Exhibit 10.68
COMMERCIAL
LEASE
THIS LEASE
is made as of this 18th day of
August, 2000, by and between Beard Sawmill LLC, a Connecticut
limited liability company (hereinafter referred to as
“Landlord”) and the following party (hereinafter
referred to as “Tenant”):
PHYSICIANS HEALTH SERVICES OF
CONNECTICUT, INC., a Connecticut corporation
IN CONSIDERATION
of the mutual benefits and
obligations set forth in this Lease, Landlord and Tenant agree as
follows:
ARTICLE I—LEASING DATA
1.1. L EASING D ATA . This
Article contains data used in other provisions of this Lease but
set forth in this Article for ease of reference. For example,
although the Monthly Base Rent is specified in this Article,
Article IV is the operative provision of the Lease regarding the
payment of the Monthly Base Rent. Whenever any item contained in
this Article is more specifically described in a subsequent Article
of the Lease, the more specific description will
control.
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(a)
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The
“Building” is the proposed building in which the Leased
Premises is to be located and is known as Route 8 Corporate Center,
Shelton, Connecticut as more specifically described in Exhibit C
attached hereto.
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(b)
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The
“Leased Premises” is located on the 3rd, 4th, 5th and
6th floors of the Building, with the floor area outline of the
Leased Premises being shown on Exhibit A, attached
hereto.
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(c)
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Provided the
Building is constructed in accordance with the plans and
specifications attached hereto as Exhibits A-1 through A-6, the
“Leased Premises Square Footage” shall be 104,233. If
the Building is not constructed in accordance with such plans and
specifications, the Leased Premises Square Footage will be subject
to measurement and verification as provided for in paragraph 2.17
hereof. Notwithstanding the BOMA standard method per Exhibit G
attached hereto for measuring the Leased Premises, Tenant’s
Leased Premises Square Footage shall include Tenant’s
Percentage of the rentable square footage of the Building’s
cafeteria and the health club, nonetheless measured by the BOMA
Standard method. For purposes of calculating Tenant’s Base
Rent obligations and Tenant’s Percentage (i) the
rentable area of the Leased Premises shall be measured using the
method for determining “Rentable Area” set forth in the
aforementioned BOMA standard, and (ii) the load factor (i.e.,
the difference between the “Usable Area” of the
Premises, and the “Rentable Area” of the Premises, both
determined pursuant to the aforementioned BOMA standard), shall not
exceed twelve percent (12%).
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(d)
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The
“Initial Commencement Date” is no later than the
earlier of 9 months after the delivery of all of the structural
steel for the Building (“Steel”) to the Project, or 14
months after the execution of the Lease by Landlord, Tenant and
execution of the Guaranty attached as Exhibit F hereto by
Foundation Health Systems, Inc., (collectively,
“Execution”) provided that Tenant provides Landlord
with approved floor plans 60 days from execution of this Lease.
Landlord’s approval of Tenant’s floor plan, space plan
and other documents requiring Landlord’s approval shall in no
event be unreasonably withheld, and Landlord shall, not later than
five (5) days after submission of the same, grant its approval
or provide specific, written objections thereto. The Initial
Commencement Date will automatically extend one day for each day
Tenant delays in providing said floor plans. The Initial
Commencement Date is the date upon the occurrence of all of the
following:
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Substantial completion of the
base building, exterior landscaping (to the extent possible in the
season), parking and roadways and substantial completion of
Tenant’s leasehold improvements all in accordance with
specifications pursuant to the attached Exhibit C. Substantial
completion, as defined herein, of all work shall be certified by
Tenant’s architect in its reasonable discretion,
with
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the possible exception of
“Punch List Items”. “Punch List Items”
means those items (including exterior landscaping) whose failure to
complete will not materially adversely affect Tenant’s
ability to use the Leased Premises for the purposes stated herein
and which are agreed to as such in a writing signed by both
Landlord and Tenant. Landlord will, nevertheless, promptly and
diligently pursue the completion of any such Punch List hems.
Landlord represents and warrants that upon delivery of vacant
possession of the Leased Premises to Tenant with all of
Landlord’s work as provided herein, duly completed, the
Building of which the Leased Premises are a part, the Leased
Premises, and all systems serving the Leased Premises, HVAC,
plumbing, sewer sprinkler and electrical systems, will be in good
working order and condition, and in compliance with all laws and
building codes, including but not limited to the Americans with
Disabilities Act.
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Issuance of a
Certificate of Occupancy by the City of Shelton.
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(e)
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The
“Initial Term” is the period of time beginning with the
Initial Commencement Date and ending at the end of the 180th full
calendar month from and after the Initial Commencement
Date.
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(f)
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The
“Leased Premises Use” is general office purposes and
uses reasonably similar or incidental thereto.
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(g)
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The “Base
Rent” for the Initial Term is $14.00 per rentable square foot
per annum for years 1 – 15 or $121,605 per month.
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(h)
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The
“Security Deposit” is $-0-.
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(i)
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The
“Notice Address” for Landlord and Tenant
are:
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Landlord:
Beard Sawmill LLC
c/o R. D. Scinto, Inc.
P.O. Box 880
Shelton, CT 06484
Tenant:
Physicians Health Services of
Connecticut, Inc.
One Far Mill Crossing
P.O. Box 904
Shelton, CT 06484
Attn: Chief Financial
Officer
Foundation Health Systems,
Inc.
P.O. Box 2470
Rancho Cordova, CA
95741-2470
Attn: Director of Real
Estate
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(j)
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If the Leased Premises are not
substantially completed as defined in paragraph 1.1(d) hereof,
Tenant shall, following the day that the Leased Premises have
actually been substantially completed, receive one day of free rent
for each day of delay after such date. If the Leased Premises are
not substantially completed within nine months following delivery
of the Steel to the Project or 14 months from full execution of
this Lease and the Guaranty, (as may be extended pursuant to
paragraph 1.1(d), whichever is sooner, Tenant may upon notice and
at its option terminate the Lease at any time thereafter. Landlord
shall order the Steel immediately upon Execution. If the Steel has
not been delivered to the Project within six months after
Execution, Tenant may upon notice and at its option terminate the
Lease at any time thereafter. Landlord shall notify Tenant in
writing of the delivery of the Steel to the Project promptly upon
such delivery. Time is of the essence of such dates and any
election by Tenant not to terminate on any date thereafter shall
constitute a waiver of such time of the essence as to that date
only and each date thereafter is deemed to be a new time is of the
essence date if Tenant has not elected to Terminate on the
immediately preceding time of the essence date. If Tenant does not
so terminate, the free per day rent for each day of delay until
substantial completion shall continue to accrue to the benefit of
Tenant Notwithstanding this right of Tenant to
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terminate, nothing herein is
intended to preclude Tenant from seeking specific performance of
this Lease against Robert D. Scinto as guarantor pursuant to the
terms of his guaranty of even date herewith (which guaranty shall
be in the form attached hereto as Exhibit I).
ARTICLE II—DEFINITIONS
2.01. C
APITALIZED
W ORDS AND P HRASES . This
Lease contains many words and phrases with initial, capitalized
letters. These words and phrases are used as specially defined
terms in an effort to make the Lease easier to read. An effort has
been made to set forth some of the more common defined terms in
this Article, but other Articles may also contain defined terms.
Whenever a capitalized word or phrase is used in this Lease, it
shall have the definition specifically ascribed to it, unless the
context of the usage implies otherwise. Some of the definitions
listed below may not be used in the main body of the Lease. Some
definitions which may not be used in the main body of the Lease are
nevertheless listed because in some situations, the Data Section or
additional provisions or exhibits added to the Lease may
incorporate the use of such definitions.
2.02. “A
DDITIONAL
R ENT ” means any charge, other than the Base Rent,
payable by Tenant to Landlord under any provision of this
Lease.
2.03. “B
UILDING
” means the building to be built in which the
Leased Premises are to be located.
2.04. “C
OMMON A REA ” means all portions of the Project other than the
Leased Premises and other Tenant spaces including common corridors,
mechanical rooms, lobby areas, elevator lobbies, common bathrooms,
any area for the mutual benefit of all Tenants in the Building
(e.g. health club, gift shop, cafeteria), all as measured pursuant
to the BOMA standard method for measurement as outlined in the
attached Exhibit G and verified by Tenant’s
architect.
2.05. “C
ONSENT ” OR “A PPROVAL ” of either party means the consent or approval
given by such party in writing which consent or approval shall not
be unreasonably withheld, unless this Lease specifically provides
otherwise to the contrary.
2.06. I
NTENTIONALLY
O MITTED .
2.07. “F
ISCAL Y EAR ” means the 12 month periods comprising the
calendar year for the purposes of computing Monthly Additional
Rent. Landlord may change such fiscal year upon notice to Tenant
and upon such change there shall be an equitable and proportional
adjustment.
2.08. “L
ANDLORD
’
S I NSURANCE P REMIUMS ” means the premiums for Landlord’s
Insurance Coverages, Landlord’s Insurance Coverages being
defined in paragraph 8.02.
2.09. “L
EASED P REMISES ” means the rentable space leased to Tenant at the
Project, as generally described in the data section.
2.10. “L
EASED P REMISES S QUARE F OOTAGE ” means the square footage set forth in Article I,
which represents square footage of the Leased Premises as measured
by BOMA standards and verified by Tenant’s
architect.
2.11. “L
EASED P REMISES U TILITY C HARGES ” means the charges payable by Tenant for its
utility consumption at the Leased Premises, as further described in
paragraph 5.02.
2.12. “N
OTICE ” means only written notification given by one
party to the other or to Landlord’s mortgagee, if any, if
required under this Lease. Notice may only be given by: a form of
US Mail in which the recipient is required to sign a receipt (such
as certified, return receipt); a nationally recognized courier
service which requires
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the recipient to sign a receipt (such as Federal
Express or UPS Next Day); All Notices will be effective on receipt.
Notice must be given to the other party at the party’s Notice
Address. The Notice Address for each party is the address listed in
the Data Section of this Lease, or to such other address designated
by a party by Notice to the other party, provided, that neither
shall not be required to give Notice to more than one address,
unless otherwise specified herein.
2.13. “P
ROJECT ” means the Building and the real estate
associated with the Building, the boundary of which is described on
Exhibit B.
2.14. “P
ROJECT O PERATING E XPENSES ” means all of the reasonable and necessary
expenses incurred by Landlord in the Operation of the Project
except for those expenses which are specifically excluded in this
paragraph below, as may be adjusted by the following sentence. If
during all or part of any Calendar Year the Project has not been
fully occupied, then for the purposes of computing Project
Operating Expenses for such Calendar Year, Project Operating
Expenses shall be those expenses which would have reasonably and
necessarily been incurred had the Project been fully occupied and
would otherwise qualify as proper Project Operating Expenses. The
preceding sentence shall in no event allow Landlord to receive
payment or reimbursement for more than 100% of the expenses
actually incurred by Landlord for the relevant Calendar Year.
Project Operating Expenses includes, without limitation;
(a) the cost of any personnel of Landlord directly involved in
the operation of the Project, provided such personnel are not above
the grade of building manager and provided that the cost of any
personnel serving more properties than the Project is allocated to
the Project only in proportion to the time spent on the Project
business; (b) the cost of equipment and supplies used in the
maintenance and operation of the Project (salt and sand in the
winter months, for example); (c) the cost of keeping the
Project in good repair (repairs & replacements but
excluding replacements of a capital nature); (d) the cost of
utilities serving the Common Area and utilities serving the Leased
Premises other than those in Article 5 hereof (electricity for the
parking lot lighting and HVAC, for example); (e) a reasonable
management fee consistent with the operation of a first-class
office building in the Shelton, CT area, however, in no event shall
the fee exceed that charged other tenants of comparable size and
shall in no event exceed five percent (5%) of the
Project’s gross rents in any calendar year; (f) the cost
of maintenance and cleaning of the Common Area; (g) the cost
of equipment maintenance contracts; (h) landscaping costs;
(i) restriping and repairing the parking area serving the
Project; (j) Landlord’s Insurance Premiums;
(k) Project Taxes; and (l) any other item reasonably
expended to maintain the Building in at least the same manner as
other first-class office buildings in the Shelton, CT market which
would constitute an operating expense under generally accepted
accounting principles and which is not otherwise excluded from
Project Operating Expenses under this Lease. Project Operating
Expenses shall not include; (a) mortgage principal and
interest payments; (b) cost of refinancing any indebtedness
secured by the Building; (c) ground rent and related costs;
(d) depreciation and amortization of building or equipment;
(e) interest or penalties resulting from late payments by
Landlord; (f) advertising costs; (g) brokers’
leasing commissions; (h) tenant leasehold improvements;
(i) capital improvements; (j) any costs reimbursed by
insurance companies or governmental authorities; (k) legal
fees for the enforcement of any other tenant’s leases;
(l) the cost of fine art work (other than normal costs
associated with maintaining, but not acquiring quality decorative
artwork); (m) off-site management personnel and overhead;
(n) Landlord’s cost of electricity and other services
that are sold to tenants and for which Landlord is entitled to be
reimbursed by tenants as an additional charge or rental over and
above the base rent payable under the lease with such tenant;
(o) expenses in connection with services or other benefits of
a type which are not provided Tenant but which are provided to
another tenant or occupant; (p) overhead and profit increment
paid to subsidiaries or affiliates of Landlord for services on or
to the real property, to the extent only that the costs of such
services exceed competitive costs of such services were they not so
rendered by a subsidiary or affiliate; (q) all items and
services for which Tenant reimburses Landlord or pays third
persons; (r) any costs, fines or penalties incurred due to
violations by Landlord or any governmental rule or authority;
(s) any charge or expense to the extent that it is materially
in excess of that charged by landlords for similar buildings in the
general vicinity of the Leased Premises; (t) costs due to
Landlord’s violation of law; (u) the amount of any
deductible with respect to Landlord’s insurance, the costs of
self-insurance or any risk against which Landlord has elected to
self-insure; (v) curing of construction defects; (w) any
and all costs of Landlord in bringing the Building into compliance
with building codes and other laws
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(unless caused by Tenant’s unique use of
the Premises contrary to general office use); (x) any and all
costs of Landlord in complying with environmental regulations
including, but not limited to, the costs and expenses of clean-up,
remediation, environmental surveys/assessments, compliance with
environmental laws, consulting fees, treatment and monitoring
charges, transportation expenses and disposal fees, etc.;
(y) any and all costs incurred by Landlord in connection with
the transfer or disposition of Landlord’s interest in the
Building or Project; (z) costs for which Landlord has been
compensated by a management fee; (aa) costs arising from the
negligence or fault of other tenants or Landlord; (bb) costs
arising during the contractual warranty period from construction
defects in the base, shell or core of the Building or improvements
installed by Landlord; (cc) “in-house” legal and/or
accounting fees; and (dd) any other expenses which, in accordance
with generally accepted accounting principles, consistently
applied, would not normally be treated as operating expenses by
comparable landlords of comparable buildings.
2.15. “P
ROJECT T AXES ” means the regularly assessed and payable real
estate tax of the City of Shelton as may from time to time be
abated and any other tax or use charge to be imposed upon the
Project or its operation, such as, without limitation: a sewer
assessment or use charge; a fire district tax; and/or a special
taxing district tax. Project Taxes does not include any personal
property tax imposed upon the personal property of any tenant in
the Building or any other tax which may be imposed directly upon a
tenant in the Building rather than the Project or its owner
generally, or any income, profit, franchise, rent, sales, gift,
estate, inheritance or similar taxes. Landlord represents that it
is not aware of any tax other than real property tax with regard to
the Project nor has it received any information regarding the
assessment of any such tax. Landlord agrees to appeal the initial
and/or any subsequent assessment and pursue same diligently at the
request of Tenant based upon such assessment being unreasonable.
Tenant agrees to continue to pay taxes based upon such assessments
pending such appeal.
2.16. “R
ENT ” means all sums payable by Tenant to Landlord
under the provisions of this Lease, including all Base Rent and
Additional Rent.
2.17. “T
ENANT ’ S P ERCENTAGE ” means the percentage equivalent to the ratio of
the Leased Premises Square Footage divided by the Total Building
Square Footage, which may be proportionately adjusted upon any
change in the Leased Premises Square Footage or Total Building
Square Footage, but will not be adjusted based upon the degree of
occupancy of the Project. Provided the Building is constructed in
accordance with the plans and specifications attached hereto as
Exhibits A-1 through A-6, Tenant’s Percentage shall be 70.11
percent. If the Building is not constructed in accordance with the
plans and specifications attached hereto as Exhibits A-1 through
A-6, Tenant’s Percentage will be determined by measuring
pursuant to the BOMA standard method for measurement as outlined in
the attached Exhibit G and verified by Tenant’s
architect.
2.18. “T
ERM ” means the period of time during which Tenant is
entitled to possession of the Leased Premises in accordance with
the provisions of this Lease, but does not include any holdover
period.
2.19. “T
OTAL B UILDING S QUARE F OOTAGE ” shall be 148,669 square feet, provided that the
Building is constructed in accordance with the plans and
specifications attached hereto as Exhibits A-1 through A-6.
Otherwise, the Total Building Square Footage will be determined by
measuring the gross rentable square footage pursuant to the BOMA
standard method for measurement as outlined in the attached Exhibit
G and verified by Tenant’s architect of the rentable tenant
spaces in the Building, whether rented or not. The Total Building
Square Footage is subject to adjustment as measured pursuant to
Exhibit G hereof and verified by Tenant’s architect, such as
an increase if any additional rentable square footage is
constructed as an addition to the Building.
2.20. “W
ALL S TREET P RIME ” means the interest rate published by the Wall
Street Journal as the base rate on corporate loans posted by at
least 75% of the nation’s 30 largest banks, or a similar
substitute rate reasonably selected by Landlord if the foregoing
rate is no longer published. Unless a different rate is stated in
this Lease, any sum owing from Landlord to Tenant under this Lease
shall accrue interest at the Wall Street Prime plus two
(2) percentage points.
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ARTICLE III—LEASING OF LEASED PREMISES AND
TERM OF LEASE
3.01. L
EASING OF L EASED P REMISES . Landlord hereby leases the Leased Premises to
Tenant for the Term, together with a right to all portions of the
Common Area, subject to the other provisions of this
Lease.
3.02. Q
UIET E NJOYMENT . Upon
payment by Tenant of the Rents herein provided, and upon the
substantial performance of all the covenants, provisions and
conditions on Tenant’s part to be observed and performed,
Tenant shall peaceably and quietly hold and enjoy the Leased
Premises for the Term without hindrance or interruption by Landlord
or any person claiming by or through Landlord.
3.03. I
NTENTIONALLY
O MITTED .
3.04. C
ONDITION
OF L EASED P REMISES U PON D ELIVERY TO T ENANT . The
Leased Premises shall be delivered to Tenant on the Initial
Commencement Date in a condition, broom clean land free of all
personal property of others with the base building, exterior
landscaping (weather permitting), parking and roadway substantially
completed as outlined in the Data Section and subject to completion
of punch list items. Landlord will perform the work set forth in
Exhibit C, attached hereto, as Landlord’s Initial Fit-Out
Work. Any and all of Landlord’s Initial Fit-Out Work shall be
performed by Landlord in a good and workmanlike manner using
first-class materials as outlined in the Exhibit C. Landlord will
commence any Landlord’s Initial Fit-Out Work on or before the
date felt to be reasonably early enough for the Landlord’s
Initial Fit-Out Work to be substantially completed on or before the
Initial Commencement Date with the possible exception of punch list
items as defined herein.
3.05. B
EST E FFORTS . Landlord shall use its best efforts to complete
the Building, the Project and Landlord’s Initial Fit-Out Work
in a timely and good and workmanlike manner and as otherwise
described in this Lease.
3.06 . P RE I NITIAL C OMMENCEMENT D ATE A CCESS .
Tenant shall have the right of access, without any obligation to
pay Rent, to the Leased Premises prior to the Initial Commencement
Date upon notice to Landlord for the purposes of performing all
work and installations for occupancy for the Tenant’s uses
hereunder provided said access will be in a manner so as not to
materially interfere with Landlord’s work.
ARTICLE IV—PAYMENT OF RENT
4.01. P
AYMENT OF R ENT . Tenant shall pay the monthly Base Rent and the
Monthly Additional Rent on the first day of each calendar month
during the Term, in advance. The amount of the Monthly Additional
Rent and method of billing therefore is set forth in paragraph
4.02. Any other charge shall be due in accordance with the Lease
provision governing the charge. For example, if Tenant is to pay
Landlord for any fit-out work, the charge and manner of payment for
that may be covered under the provision specifying the fit-out
work.
4.02. M
ONTHLY A DDITIONAL R ENT . The
Monthly Additional Rent is: [i] Tenant’s Percentage of
Project Operating Expenses; plus [ii] Leased Premises Utility
Charges. At the beginning of each Calendar Year, Landlord shall
prepare an itemized estimate (in reasonable detail) of all of the
components of the Monthly Additional Rent expected to be incurred
by Tenant during the ensuing Calendar Year. Landlord will provide a
copy of the statement of estimated Monthly Additional Rent to
Tenant and Tenant shall pay the Monthly Additional Rent based on
Landlord’s estimated statement, each monthly payment to be
1/12 of the estimated Monthly Additional Rent to be incurred for
the full Calendar Year. After the end of each Calendar Year,
Landlord will prepare an itemized statement of the actual Monthly
Additional Rent incurred by Tenant during the prior Calendar Year,
together with a statement of any overpayment or underpayment of
actual Monthly Additional Rent based upon the estimated payments
made by Tenant. Landlord will render the statement of Monthly
Additional Rent actually incurred by Tenant within 90 days after
the end of each Calendar Year. In the case of an underpayment,
Tenant shall pay the shortage to Landlord within 30 days after
rendering the statement of actual Monthly Additional Rent to Tenant
provided that such statement is delivered to Tenant within 120
days
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after the end of the calendar year (or else
Tenant shall not be obligated to pay any such amount). In the case
of an overpayment, Landlord will reimburse the amount of the
overpayment to Tenant within 30 days after the rendering of the
statement. In the event it becomes reasonably apparent to Landlord
during the course of a Calendar Year that the actual Monthly
Additional Rent will be materially different than the estimated
Monthly Additional Rent (on account of an unexpected increase in
the municipal real estate tax, for example), then Landlord may
reasonably amend the statement of estimated Monthly Additional Rent
and the monthly payments will be adjusted such that all of the
newly estimated Monthly Additional Rent for the full Calendar Year
will have been paid via the Monthly Additional Rent payments made
prior to the new estimate plus payment of the equal adjusted
installments of the Monthly Additional Rent payments remaining in
the Calendar Year and further provided that Landlord provides
reasonable evidence substantiating such material difference. If
Landlord has not provided Tenant with a statement of estimated
Monthly Additional Rent prior to the beginning of a Calendar Year,
Tenant shall make installment payments based upon the installments
in effect for the prior year until the new statement of estimated
Monthly Additional Rent is rendered to Tenant. Any overestimate in
excess of 10% per Calendar year exclusive of Property Taxes
shall bear annualized interest at 2% over Wall Street Prime for the
estimated rent for such Calendar year on the amount which is the
difference between the estimated Operating Expenses and the actual
Operating Expenses. The calculation of Monthly Additional Rent
shall be in accordance with Generally Accepted Accounting
Principles. Any component of Project Taxes shall be charged to any
period as actually paid by the Landlord. For example, if Landlord
receives a tax bill based on the List of October 1, 1998 which
is due and payable on July 1, 1999 and January 1, 2000
covering the period July 1, 1999 to June 30, 2000
inclusive, the tax bill would be charged to the calendar year 1999
Project Operating Expenses. Tenant shall be entitled
proportionately to any abatements or other similar benefits. If the
City of Shelton changes its manner of taxation, the allocation of
Project Taxes shall be correspondingly changed in an equitable
manner. All utility bills and other similar expenses shall be
allocated to the period of actual usage which resulted in the bill.
For example, if Landlord receives a Common Area electric bill in
January 1999, which bill covers a period beginning in November 1998
and ending in December 1998, the electric bill would be charged to
1998 Project Operating Expenses. During the three hundred sixty
(360) day period after receipt of any instrument containing a
computation of an actual month’s Additional Rent pursuant to
this Article, (“Landlord’s Statement”), Tenant
(or a representative of Tenant) may inspect and audit
Landlord’s records relevant to the cost and expense items
reflected in such Landlord Statement at the location at which such
records are located at a reasonable time mutually agreeable to
Landlord and Tenant during Landlord’s usual business hours,
the cost of which audit shall be borne by Tenant, unless it reveals
an error in Tenant’s Percentage of Project Operating Expenses
in excess of five percent (5%), in which case it shall be borne by
Landlord. Notwithstanding anything to the contrary contained in the
Lease, Landlord agrees that for the first twelve months after
Tenant’s actual date of occupancy of the Initial Term,
Tenant’s Percentage of Project Operating Expenses, as
described in this 4.02 (i) above, will not exceed $5.20
(expense cap) per rentable square foot of Leased
Premises.
4.03. A
DDITIONAL
P ROVISIONS R EGARDING P AYMENT OF R ENT . All
Rent shall be due and payable without any setoff or deduction to
Landlord at the times specified in this Article, above except as
otherwise provided herein or as provided by applicable law. If any
installment of Rent is not paid within 10 days of its due date,
Tenant shall pay a late charge to Landlord equal to the greater of
$100 or 5% of the overdue payment. Notwithstanding same Tenant
shall be entitled to one late payment not to exceed 15 days over
the course of the Calendar year. If the outstanding balance of Rent
owed to Landlord contains any amount that has not been paid within
10 days of its due date, then beginning on the 11th day, the entire
outstanding balance of Rent owed by Tenant shall bear interest at
the “Default Rate”, until the outstanding balance no
longer includes any amounts not paid within 10 days of their due
date. The “Default Rate” is the rate of interest equal
to the lesser of: [i] 2% over the Wall Street Prime in effect at
the time the Default Rate begins to accrue; or [ii] the maximum
rate of interest permitted to be charged under law. Any liability
for unpaid Rent shall survive the termination of the
Lease.
ARTICLE V—LEASED PREMISES
UTILITIES
5.01. R
ESPONSIBILITY
TO P ROVIDE U TILITIES TO THE L EASED P REMISES . Landlord shall at its
sole cost and expense provide the distribution systems for electric
power for the lighting and power outlets for the Leased
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Premises and fuel and electricity for the
heating, ventilation and air conditioning system for the Leased
Premises in quantity and quality necessary for Tenant to operate
its business, initially as outlined in the work letter attached
hereto and made a part hereof as Exhibit C, all at the lowest
possible rates and without any profit to Landlord. If Landlord is
responsible to provide the Leased Premises to Tenant with any
plumbing fixtures (such as kitchen facilities with a sink or
bathroom facilities), Landlord will provide, at its sole cost and
expense, a water supply to the plumbing fixtures and a waste line
from such plumbing fixtures in quantity and quality necessary for
Tenant to operate its business initially as outlined in the work
letter attached hereto. Landlord will provide at its sole expense
Tenant with locations in the Building from which Tenant may run
Tenant’s telephone lines. Landlord shall provide, at its sole
expense, for all electricity consumed by Tenant in the Leased
Premises to be separately metered to Tenant, and, permit Tenant to
maintain Tenant’s own, metered account with the electric
provider. In the case of any utility for which Tenant is permitted
to maintain Tenant’s own separately metered account,
Landlord’s responsibility to provide such utility to the
Leased Premises shall consist of being responsible to construct and
maintain all building systems installed by Landlord for such
utility system in good repair and providing the utility up to the
point of the meter. Tenant, and not Landlord, will be responsible
for maintaining the metered account and for keeping the utility
turned on from and after the point of the meter. Landlord will
provide heating, ventilating and air conditioning to the Leased
Premises throughout the term of the Lease for the hours of 8 a.m.
to 6 p.m. Monday through Friday and 9 a.m. to 1 p.m. on Saturday
and said heating and ventilation and air conditioning shall be
consistent with the standards outlined in the attached Exhibit C,
and shall in all events be consistent with services typically
provided in a first-class office building.
5.02. R
ESPONSIBILITY
TO P AY FOR L EASED P REMISES U TILITY C HARGES . Tenant shall pay all charges for utilities used,
consumed in or allocable to the Leased Premises (“Leased
Premises Utility Charges”). Any utilities not separately
metered to the Tenant will be treated and allocated as Additional
Rent as outlined in Article IV of this Lease. If Tenant is in
arrears with any provider of any separately metered utility service
to the Leased Premises, Landlord may, provided such utility charges
are not reasonably in dispute and upon 15 days notice to Tenant,
pay the providers charges, and Tenant shall reimburse Landlord
together with interest from and after the date of Landlord’s
payment at the Default Rate (defined in Article IV hereof).
Landlord represents that the quantity and quality of common areas
and common utilities shall be consistent with first-class office
buildings operated by Landlord or its affiliates, i.e., Enterprise
Corporate Park.
ARTICLE VI—USE OF LEASED PREMISES AND
TENANT’S CONDUCT IN PROJECT
6.01. P
ERMITTED
U SE FOR L EASED P REMISES BY T ENANT . Tenant and any permitted assignee sublessee or
subs sublessee shall use the Leased Premises for the sole and
exclusive purpose set forth in the Data Section and no other
purpose. The use of the Leased Premises shall also be in accordance
with all laws affecting the Leased Premises, including the
municipal zoning laws. Tenant will comply with all rules and
regulations reasonably established by Landlord for the governing of
conduct of tenants in general in the Building, of which Tenant is
given notice provided Landlord agrees that same shall be uniformly
and non-discriminatory enforced and do not materially increase
Tenant’s obligations under this Lease. Landlord agrees to
enforce same against other tenants of the Building.
6.02. T
ENANT A LTERATIONS , T ENANTS C ONTRACTORS , M ECHANIC ’ S L IENS , E TC . Tenant shall not cause any alteration or
improvement to be made to the Leased Premises or to any other
portion of the Project unless Tenant has obtained Landlord’s
prior Consent. Landlord will not unreasonably withhold, delay or
condition Landlord’s Consent to such alterations or
improvements, but prior to rendering Consent, Landlord may require
Tenant to submit building plans (in detail reasonably required by
Landlord) and the identity of the contractor or contractors and
subcontractors to perform any such alterations or improvements.
Prior to the commencement of any such alteration or improvement by
any contractor, Landlord will be provided with a certificate of
insurance for such contractor, showing public liability coverage,
workers compensation coverage and any other insurance coverage
regarding such alteration or improvement reasonably required by
Landlord, which certificate names Landlord as an additional insured
and provides that the coverage will not be canceled or not renewed
without at least 15 days advance Notice to Landlord. All work
performed by or through Tenant shall be performed in full
compliance
8
with all laws, shall be carried out in a
reasonably prompt and workmanlike manner and shall not unreasonably
interfere with the peaceful enjoyment of the Project by any other
tenant. Tenant shall promptly pay all contractors and materialmen
hired by Tenant to furnish any labor or materials which may give
rise to the filing of a mechanic’s lien against the Project
attributable to alterations and improvements done by or through
Tenant. Should any such lien be placed against the Project, Tenant
shall cause same to be discharged as against the Project within the
sooner of: [i] 30 business days after Tenant receives notice of
such lien: or [ii] 30 business days after request by Landlord to
remove such lien. If bond is filed and such lien is thereby
discharged, Tenant shall not be obligated to discharge the lien by
payment. Notwithstanding anything contained in this section 6.02
Tenant may make any non-structural alteration or improvement
costing less than $50,000 but subject to all other terms hereof
except the requirement that Tenant obtain Landlord’s
reasonable approval. In any event, Landlord will be notified of any
such non structural alterations. Any alteration or improvement
approved by Landlord, including Landlord’s Initial Fit-Out
Work, may at Tenant’s option, be removed or left at the
Leased Premises at the termination of this Lease.
6.03. T
ENANT ’ S AND L ANDLORD ’ S G ENERAL C OMPLIANCE WITH L AWS . Tenant and Landlord shall, at their respective
cost and expense, comply with all of the requirements of all laws
now in force or which may hereafter be in force and not being
reasonably disputed by Tenant or Landlord pertaining to
Tenant’s use of the Leased Premises and Project and any act
therein by Tenant or the Landlord. Specific reference is made to
Tenant and Landlord’s duty to comply with all state, federal
and local laws concerning environmental protection and Tenant and
Landlord’s conduct at the Project. Each party shall indemnify
and hold the other harmless from and against any damage, liability,
cost and/or expense which such party may suffer by reason of the
other party’s failure to comply with the laws governing their
respective conduct at the Project, including all laws concerning
environmental protection. Neither Landlord nor Tenant shall
undertake any acts which would result in the Leased Premises or the
Project being defined as an “Establishment” under the
environmental laws of the State of Connecticut. Landlord warrants,
represents and covenants that the Building shall be throughout the
term of this Lease in compliance with all covenants, restrictions,
laws, statutes, ordinances, and governmental rules and regulations
(including, but not limited to, the Americans with Disabilities Act
of 1990), and requirements of any board of fire underwriters or
similar body, as all of the same may be amended and supplemented
from time to time (collectively, “Laws”).
Tenant’s obligation under Section 6.03 and elsewhere in
this Lease with respect to constructing or retrofitting the
Premises to comply with Laws shall be limited to Laws
(a) pertaining to Tenant’s personal property; or
(b) mandating alterations to the interior of the Premises
(i) as a result of modifications made to the interior of the
Premises by Tenant or (ii) as a result
