tenant may elect to adjust the Termination
Date to the last day of the calendar month in which Termination Date occurs by
the mutual execution of a commencement letter agreement setting forth such
adjusted date. Landlord's failure to substantially complete the Landlord Work by
the Target Commencement Date shall not be a default by Landlord or otherwise
render Landlord liable for damages. If Landlord is delayed in the performance of
the Landlord Work as a result of the acts or omissions of Tenant, the Tenant
Related Parties (defined in Section 12) or their respective contractors or
vendors, including, without limitation, changes requested by Tenant to approved
plans, Tenant's failure to comply with any of its obligations under this Lease,
or the specification of any materials or equipment with long lead times (a
"TENANT DELAY"), the Landlord Work shall be deemed to be Substantially Complete
on the date that Landlord could reasonably have been expected to Substantially
Complete the Landlord Work absent any Tenant Delay.
2.02 The Premises are accepted by Tenant in "as is" condition and
configuration without any representations or warranties by Landlord. Landlord
shall not be liable for any failure to deliver possession of the Premises or any
other space due to the holdover or unlawful possession of such space by any
party. In such event, the commencement date for such space shall be postponed
until the date Landlord delivers possession of the Premises to Tenant free from
occupancy by any party.
3. RENT. Tenant shall pay Landlord, without any setoff or deduction all
Base Rent and Additional Rent due for the Term (collectively referred to as
"RENT"). "ADDITIONAL RENT" means all sums (exclusive of Base Rent) that Tenant
is required to pay Landlord under this Lease. Tenant shall pay and be liable for
all rental, sales and use taxes (but excluding income taxes), if any, imposed
upon or measured by Rent. Base Rent and recurring monthly charges of Additional
Rent shall be due and payable in advance on the first day of each calendar month
without notice or demand. All other items of Rent shall be due and payable by
Tenant on or before 30 days after billing by Landlord provided that the
installment of Base Rent and Additional Rent for the first full calendar month
of the Term shall be payable upon the execution of this Lease by Tenant. Rent
shall be made payable to the entity and sent to the address Landlord designates.
Tenant shall pay Landlord an administration fee equal to 5% of all past due
Rent. In addition, past due Rent shall accrue interest at 12% per annum. Rent
for any partial month during the Term shall be prorated. No endorsement or
statement on a check or letter accompanying payment shall be considered an
accord and satisfaction. Tenant's covenant to pay Rent is independent of every
other covenant in this Lease.
4. COMPLIANCE WITH LAWS; USE. The Premises shall be used for the Permitted
Use and for no other use whatsoever. Tenant shall comply with all statutes,
codes, ordinances, orders, rules and regulations of any municipal
or governmental entity ("LAWS"), regarding the operation of Tenant's business
and the use, condition, configuration and occupancy of the Premises. Tenant
shall comply with the rules and regulations of the Building attached as Exhibit
D and such other reasonable rules and regulations adopted by Landlord from time
to time.
5. SECURITY DEPOSIT. The Security Deposit shall be delivered to Landlord
upon the execution of this Lease by Tenant and held by Landlord without
liability for interest (unless required by Law) as security for the performance
of Tenant's obligations. The Security Deposit is not an advance payment of Rent
or a measure of damages. Landlord may use all or a portion of the Security
Deposit to satisfy past due Rent or to cure any Default (defined in Section 17)
by Tenant. If Landlord uses any portion of the Security Deposit, Tenant shall
on demand restore the Security Deposit to its original amount. Landlord shall
return any unapplied portion of the Security Deposit to Tenant within 45 days
after the later to occur of: (a) determination of the final Rent due from
Tenant; or (b) the later to occur of the Termination Date or the date Tenant
surrenders the Premises to Landlord in compliance with Section 24. Landlord
shall not be required to keep the Security Deposit separate from its other
accounts.
6. BUILDING SERVICES. Landlord shall furnish Tenant with the following
services: (a) water service for use in the base building lavatories; (b)
customary heat and air conditioning in season during standard Building service
hours. Tenant shall have the right to receive HVAC service during hours other
than standard service hours by paying Landlord's then standard charge for
additional HVAC service and providing such reasonable prior notice as is
specified by Landlord; (c) standard janitor service; (d) Elevator service; (e)
Such security and monitoring systems as Landlord may reasonably impose,
including initially, sign-in procedures and presentation of identification
cards; and (f) Electricity. Electricity used by Tenant in the Premises shall be
paid for by Tenant by a separate charge payable by Tenant to Landlord. Tenant's
use of electrical service shall not exceed the standard usage for the Building.
Landlord's failure to furnish, or any interruption, diminishment or termination
of, services due to the application of Laws, the failure of any equipment, the
performance of repairs, improvements or alterations, utility interruptions or
the occurrence of an event of Force Majeure (defined in Section 25.03) shall not
render Landlord liable to Tenant, constitute a constructive eviction of Tenant,
give rise to an abatement of Rent, nor relieve Tenant from the obligation to
fulfill any covenant or agreement.
7. LEASEHOLD IMPROVEMENTS. All improvements in and to in the Premises,
including any Alterations (COLLECTIVELY, "LEASEHOLD IMPROVEMENTS") shall remain
upon the Premises at the end of the Term without compensation to Tenant.
Landlord, however, by written notice to Tenant at least 30 days prior to the
Termination Date, may require Tenant, at its expense, to remove any electronic,
phone and data cabling and related equipment (collectively, "CABLE") installed
by or for the benefit of Tenant and any Landlord Work or Alterations that, in
Landlord's reasonable judgment, are not standard office improvements and are of
a nature that would require material removal and repair costs (collectively
referred to as "REQUIRED REMOVABLES").
8. REPAIRS AND ALTERATIONS.
8.01 Tenant shall periodically inspect the Premises to identify any
conditions that are dangerous or in need of maintenance or repair and shall
promptly provide Landlord with notice of any such conditions. Tenant shall, at
its sole cost and expense, promptly perform all maintenance and repairs to the
Premises that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear and tear
excepted. If Tenant fails to make any repairs to the Premises for more than 15
days after notice from Landlord (although notice shall not be required in an
emergency), Landlord may make the repairs, and Tenant shall pay the reasonable
cost of the repairs, together with an administrative charge in an amount equal
to 10% of the cost of the repairs. Landlord shall perform all maintenance and
repairs upon the: (a) structural elements of the Building; (b) mechanical,
electrical, plumbing and fire/life safety systems serving the Building in
general; (c) Common Areas; (d) roof of the Building; (e) exterior windows of the
Building; and (f) elevators serving the Building.
8.02 Tenant shall not make alterations, repairs, additions or improvements
or install any Cable (collectively referred to as "ALTERATIONS") without first
obtaining the written consent of Landlord in each instance, which consent shall
not be unreasonably withheld. In order to obtain such approvals, Tenant shall
furnish Landlord with plans and specifications; names of contractors acceptable
to Landlord; required permits and approvals; evidence of contractor's and
subcontractor's insurance in amounts reasonably required by Landlord and naming
Landlord as an additional insured; and any security for performance in amounts
reasonably required by Landlord. Tenant shall reimburse Landlord for any sums
paid by Landlord for third party examination of Tenant's plans for Alterations.
In addition, Tenant shall pay Landlord a fee for Landlord's oversight and
coordination of any Alterations equal to 10% of the cost of the Alterations.
Upon completion, Tenant shall furnish "as-built" plans for Alterations,
completion affidavits and full and final waivers of lien.
9. ENTRY BY LANDLORD. Landlord may enter the Premises to inspect the
Premises, to clean and make repairs, alterations or additions and to perform or
facilitate maintenance, repairs, alterations or additions to any portion of the
Building and to show the Premises during the one year period prior to the
Termination Date (as such Termination Date may be extended if Tenant exercises
the Renewal Option defined in Exhibit E). Except in emergencies or to provide
Building services, Landlord shall provide Tenant with reasonable prior verbal
notice of entry. Entry by Landlord shall not constitute a constructive eviction
or entitle Tenant to an abatement or reduction of Rent.
10. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, sublease, transfer
or encumber any interest in this Lease or allow any third party to use any
portion of the Premises (collectively or individually, a "TRANSFER") without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld if Landlord does not exercise its recapture rights. Any attempted
Transfer in violation of this Article shall, at Landlord's option, be void.
Within 15 Business Days after receipt of executed copies of the transfer
documentation and such other information as Landlord may request, Landlord shall
either: (a) consent to the Transfer by execution of a consent agreement in a
form reasonably designated by Landlord; (b) refuse to consent to the Transfer;
or (c) recapture the portion of the Premises that Tenant is proposing to
Transfer. If Landlord exercises its right to recapture, the Lease shall
automatically be amended to delete the applicable portion of the Premises
effective on the proposed effective date of the Transfer. In no event shall any
Transfer release or relieve Tenant from any obligation under this Lease. Tenant
shall pay Landlord a review fee of $1,500.00 for Landlord's review of any
requested Transfer. Tenant shall
pay Landlord as Additional Rent 50% of all rent and other consideration which
Tenant receives as a result of a Transfer that is in excess of the Rent payable
to Landlord for the portion of the Premises and Term covered by the Transfer. If
Tenant is in Default, Landlord may require that all sublease payments be made
directly to Landlord, in which case Tenant shall receive a credit against Rent
in the amount of Tenant's share of payments received by Landlord.
11. LIENS. Tenant shall not permit mechanic's or other liens to be placed
upon the Property or Premises in connection with any work purportedly done by or
for the benefit of Tenant or its transferees. Tenant shall, within 10 days of
notice from Landlord, fully discharge any lien by settlement, by bonding or by
insuring over the lien in the manner prescribed by Law. If Tenant fails to do
so, Landlord may bond, insure over or otherwise discharge the lien. Tenant
shall reimburse Landlord for any amount paid by Landlord, including, without
limitation, reasonable attorneys' fees.
12. INDEMNITY AND WAIVER OF CLAIMS. Tenant hereby waives all claims against
and releases Landlord and its trustees, members, principals, beneficiaries,
partners, officers, directors, employees, Mortgagees and agents (the "LANDLORD
RELATED PARTIES") from all claims for any injury to or death of persons, damage
to property or business loss in any manner related to (a) acts of God, (b) acts
of third parties, (c) the bursting or leaking of any tank, water closet, drain
or other pipe; (d) the inadequacy or failure of any security services, personnel
or equipment. or (e) any matter outside of the reasonable control of Landlord.
Notwithstanding the foregoing, except as provided in Section 14 to the contrary,
Tenant shall not be required to waive any claims against Landlord (other than
for loss or damage to Tenant's business) where such loss or damage is due to
Landlord's negligence or willful misconduct. Except to the extent caused by the
negligence or willful misconduct of Landlord or any Landlord Related Parties,
Tenant shall indemnify, defend and hold Landlord and Landlord Related Parties
harmless against and from all liabilities, obligations, damages, penalties,
claims, actions, costs, charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and to the extent
permitted by Law), which may be imposed upon, incurred by or asserted against
Landlord or any of the Landlord Related Parties by any third party and arising
out of or in connection with any damage or injury occurring in the Premises or
any acts or omissions (including violations of Law) of Tenant, the Tenant
Related Parties or any of Tenant's transferees, contractors or licensees.
13. INSURANCE. Tenant shall maintain the following insurance ("TENANT'S
INSURANCE"): (a) Commercial General Liability Insurance applicable to the
Premises and its appurtenances providing, on an occurrence basis, a minimum
combined single limit of $2,000,000.00; (b) Property/Business Interruption
Insurance written on an All Risk or Special Perils form, with coverage for broad
form water damage including earthquake sprinkler leakage, at replacement cost
value and with a replacement cost endorsement covering all of Tenant's business
and trade fixtures, equipment, movable partitions, furniture, merchandise and
other personal property within the Premises ("TENANT'S PROPERTY") and any
Leasehold Improvements performed by or for the benefit of Tenant; (c) Workers'
Compensation Insurance as required by Law and in amounts as may be required by
applicable statute and Employers Liability Coverage of at least $1,000,000.00
per occurrence. Any company writing Tenant's Insurance shall have an A.M. Best
rating of not less than A-VIII. All Commercial General Liability Insurance
policies shall name Landlord (or its successors and assignees), the managing
agent for the Building (or any successor), Equity Office Properties Trust, EOP
Operating Limited Partnership and their respective members, principals,
beneficiaries, partners, officers, directors, employees, and agents, and other
designees of Landlord and its successors as the interest of such designees shall
appear, as additional insureds. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) shall give Landlord and its designees at least
30 days' advance written notice of any cancellation, termination, material
change or lapse of insurance. Tenant shall provide Landlord with a certificate
of insurance evidencing Tenant's Insurance prior to the earlier to occur of the
Commencement Date or the date Tenant is provided with possession of the
Premises, and thereafter as necessary to assure that Landlord always has current
certificates evidencing Tenant's Insurance.
14. SUBROGATION. Landlord and Tenant hereby waive and shall cause their
respective insurance carriers to waive any and all rights of recovery, claims,
actions or causes of action against the other for any loss or damage with
respect to Tenant's Property, Leasehold Improvements, the Building, the
Premises, or any contents thereof, including rights, claims, actions and causes
of action based on negligence, which loss or damage is (or would have been, had
the insurance required by this Lease been carried) covered by insurance.
15. CASUALTY DAMAGE. Landlord, by notice to Tenant within 60 days of the
date of the fire or other casualty (a "CASUALTY"), shall have the right to
terminate this Lease if all or any part of the Premises is damaged to the extent
that it cannot reasonably be repaired within 120 days after the date of the
Casualty. If this Lease is not terminated, Landlord shall promptly and
diligently, restore the Premises. Such restoration shall be to substantially the
same condition that existed prior to the Casualty, except for modifications
required by Law. Upon notice from Landlord, Tenant shall assign to Landlord (or
to any party designated by Landlord) all property insurance proceeds payable to
Tenant under Tenant's Insurance with respect to any Leasehold Improvements
performed by or for the benefit of Tenant; provided if the estimated cost to
repair such Leasehold Improvements exceeds the amount of insurance proceeds
received by Landlord from Tenant's insurance carrier, the excess cost of such
repairs shall be paid by Tenant to Landlord prior to Landlord's commencement of
repairs. Within 15 days of demand, Tenant shall also pay Landlord for any
additional excess costs that are determined during the performance of the
repairs. Landlord shall not be liable for any inconvenience to Tenant, or injury
to Tenant's business resulting in any way from the Casualty or the repair
thereof. Provided that Tenant is not in Default, during any period of time that
all or a material portion of the Premises is rendered untenantable as a result
of a Casualty, the Rent shall abate for the portion of the Premises that is
untenantable and not used by Tenant.
16. CONDEMNATION. Either party may terminate this Lease if any material
part of the Premises is taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "TAKING").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would have a material adverse
effect on Landlord's ability to profitably operate the
remainder of the Building. The terminating party shall provide written notice
of termination to the other party within 45 days after it first receives notice
of the Taking. The termination shall be effective on the date the physical
taking occurs. All compensation awarded for a Taking, or sale proceeds, shall be
the property of Landlord.
17. EVENTS OF DEFAULT. Each of the following occurrences shall be
considered to be a "DEFAULT": (a) Tenant's failure to pay any portion of Rent
when due, if the failure continues for 3 days after written notice to Tenant,
which notice shall be in satisfaction of, and not in addition to, notice
required by Law ("MONETARY DEFAULT"); or (b) Tenant's failure (other than a
Monetary Default) to comply with any term, provision, condition or covenant of
this Lease, if the failure is not cured within 10 days after written notice to
Tenant, which notice shall be in satisfaction of, and not in addition to, notice
required by Law, provided, however, if Tenant's failure to comply cannot
reasonably be cured within 10 days, Tenant shall be allowed additional time (not
to exceed 60 days) as is reasonably necessary to cure the failure so long as
Tenant commences to cure within 10 days and Tenant diligently pursues the cure
to completion.
18. REMEDIES.
18.01 Upon Default, Landlord shall have the right to terminate this Lease
or Tenant's right to possession, in which case Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender the Premises,
Landlord may, in compliance with Law, enter upon and take possession of the
Premises. Tenant shall pay Landlord, on demand, all past due Rent and other
losses and damages Landlord suffers as a result of Tenant's Default, including,
without limitation, all Costs of Reletting (defined below) and any deficiency
that may arise from reletting or the failure to relet the Premises. "COSTS OF
RELETTING" shall include all costs and expenses incurred by Landlord in
reletting or attempting to relet the Premises, including, without limitation,
reasonable legal fees, brokerage commissions, the cost of alterations and the
value of other concessions or allowances granted to a new tenant. Landlord may
collect and receive all rents and other income from the reletting. Landlord
shall not be responsible or liable for the failure to relet all or any part of
the Premises or for the failure to collect any rent.
18.02 In lieu of calculating damages under Sections 18.01 above, Landlord
may elect to receive as damages the sum of (a) all Rent accrued through the date
of termination of this Lease or Tenant's right to possession, and (b) an amount
equal to the total Rent that Tenant would have been required to pay for the
remainder of the Term discounted to present value, minus the then present fair
rental value of the Premises for the remainder of the Term, similarly
discounted, after deducting all anticipated Costs of Reletting. If Tenant is in
Default of any of its non-monetary obligations under the Lease, Landlord shall
have the right to perform such obligations. Tenant shall reimburse Landlord for
the cost of such performance upon demand together with an administrative charge
equal to 10% of the cost of the work performed by Landlord. The repossession or
re-entering of all or any part of the Premises shall not relieve Tenant of its
liabilities and obligations under the Lease. No right or remedy of Landlord
shall be exclusive of any other right or remedy. Each right and remedy shall be
non-exclusive, cumulative and in addition to any other right and remedy now or
subsequently available to Landlord at Law or in equity.
19. LIMITATION OF LIABILITY.
THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) SHALL BE LIMITED
TO THE LESSER OF (A) THE INTEREST OF LANDLORD IN THE PROPERTY, OR (B) THE EQUITY
INTEREST LANDLORD WOULD HAVE IN THE PROPERTY IF THE PROPERTY WERE ENCUMBERED BY
THIRD PARTY DEBT IN AN AMOUNT EQUAL TO 70% OF THE VALUE OF THE PROPERTY PLUS THE
AMOUNTOF THE SECURITY DEPOSIT HELD BY LANDLORD. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER LANDLORD NOR ANY
LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY
AND IN NO EVENT SHALL LANDLORD OR ANY LANDLORD RELATED PARTY BE LIABLE TO TENANT
FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGE. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY
LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) (DEFINED IN SECTION 22
BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN SECTION 22
BELOW), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
20. RELOCATION. Landlord, at its expense, at any time before or during the
Term, may relocate Tenant from the Premises to space of reasonably comparable
size and utility ("RELOCATION SPACE") within the Building upon 60 days' prior
written notice to Tenant. From and after the date of the relocation, "Premises"
shall refer to the Relocation Space into which Tenant has been moved and the
Base Rent and Tenant's Pro Rata Share shall be adjusted based on the rentable
square footage of the Relocation Space.
21. HOLDING OVER. If Tenant fails to surrender all or any part of the
Premises at the termination of this Lease, occupancy of the Premises after
termination shall be that of a tenancy at sufferance. Tenant's occupancy shall
be subject to all the terms and provisions of this Lease and Tenant shall pay an
amount (on a per month basis without reduction for partial months during the
holdover) equal to 150% of the sum of the Base Rent and Additional Rent due for
the period immediately preceding the holdover. No holdover by Tenant or payment
by Tenant after the termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise.
22. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE. Tenant accepts this
Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground
lease(s) or other lien(s) now or subsequently arising upon the Premises, the
Building or the Property, and to renewals, modifications, refinancings and
extensions thereof (collectively referred to as a "MORTGAGE"). This clause shall
be self-operative, but upon request from the holder of a Mortgage (a
"MORTGAGEE"), Tenant shall execute a commercially reasonable subordination
agreement. As an alternative, a Mortgagee shall have the right at any time to
subordinate its Mortgage to this Lease. Upon request, Tenant shall, without
charge, attorn to any successor to Landlord's interest in the Lease. Tenant
shall, within 10 days after receipt of a written request from Landlord, execute
and deliver a commercially reasonable estoppel certificate to those parties as
are reasonably requested by Landlord.
23. NOTICE. All demands, approvals, consents or notices shall be in writing
and delivered by hand or sent by registered or certified mail with return
receipt requested, or sent by overnight or same day courier service at the
party's respective Notice Address(es) set forth in Section 1. Each notice shall
be deemed to have been received on the earlier to occur of actual delivery or
the date on which delivery is refused, or, if Tenant has vacated the Premises or
any other Notice Address without providing a new Notice Address, 3 days after
notice is deposited in the U.S. mail or with a courier service in the manner
described above. Either party may, at any time, change its Notice Address
(other than to a post office box address) by giving the other party written
notice of the new address.
24. SURRENDER OF PREMISES. At the termination of this Lease or Tenant's
right of possession, Tenant shall remove Tenant's Property and any designated
Required Removables from the Premises, and quit and surrender the Premises to
Landlord, broom clean, and in good order, condition and repair, ordinary wear
and tear and damage which Landlord is obligated to repair hereunder excepted. If
Tenant fails to remove any of Tenant's Property within 2 days after termination,
Landlord, at Tenant's sole cost and expense, shall be entitled to remove and
store Tenant's Property. Landlord shall not be responsible for the value,
preservation or safekeeping of Tenant's Property. Tenant shall pay Landlord,
upon demand, the expenses and storage charges incurred. If Tenant fails to
remove Tenant's Property from the Premises or storage within 30 days after
notice, Landlord may deem all or any part of Tenant's Property to be abandoned
and title to Tenant's Property shall vest in Landlord. If Tenant fails to remove
any of the designated Required Removables by the Termination Date or perform
related repairs in a timely manner, Landlord may perform such work at Tenant's
expense.
25. MISCELLANEOUS.
25.01 If either party institutes a suit against the other for violation of
or to enforce any covenant, term or condition of this Lease, the prevailing
party shall be entitled to all of its costs and expenses, including, without
limitation, reasonable attorneys' fees. Landlord and Tenant hereby waive any
right to trial by jury in any proceeding based upon a breach of this Lease.
Either party's failure to declare a default immediately upon its occurrence, or
delay in taking action for a default shall not constitute a waiver of the
default, nor shall it constitute an estoppel.
25.02 Whenever a period of time is prescribed for the taking of an action
by Landlord or Tenant (other than the payment of the Security Deposit or Rent),
the period of time for the performance of such action shall be extended by the
number of days that the performance is actually delayed due to strikes, acts of
God, shortages of labor or materials, war, terrorist acts, civil disturbances
and other causes beyond the reasonable control of the performing party ("FORCE
MAJEURE"). Force Majeure shall not include financial difficulties of the party
required to perform.
25.03 Landlord shall have the right to transfer and assign, in whole or in
part, all of its ownership interest, rights and obligations in the Building,
Property or Lease, including the Security Deposit, and upon transfer Landlord
shall be released from any further obligations hereunder, and Tenant agrees to
look solely to the successor in interest of Landlord for the performance of such
obligations and the return of any Security Deposit. Such party shall assume
Landlord's obligations under the Lease including, without limitation, those
obligations regarding the Security Deposit.
25.04 Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to Tenant or an
option. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall indemnify and
hold Landlord and the Landlord Related Parties harmless from all claims of any
brokers claiming to have represented Tenant in connection with this Lease.
25.05 The expiration of the Term, whether by lapse of time, termination or
otherwise, shall not relieve either party of any obligations which accrued prior
to or which may continue to accrue after the expiration or termination of this
Lease.
25.06 Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building.
25.07 This Lease constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings related to the Premises. This
Lease may be modified only by a written agreement signed by Landlord and Tenant.
This Lease shall be interpreted and enforced in accordance with the Laws of the
state or commonwealth in which the Building is located.
25.08 Tenant represents and warrants to Landlord that each individual
executing this Lease on behalf of Tenant is authorized to do so on behalf of
Tenant and that Tenant is not, and the entities or individuals constituting
Tenant or which may own or control Tenant or which may be owned or controlled by
Tenant are not, among the individuals or entities identified on any list
compiled pursuant to Executive Order 13224 for the purpose of identifying
suspected terrorists. Landlord represents and warrants to Tenant that each
individual executing this Lease on behalf of Landlord is authorized to do so on
behalf of Landlord.
Landlord and Tenant have executed this Lease as of the day and year first
above written.
WITNESS/ATTEST: LANDLORD:
CT-STAMFORD ATLANTIC FORUM, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY
By: Equity Office Management, L.L.C., a Delaware limited
/s/ Shanna Charles liability company, its non-member manager
Name (print): Shanna Charles By: /s/ Thomas Q. Bakke
___________________________ Name: Thomas Q. Bakke
Name (print): ________________ Title: Regional Senior Vice President
WITNESS/ATTEST: TENANT:
CLEAN DIESEL TECHNOLOGIES, INC., A DELAWARE CORPORATION
By: /s/ D.W. Whitwell
/s/ Pat McCoy
Name: David W. Whitwell
Name (print): Pat McCoy
Title: Vice President & Chief Operating Officer
/s/ Curtis J. Knapper
06-1393453
Name (print): Curtis J. Knapper TENANT'S TAX ID NUMBER (SSN OR FEIN)
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
--------------------------------
EXHIBIT B
EXPENSES AND TAXES
This Exhibit is attached to and made a part of the Lease by and between
CT-STAMFORD ATLANTIC FORUM, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and CLEAN DIESEL TECHNOLOGIES, INC., A DELAWARE CORPORATION
("Tenant") for space in the Building located at 300 Atlantic Street, Stamford,
Connecticut 06901.
1. PAYMENTS.
1.01 Tenant shall pay Tenant's Pro Rata Share of the amount, if any, by
which Expenses (defined below) for each calendar year during the Term exceed
Expenses for the Base Year (the "EXPENSE EXCESS") and also the amount, if any,
by which Taxes (defined below) for each calendar year during the Term exceed
Taxes for the Base Year (the "TAX EXCESS"). If Expenses or Taxes in any
calendar year decrease below the amount of Expenses or Taxes for the Base Year,
Tenant's Pro Rata Share of Expenses or Taxes, as the case may be, for that
calendar year shall be $0. Landlord shall provide Tenant with a good faith
estimate of the Expense Excess and of the Tax Excess for each calendar year
during the Term. On or before the first day of each month, Tenant shall pay to
Landlord a monthly installment equal to one-twelfth of Tenant's Pro Rata Share
of Landlord's estimate of both the Expense Excess and Tax Excess. After its
receipt of the revised estimate, Tenant's monthly payments shall be based upon
the revised estimate. If Landlord does not provide Tenant with an estimate of
the Expense Excess or the Tax Excess by January 1 of a calendar year, Tenant
shall continue to pay monthly installments based on the previous year's
estimate(s) until Landlord provides Tenant with the new estimate.
1.02 As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual Expenses and
Expense Excess and the actual Taxes and Tax Excess for the prior calendar year.
If the estimated Expense Excess or estimated Tax Excess for the prior calendar
year is more than the actual Expense Excess or actual Tax Excess, as the case
may be, for the prior calendar year, Landlord shall either provide Tenant with a
refund or apply any overpayment by Tenant against Additional Rent due or next
becoming due, provided if the Term expires before the determination of the
overpayment, Landlord shall refund any overpayment to Tenant after first
deducting the amount of Rent due. If the estimated Expense Excess or estimated
Tax Excess for the prior calendar year is less than the actual Expense Excess or
actual Tax Excess, as the case may be, for such prior year, Tenant shall pay
Landlord, within 30 days after its receipt of the statement of Expenses or
Taxes, any underpayment for the prior calendar year.
2. EXPENSES.
2.01 "EXPENSES" means all costs and expenses incurred in each calendar
year in connection with operating, maintaining, repairing, and managing the
Building and the Property. Expenses include, without limitation: (a) all labor
and labor related costs, including wages, salaries, bonuses, taxes, insurance,
uniforms, training, retirement plans, pension plans and other employee benefits;
(b) management fees; (c) the cost of equipping, staffing and operating an
on-site and/or off-site management office for the Building, provided if the
management office services one or more other buildings or properties, the shared
costs and expenses of equipping, staffing and operating such management
office(s) shall be equitably prorated and apportioned between the Building and
the other buildings or properties; (d) accounting costs; (e) the cost of
services; (f) rental and purchase cost of parts, supplies, tools and equipment;
(g) insurance premiums and deductibles; (h) electricity, gas and other utility
costs; and (i) the amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course of business)
made subsequent to the Base Year which are: (1) performed primarily to reduce
current or future operating expense costs, upgrade Building security or
otherwise improve the operating efficiency of the Property; or (2) required to
comply with any Laws that are enacted, or first interpreted to apply to the
Property, after the date of this Lease. The cost of capital improvements shall
be amortized by Landlord over the lesser of the Payback Period (defined below)
or the useful life of the capital improvement as reasonably determined by
Landlord. The amortized cost of capital improvements may, at Landlord's option,
include actual or imputed interest at the rate that Landlord would reasonably be
required to pay to finance the cost of the capital improvement. "PAYBACK PERIOD"
means the reasonably estimated period of time that it takes for the cost savings
resulting from a capital improvement to equal the total cost of the capital
improvement. Landlord, by itself or through an affiliate, shall have the right
to directly perform, provide and be compensated for any services under this
Lease. If Landlord incurs Expenses for the Building or Property together with
one or more other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared costs and
expenses shall be equitably prorated and apportioned between the Building and
Property and the other buildings or properties.
2.02 Expenses shall not include: the cost of capital improvements (except
as set forth above); depreciation; principal payments of mortgage and other
non-operating debts of Landlord; the cost of repairs or other work to the extent
Landlord is reimbursed by insurance or condemnation proceeds; costs in
connection with leasing space in the Building, including brokerage commissions;
lease concessions, rental abatements and construction allowances granted to
specific tenants; costs incurred in connection with the sale, financing or
refinancing of the Building; fines, interest and penalties incurred due to the
late payment of Taxes or Expenses; organizational expenses associated with the
creation and operation of the entity which constitutes Landlord; or any
penalties or damages that Landlord pays to Tenant under this Lease or to other
tenants in the Building under their respective leases.
2.03 If at any time during a calendar year the Building is not at least 95%
occupied or Landlord is not supplying services to at least 95% of the total
Rentable Square Footage of the Building, Expenses shall, at Landlord's option,
be determined as if the Building had been 95% occupied and Landlord had been
supplying services to 95% of the Rentable Square Footage of the Building. If
Expenses for a calendar year are determined as provided in the prior sentence,
Expenses for the Base Year shall also be determined in such manner.
Notwithstanding the foregoing, Landlord may calculate the extrapolation of
Expenses under this Section based on 100% occupancy and service so long as such
percentage is used consistently for each year of the Term. The extrapolation of
Expenses under this Section shall be performed in accordance with the
methodology specified by the Building Owners and Managers Association.
3. "TAXES" shall mean: (a) all real property taxes and other assessments on
the Building and/or Property, including, but not limited to, gross receipts
taxes, assessments for special improvement districts and building improvement
districts, governmental charges, fees and assessments for police, fire, traffic
mitigation or other governmental service of purported benefit to the Property,
taxes and assessments levied in substitution or supplementation in whole or in
part of any such taxes and assessments and the Property's share of any real
estate taxes and assessments under any reciprocal easement agreement, common
area agreement or similar agreement as to the Property; (b) all personal
property taxes for property that is owned by Landlord and used in connection
with the operation, maintenance and repair of the Property; and (c) all costs
and fees incurred in connection with seeking reductions in any tax liabilities
described in (a) and (b), including, without limitation, any costs incurred by
Landlord for compliance, review and appeal of tax liabilities. Without
limitation, Taxes shall not include any income, capital levy, transfer, capital
stock, gift, estate or inheritance tax. If a change in Taxes is obtained for any
year of the Term during which Tenant paid Tenant's Pro Rata Share of any Tax
Excess, then Taxes for that year will be retroactively adjusted and Landlord
shall provide Tenant with a credit, if any, based on the adjustment. Likewise,
if a change is obtained for Taxes for the Base Year, Taxes for the Base Year
shall be restated and the Tax Excess for all subsequent years shall be
recomputed. Tenant shall pay Landlord the amount of Tenant's Pro Rata Share of
any such increase in the Tax Excess within 30 days after Tenant's receipt of a
statement from Landlord.
4. AUDIT RIGHTS. Tenant, within 365 days after receiving Landlord's statement
of Expenses, may give Landlord written notice ("REVIEW NOTICE") that Tenant
intends to review Landlord's records of the Expenses for the calendar year to
which the statement applies. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its review. If
any records are maintained at a location other than the management office for
the Building, Tenant may either inspect the records at such other location or
pay for the reasonable cost of copying and shipping the records. If Tenant
retains an agent to review Landlord's records, the agent must be with a CPA firm
licensed to do business in the state or commonwealth where the Property is
located. Tenant shall be solely responsible for all costs, expenses and fees
incurred for the audit. Within 90 days after the records are made available to
Tenant, Tenant shall have the right to give Landlord written notice (an
"OBJECTION NOTICE") stating in reasonable detail any objection to Landlord's
statement of Expenses for that year. If Tenant fails to give Landlord an
Objection Notice within the 90 day period or fails to provide Landlord with a
Review Notice within the 365 day period described above, Tenant shall be deemed
to have approved Landlord's statement of Expenses and shall be barred from
raising any claims regarding the Expenses for that year. The records obtained
by Tenant shall be treated as confidential. In no event shall Tenant be
permitted to examine Landlord's records or to dispute any statement of Expenses
unless Tenant has paid and continues to pay all Rent when due.
EXHIBIT C
WORK LETTER
-----------
This Exhibit is attached to and made a part of the Lease by and between
CT-STAMFORD ATLANTIC FORUM, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and CLEAN DIESEL TECHNOLOGIES, INC., A DELAWARE CORPORATION
("Tenant") for space in the Building located at 300 Atlantic Street, Stamford,
Connecticut 06901.
1. Landlord shall perform improvements to the Premises in accordance with the
plans prepared by _________________________________________, dated
_____________, 2003, (the "PLANS"). The improvements to be performed by
Landlord in accordance with the Plans and expressly listed on the Work List
below are hereinafter referred to as the "LANDLORD WORK." The Landlord Work
shall be performed using Building standard methods, materials and finishes.
It is agreed that construction of the Landlord Work will be completed at
Landlord's sole cost and expense (subject to the terms of Section 2 below)
using Building standard methods, materials and finishes. Landlord shall
enter into a direct contract for the Landlord Work with a general
contractor selected by Landlord. In addition, Landlord shall have the right
to select and/or approve of any subcontractors used in connection with the
Landlord Work. Landlord's supervision or performance of any work for or on
behalf of Tenant shall not be deemed a representation by Landlord that such
Plans or the revisions thereto comply with applicable insurance
requirements, building codes, ordinances, Laws or regulations, or that the
improvements constructed in accordance with the Plans and any revisions
thereto will be adequate for Tenant's use, it being agreed that Tenant
shall be responsible for all elements of the design of Tenant's plans
(including, without limitation, compliance with Law, functionality of
design, the structural integrity of the design, the configuration of the
Premises and the placement of Tenant's furniture, appliances and
equipment).
WORK LIST
- Repaint the Premises as needed.
- Install new carpeting in the Premises.
- Relocate existing door signage to the door of the Premises.
2. If Tenant shall request any revisions to the Plans, Landlord shall have
such revisions prepared at Tenant's sole cost and expense and Tenant shall
reimburse Landlord for the cost of preparing any such revisions to the
Plans, plus any applicable state sales or use tax thereon, upon demand.
Promptly upon completion of the revisions, Landlord shall notify Tenant in
writing of the increased cost in the Landlord Work, if any, resulting from
such revisions to the Plans. Tenant, within 1 Business Day, shall notify
Landlord in writing whether it desires to proceed with such revisions. In
the absence of such written authorization, Landlord shall have the option
to continue work on the Premises disregarding the requested revision.
Tenant shall be responsible for any Tenant Delay in completion of the
Premises resulting from any revision to the Plans. If such revisions result
in an increase in the cost of Landlord Work, such increased costs, plus any
applicable state sales or use tax thereon, shall be payable by Tenant upon
demand. Notwithstanding anything herein to the contrary, all revisions to
the Plans shall be subject to the approval of Landlord.
3. Landlord and Tenant agree to cooperate with each other in order to enable
the Landlord Work to be performed in a timely manner and with as little
inconvenience to the operation of Tenant's business as is reasonably
possible. Notwithstanding anything herein to the contrary, any delay in the
completion of the Landlord Work or inconvenience suffered by Tenant during
the performance of the Landlord Work shall not delay the Commencement Date
nor shall it subject Landlord to any liability for any loss or damage
resulting therefrom or entitle Tenant to any credit, abatement or
adjustment of Rent or other sums payable under the Lease.
4. This Exhibit shall not be deemed applicable to any additional space added
to the Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the original Premises or
any additions to the Premises in the event of a renewal or extension of the
original Term of the Lease, whether by any options under the Lease or
otherwise, unless expressly so provided in the Lease or any amendment or
supplement to the Lease.
EXHIBIT D
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Property and the
appurtenances. In the event of a conflict between the following rules and
regulations and the remainder of the terms of the Lease, the remainder of the
terms of the Lease shall control. Capitalized terms have the same meaning as
defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. At
no time shall Tenant permit Tenant's employees to loiter in Common Areas or
elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building, except those of such color, size,
style and in such places as are first approved in writing by Landlord. All
tenant identification and suite numbers at the entrance to the Premises
shall be installed by Landlord, at Tenant's cost and expense, using the
standard graphics for the Building. Except in connection with the hanging
of lightweight pictures and wall decorations, no nails, hooks or screws
shall be inserted into any part of the Premises or Building except by the
Building maintenance personnel without Landlord's prior approval, which
approval shall not be unreasonably withheld.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device listing
tenants, and no other directory shall be permitted unless previously
consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or Building
without Landlord's prior written consent, which consent shall not be
unreasonably withheld, and Landlord shall have the right to retain at all
times and to use keys or other access codes or devices to all locks within
and into the Premises. A reasonable number of keys to the locks on the
entry doors in the Premises shall be furnished by Landlord to Tenant at
Tenant's cost, and Tenant shall not make any duplicate keys. All keys shall
be returned to Landlord at the expiration or early termination of this
Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval, which approval shall not be unreasonably withheld, and shall be
required to comply with Landlord's standard rules, regulations, policies
and procedures, which may be revised from time to time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the use
of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours reasonably designated by Landlord. Tenant shall obtain
Landlord's prior approval by providing a detailed listing of the activity.
If approved by Landlord, the activity shall be under the supervision of
Landlord and performed in the manner required by Landlord. Tenant shall
assume all risk for damage to articles moved and injury to any persons
resulting from the activity. If equipment, property, or personnel of
Landlord or of any other party is damaged or injured as a result of or in
connection with the activity, Tenant shall be solely liable for any
resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises, which approval shall
not be unreasonably withheld. Damage to the Building by the installation,
maintenance, operation, existence or removal of Tenant's Property shall be
repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building that might, in
Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building or about the Property, except
for those substances as are typically found in similar premises used for
general office purposes and are being used by Tenant in a safe manner and
in accordance with all applicable laws, rules and regulations. Tenant shall
not, without Landlord's prior written consent, use, store, install, spill,
remove, release or dispose of, within or about the Premises or any other
portion of the Property, any asbestos-containing materials or any solid,
liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any
other applicable environmental Law which may now or later be in effect.
Tenant shall comply with all Laws pertaining to and governing the use of
these materials by Tenant, and shall remain solely liable for the costs of
abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building. Tenant shall not use, or permit any
part of the Premises to be used, for lodging, sleeping or for any illegal
purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor disruption
or dispute, or interfere with Landlord's or any other tenant's or
occupant's business or with the rights and privileges of any person
lawfully in the Building ("Labor Disruption"). Tenant shall take the
actions necessary to resolve the Labor Disruption, and shall have pickets
removed and, at the request of Landlord, immediately terminate any work in
the Premises that gave rise to the Labor Disruption, until Landlord gives
its written consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Related Parties, nor shall
the Commencement Date of the Term be extended as a result of the above
actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the use
of electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to service
the Building.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees and invitees.
17. Bicycles and other vehicles are not permitted inside the Building or on the
walkways outside the Building, except in areas designated by Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and invitees
shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole opinion
may impair the reputation of the Building or its desirability. Upon written
notice from Landlord, Tenant shall refrain from and discontinue such
publicity immediately.
20. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless the Common Areas
have been declared a designated smoking area by Landlord, nor shall the
above parties allow smoke from the Premises to emanate into the Common
Areas or any other part of the Building. Landlord shall have the right to
designate the Building (including the Premises) as a non-smoking building.
21. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
22. Deliveries to and from the Premises shall be made only at the times, in the
areas and through the entrances and exits reasonably designated by
Landlord. Tenant shall not make deliveries to or from the Premises in a
manner that might interfere with the use by any other tenant of its
premises or of the Common Areas, any pedestrian use, or any use which is
inconsistent with good business practice.
23. The work of cleaning personnel shall not be hindered by Tenant after 5:30
p.m., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
EXHIBIT E
ADDITIONAL PROVISIONS
---------------------
This Exhibit is attached to and made a part of the Lease by and between
CT-STAMFORD ATLANTIC FORUM, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and CLEAN DIESEL TECHNOLOGIES, INC., A DELAWARE CORPORATION
("Tenant") for space in the Building located at 300 Atlantic Street, Stamford,
Connecticut 06901.
1. PARKING.
1.01 During the initial Term, Tenant agrees to lease from Landlord and Landlord
agrees to lease to Tenant a total of 9 unreserved parking spaces
(collectively, the "SPACES") in the Building garage ("GARAGE") for the use
of Tenant and its employees at no additional charge. No allowances shall be
made for days when Tenant or any of its employees does not utilize the
parking facilities or for Tenant utilizing less than all of the Spaces.
Tenant shall not have the right to use more than the number of unreserved
Spaces set forth above but may request to lease additional Spaces from
Landlord and, if Landlord agrees to do so, Tenant shall pay Landlord the
standard charge for such additional Spaces as Additional Rent at Landlord's
standard charge (as such charge may be changed by Landlord from time to
time).
1.02 Except for particular spaces and areas designated by Landlord for
reserved parking, all parking in the Garage and surface parking areas
serving the Building shall be on an unreserved, first-come,
first-served basis.
1.03 Landlord shall not be responsible for money, jewelry, automobiles or
other personal property lost in or stolen from the Garage or the
surface parking areas regardless of whether such loss or theft occurs
when the Garage or other areas therein are locked or otherwise
secured. Except as caused by the negligence or willful misconduct of
Landlord and without limiting the terms of the preceding sentence,
Landlord shall not be liable for any loss, injury or damage to persons
using the Garage or the surface parking areas or automobiles or other
property therein, it being agreed that, to the fullest extent
permitted by Law, the use of the Spaces shall be at the sole risk of
Tenant and its employees.
1.04 Landlord shall have the right from time to time to designate the
location of the Spaces and to promulgate reasonable rules and
regulations regarding the Garage, the surface parking areas, if any,
the Spaces and the use thereof, including, but not limited to, rules
and regulations controlling the flow of traffic to and from various
parking areas, the angle and direction of parking and the like. Tenant
shall comply with and cause its employees to comply with all such
rules and regulations as well as all reasonable additions and
amendments thereto.
1.05 Tenant shall not store or permit its employees to store any
automobiles in the Garage or on the surface parking areas without the
prior written consent of Landlord. Except for emergency repairs,
Tenant and its employees shall not perform any work on any automobiles
while located in the Garage or on the Property. If it is necessary for
Tenant or its employees to leave an automobile in the Garage or on the
surface parking areas overnight, Tenant shall provide Landlord with
prior notice thereof designating the license plate number and model of
such automobile.
1.06 Landlord shall have the right to temporarily close the Garage or
certain areas therein in order to perform necessary repairs,
maintenance and improvements to the Garage or the surface parking
areas, if any.
1.07 Tenant shall not assign or sublease any of the Spaces without the
consent of Landlord. Landlord shall have the right to terminate this
Parking Agreement with respect to any Spaces that Tenant desires to
sublet or assign.
1.08 Landlord may elect to provide parking cards or keys to control access
to the Garage or surface parking areas, if any. In such event,
Landlord shall provide Tenant with one card or key for each Space that
Tenant is leasing hereunder, provided that Landlord shall have the
right to require Tenant or its employees to place a deposit on such
access cards or keys and to pay a fee for any lost or damaged cards or
keys.
1.09 Landlord hereby reserves the right to enter into a management
agreement or lease with an entity for the Garage ("GARAGE OPERATOR").
In such event, Tenant, upon request of Landlord, shall enter into a
parking agreement with the Garage Operator and pay the Garage Operator
the monthly charge established hereunder (if any), and Landlord shall
have no liability for claims arising through acts or omissions of the
Garage Operator unless caused by Landlord's negligence or willful
misconduct. It is understood and agreed that the identity of the
Garage Operator may change from time to time during the Term. In
connection therewith, any parking lease or agreement entered into
between Tenant and a Garage Operator shall be freely assignable by
such Garage Operator or any successors thereto.
2. RENEWAL OPTION.
2.01 Grant of Option; Conditions. Tenant shall have the right to extend the
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Term (the "RENEWAL OPTION") for one additional period of 5 years
commencing on the day following the Termination Date of the initial
Term and ending on the 5th anniversary of the Termination Date (the
"RENEWAL TERM"), if:
a. Landlord receives notice of exercise ("INITIAL RENEWAL NOTICE")
not less than 12 full calendar months prior to the expiration of
the initial Term; and
b. Tenant is not in default under the Lease beyond any applicable
cure periods at the time that Tenant delivers its Initial Renewal
Notice or at the time Tenant delivers its Binding Notice (as
defined below); and
c. No part of the Premises is sublet (other than pursuant to a
Permitted Transfer, as defined in Article 11 of the Lease) at the
time that Tenant delivers its Initial Renewal Notice or at the
time Tenant delivers its Binding Notice; and
d. The Lease has not been assigned (other than pursuant to a
Permitted Transfer, as defined in 11 of the Lease) prior to the
date that Tenant delivers its Initial Renewal Notice or prior to
the date Tenant delivers its Binding Notice.
2.02 Terms Applicable to Premises During Renewal Term.
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a. The initial Base Rent rate per rentable square foot for the
Premises during the Renewal Term shall equal the Prevailing
Market (hereinafter defined) rate per rentable square foot for
the Premises. Base Rent during the Renewal Term shall increase,
if at all, in accordance with the increases assumed in the
determination of Prevailing Market rate. Base Rent attributable
to the Premises shall be payable in monthly installments in
accordance with the terms and conditions of Article 3 of the
Lease.
b. Tenant shall pay Additional Rent (i.e. Taxes and Expenses) for
the Premises during the Renewal Term in accordance with Article 3
of the Lease, and the manner and method in which Tenant
reimburses Landlord for Tenant's share of Taxes and Expenses and
the Base Year, if any, applicable to such matter, shall be some
of the factors considered in determining the Prevailing Market
rate for the Renewal Term.
2.03 Procedure for Determining Prevailing Market. Within 30 days after
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receipt of Tenant's Initial Renewal Notice, Landlord shall advise
Tenant of the applicable Base Rent rate for the Premises for the
Renewal Term. Tenant, within 15 days after the date on which Landlord
advises Tenant of the applicable Base Rent rate for the Renewal Term,
shall either (i) give Landlord final binding written notice ("BINDING
NOTICE") of Tenant's exercise of its Renewal Option, or (ii) if Tenant
disagrees with Landlord's determination, provide Landlord with written
notice of rejection (the "REJECTION NOTICE"). If Tenant fails to
provide Landlord with either a Binding Notice or Rejection Notice
within such 15 day period, Tenant's Renewal Option shall be null and
void and of no further force and effect. If Tenant provides Landlord
with a Binding Notice, Landlord and Tenant shall enter into the
Renewal Amendment (as defined below) upon the terms and conditions set
forth herein. If Tenant provides Landlord with a Rejection Notice,
Landlord and Tenant shall work together in good faith to agree upon
the Prevailing Market rate for the Premises during the Renewal Term.
When Landlord and Tenant have agreed upon the Prevailing Market rate
for the Premises, such agreement shall be reflected in a written
agreement between Landlord and Tenant, whether in a letter or
otherwise, and Landlord and Tenant shall enter into the Renewal
Amendment in accordance with the terms and conditions hereof.
Notwithstanding the foregoing, if Landlord and Tenant are unable to
agree upon the Prevailing Market rate for the Premises within 30 days
after the date Tenant provides Landlord with the Rejection Notice,
Tenant's Renewal Option shall be deemed to be null and void and of no
force and effect.
2.04 Renewal Amendment. If Tenant is entitled to and properly exercises its
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Renewal Option, Landlord shall prepare an amendment (the "RENEWAL
AMENDMENT") to reflect changes in the Base Rent, Term, Termination
Date and other appropriate terms. The Renewal Amendment shall be sent
to Tenant within a reasonable time after Landlord's receipt of the
Binding Notice or other written agreement by Landlord and Tenant
regarding the Prevailing Market rate, and Tenant shall execute and
return the Renewal Amendment to Landlord within 15 days after Tenant's
receipt of same, but, upon final determination of the Prevailing
Market rate applicable during the Renewal Term as described herein, an
otherwise valid exercise of the Renewal Option shall be fully
effective whether or not the Renewal Amendment is executed.
2.05 Definition of Prevailing Market. For purposes of this Renewal Option,
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"PREVAILING MARKET" shall mean the arms length fair market annual rental
rate per rentable square foot under renewal leases and amendments entered
into on or about the date on which the Prevailing Market is being
determined hereunder for space comparable to the Premises in the Building
and office buildings comparable to the Building in Stamford, Connecticut.
The determination of Prevailing Market shall take into account any material
economic differences between the terms of this Lease and any comparison
lease or amendment, such as rent abatements, construction costs and other
concessions and the manner, if any, in which the landlord under any such
lease is reimbursed for operating expenses and taxes. The determination of
Prevailing Market shall also take into consideration any reasonably
anticipated changes in the Prevailing Market rate from the time such
Prevailing Market rate is being determined and the time such Prevailing
Market rate will become effective under this Lease.
3. TEMPORARY SPACE.
3.01 During the period beginning on the later of (i) April 1, 2004 (ii) the
full and final execution of this Lease by Landlord and Tenant, (iii)
delivery of all prepaid rental, if any, required under this Lease, and
(iv) delivery of all initial certificates of insurance required by
this Lease (which certificates of insurance shall specifically cover
both the Temporary Space during the Temporary Space Term, as
hereinafter defined, and the Premises), and ending on the Commencement
Date of this Lease (such period being referred to herein as the
"TEMPORARY SPACE TERM"), Landlord shall allow Tenant to occupy
approximately 2,900 rentable square feet of space located on the 7th
floor of the Building as shown on EXHIBIT F of this Lease (the
"TEMPORARY
SPACE") for the Permitted Use. During the Temporary Space Term, the
Temporary Space shall be deemed the "Premises" for purposes of Section
13 (Indemnity and Waiver of Claims) of the Lease. Such Temporary Space
shall be accepted by Tenant in its "as-is" condition and
configuration, it being agreed that Landlord shall be under no
obligation to perform any work in the Temporary Space or to incur any
costs in connection with Tenant's move in, move out or occupancy of
the Temporary Space. Tenant acknowledges that it shall be entitled to
use and occupy the Temporary Space at its sole cost, expense and risk.
Tenant shall not construct any improvements or make any alterations of
any type to the Temporary Space without the prior written consent of
Landlord. All costs in connection with making the Temporary Space
ready for occupancy by Tenant shall be the sole responsibility of
Tenant.
3.02 The Temporary Space shall be subject to all the terms and conditions
of the Lease except as expressly modified herein, provided that Base
Rent for the Temporary Space during the Temporary Space Term shall be
$7,129.17 (based upon $29.50 per rentable square foot in the Temporary
Space) each month during the Temporary Space Term, payable in
accordance with the Lease, with the first installment due on the date
the Temporary Space Term begins. If the Temporary Space Term commences
on other than the first day of a calendar month or ends on other than
the last day of a calendar month, then the monthly Base Rent payable
for the Temporary Space for any such partial month shall be prorated
to reflect the actual number of days of such partial month falling
within the Temporary Space Term. Tenant shall not be required to pay
Tenant's Pro Rata Share of Expenses and Taxes for the Temporary Space
during the Temporary Space Term. Notwithstanding anything to the
contrary contained in the Lease, Tenant shall not be entitled to
receive any allowances, abatement or other financial concession in
connection with the Temporary Space which was granted with respect to
the Premises, and the Temporary Space shall not be subject to any
renewal or expansion rights of Tenant under the Lease.
3.03 Upon termination of the Temporary Space Term, Tenant shall vacate the
Temporary Space and deliver the same to Landlord in the same condition
that the Temporary Space was delivered to Tenant, ordinary wear and
tear excepted. At the expiration or earlier termination of the
Temporary Space Term, Tenant shall remove all debris, all items of
Tenant's personalty, and any trade fixtures of Tenant from the
Temporary Space. Tenant shall be fully liable for all damage Tenant or
Tenant's agents, employees, contractors, or subcontractors cause to
the Temporary Space. Tenant shall have no right to hold over or
otherwise occupy the Temporary Space at any time following the
expiration or earlier termination of the Temporary Space Term, and in
the event of such holdover, Landlord shall immediately be entitled to
institute dispossessory proceedings to recover possession of the
Temporary Space, without first providing notice thereof to Tenant. In
the event of holding over by Tenant after expiration or termination of
the Temporary Space Term without the written authorization of
Landlord, Tenant shall pay, for such holding over, the monthly Base
Rent due for the Temporary Space at the rate in effect immediately
preceding the expiration of the Temporary Space Term for each month or
partial month of holdover, plus all consequential damages that
Landlord incurs as a result of the Tenant's holdover. During any such
holdover, Tenant's occupancy of the Temporary Space shall be deemed
that of a tenant at sufferance, and in no event, either during the
Temporary Space Term or during any holdover by Tenant, shall Tenant be
determined to be a tenant-at-will under applicable Law. While Tenant
is occupying the Temporary Space, Landlord or Landlord's authorized
agents shall be entitled to enter the Temporary Space, upon reasonable
notice, to display the Temporary Space to prospective tenants.
EXHIBIT F
OUTLINE AND LOCATION OF TEMPORARY SPACE
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