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Exhibit 10.11
THIS LEASE
AGREEMENT (this "Lease") made as of this 16th day of June 2004,
by and between EIGHT FIFTY CANAL, LLC, a
limited liability company organized and
existing under the laws of the State of
Connecticut, with its principal offices
at c/o Frank Mercede & Sons, Inc., 700
Canal Street in the City of Stamford,
County of Fairfield and State of
Connecticut, acting herein by Frank Joseph
Mercede, its manager, hereunto duly
authorized, which limited liability company
is hereinafter referred to as "Landlord,"
and MTM TECHNOLOGIES, INC., a
corporation organized and existing under
the laws of the State of New York,
acting herein by Francis J. Alfano, its
Chief Executive Officer, hereinafter
referred to as "Tenant."
WITNESSETH:
SECTION 1 - DEMISED PREMISES:
Landlord hereby
leases to Tenant and Tenant hereby hires approximately (i)
Six Thousand (6,452) rentable square feet
of office space (the "Original Space")
on the third floor in a building (the
"Building") located on real property (the
"Land") located at 850 Canal Street,
Stamford Connecticut, which Original Space
is shown on Exhibit "A" annexed hereto and
which Land is shown on Exhibit "B"
annexed hereto, and (ii) when such space is
vacated by its current tenant
(estimated to be within one (1) year of the
Original Space Rent Commencement
Date (defined below)), the approximately
Two Thousand Four Hundred and Sixty
Eight (2,468) rentable square feet of
office space adjacent to the Original
Space (the "Additional Space, and with the
Original Space, the "Demised
Premises"). Landlord hereby warrants and
represents that such rentable areas
accurately reflects a "loss factor" (i.e.,
the percentage difference between the
rentable area and usable area of the
Demised Premises) which does not exceed 19
percent and that Tenant's Proportionate
Share (defined below) accurately
reflects the fraction obtained by dividing
the rentable square footage of the
Demised Premises by the rentable square
footage of the Building. If Landlord has
overstated the rentable area of the Demised
Premises or Tenant's Proportionate
Share, upon Tenant's request, this Lease
shall be appropriately amended and
Tenant's rent shall be retroactively
adjusted to reflect such overstatement,
with Landlord reimbursing Tenant for any
overpayments made before said
adjustment. For the purposes of
convenience, unless otherwise indicated the term
"Demised Premises" shall be deemed to apply
solely to the Original Space during
the period in which Tenant occupies solely
the Original Space; after Tenant
occupies both the Original Space and the
Additional Space, it shall be deemed to
apply to both the Original Space and the
Additional Space. In addition, Landlord
shall, and hereby does, grant to Tenant,
and Tenant shall, and hereby does,
accept from Landlord, the non-exclusive
right to use the Common Areas during the
Term for itself, its employees, other
agents and guests in common with Landlord,
any tenants of other leased premises within
the Building and any of their
respective employees, other agents and
guests. "Common Areas" means all areas
and facilities at the Land intended for the
common use of all tenants of the
Building, including, without limiting the
generality of the foregoing, the
parking area and driveways on the Land.
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SECTION 2 - PARKING:
Landlord will
provide Tenant, at no extra charge, with three (3) parking
spaces at the Building for each 1,000
rentable square feet of office space
actually occupied from time to time by
Tenant, such that until such time as
Tenant occupies the Additional Space,
Landlord will provide Tenant with nineteen
(19) parking spaces, and when Tenant
occupies the Additional Space, Landlord
will provide Tenant with an additional
eight (8) parking spaces for a total of
twenty seven (27) parking spaces. Of said
parking spaces, two (2) shall be
marked and reserved for Tenant's exclusive
use. Landlord reserves the right to
relocate Tenant's spaces within the same
parking area and to change the size of
the spaces at any time during the Term of
this Lease. Landlord shall keep the
parking area in good order and repair,
reasonably secure, and reasonably free of
obstructions such as ice, snow, rubbish and
unauthorized vehicles.
SECTION 3 - TERM OF LEASE
(a) The Term of
this Lease shall be for five (5) years, commencing on the
later of September, 1, 2004 or five (5)
business days following: Tenant's
receipt from Landlord of a final and
unconditional certificate of occupancy for
the Original Space d (the "Original Space
Rent Commencement Date") and ending on
the fifth anniversary of the Original Space
Rent Commencement Date (the "Term"),
with payment of rent commencing on (i) with
respect to the Original Space,
subject to the provisions of Section
4(a)(iii) hereof, the Original Space Rent
Commencement Date, and (ii) with respect to
the Additional Space, subject to the
provisions of Section 4(a)(iii) hereof,
after the Additional Space is vacated by
its existing tenant and five (5) business
days following Tenant's receipt from
Landlord of a final and unconditional
certificate of occupancy for the
Additional Space (the "Additional Space
Rent Commencement Date", and with the
Original Space Rent Commencement Date, the
"Commencement Date"). Notwithstanding
the immediately preceding sentence,
Landlord and Tenant agree that the
Additional Space Rent Commencement Date
shall not occur before June 1, 2005 or
after the one (1) year anniversary of the
Original Space Rent Commencement Date.
(b) (i) If the
Original Space is not ready for occupancy in accordance with
the provisions of Section 3(a) and Section
6(a) hereof on September 1, 2004 or
the Additional Space is not ready for
occupancy in accordance with the
provisions of Section 3(a) and Section 6(a)
hereof by the one (1) year
anniversary of the Original Space Rent
Commencement Date, Landlord shall have
the greater of (x) an additional forty five
(45) days or (y) such amount in
excess of forty five (45) days as may be
necessary under the circumstances to
comply with any change orders in the Work
required by Tenant under Section 6(a)
hereof, in which to ready such designated
portion of the Demised Premises for
occupancy. If either designated portion of
the Demised Premises is not ready for
occupancy on the respective date set forth
as such portion's Commencement Date
(and with respect to the Additional Space,
on or before the one (1) year
anniversary of the Original Space Rent
Commencement Date) and said delay is
proximately caused by any act or omission
of Tenant or any of its employees,
agents or contractors, including but not
limited to, any change orders in the
Work required by Tenant and/or failure of
Tenant to act reasonably promptly when
any consent of approval may be requested by
Landlord, Tenant's obligation to pay
rent with respect to such portion
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shall commence nevertheless. Should
Landlord fail to deliver the Original Space
or Additional Space to Tenant as required
by this Lease for any reason not
caused by Tenant (including, without
limitation, any reasons due to "Force
Majeure" conditions) within the aforesaid
period, Tenant may terminate this
Lease, without liability, upon ten (10)
days' notice, in which case Landlord
shall immediately return to Tenant any
prepaid rent.
(c) At the
expiration or termination of the Term of this Lease, whether by
lapse of time or otherwise, Tenant shall
surrender the Demised Premises in good
condition, reasonable wear and tear, loss
or damage by fire, casualties, the
elements, or by causes beyond Tenant's
reasonable control, and Landlord's
maintenance, repair and replacement
obligations, excepted. At the expiration of
the Term of this Lease, Tenant shall remove
from the Demised Premises all
fixtures and furnishings belonging to
Tenant (provided, however, that Tenant
shall have no obligation to remove or pay
for the removal of the initial fit-up
of the Demised Premises, or any subsequent
alterations which Landlord has
approved during the Term), and the Demised
Premises shall be left in broom-clean
condition. Tenant shall repair, at its
cost, any damage caused by removal of
fixtures or furnishings during or at the
end of the Term. At the election of the
Landlord, all partitions, ceilings,
lighting appended to the Demised Premises
and flooring or carpeting will become the
property of the Landlord unless
fixtures installed by Tenant.
SECTION 4 - RENT
(a) The basic rent for the Demised
Premises shall be as follows:
(i) For the Original Space, One Hundred Forty One Thousand Nine
Hundred and Forty Four and 00/100
($141,944) Dollars per year, or $11,828.67
monthly; and
(ii) For the Additional Space, Fifty Four Thousand Two Hundred
and
Ninety Six and 00/100 ($54,296) Dollars per
year, or $4,524.67 monthly.
(iii) Notwithstanding the foregoing provisions, Tenant shall not
be
obligated to pay any rent during the first
three (3) full months it occupies the
Original Space, and during the first full
month following the Additional Space
Rent Commencement Date.
(b) The term
"Lease Year" as used herein shall mean each period of twelve
(12) consecutive calendar months commencing
on the Original Space Rent
Commencement Date and, hereafter, on the
anniversary of the Original Space Rent
Commencement Date during the Term of this
Lease, and the Renewal Term, if any.
(c) The annual
rent shall be paid in twelve (12) equal installments in
advance on the first day of each calendar
month during the Term. Tenant shall
pay the prorated monthly portion of said
rent for any fractional period of a
month or fractional period of a Lease Year
within the Term or Renewal Term, if
any.
SECTION 5 - COVENANTS:
(a) Landlord
covenants that as long as Tenant is not in default under this
Lease, Tenant may peaceably and quietly
have, hold and enjoy the Demised
Premises, subject to the conditions set
forth herein.
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(b) Landlord
hereby represents and warrants that it has the full right,
power and authority to execute this Lease
and grant the estate herein demised.
(c) Landlord
shall have the right, however, to enter the Demised Premises
at all reasonable times, upon reasonable
prior notice to the Tenant, during
usual business hours, for the purpose of
inspection or for showing the same to
prospective purchasers or fee mortgagees,
provided Landlord's entries are in a
manner consistent with Tenant's reasonable
security requirements and do not
unreasonably interfere with Tenant's use of
the Demised Premises for business
purposes.
SECTION 6 - FIT-UP AND ALTERATIONS:
(a) Prior to the
applicable Commencement Date, Landlord, at its expense,
shall undertake and complete to Tenant's
reasonable satisfaction all the work
(the "Work") described in Exhibit "A1"
attached hereto and made a part hereof
with respect to the Original Space and the
Additional Space. The Work shall be
performed promptly and diligently until
completion, by supervised, experienced
personnel. The Work shall be performed in a
first-class manner as to
workmanship, installation and materials,
and in accordance with Tenant's
approved plans. Tenant shall have the right
to make change orders to said
approved plans, upon Landlord's prior
written consent, which consent shall not
be unreasonably withheld, conditioned or
delayed. Landlord shall provide Tenant
with any and all resulting cost increases
and/or estimated time delays
associated with said change orders upon
approving same. Landlord shall perform
the Work in compliance with all applicable
federal, state and local laws, codes,
statutes, ordinances, guidelines, rules and
regulations. During the course of
construction, Landlord shall keep Tenant
duly apprised of the progress of the
Work and any claimed delays. Landlord
hereby warrants and represents that the
Work shall be free from defects in
workmanship, installation and materials for a
period of one (1) year from the applicable
Commencement Date, and Landlord, at
its sole cost and expense, shall promptly
perform any corrective work arising
from said warranty. Within sixty (60) days
after the applicable Commencement
Date, Tenant shall have the right to submit
to Landlord a "punch list" of any
Work items which need to be finished or
corrected, and Landlord, at its sole
cost and expense, shall promptly complete
and/or correct same. Landlord, at its
expense, before the Original Space
Commencement Date, shall install Tenant's
name on all directories in the Building.
Landlord shall modify such listings to
identify any permitted assignees or
subtenants, with Tenant reimbursing Landlord
for the actual costs therefor. Tenant shall
have the right to install a sign on
its entrance door and reasonably
appropriate signage in the Demised Premises,
provided it first obtains Landlord's
consent.
(b) (i)
Subsequent to the Work to be performed by the Landlord, as
outlined
on Exhibit "A1", Tenant shall make no
alterations or improvements in or to the
Demised Premises without Landlord's prior
written consent. Any such alterations
or improvements shall be performed only by
Landlord, or by contractors
reasonably approved by Landlord, provided
however, any such approved contractors
must be licensed to do business in the
State of Connecticut and must be of
similar size, quality and reputation as
Frank Mercede & Sons, Inc.
Notwithstanding the foregoing, Tenant may
decorate, not including painting, and
perform minor cosmetic remodeling with
respect
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to the portion of the Demised Premises
occupied by Tenant from time to time, in
either case without obtaining Landlord's
consent.
(ii) In furtherance of the foregoing provisions, Landlord and
Tenant
have discussed, and Landlord is amenable to
the installation in the Building or
on the Land (the location of which shall be
reasonably determined by Landlord in
its sole discretion) of, a back-up
generator of a size and power agreed upon by
the parties that is reasonably necessary to
provide back-up power for Tenant's
computers and electronic data processors in
the Demised Premises. In all events,
the installation of any such generator
shall be subject to the following
conditions: the generator (i) shall not
interfere with the peaceful and quiet
enjoyment of the other tenants of the
Building, (ii) must be installed in a
manner and in a location which will
minimize noise and vibration, be performed
at Tenant's expense and by duly licensed
and Landlord-approved contractors, and
(iii) must be serviced under a maintenance
contract by a reputable service
provider at Tenant's sole cost and expense
throughout the term of the Lease.
(c) Landlord
hereby warrants and represents that, as of the applicable
Commencement Date: (a) the Demised Premises
shall be vacant, broom-clean and
ready for Tenant's exclusive occupancy; (b)
all Work shall be substantially
completed such that a final and
unconditional certificate of occupancy
permitting lawful occupancy has been duly
issued, and such that Tenant may
reasonably commence its business
operations; (c) all mechanical equipment and
utility systems serving the Demised
Premises shall be in good working order and
repair; (d) the Demised Premises shall be
structurally sound and "water-tight";
(e) Tenant's access to the Demised Premises
shall be reasonably secure and
unimpeded; and (f) the Demised Premises,
Building and the Land shall be in
compliance with all applicable laws, codes,
statutes, ordinances, guidelines,
rules and regulations. Landlord's
warranties and representations under this
subsection shall survive the commencement
of the Term.
SECTION 7 - ADDITIONAL RENT;
ESCALATION:
(a) As used herein:
1. The term "Real Estate Taxes" shall mean all real property
related
taxes and assessments levied, assessed, or
imposed at any time by any
governmental authority upon or against the
Building, parking lot and Land, and
also any tax or assessment levied,
assessed, or imposed, newly enacted at any
time by any governmental authority having
jurisdiction over the Demised Premises
in connection with the receipt of income or
rent from said Building, parking lot
and Land (computed as if Landlord owned or
operated no property other than said
Building, parking lot and Land) to the
extent that same shall be in lieu of or
in addition to all or a portion of any of
the aforesaid real property taxes
against the Building and Land. The term
"Real Estate Taxes " shall not mean or
include any interest or penalties which may
become due by reason of the failure
to pay any such taxes when due and payable,
or any inheritance, estate,
transfer, gift, succession, general
franchise, corporate, income, excess
profits, sales, conveyance or other
non-real estate tax imposed on Landlord, and
shall exclude any Real Estate Taxes not
fairly allocable to the Term.
2. "Tax Year" shall mean a fiscal year for which Real Estate Taxes
are
imposed.
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3. "Base Tax Year" is stipulated to be the tax fiscal year of July
1,
2004 to June 30, 2005 of the City of
Stamford. The Real Estate Taxes payable in
the Base Tax Year shall be deemed to be the
amount derived by multiplying the
full assessment value of the Building,
parking lot and Land by the mill rate for
the Base Tax Year. Full assessed value of
the Building and Land, in the first
instance, shall be deemed to mean the total
assessment for the Building and Land
made by the City Tax Assessor on the Grand
List of October 1, 2003; provided
however, until such time as the Building,
parking lot and Land are assessed by
the City Tax Assessor as a fully
constructed and 90% occupied property, the
assessed value of said items will be
equitably adjusted to assume a fully
constructed (including tenant space
fit-out) Building that was 90% occupied
during the entire Base Tax Year.
4. "Subsequent Tax Year" shall mean a Tax Year or portion thereof
that
falls within the Term of this Lease which
shall be subsequent to the Base Tax
Year.
5. "Building" shall mean the Building in which the Demised
Premises
are located.
6. "Tenant's Proportionate Share" shall be deemed to be 9.67% of
the
Building with respect to the Original
Space, including the parking lot and Land.
When Tenant takes occupancy of the
Additional Space, Tenant's Proportionate
Share shall be increased by 3.7% for an
aggregate total of 13.37%.
(b) If the Real
Estate Taxes for any Subsequent Tax Year shall be more than
Real Estate Taxes for the Base Tax Year,
Tenant shall pay as additional rent for
such Subsequent Tax Year, a sum equal to
Tenant's Proportionate Share of the
amount by which the Real Estate Taxes for
such Subsequent Tax Year are greater
than the Real Estate Taxes for the Base Tax
Year (which amount is hereinafter
called the "Tax Payment"). In connection
therewith, the parties agree that until
such time as the Building is 90% occupied
and, therefore, 90% assessed, the Real
Estate Taxes for any Subsequent Tax Year
shall be equitably adjusted to the
amount such Real Estate Taxes would have
been if the Building was 90% occupied
during each such Subsequent Tax Year.
Should this Lease terminate prior to the
expiration of a Subsequent Tax Year, such
Tax Payment shall be prorated to, and
shall be payable on, or when ascertained
after, the date of termination of this
Lease. Payments of additional rent for Tax
Payments due from Tenant shall be
made as and subject to the conditions,
hereinafter provided in this Section. If
Landlord shall receive a refund or rebate
of Real Estate Taxes for any
Subsequent Tax Year, Landlord shall pay to
Tenant, Tenant's Proportionate Share
of such refund and of any interest thereon,
after deduction from such refund and
interest the reasonable costs and expenses
(including experts' and attorneys'
fees) of obtaining such refund.
(c) Landlord
with reasonable promptness after receipt of the bill for the
Base Tax Year shall supply Tenant with a
copy thereof. If the Real Estate Taxes
for the Base Tax Year shall thereafter be
reduced, Landlord shall notify Tenant
with reasonable promptness of the amount of
the Real Estate Taxes for the Base
Tax Year as so reduced and provide Tenant
with written evidence of such
reduction issued by the taxing authority.
With reasonable promptness after the
end of each Subsequent Tax Year, Landlord
shall render and deliver to Tenant a
copy of the Real Estate Tax bill for such
Subsequent Tax Year and a comparative
statement showing the amount of the Real
Estate Taxes for the Base Tax Year, the
amount of Real Estate Taxes for such
Subsequent Tax Year and the Tax Payment due
from Tenant for such Subsequent Tax Year,
indicating thereon in reasonable
detail the computation of such Tax Payment.
If the comparative statement for a
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Subsequent Tax Year shows a payment due,
Tenant shall pay the amount of the Tax
Payment shown on such comparative statement
(or the balance or a proportionate
installment thereon, if only an installment
of such Real Estate Taxes is
involved) within thirty (30) days after the
rendition and receipt of such
comparative statement.
(d) The
following words and phrases, wherever used in this Section 7
shall
have the following meanings:
1. "Base Operating Expense" means the amount of the Operating
Expenses
for the Base Year (as hereinafter defined).
The parties agree that until the
Building is 90% occupied "Base Operating
Expenses" shall be equitably adjusted
by cost item to the amount such expenses
would have been if the Building was 90%
occupied during the entire Base Year.
2. "Base Year" means the calendar year 2004.
3. "Subsequent Year" means the Twelve (12) month period
immediately
succeeding the Base Year and any further
Twelve (12) month period immediately
succeeding a Subsequent Year.
4. "Operating Expenses" means the following expenses of the
Landlord
attributable to maintenance of the Land and
Building, to the extent that they
are reasonable and properly incurred for
the stated purpose and chargeable
against income in accordance with generally
accepted accounting principles, and
except to the extent that they have been
separately charged to the tenants of
the Building and excluding capital
expenses:
(i) The wages of persons (other than any head office employees of
the
Landlord) engaged in the current operation
and maintenance of the Land and
Building;
(ii) The cost of common area electric (calculated by subtracting
the
sum of all monies paid by all tenants of
the Building for electricity from the
electricity bill for the Building covering
the same period of time), water,
fuel, supplies, materials, and equipment
required for the current operation and
maintenance of the Building. Landlord
represents that each tenant of the
Building is and shall continue to be
required to pay for all electricity
consumed within its leased premises outside
of Operating Expenses.
(iii) Amounts payable under contracts with contractors
reflecting
prevailing rates in the subject industry,
with contractors for current operation
and maintenance to the Building, including
without limiting the generality of
the foregoing, contracts relating to the
elevator, the cleaning of the Building,
security of the Building, and all other
services to be provided by Landlord
pursuant to the terms of this Lease;
(iv) Amounts payable for insurance premiums for those insurance
policies purchased by Landlord as required
in this Lease.
"Operating Expenses" shall exclude all of
the following:
(i) Landlord's debt service (principal and interest) of any
kind;
(ii) Any environmental compliance or remediation costs of any
kind;
(iii) Intentionally Omitted;
(iv) Any costs, fees or expenses not expressly referred to in
this
Lease, or otherwise provided to be paid by
parties other than Tenant;
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(v) Wages, salaries, fees and fringe benefits paid to
administrative
or executive personnel or officers or
partners of Landlord who are not directly
involved in the daily management and
operations of the Land;
(vi) All costs, fees and disbursements relating to activities for
the
solicitation and execution of leases for
space in the Land (including, without
limitation, legal fees and brokerage
costs);
(vii) The cost of correcting defects in the construction of the
Building or in the building equipment and
mechanical systems thereof;
(viii) The cost of any repair made by Landlord because of the total
or
partial destruction of the Building or the
condemnation of a portion of the
Building or Land;
(ix) The cost of any items for which Landlord is reimbursed by
insurance or other parties;
(x) The cost of any additions or capital improvements to the
Building;
(xi) the cost of any repairs, alterations, additions,
replacements,
and other items which under generally
accepted accounting principles are
properly classified as capital expenditures
to the extent they upgrade or
improve the Building as opposed to the
replacement of existing items which have
worn out;
(xii) the cost of any work or service performed for, or
facilities
furnished to, any tenant of the Building to
a greater extent or in a manner more
favorable to such tenant than the work or
services regularly performed for or
furnished to other tenants of the
Building;
(xiii) The cost of alterations to, or the decorating or
redecorating
of space in the Building leased to other
tenants;
(xiv) the cost of overtime or other expense to Landlord in curing
its
defaults under this Lease or performing
work expressly provided in this Lease to
be borne at Landlord's sole expense;
(xv) Intentionally Omitted; and
(xvi) Any costs representing an amount paid to a corporation,
entity
or person related to Landlord which is in
excess of the amount which would be
paid in the absence of such
relationship.
5. "Wages" means and includes salaries, medical, surgical and
general
welfare benefits (including group life
insurance), workmen's compensation
insurance, uniforms, and amounts
contributed by Landlord to pension funds in
respect of the employees of Landlord
referred to in Paragraph 4, but only to the
extent that such salaries, benefits,
insurance and/or reasonable contributions
are reasonable having regard to
corresponding salaries, benefits, insurance
and/or contributions paid in connection
with the operation of similar office
Buildings in Stamford, Connecticut.
6. "Tenant's Proportionate Share" shall be deemed to be 9.67%
with
respect to the Original Space. When Tenant
takes occupancy of the Additional
Space, Tenant's Proportionate Share shall
be increased by 3.7% for an aggregate
total of 13.37%.
(e) In the event
that at any time or from time to time during the Term of
this Lease, the amount of Operating
Expenses for any Subsequent Year shall be in
excess of the Base Operating Expenses, the
Tenant shall pay as additional rent a
sum equal to Tenant's Proportionate Share
of the amount by which the Operating
Expenses for such Subsequent Year are
greater than the Base
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Operating Expenses; provided, however, that
Tenant shall not be liable for any
increases in Operating Expenses which are
not fairly allocable to the Term. In
connection therewith, the parties agree
that until such time as the Building is
90% occupied, the Operating Expenses for
any Subsequent Year shall be equitably
adjusted to the amount such Operating
Expenses would have been if the Building
was 90% occupied during each such
Subsequent Year. The Landlord shall furnish to
the Tenant as soon as possible after the
end of the Base Year and each
Subsequent Year but in any event not later
than Four (4) months thereafter, a
certificate of the Landlord specifying the
amount of the Base Operating Expenses
and the Operating Expenses for each such
year determined as herein provided and
showing in reasonable detail the nature of
and the manner of computing such
expenses. Within Thirty (30) days of the
receipt of such certificates for each
such year in respect of which amounts (said
amount being herein called "Excess
Operating Payments") are payable by the
Tenant hereunder, the Tenant shall
reimburse the Landlord all amounts then
owing by it in respect of such Excess
Operating Payments.
(e)
Notwithstanding anything to the contrary contained herein,
Landlord
agrees that during the initial term of this
Lease Tenant shall not be charged
for increases in non-fixed Operating
Expenses in excess of ten percent (10%) per
year.
(g) Landlord's
comparative statement for a Tax Payment and Landlord's
comparative statement of increase in the
Operating Expenses over the Base Year
Operating Expenses shall be conclusive and
binding upon Tenant unless:
(i) within Sixty (60) days after receipt of either such
comparative
statement Tenant shall notify Landlord that
it disputes the correctness of the
statement, specifying the respects in which
the statement is claimed to be
incorrect, and;
(ii) if such dispute shall not have been settled by agreement,
Tenant
shall submit the dispute to binding
arbitration within Sixty (60) days after
receipt of such comparative statement.
Pending the determination of such dispute
by agreement or arbitration as aforesaid,
Tenant shall pay additional rent in
accordance with Landlord's comparative
statement, and such payment shall be
without prejudice to Tenant's position. If
the dispute shall be determined in
Tenant's favor, Landlord shall forthwith
reimburse Tenant for any overpayment.
Notwithstanding the foregoing, Landlord
agrees to make available, upon two (2)
business days' notice, its statements,
books and records relating to said
dispute for audit, inspection and copying
by Tenant.
SECTION 8 - UTILITIES:
Together with
monthly payments of base rent due hereunder, Tenant shall pay
for all electricity used in the portion of
the Demised Premises, including
electricity used and consumed for lighting,
and/or other small business office
equipment and machines at the current rate
of $1.75 per rentable square foot per
Lease Year, which rate has been established
based on the electricity rate
charged to Landlord by the public utility,
Northeast Utilities Company. Tenant
shall pay for any rate increase imposed by
the public utility during the Term of
this Lease. If any additional or large
office equipment requiring in excess of
15 amperes is employed by Tenant during the
term of this Lease or any extension
thereof, the rates and amounts payable by
the Tenant each Lease Year shall be
established by means of a survey conducted
by the public utility at Landlord's
expense. Landlord shall not in any way be
liable or responsible to Tenant for
any loss or damage or expense which
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Tenant may sustain of incur if the quantity
or character of electric service is
changed by the public utility or through no
fault of Landlord is no longer
available or suitable for Tenant's
requirements. Tenant's electricity charges
shall not exceed the normal and customary
electricity charges imposed at
comparable first-class office buildings in
the Stamford, Connecticut area.
SECTION 9 - USE AND OPERATION OF DEMISED
PREMISES:
(a) Throughout
the Term of this Lease, Tenant may use the Demised Premises
for general office purposes and to operate
a computer network operations center
and any lawful uses reasonably related
thereto. Landlord hereby warrants and
represents that, to the best of its
knowledge, information and belief,
applicable zoning and the Building's
certificate of occupancy permit the
foregoing usage at the Demised Premises.
Landlord shall not unreasonably
withhold, condition or delay its consent to
uses at the Demised Premises other
than those specified above, provided such
other uses are generally in keeping
with the standards of the Building and (X)
do not (i) injure or damage the
Demised Premises or the Property, (ii)
cause any offensive odors, noises or
visual effects, (iii) constitute a public
or private nuisance or menace to any
patron, tenant or other persons or their
property, (iv) constitute or be
reasonably viewed by Landlord or the
community at any time and from time to time
as vulgar, lewd, lascivious or catering to
prurient interests or be in any way
detrimental to the reputation of Landlord
or its principals, (v) make void or
voidable any insurance with respect to the
Property and/or the Demised Premises,
or which will make it impossible to obtain
fire or other insurance at the usual
rate for similar structures, (Y) will not
cause or be likely to cause structural
damage to the Building or any part thereof,
and (Z) will not violate any law or
regulation of any governmental authority,
and are otherwise allowed by
applicable law, zoning regulations and the
underwriting requirements of
Landlord's insurer(s) of the Building and
the requirements of any holder of any
mortgage encumbering the Land and the
Building.
(b) Tenant
agrees to keep and maintain the Demised Premises in the same
condition it will be in on the day Tenant
takes possession, and to maintain it
in accordance with Tenant's obligation
pursuant to Section 10(a) hereof, all
subject to reasonable wear and tear, loss
by fire or other casualty and
Landlord's maintenance, repair and
replacement obligations.
(d) Tenant shall
not use or install any special equipment without the prior
approval of Landlord, which approval shall
not be unreasonably withheld.
(e) Tenant shall
not act or carry on any practice which may injure the
Demised Premises or the Building in which
the same are located, cause any
offensive odors or loud noises, or
constitute a public nuisance or menace to any
other tenant or other persons.
(e) Landlord
reserves the right to adopt reasonable and uniform rules and
regulations for the operation of the
Building and common areas so that the same
shall be operated efficiently and in
accordance with other provisions of this
Lease. Tenant agrees to abide by, and
require its employees to abide by, said
rules and regulations.
1. Nothing in this Lease contained shall be construed to impose
upon
Landlord any duty or obligation to enforce
the Rules and Regulations or terms,
covenants or conditions in any other Lease,
as against any other tenant unless
Tenant has given Landlord notice of a
material and repeated violation of same
which is interfering with Tenant's
enjoyment of the Demised Premises,
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and Landlord shall not be liable to Tenant
for violation of the same by any
other tenant, its servants, employees,
agents, visitors or licenses.
2. If any governmental license or permit regulating or related
to
Tenant's business other than a Certificate
of Occupancy, shall be required for
the proper and lawful conduct of Tenant's
business in the Demised Premises, or
any part thereof, and if failure to secure
such license or permit would in any
way affect Landlord, then Tenant, at its
expense, shall duly procure and
thereafter, maintain such license or permit
and submit same to inspection by
Landlord. Tenant shall at all times comply
with the terms and conditions of each
such license or permit, but in no event
shall failure to procure and maintain
same by Tenant affect Tenant's obligations
hereunder. Except as immediately set
forth above, Landlord, at its sole cost and
expense, shall comply with all
applicable laws, codes, statutes,
ordinances, rules and regulations relating to
the Demised Premises, the Building and the
Land, including, without limitation,
building, health, disability and fire code
requirements.
SECTION 10 - REPAIRS
(a) Tenant, at
its expense, shall take good care of and repair the interior
of the Demised Premises and fixtures and
appurtenances located therein and
replace all light bulbs. Landlord, at its
expense, shall take care of, and keep
in repair and good order and condition, all
exterior and structural portions
(including the foundations, walls roofs,
windows and structural portions of the
ceiling and floors) and
