<PAGE>
Exhibit 10.35
OFFICE LEASE
by and between
LANCDON LIMITED PARTNERSHIP
(Landlord)
and
DARWIN PROFESSIONAL UNDERWRITERS, INC.
(Tenant)
Dated: As of February 1, 2005
<PAGE>
OFFICE LEASE
Dated: AS OF FEBRUARY 1, 2005
REFERENCE DATA
LANDLORD:
Lancdon Limited Partnership
LANDLORD'S ADDRESS: c/o Mcared Realty, Inc.,
51 Sherman
Hill Road, Building A,
Suite A-1040, Woodbury, CT 06798
TENANT:
Darwin Professional Underwriters, Inc.
TENANT'S ADDRESS: 76 Batterson Park Road,
Farmington, CT 06032
BUILDING:
9 Farm Springs Road, Farmington, CT 06032
PREMISES:
Approximately 36,732 rentable square feet of area in the
Building as outlined on EXHIBIT A
TERM.
COMMENCEMENT DATE: May
1, 2005
TERM:
Six (6) years and five (5) months
RENEWAL TERM: One
(1) term of five (5) years
ANNUAL RENT:
Month 1-3: -0
Months 4-75: $20.00 per rentable square foot
Months 76 & 77: -0-
RENEWAL TERM
ANNUAL RENT:
95% of market value rent
Tenant must provide at least 9 months
notice to renew.
The foregoing data is to be used for reference purposes only and
not as a
summary or interpretation of any of the terms and conditions of the
Lease.
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TABLE OF CONTENTS
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Page
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1.
PREMISES; COMMON FACILITIES........................................
1
2. TERM;
EARLY ACCESS.................................................
1
3.
RENT...............................................................
1
4.
USE................................................................
6
5.
SERVICES...........................................................
6
6.
UTILITIES..........................................................
6
7.
INTERRUPTION OF SERVICES AND UTILITIES.............................
6
8. EXTRA
SERVICES AND UTILITIES.......................................
7
9.
REPAIRS............................................................
7
10. YIELD UP AND
FIXTURES.............................................. 8
11. CHANGES AND
ALTERATIONS............................................
8
12. INDEMNITY
AND INSURANCE............................................
9
13. SUBLEASING
AND ASSIGNMENT..........................................
11
14. LANDLORD'S
RIGHTS IN A TENANT BANKRUPTCY...........................
14
15. COMPLIANCE
WITH LAWS...............................................
14
16.
APPURTENANCES......................................................
15
17. FIRE OR
OTHER CASUALTY.............................................
15
18.
CONDEMNATION.......................................................
16
19.
INTENTIONALLY OMITTED..............................................
16
20.
ACCESS.............................................................
16
21.
LIABILITY..........................................................
17
22.
DEFAULT............................................................
17
23.
BANKRUPTCY.........................................................
18
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24. WAIVER OF
SUBROGATION..............................................
19
25.
SUBORDINATION......................................................
19
26. DEFINITION
OF LANDLORD.............................................
19
27.
BROKERAGE..........................................................
19
28. RULES AND
REGULATIONS..............................................
19
29. LIMITATION
OF LIABILITY............................................
20
30. FORCE
MAJEURE......................................................
20
31.
INTENTIONALLY OMITTED..............................................
21
32.
NOTICES............................................................
21
33. SELF
HELP..........................................................
21
34. ESTOPPEL
CERTIFICATES..............................................
22
35. MECHANICS
LIENS....................................................
22
36. CONDITION OF
THE PREMISES; LANDLORD'S WORK......................... 22
37. PRE JUDGMENT
REMEDY, REDEMPTION, COUNTERCLAIM AND JURY TRIAL....... 23
38.
RECORDING..........................................................
23
39. PARTIAL
INVALIDITY.................................................
23
40. ENTIRE
AGREEMENT...................................................
23
41. HEIRS,
ASSIGNS, NUMBER AND GENDER..................................
24
42. MORTGAGEE
PROTECTION...............................................
24
43.
INTENTIONALLY OMITTED..............................................
24
44. HOLDING
OVER.......................................................
24
45.
FINANCING..........................................................
24
46.
SHORING............................................................
25
47. RENEWAL
OPTIONS....................................................
25
48. SATELLITE
DISH PROVISIONS..........................................
26
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ii
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49.
PARKING............................................................
29
50.
ENVIRONMENTAL CONDITION OF THE PROPERTY............................
29
51.
GENERATOR..........................................................
30
52.
SIGNAGE............................................................
30
53. QUIET
ENJOYMENT....................................................
31
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EXHIBITS
Exhibit A - Plan Showing the Premises
Exhibit B - Rules and Regulations
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OFFICE LEASE
THIS LEASE made as of the 1st day of February, 2005, between
LANCDON
LIMITED PARTNERSHIP, a Pennsylvania limited partnership with an
office c/o
Mcared Realty, Inc., 51 Sherman Hill Road, Building A, Suite
A-104C, Woodbury,
CT 06798 (hereinafter called "Landlord"), and DARWIN PROFESSIONAL
UNDERWRITERS,
INC. a Delaware corporation with offices at 76 Batterson Park Road,
Farmington,
CT 06032 (hereinafter called "Tenant").
WITNESSETH:
1.
PREMISES; COMMON
FACILITIES.
(a) Landlord hereby leases to Tenant and Tenant hereby hires
from
Landlord, approximately 36,732 rentable square feet of space,
located on the
second floor of the building known as 9 Farm Springs Road,
Farmington, CT
(hereinafter referred to as the "Building"), as indicated on the
plan attached
hereto as Exhibit A (hereinafter referred to as the
"Premises").
(b) As long as this Lease is in full force and effect, Tenant
shall
have the right to use, in common with others, (i) the showers and
locker rooms
located on the ground floor of the Building; and (ii) any cafeteria
in the
Building,
2.
TERM; EARLY
ACCESS.
(a) The term of this Lease shall commence on May 1, 2005 (the
"Commencement Date") and end on September 30, 2011. Notwithstanding
the
foregoing, if the work to be performed by Landlord tinder paragraph
36(b) hereof
is substantially completed prior to May 1, 2005, and Tenant
occupies the
Premises and commences business therein prior to May 1, 2005, then
the
Commencement Date shall be such earlier date on which both of the
foregoing have
occurred. The Commencement Date of this Lease and the obligation of
Tenant to
pay rent, additional rent and all other charges hereunder shall not
be delayed
or postponed by reason of any delay by Tenant in performing changes
or
alterations in the Premises to be perforated by Tenant.
(b) Tenant shall be entitled to have access to the Premises as of
the
earlier of February 7, 2005 or the date that Landlord notifies
Tenant that the
existing tenant of the Premises has terminated its lease with
respect thereto,
for the purpose of readying the Premises for its occupancy. All of
the terms and
conditions of this Lease shall apply to any such early occupancy
period.
3.
RENT. Annual
rent shall be as follows:
(i) Commencement Date through three (3) months after the
Commencement
Date: -0-
(ii) From the date that is three (3) months after the
Commencement
Date (i.e., if the Commencement Date is April 15, 2005, the date
that is three
(3) months
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after the Commencement Date would be July 15, 2005) through the
seventy-fifth
(75th) full month after the Commencement Date: $20.00 per rentable
square foot.
(iii) Seventy-sixth (76th) and seventy-seventh (77th) full
months
after the Commencement Date:
For purposes of determining the amount of annual rent payable
during
the period from the Commencement Date through the thirty-sixth
(36th) full month
after the Commencement Date, the following shall apply:
(A) For the fourth (4th) through twelfth (12th) full months
after
the Commencement Date, annual rent shall be payable based on 20,000
rentable
square feet, provided that if at any time during such time period,
Tenant has
more than 108 employees or other people working in the Premises,
then during the
balance of such time period, for each employee in excess of 100,
annual rent
shall be payable on an additional 225 rentable square feet (tip to
a maximum
number of rentable square feet of 36,732).
(B) For the thirteenth (13th) through twenty-fourth (24th) full
months after the Commencement Date, annual rent shall be payable
based on 25,000
rentable square feet, provided that if at any time during such time
period,
Tenant has more than 136 employees or other people working in the
Premises, then
during the balance of such time period, for each employee in excess
of 125,
annual rent shall be payable on an additional 225 rentable square
feet (up to a
maximum number of rentable square feet of 36,732).
(C) For the twenty-fifth (25th) through thirty-fifth (35th)
full
months after the Commencement Date, annual rent shall be payable
based on 30,000
rentable square feet, provided that if at any time during such time
period,
Tenant has more than 163 employees or other people working in the
Premises, then
during the balance of such time period, for each employee in excess
of 150,
annual rent shall be payable on an additional 225 rentable square
feet (up to a
maximum number of rentable square feet of 36,732).
For the thirty-sixth (36th) full month after the Commencement Date
and
thereafter, annual rent shall be payable based on 36,732 rentable
square feet,
regardless of the number of employees or other people working in
the Premises.
Tenant
covenants and agrees to pay to Landlord the rent c/o Mcared
Realty, Inc., 51 Sherman Hill Road, Building A, Suite A- 104C,
Woodbury, CT
06798, or at such other place as Landlord may designate in writing.
Rent shall
be payable without notice or demand, without abatement, deduction
or setoff,
except as specifically set forth in this Lease. Rent for any
portion of a month
shall be pro rated. Annual rent shall be payable in monthly
installments on the
first day of each month in advance. All amounts (other than annual
rent) payable
to Landlord by Tenant under this Lease shall be deemed additional
rent and
Landlord shall have the same rights and remedies by reason of
non-payment of
such additional rent as if Tenant had failed to pay an installment
of annual
rent.
2
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In addition to the annual rental payable under this Lease as set
forth
above, Tenant shall pay to Landlord, the following:
(a) A pro rata percentage of any increase in the total
Operating
Expenses (as hereinafter defined) for each fiscal year during the
term of this
Lease over the amount of Operating Expenses during the base fiscal
year of July
1, 2005 through June 30, 2006. The pro rata percentage applicable
to this Lease
is twenty-seven and twenty one hundredths percent (27.20%).
(b) A pro rata percentage of any increase in Real Estate Taxes
levied
upon the Building for each fiscal year during the term of this
Lease over the
Real Estate Taxes levied upon said property with respect to the
base fiscal year
of July 1, 2005 through June 30, 2006. The pro rata percentage
applicable to
this Lease is twenty-seven and twenty one hundredths percent
(27.20%).
"Operating Expenses" shall mean all expenses paid or incurred
by
Landlord or on Landlord's behalf on commercially reasonable basis
in respect of
the management, repair, operation and maintenance of the Building,
including but
not limited to (1) salaries, wages and benefits of employees of
Landlord engaged
in the management, repair, operation and maintenance of the
Building, which
salaries, wages and benefits shall, with respect to any employees
that do not
work full time at the Building, be pro-rated in accordance with the
percentage
of their time spent at the Building; (2) payroll taxes, worker's
compensation,
uniforms and related expenses for such employees; (3) the cost of
all charges
for oil, gas, steam, electricity, any alternate source of energy,
heating,
ventilation, air-conditioning, water, sewers and other utilities
furnished to
the Building (including the Common areas and leased areas thereof),
together
with any taxes on such utilities; (4) the cost of painting
non-tenant space; (5)
the cost of all charges for rent, casualty, liability and fidelity
insurance
with regard to the Building and the maintenance or operation
thereof; (6) the
cost of all supplies (including cleaning supplies), tools,
materials and
equipment, the rental thereof and sales and other taxes thereon;
(7)
depreciation of hand tools and other movable equipment used in the
repair,
operation or maintenance of the Building; (8) the cost of all
charges for window
and other cleaning and janitorial, snow and ice removal, and
security services;
(9) charges of independent contractors; (10) repairs and
replacements made by
Landlord at its expense (provided that if such cost would, under
generally
accepted accounting principles, be required to be capitalized, then
only a
proportionate part of such costs shall be included each year in
Operating
Expenses over the useful life (as reasonably estimated by Landlord)
of such
repair or replacement); (11) exterior and interior landscaping;
(12) alterations
and improvements to the Building made by reason of the laws and
requirements of
any public authorities enacted after the Commencement Date
hereunder or the
requirements of insurance bodies (provided that if such cost would,
under
generally accepted accounting principles, be required to be
capitalized, then
only a proportionate part of such costs shall be included each year
in Operating
Expenses over the useful life (as reasonably estimated by Landlord)
of such
repair or replacement); (13) management fees (which shall not
exceed 5% of gross
revenues) or, if no separate managing agent is employed by
Landlord, a sum in
lieu thereof which is not in excess of the then prevailing rates
for management
fees of other first-class office buildings in the area in which the
Building is
located; (14) Intentionally Omitted; (15) the cost of any capital
improvements
or
3
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additions to the Building and of any machinery or equipment
installed in the
Building which are made or become operational, as the case may be,
after the
Base Year and which have the effect of reducing the expenses which
otherwise
would be included in Operating Expenses to the extent of the lesser
of (A) such
cost, as reasonably amortized by Landlord with interest on the
unamortized
amount at the prime rate then generally available in the State, or
(B) the
amount of such reduction in Operating Expenses; (16) reasonable
legal,
accounting and other professional fees incurred in connection with
the
operation, maintenance and management of the Building (provided
that legal fees
incurred in negotiating or enforcing leases, or in connection with
any financing
on the Building, shall be excluded); (17) subject to Tenant's
approval, which
approval shall not be unreasonably withheld, any subsidy that
Landlord provides
to the operator of the cafeteria in the Building (nothing herein
shall require
that Landlord provide any such subsidy or that Landlord maintain
the current
size or scope of the cafeteria or that Landlord keep a cafeteria
open in the
Building); and (18) all other charges properly allocable to the
repair,
operation and maintenance of the Building in accordance with
generally accepted
accounting principles (provided that if such cost would, under
generally
accepted accounting principles, be required to be capitalized, then
only a
proportionate part of such costs shall be included each year in
Operating
Expenses over the useful life (as reasonably estimated by Landlord)
of such
repair or replacement). In addition to the above, in the event that
for any
period during the base year or during the term of this Lease the
Building is
less than 95% leased and occupied, and/or any utilities for any
occupied space
in the Building arc directly billed to the occupant thereof,
Operating Expenses
shall be equitably adjusted to include such additional expenses as
Landlord
would have incurred had the Building been 95% leased and occupied,
and/or the
utilities in question had not been directly billed, for such
period.
Excluded from Operating Expenses shall be the following: (aa)
depreciation (except as provided above); (bb) interest on and
amortization of
debts; (cc) leasehold improvements including redecorating made for
tenants of
the Building; (dd) brokerage commissions and advertising expenses
for procuring
new tenants of the Building; (ee) refinancing costs; (ff) Real
Estate Taxes;
(gg) the cost of any item included in Operating Expenses under
clauses (1) -
(18) to the extent that such cost is reimbursed by an insurance
company or a
condemnor a tenant (except as a reimbursement of Operating
Expenses) or any
other party.
Commencing with July 1, 2006 for purposes of payments under
subparagraphs (a) and (b) above, Landlord shall estimate the
increases (if any)
which may be payable thereunder. Said estimates shall he based upon
careful and
reasonable examination of all available economic data and
projections. The
amounts of said estimates shall be divided into equal monthly
payments which
shall be paid by Tenant in advance, commencing July 1, 2006, along
with Tenant's
regular monthly rental payment. Should the actual annual increases
provided for
in subparagraphs (a) and (b) be more than Landlord's estimate, then
Tenant's
monthly payment as aforesaid shall be adjusted each January 1st
(with respect to
Operating Expenses) and/or July 1st (with respect to real estate
tax payments)
to more nearly reflect the actual increases.
Within thirty (30) days front the date Landlord presents each
annual
bill to Tenant for payments under subparagraphs (a) and (b), which
annual bill
shall include a
4
<PAGE>
line-item break down of Operating Expenses, Tenant will pay to
Landlord in a
lump sum that amount by which Tenant's actual pro rata share
exceeds the amount
of Tenant's estimated payments theretofore. Should the amount of
Tenant's
estimated payments exceed Tenant's pro rata share, then Landlord
shall, within
said thirty (30) day period credit such overpayment to Tenant. A
certified bill
for Operating Expenses and a real estate tax bill (or copy thereof)
submitted by
Landlord to Tenant shall be sufficient evidence of the amount of
Operating
Expenses and real estate taxes with respect to the property and
improvements
thereon. Tenant's pro rata share of any increases in such payments
hereunder
shall be adjusted in the first and last years of the Lease to take
into
consideration the fact that Tenant may only be in possession for a
partial year.
Tenant shall have the right within twelve (12) months after receipt
of
Landlord's certified bill for Operating Expenses for any calendar
year and/or
real estate tax bill to review all of the books of account,
documents, records
and files of Landlord regarding Operating Expenses and/or real
estate taxes for
such calendar year. Any such review shall be upon prior written
request of
Tenant and not later than twenty (20) days after such request.
Landlord shall
make all of such records available for examination by Tenant or any
designated
representative of Tenant at the office to which notices to Landlord
are to be
addressed or at the offices of Landlord's management company.
"Real Estate Taxes" shall mean and include: (i) all general and
special taxes, assessments, duties and levies, if any, of any kind
which are
assessed, levied, charged, confirmed or imposed by any public
authority upon the
Building, its operations or the rent provided for hereunder, which
are payable
(adjusted after protest or litigation, if any) for any part of the
term of this
Lease, exclusive of penalties or discounts; and (ii) the reasonable
expenses of
contesting the amount or validity of any such taxes, charges or
assessments,
such expense to be applicable to the period if the term is
contested,
Tenant shall pay for all ad valorem taxes on its personal property,
if
any, and on the value of leasehold improvements to the extent that
same exceed
standard building allowances (as determined by Landlord in its
reasonable
discretion).
If Landlord shall receive a refund of Real Estate Taxes for any
period
during the term of this Lease after the year during which the term
of this Lease
shall commence, then Landlord shall pay over to Tenant the pro rata
percentage
of Real Estate Taxes paid by Tenant as set forth above, to the
extent Tenant
shall have borne any portion of such taxes so refunded, after
deducting from any
such taxes so refunded the fees and expenses incurred by Landlord
in obtaining
such refund.
Rent payable under this Paragraph shall be apportioned for any
fraction of a year at the end of the term of this Lease.
5
<PAGE>
4.
USE.
(a) The Premises shall be used for Tenant's office purposes and for
no
other purpose whatsoever.
(b) Tenant shall not at any time use or occupy, or suffer or
permit
anyone to use or occupy, the Premises, or do or permit anything to
be done in
the Premises, in any manner (i) which causes or is liable to cause
injury to the
Building or any equipment, facilities or systems therein; (ii)
which constitutes
a violation of the laws and requirements of any public authorities
or the
requirements of insurance bodies; (iii) which impairs or tends to
impair the
character, reputation or appearance of the Building as a
first-class office
Building; (iv) which impairs or tends to impair the proper and
economic
maintenance, operation and repair of the Building and/or its
equipment,
facilities or systems; or (v) which annoys or inconveniences or
tends to annoy
or inconvenience other tenants or occupants of the Building.
5.
SERVICES. Landlord at its expense shall: (a) provide sufficient
heat and
air conditioning systems to maintain the Premises at comfortable
temperatures
Mondays through Fridays, 8:00 a.m. to 6:00 p.m., and Saturdays 9:00
a.m. to
12:00 p.m., except recognized holidays; and (b) cause the common
areas of the
Building in to be kept clean, provided the Premises are kept in
good order by
Tenant. Landlord shall provide cleaning and janitorial services
Mondays through
Fridays; (c) provide at least one automatic passenger elevator.
Tenant shall
have access to the Premises on a 24 hour per day, 7 day per week
basis. There is
presently a key card security system for after hours access to the
Building.
Landlord shall provide one key card for each of Tenant's employees
free of
charge. Landlord may charge a reasonable fee for the replacement of
lost key
cards. Landlord will maintain such system or a comparable system,
but does not
guarantee that such system or any comparable system will provide
adequate
security for Tenant.
6.
UTILITIES. Landlord shall provide electric service of not less than
four
(4) watts per rentable square foot connected load (exclusive of
HVAC) to the
Premises. Tenant shall pay Landlord all costs and expenses
necessary to provide
electric service in the Premises in excess of said standard
service. In no event
shall Tenant he allowed to place a load on the electrical system
that exceeds
the safe capacity thereof. Landlord shall furnish at its expense
hot and cold
water service for ordinary cleaning, toilet, lavatory and drinking
purposes.
7.
INTERRUPTION OF SERVICES AND UTILITIES. Landlord shall not be
liable for
the interruption, curtailment, stoppage or suspension of services
and utilities
to be furnished by Landlord pursuant to Paragraphs 5 and 6 above
when necessary
by reason of accident or emergency or suspension of utility
services or when
necessary for repairs, alterations, replacements or improvements
desirable or
necessary in the reasonable judgment of Landlord or for any cause
beyond the
control of Landlord. In the event of any such interruption,
curtailment,
stoppage or suspension, there shall be no diminution or abatement
of rent,
additional rent or other charges due from Tenant to Landlord
hereunder, Tenant's
obligations hereunder shall not be affected or reduced, and
Landlord shall have
no responsibility or liability for any such interruption,
curtailment,
6
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stoppage or suspension; however, Landlord shall exercise reasonable
diligence to
restore any services or utilities so interrupted, curtailed,
stopped or
suspended.
8.
EXTRA SERVICES AND UTILITIES. Landlord will use its best efforts
upon
reasonable advance written notice from Tenant of its requirements
in that regard
to furnish additional services and utilities to the Premises on
days and at
times other than as provided in Paragraph 5 above. Tenant agrees to
pay Landlord
a reasonable charge for any such additional services and utilities,
which is
currently $50.00 per hour, and if Tenant avails itself of such
services or
utilities without notice to Landlord, Landlord may impose a charge
therefor. Any
charges incurred pursuant to this Paragraph shall be deemed
additional rent.
9.
REPAIRS.
(a) Landlord shall maintain and repair the Building, including
all
structural portions and the exterior, all common areas, the
exterior portions of
the land that is part of the 9 Farms Springs property, including
the paved and
landscaped areas, and the heating, ventilating, air-conditioning,
plumbing and
electrical systems to the extent that such systems are not within
the Premises.
Tenant shall maintain and repair the interior of the Premises and
keep the same
in a neat and orderly condition and Tenant shall pay to Landlord
all costs
incurred by Landlord in making any repairs necessitated by
Tenant's, its
servants', agents', and employees' negligence as additional rent,
payable within
fifteen (l5) days from the date of rendition of a bill therefor.
Notwithstanding
the foregoing, Landlord shall, at Tenant's cost, repair and replace
all lighting
tubes, lamps and ballasts within the Premises; in addition,
Landlord will, upon
request of Tenant, perform any other repairs or replacements within
the
Premises, at Tenant's cost. Tenant covenants that it shall not make
any repairs
or in any way tamper with the heating, air conditioning,
ventilating,
electrical, plumbing or mechanical systems of the Building outside
of the
Premises.
(b) Tenant shall not place a load upon any floor of the Premises
which
exceeds the load per square foot which such floor was designed to
carry and
which is allowed by law.
(c) Business machines and mechanical equipment belonging to
Tenant
which cause noise or vibration that may be transmitted to the
structure of the
Building or to the Premises to such a degree as to be objectionable
to Landlord
shall be placed and maintained by the party owning the machines or
equipment at
such party's expense, in setting of cork, rubber or spring type
vibration
eliminators sufficient to eliminate noise or vibration. In the
event of any
violation, Tenant shall he obligated to make such repairs to the
Premises and
Building, resulting therefrom and to take all steps reasonably
necessary to
eliminate such noise or vibration.
(d) Except as otherwise expressly provided in this Lease,
Landlord
shall have no liability to Tenant nor shall Tenant's covenants and
obligations
under this Lease be reduced or abated in any manner whatsoever by
reason of any
inconvenience, annoyance, interruption or injury to business
arising from
Landlord's making any repairs or changes which Landlord is required
or permitted
by this Lease, or required by law, to
7
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make in or to any portion of the Building or the Premises, or in or
to the
fixtures, equipment or appurtenances of the Building of the
Premises, however
Landlord shall exercise reasonable diligence to make such repairs
or changes in
such manner as not to unreasonably interfere with Tenant's business
in the
Premises and as not to impose additional expense under Tenant.
Subject to
Paragraph 24 hereof, Landlord shall be responsible for damage to
Tenant's
property in the Premises that is caused by Landlord's or its
servants', agents',
or employees' negligence in connection with any such repairs or
changes.
10.
YIELD UP AND FIXTURES. Tenant shall at the termination of this
Lease
peaceably yield up the Premises and Tenant's improvements and
permitted
Alterations in good order, repair and condition, fire or
unavoidable casualty
and reasonable use and wear excepted, provided that if required by
Landlord, any
Alterations made by Tenant, including without limitation, any
telephone or data
wiring installed by Tenant, shall be removed by Tenant prior to the
termination
of this Lease, in which event the Premises shall be restored to
their condition
prior to the Alteration. Tenant shall before the termination of
this Lease
remove all furniture, fixtures, and personal property of Tenant
From the
Premises and Tenant shall repair any damage to the Premises or the
common areas
caused by such removal including the filling in of all holes, and
the patching
or replacement of all floor areas or ceilings damaged by such
removal.
11.
CHANGES AND
ALTERATIONS.
(a) Tenant shall not make any changes or alterations
("Alterations")
in or to the Premises without Landlord's prior written consent,
which consent
shall not be unreasonably withheld or delayed with regard to
Alterations that do
not affect the Building's structure or systems, provided that
Landlord's consent
shall not be required for purely cosmetic Alterations (such as
paint and carpet)
that cost less than $25,000.00. Any approved Alterations shall be
made on the
following conditions: (i) before proceeding with any Alteration,
Tenant shall
submit to Landlord for Landlord's approval plans and specifications
for the work
to be done, and Tenant shall not proceed with such work until it
obtains
Landlord's approval; (ii) Tenant shall pay to Landlord upon demand
the
reasonable cost and expense of Landlord in (A) reviewing said plans
and
specifications and (B) inspecting the Alterations to determine
whether the same
are being performed in accordance with the approved plans and
specifications and
all laws and requirements of public authorities, including, without
limitation,
the fees of any architect or engineer employed by Landlord for such
purpose;
(iii) Intentionally Omitted; (iv) Tenant shall fully and promptly
comply with
and observe the rules and regulations of Landlord then in force
with respect to
the making of Alterations; (v) the entire cost of the Alterations
shall be borne
by Tenant; and (vi) Tenant agrees that any review or approval by
Landlord of any
plans or specifications with respect to any Alterations is solely
for Landlord's
benefit, and without any representation or warranty whatsoever to
Tenant with
respect to the adequacy, correctness or efficiency thereof or
otherwise.
(b) Tenant, at its expense, shall obtain all necessary
governmental
permits and certificates for the commencement and prosecution of
Alterations and
for final approval thereof upon completion, and shall cause
Alterations to be
performed in compliance therewith and with all applicable law and
requirements
of public authorities
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and with all applicable requirements of insurance bodies.
Alterations shall be
diligently performed in a good and workmanlike manner, using new
materials and
equipment at least equal in quality and class to the better of (i)
the original
installations of the Building, or (ii) the then standards for the
Building
established by Landlord. Alterations shall be performed by
contractors first
approved by Landlord; provided, however, that any Alterations in or
to the
mechanical, electrical, sanitary, heating, ventilating,
air-conditioning or
other systems of the Building shall be performed only by
contractors designated
by Landlord. Alterations shall be performed in such manner as not
to
unreasonably interfere with or delay and as not to impose an
additional expense
upon Landlord in the construction, maintenance, repair or operation
of the
Building; and if any such additional expense shall be incurred by
Landlord as a
result of Tenant's performance of any Alterations, Tenant shall pay
such
additional expense upon demand. Throughout the performance of
Alterations,
Tenant, at its expense, shall carry, or cause to be carried,
worker's
compensation insurance in statutory limits, employer's liability in
a minimum
amount of One Hundred Thousand and 00/100 Dollars ($100,000.00),
comprehensive
general liability insurance, including completed operation
endorsement, and
broad form general liability endorsement and comprehensive auto
liability,
including owned, non-owned and hired vehicles, for any occurrence
in or about
the Building, under which Landlord and its agent shall be named as
parties
insured, in such limits as Landlord may reasonably require, with
insurers
reasonably satisfactory to Landlord. Tenant shall furnish Landlord
with
reasonably satisfactory evidence that such insurance is in effect
at or before
the commencement of Alterations and, on request, at reasonable
intervals
thereafter during the continuance of Alterations. All insurance
required by this
subparagraph 11(b) must name Landlord and Tenant as additional
named insureds.
If any Alterations shall involve the removal of any fixtures,
equipment or other
property in the Premises which are not Tenant's Property, such
fixtures,
equipment or other property shall be promptly replaced at Tenant's
expense with
new fixtures, equipment or other property of like utility and at
least equal
value unless Landlord shall otherwise expressly consent.
(c) Tenant, at its expense, and with diligence and dispatch,
shall
procure the cancellation or discharge of all notices of violation
arising from
or otherwise connected with Alterations, or any other work, labor,
services or
materials done for or supplied to Tenant, or any person claiming
through or
under Tenant, which shall be issued by the Town of Farmington, or
any other
public authority having or asserting jurisdiction. Tenant shall
defend,
indemnify and save harmless Landlord from and against any and all
mechanics' and
other liens and encumbrances filed in connection with Alterations,
or any other
work, labor, services or materials done for or supplied to Tenant,
or any person
claiming through or under Tenant, including, without limitation,
security
interests in any materials, fixtures or articles so installed in
and
constituting part of the Premises and against all costs, expenses
and liability
incurred in connection with any such lien or encumbrance or any
action or
proceeding brought thereon. Tenant, at its expense, shall procure
tie
satisfaction or discharge or record of all such liens and
encumbrances within
three (3) days after the filing thereof.
12.
INDEMNITY AND INSURANCE. Tenant shall indemnify, defend and
hold
harmless Landlord, its agents and employees from and against any
and all
Liability (statutory or otherwise), claims, suits, demands,
judgments, costs,
interest and expense
9
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(including, but not limited to, reasonable attorneys' fees and
disbursements)
arising from any injury to, or death of, any person or persons or
damage to
property (including loss of use thereof) related to (a) Tenant's
use of the
Premises or conduct of business therein, (b) any work or thing
whatsoever done,
or any condition created (other than by Landlord, its employees,
agents or
contractors) by or on behalf of Tenant in or about the Premises,
including
during the period of time, if any, prior to the term commencement
date, that
Tenant may have been given access to the Premises for the purpose
of doing any
work or making any installations, (c) any condition of the Premises
due to or
resulting from any default by Tenant in the performance of Tenant's
obligations
under this Lease, or (d) any act, omission or negligence of Tenant
or its
agents, contractors, employees, subtenants, licensees or invitees.
In case any
action or proceeding is brought against Landlord by reason of any
one or more
thereof, Tenant shall pay all costs, reasonable attorneys' fees,
expenses and
liabilities resulting therefrom and shall resist such action or
proceeding if
Landlord shall so request, at Tenant's expense, by counsel
reasonably
satisfactory to Landlord.
Landlord shall indemnify, defend and hold harmless Tenant, its
agents
and employees from and against any and all liability (statutory or
otherwise),
claims, suits, demands, judgments, costs, interest and expense
(including, but
not limited to, reasonable attorneys' fees and disbursements)
arising from any
injury to, or death of any person or persons or damage to property
(including
loss of use thereof) related to (a) Landlord's use of the Building
other than
within the Premises, (b) any work or thing whatsoever done or any
condition
created (other than by Tenant, its employees, agents or
contractors) by or on
behalf of Landlord in or about the Premises and the Building, (c)
any condition
of the Premises and/or the Building due to or resulting from any
default by
Landlord in the performance of Landlord's obligations under this
Lease, or (d)
any act, omission or negligence of Landlord or its agents,
contractors,
employees, subtenants, licensees or invitees (subject to Paragraph
24 hereof).
In case any action or proceeding is brought against Tenant by
reason of any one
or more thereof, Landlord shall pay all costs, reasonable
attorneys' fees,
expenses and liabilities resulting therefrom and shall resist such
action or
proceeding if Tenant shall so request, at Landlord's expense, by
counsel
reasonably satisfactory to Tenant.
Tenant shall at Tenant's expense, obtain and keep in force at
all
times during the tern of this Lease Agreement, Commercial General
Liability
Insurance including broad form general liability endorsement and
contractual
liability on an occurrence basis and comprehensive auto liability,
including
owned, non-owned and hired vehicles with limits of not less than
Three Million
and 00/100 Dollars ($3,000,000.00) combined single limit insuring
Landlord (and
all general partners of Landlord) and Tenant against any liability
arising out
of the use, occupancy or maintenance of the Premises, the Building
and all areas
appurtenant thereto. Such insurance may be provided by not less
than
$1,000,000.00 of primary coverage and the balance by umbrella
coverage. The
limit of said insurance shall not, however, limit the liability of
Tenant
hereunder. Tenant may carry said insurance under a blanket policy
provided an
endorsement naming Landlord as an additional insured is attached
thereto.
10
<PAGE>
Tenant shall maintain insurance against such other perils and in
such
amounts as Landlord may from time to time reasonably require in
writing,
provided that such coverage is commercially reasonable.
Insurance required hereunder shall be in companies licensed in
the
State of Connecticut and have a "Bests' Insurance Guide" rating of
B/12 or
better. Mutual insurance companies may be used only if they are
nonassessable.
No policy shall he cancelable or subject to reduction of coverage
except after
thirty (30) days' written notice to Landlord. All policies of
insurance
maintained by Tenant shall be in form acceptable to Landlord with
satisfactory
evidence that all premiums have been paid. Tenant agrees not to
knowingly
violate or permit to be violated any of the conditions or
provisions of the
insurance policies required to be furnished hereunder, and agrees
to promptly
notify Landlord of any fire or other casualty.
Landlord nay require that the amount of Commercial General
Liability
Insurance to be maintained by Tenant under this Paragraph 12 be
increased from
time to time to a commercially reasonable amount.
13.
SUBLEASING AND
ASSIGNMENT.
(a) Tenant covenants and agrees that neither this Lease nor the
term
and estate hereby granted, nor any interest herein or therein, will
be assigned,
mortgaged, pledged, encumbered or otherwise transferred, and that
neither the
Premises, nor any part thereof, will be sublet or encumbered in any
manner by
reason of any act or omission on the part of Tenant, or used or
occupied, or
permitted to be used or occupied, or utilized for desk space or for
mailing
privileges, by anyone other than Tenant, or for any use or purpose
other than as
stated in Paragraph 4, without the prior written consent of
Landlord, which
consent shall not he unreasonably withheld or delayed.
Notwithstanding the
foregoing, Landlord's consent shall not be required with respect to
an
assignment of this Lease or a sublease of all or any portion of the
Premises, to
an Affiliate. An "Affiliate" shall mean any entity that Controls
Tenant, is
Controlled by Tenant or is under common Control with Tenant.
"Control" means,
with respect to a publicly traded company, ownership of more than
10% ownership
plus management control, and with respect to a non-publicly traded
company shall
mean more than 51% ownership.
(b) If Tenant should desire to assign this Lease or sublease
the
Premises or any portion thereof, Tenant shall give Landlord written
notice of
such desire to make such assignment or effect such sublease. If
Landlord's
consent is not required thereto, then Tenant's notice shall set
forth the
reasons therefor and shall include reasonable documentation
supporting the same.
If Landlord's consent is required thereto, then at the time of
giving such
notice, Tenant shall provide Landlord with a copy of the proposed
assignment or
sublease document, and such information as Landlord may reasonably
request
concerning the proposed sublessee or assignee to assist Landlord in
making an
informed judgment regarding the financial condition, reputation,
operation, and
general desirability of the proposed sublessee or assignee.
Landlord shall then
have a period of thirty (30) days following receipt of such notice
within which
to notify Tenant in writing of Landlord's election to:
11
<PAGE>
(i) permit Tenant to assign or sublet the Premises or said
portion
thereof; or
(ii) refuse to consent to Tenant's assignment or subleasing of
the
Premises or said portion thereof and to continue this Lease in full
force and
effect as to the entire Premises.
If Landlord should fail to notify Tenant of its election within
said
thirty (30) day period, Landlord shall have elected option 13(b)(i)
above.
(c) It is hereby expressly understood and agreed, however, if
Tenant
is a corporation or a limited liability company, that the
assignment or transfer
of this Lease, and the term and estate hereby granted, to any
corporation or
limited liability company into which Tenant is merged or with which
Tenant is
consolidated, which corporation or limited liability company shall
have a net
worth (calculated in accordance with GAAP) at least equal to that
of Tenant
immediately prior to such merger or consolidation, (such
corporation or limited
liability company being hereinafter called "Assignee") without the
prior written
consent of Landlord shal
