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EXHIBIT 10.65
LEASE
Between
FABRILOCK, INC., as Landlord
AND
APPLIED PHOTONIC DEVICES, INC., as Tenant
ATTORNEY FOR LANDLORD: ATTORNEY FOR TENANT:
Michael S. Stiebel Brian M. Hand
Hunt, Leibert, & Chester, P.C. Hackmyer & Nordlicht
94 Hungerford Street 645 Fifth Avenue
Hartford, CT 06106 New York, NY 10022
(860) 246-5889 (212) 421-6500
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This Lease is made and entered into this 6th day of February, 1996 by
and between FABRILOCK, INC., a Connecticut corporation, with its principal place
of business at 300 Lake Road, P.O. Box 871, Dayville, CT 06241-1537 (hereinafter
referred to as "Landlord") and APPLIED PHOTONIC DEVICES, INC., a corporation,
with its principal place of business at 50 Tiffany Street, Brooklyn, Connecticut
06259 hereinafter referred to as "Tenant").
ARTICLE 1
GRANT
1.01 Premises. Landlord, for and in consideration of the rents herein
reserved and of the covenants and agreements herein contained on the part of
Tenant to be performed, hereby leases to Tenant and Tenant accepts from
Landlord, certain space shown on Exhibit A attached hereto and made a part
hereof, containing approximately 36,410 rentable square feet plus 26,250 feet
square in the south section of building to be available on or before July 1,
1997 for the balance of this lease, in area (hereinafter referred to as the
"Premises"), situated in an industrial/office building located at 300 Lake Road,
Dayville, Connecticut (the "Building"). The term "Building" includes the land on
which the Building is situated, and is legally described in Exhibit B attached
hereto (the "Land"), and all easements and rights appurtenant to the Land and
Building. No rights to light or air over any real estate, whether belonging to
Landlord or any other party are granted to Tenant by this Lease.
1.02 Common Areas. Landlord hereby grants to Tenant during the term of
this Lease, a license to use, in common with the others entitled to such use,
the Common Areas as they from time to time exist, subject to the rights, powers
and privileges herein reserved to Landlord. The term "Common Areas" as used
herein will include all areas and facilities outside the Premises that are
provided and designated for general use and convenience of Tenant and other
tenants. Common Areas include but are not limited to pedestrian sidewalks,
loading docks, landscaped areas, roadways, parking areas, and rights of way, if
any. All Common Areas and other facilities in or about the Building provided by
Landlord shall be subject to the exclusive control and management of Landlord.
1.03 Parking. Tenant shall be entitled to park in common with other
tenants of Landlord. Tenant agrees not to overburden the parking facilities and
agrees to cooperate with Landlord and other tenants in the use of parking
facilities. Landlord reserves the right in its absolute discretion to determine
whether parking facilities are becoming crowded and, in such event, to allocate
parking spaces among Tenant and other tenants, provided that at a minimum,
Tenant shall be entitled to fifty (50) spaces. Landlord may designate parking
spaces in the Common Areas for the handicapped visitors to the Building and
other tenants.
ARTICLE 2
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TERM
2.01 Lease Term. The Premises are leased for a term ("Term") to
commence on the Commencement Date (as determined pursuant to Section 3.01) and
shall end on the last day of the month, in which the fifth (5th) anniversary of
the Commencement Date occurs, unless sooner terminated as herein provided. If
Landlord gives and Tenant accepts possession prior to the Commencement Date,
such occupancy shall be subject to all the terms and conditions of this Lease
and rent and other charges shall be prorated to the date that Tenant takes
possession of the Premises.
2.02 Holdover Tenancy. Any holding over by Tenant of the Premises after
the expiration of the Term shall operate and be construed to be a tenancy from
month to month only, at 150% of the Annual Base Rent herein specified (prorated
on a monthly basis) unless Landlord shall specify a different rent, in its Sole
discretion, and shall otherwise be on the terms, covenants and conditions herein
specified so far as applicable. Any holding over without Landlord's consent
shall constitute a default by Tenant and entitle Landlord to exercise any
remedies provided in Article 13 hereof or otherwise. Notwithstanding the
foregoing, in the event Landlord consents to Tenant's holding over and there is
a resulting month to month tenancy under the terms provided herein, then either
Tenant or Landlord may terminate said month to month tenancy upon thirty (30)
days prior written notice. If Tenant fails to surrender the Premises upon
termination of the Lease, then Tenant shall, in addition to any other
liabilities to Landlord accruing therefrom, indemnify and hold Landlord harmless
from loss or liability resulting from such failure, including, without limiting
the generality of the foregoing, any claims made by any succeeding tenant
arising due to such failure.
2.03 Term Extension.
(a) Provided: a) There is not then occurring an Event of Default, under
the terms of this Lease; and b) This Lease is in full force and effect Tenant
shall have the option to extend the Term of this Lease for one 3 year extension
and one 2 year extension. Each additional period shall be called an Extension
Period. The Extension Period shall commence on the date immediately following
the originally fixed termination date or the prior Extension Period, as the case
may be.
(b) The option contained in this section may only be exercised by
written notice to Landlord given at least six (6) months before the end of the
Term or the then current Extension Period as then constituted is scheduled to
expire.
(c) If Tenant shall fail to exercise its option during a period when
the option is available, when Tenant is not entitled to exercise the option or
when this instrument is no longer in full force and effect for any reason, the
option contained in this section shall be void.
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(d) Upon expiration of the second Extension Period, Tenant shall have
no further option to extend the term.
ARTICLE 3
COMPLETION AND OCCUPANCY OF THE PREMISES
3.01 Delivery of the Premises. Landlord shall deliver possession of the
Premises to Tenant on or before February 12, 1996 (the "Commencement Date").
3.02 Delayed Delivery.
(a) If Landlord shall be unable to deliver possession of the Premises
on or before the Commencement Date for any cause beyond the control of Landlord,
Landlord shall not be subject to any liability for failure to deliver possession
on said date, nor shall the validity of this Lease or the obligations of Tenant
hereunder be in any way affected.
(b) Any other provision of this Lease notwithstanding, in the event
Landlord is unable to deliver possession of the Premises (a) on or before the
Commencement Date, Tenant shall have the right to cancel the Lease by written
notice delivered to Landlord within seven (7) days thereafter.
3.03 Landlord's Work. There is no work to be performed by Landlord at
the premises on behalf of Tenant ("Landlord Work"). Tenant has inspected the
Premises and takes the Premises "as is". Notwithstanding the foregoing, Landlord
represents that on the Commencement Date all of the Building's systems will be
in good working order and the Premises will be fit for use and occupancy by
Tenant.
ARTICLE 4
RENT AND SECURITY
4.01 Annual Base Rent
(a) Beginning with the Commencement Date and continuing throughout the
Term, Tenant shall pay to or upon the order of Landlord an annual rental of One
Hundred Thousand One Hundred Twenty Seven Dollars and Fifty Cents ($100,127.50)
("Annual Base Rent") payable in consecutive monthly installments of Eight
Thousand Three Hundred Forty Three and 96/100 ($8,343.96) on or before the first
day of each calendar month in advance. All payments of rent shall be made
without demand, deduction, counterclaim, set-off, discount or abatement in
lawful money of the United States of America. If the Commencement Date should
occur on a day other than the first day of a calendar month, or the Expiration
Date should occur on a day other than the last day of a calendar month, then the
monthly installment of Annual Base Rent for such fractional month shall be
prorated upon a daily basis based upon a thirty (30) day month. For purposes of
this Lease,
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the first "Lease Year" shall commence on the Commencement Date and shall end on
the last day of the twelfth (12th) full calendar month following the
Commencement Date. Each Lease Year thereafter shall consist of twelve (12)
consecutive calendar months following the end of the immediately preceding Lease
Year except that the final Lease Year shall end on the Expiration Date.
(b) if Tenant exercises Tenant's option to extend the Term, pursuant to
Section 2.03, the Annual Base Rent during the Extension Period shall be ninety
five (95) percent of the fair market value of the rent for a multi-tenanted
building for a specified use similar to Tenant's (the "Extension Rent"). If the
parties cannot agree on the Extension Rent after Tenant notifies Landlord of its
intention to exercise its extension option, the Extension Rent shall be the
Annual Base Rent in effect during the year prior to the Extension Period,
increased to reflect the percentage increase in the Consumer Price Index for the
Dayville region, if any, from the prior year. In no case shall the Extension
Rent be less than $20,495.00 per year.
4.02 Additional Rent. Tenant shall pay to Landlord all charges and
other amounts required under this Lease and the same shall constitute additional
rent hereunder (herein called "Additional Rent"). All such amounts and charges
shall be payable to Landlord at the place where the Annual Base Rent is payable.
Landlord shall have the same remedies for a default in the payment of Additional
Rent as for a default in the payment of Annual Base Rent.
4.03 Place of Payment. The Annual Base Rent and all other sums payable
to Landlord under this Lease shall be paid to Landlord at 300 Lake Road, P.O.
Box 871, Dayville, Connecticut 06241-1537, or at such other place as Landlord
shall designate in writing to Tenant from time to time.
4.04 Terms of Payment. Tenant shall pay to Landlord, within thirty (30)
days after delivery by Landlord to Tenant of bills or statements therefor: (a)
sums equal to all expenditures made and monetary obligations incurred by
Landlord including, without limitation, expenditures made and obligations
incurred for reasonable counsel fees, in connection with the remedying by
Landlord for Tenant's account pursuant to the provisions of Article 13 hereof;
(b) sums equal to all losses, costs, liabilities, damages and expenses referred
to in Article 13 hereof; (c) sums equal to all expenditures made and monetary
obligations incurred by Landlord, including, without limitation, expenditures
made and obligations incurred for reasonable counsel fees, in collecting or
attempting to collect the Annual Base Rent, any Additional Rent or any other sum
of money accruing under this Lease or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law; and (d) all other sums
of money (other than Annual Base Rent and Additional Rent which are to be due
and payable) accruing from Tenant to Landlord under the provisions of this
Lease. Any sum of money (other than Annual Base Rent) accruing from Tenant to
Landlord pursuant to any provision of this Lease arising prior to the
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termination or expiration thereof, whether prior to or after the Commencement
Date, may, at Landlord's option, be deemed Additional Rent. All obligations of
the Tenant under this Lease, including, without limitation, the Tenant's
obligations under this Section 4.04, shall survive the expiration or sooner
termination of the Term.
4.05 Late Charges. If Tenant shall fail to pay any Annual Base Rent or
Additional Rent after the date same is due and payable, such unpaid amounts
shall be subject to a late payment charge equal to the lesser of (i) one and
one-half percent (1.5%) per month, or (ii) the maximum allowed by law of such
unpaid amounts (the "Default Rate") in each instance to cover Landlord's cost
resulting from Tenant's failure. Such late payment charge shall be paid to
Landlord together with such unpaid amounts. Such late payment charge and
administrative charge shall not diminish or impair any other remedies available
to Landlord.
4.06 Security Deposit.
(a) By execution of this Lease, Landlord acknowledges receipt of
Tenant's security deposit in the amount of Sixteen Thousand Six Hundred Eighty
Seven and 92/100 Dollars ($16,687.92) (the "Security Deposit") for the faithful
performance of all terms, covenants and conditions of this Lease. Tenant agrees
that Landlord may, without waiving any of Landlord's other rights and remedies
under this Lease upon the occurrence of any of the Events of Default described
in Article 13 hereof, apply the Security Deposit to remedy any failure by Tenant
to repair or maintain the Premises or to perform any other terms, covenants or
conditions contained herein. Should Landlord use any portion of the Security
Deposit to cure any Event of Default by Tenant hereunder, Tenant shall forthwith
replenish the Security Deposit to the original amount Landlord shall not be
required to keep the Security Deposit separate from its general funds, and
Tenant shall be entitled to interest on any such deposit. Upon the occurrence of
any of the Events of Default described in Article 13 hereof, the Security
Deposit shall become due and payable to Landlord to the extent required to
compensate Landlord for damages incurred, or to reimburse Landlord as provided
herein, in connection with any such Event of Default.
(b) In the event of a sale or leasing of the Building, Landlord shall
have the right to transfer the balance of the Security Deposit to the new owner
or to tenant Landlord shall thereupon be released by Tenant from all liability
for the return of the Security Deposit; and Tenant agrees to look to the new
landlord.
(c) If Tenant performs all of Tenant's obligations hereunder during the
Term, Landlord will, within 30 days after the expiration or earlier termination
of the Lease, return the Security Deposit, or so much as has not been applied by
Landlord, to Tenant or the last permitted assignee of Tenant's interest
hereunder at the expiration of the Term.
ARTICLE 5
ADDITIONAL RENT CHARGES
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5.01 Tenant's Allocated Share.
(a) For the purposes of this Article, Tenant's Allocated Share means a
fraction, the numerator of which is the gross leasable area of the Premises and
the denominator of which is the gross leasable area of the Building. Presently,
the gross leasable area of the Premises is 36,410 square feet and the gross
leasable area of the Building is 80,180 square feet.
(b) If Landlord constructs additional buildings on the Land or enlarges
the Building, Tenant's Allocated Share set forth in this section shall be
adjusted to reflect that Landlord has constructed additional buildings on the
Land or enlarge the Building.
5.02 Taxes.
(a) From and after the Commencement Date, Tenant shall pay "Taxes" to
Landlord.
(b) The following terms have the following meanings:
(i) "Taxes" means Tenant's Allocated Share of all Impositions.
(ii) "Impositions" means all taxes, assessments (special or
otherwise, foreseen or unforeseen, ordinary or extraordinary), water or sewer
rents, and all other governmental charges assessed, levied or imposed against
the Premises and the Land and Building during any tax fiscal year occurring
wholly or partially within the Term. If any governmental authority imposes,
assesses or levies a tax on rent or any other tax upon Landlord as a substitute
in whole or in part for real estate taxes or assessments, or as additional
taxes, the substitute tax or additional tax shall be deemed to be an Imposition.
(c) If any tax payment year occurs partially within and without the
Term, then, within a reasonable time after the Commencement Date and Expiration
Date, Landlord and Tenant shall adjust Taxes with respect to any such tax
payment year so that Tenant shall bear Taxes which are attributable to the Term
and Landlord shall bear the remainder.
(d) (i) Tenant shall pay Taxes to Landlord in monthly
installments. Installments shall be paid on the first day of each month of the
Term, in advance and in the same manner and at the same time as Base Rent. The
first installment shall be paid on the Commencement Date. If the Commencement
Date does not occur on the first day of a month, Tenant shall pay an equitable
share of a full month's installment for the remainder of such month upon the
Commencement Date.
(ii) Each installment that Tenant is obligated to pay to
Landlord on account of Taxes shall be in amounts estimated by Landlord at
Landlord's discretion based upon the actual bill for Impositions or if not
available, then based upon the prior year's bills
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for Impositions paid. Landlord represents that the total of all Impositions
affecting the Premises, Building and Land in 1995 was $21,000.00 and that
tenant's allocated share of such Impositions would have been $9,534.00 in 1995
had the Lease been in effect during that year.
(iii) After the end of each Lease Year, Landlord shall send a
statement to Tenant setting forth Taxes for that Lease Year accompanied by a
copy of the bills for Impositions reflected on Landlord's statement. If the
installments paid by Tenant with respect to any Lease Year shall exceed Taxes
for that Lease Year, Landlord shall credit the difference to Tenant's obligation
to pay Taxes during the succeeding Lease Year. If the installments payable with
respect to any Lease Year shall be less than Taxes for that Lease Year, Tenant
shall pay Landlord the difference promptly within 30 days after receipt of
Landlord's statement. if after the Lease expires or is terminated it is
determined that Tenant's payment of Impositions exceeded Impositions allocable
to Tenant, Landlord shall refund the difference to the Tenant promptly after the
determination of such overpayment is made.
5.03 Common Area Contribution.
(a) From and after the Commencement Date, Tenant shall pay "Common Area
Contribution" to the Landlord in accordance with this Section.
(i) "Common Area Contribution" means Tenant's Allocated Share
of "Common Area Expenses".
(ii) "Common Area Expenses" means all costs incurred in
connection with the maintenance, repair, replacement and operation of the
Building and Land (other than costs related to obligations undertaken by
Landlord pursuant to Section 8.01); maintaining repairing or replacing on-site
or off-site facilities including the water lines, utility lines and conduits,
drainage and sewer systems serving the Common Area. Common Area Expenses
include, but are not limited to, the costs incurred in connection with the
following: lighting the Common Area; the cost of maintaining, painting,
repairing or replacing, when necessary any traffic signals servicing the Land
and Building; landscaping, planting, replanting and cleaning the Common Area,
including snow and ice removal; the maintenance of insurance with respect to the
Land and Building including fire with extended coverage, rental value insurance,
and public liability insurance for the Common Area; the cost of improvements to
the Common Area (but not any improvements which are of a structural nature or
which constitute capital items under generally accepted accounting principles);
policing and security for the Common Area.
(b) (i) Tenant shall pay monthly installments on account of Common Area
Contribution to Landlord. The installments shall be paid in the same manner and
at the same time as Base Rent. The first installment shall be due on the
Commencement Date.
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(ii) If the Commencement Date does not occur on the first day
of the month, Tenant shall pay a partial installment, on account of Common Area
Contribution, to Landlord upon the Commencement Date, pro-rated for the portion
of the month in which Tenant will be in possession of the Premises.
(iii) Each Installment shall be in amounts estimated by
Landlord in Landlord's reasonable discretion, but shall be based upon an
anticipated budget for the Land and Building. Landlord represents that the total
Common Area Expenses in 1995 were $ and that Tenant's Common Area Contribution
for 1995 would have been $ had this Lease been in effect during that year.
(iv) Within ninety days after each Lease Year, Landlord shall
send a statement to Tenant setting forth Common Area Expenses and Tenant's
Common Area Contribution, in reasonable detail, for that Lease Year. If Tenant's
Common Area Contribution exceeds the installments paid by Tenant under this
subsection, Tenant shall pay to Landlord the difference between Common Area
Contribution for that Lease Year and the aggregate amount paid by Tenant on
account of Tenant's Common Area Contribution for that Lease Year. The payment
shall be made within thirty days after Landlord renders the statement whether or
not Tenant objects to Landlord's statement. If Tenant does not object to
Landlord's statement in writing by the sixtieth day following the date of
Landlord's statement, Landlord's statement shall be deemed approved. If Tenant
objects to Landlord's written statement, Landlord shall send to Tenant, within
sixty days of Landlord's receipt of Tenant's written objection, a statement
certified by Landlord's chief financial officer indicating the Tenant's Common
Area Contribution accompanied by copies of all invoices for Common Area
Expenses. If the installments paid by Tenant under this section exceed Tenant's
Common Area Contribution, Landlord shall credit such excess Common Area
Contribution payments to Tenant's next Lease Year payments, or, if the Lease has
terminated or expired, Landlord will promptly refund such excess payments to
Tenant upon the determination that an overpayment has been made.
(v) Tenant's obligations to pay Common Area Charges are
subject to Landlord consulting with and obtaining Tenant's consent prior to
incurring any such cost or expense outside the normal course of business.
5.04 Payment of Utility Charges.
(a) From and after the Commencement Date, Tenant shall pay for all
utility services and charges whether or not measured by meters.
(b) Tenant shall install an electric meter or sub-meter to the Premises
and shall pay for electricity.
(c) Tenant shall, from and after the Commencement Date, pay for water
consumed as shown on the meter which Tenant shall install in the Premises.
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(d) Landlord reserves the right to install meters which will measure
any and all utility services used by Tenant and the other occupants of the
Building and Land. Tenant agrees to pay Tenant's Allocated Share of the costs to
install the master meters. Tenant shall pay Landlord for all utilities not
measured by direct utility company meters (for which Tenant shall pay such
utility charges directly to the utility company) Tenant consumes or which is
supplied to the Premises within ten days after Landlord renders a bill. None of
the charges set forth in this subsection shall be deemed to be "Taxes".
(e) Landlord shall have the right to include any or all of the utility
charges not paid directly by Tenant as Common Area Expenses.
ARTICLE 6
SERVICES AND UTILITIES
6.01 Services. Landlord shall provide the following services at
Landlord's expense (except as otherwise provided):
(a) Water for cleaning, grounds maintenance, fire protection, drinking,
lavatory and toilet purposes drawn through fixtures installed by Landlord or by
Tenant with Landlord's written consent.
(b) Reasonable amounts of heat as reasonably determined by Landlord.
(c) Maintenance of the Common Areas so that they are clean and free
from accumulations of debris, filth, rubbish and garbage. The manner in which
such Common Areas shall be so maintained, and the expenditures for such
maintenance, shall be at the sole discretion of Landlord.
(d) Snow and ice removal and all other services described in Section
5.03(a)(ii).
6.02 Utilities. Tenant shall pay all costs incidental to heat (beyond
what Landlord supplies), air conditioning and electric service. Tenant, at
Tenant's sole cost and expense shall install an electrical meter or submeter to
maintain all electricity used by Tenant at the Premises.
6.03 Trash Removal. Tenant shall provide for Tenant's own trash removal
and pay for all costs incidental to removal of Tenant's trash.
6.04 Maintenance of Common Areas. The manner in which the Common Areas
are maintained and operated and the expenditures therefor shall be at the sole
discretion of Landlord subject to Section 5.03(c). Landlord reserves the right
from time to time to (a) make changes in the shape, size, location, number and
extent of the land and improvements which constitute the Common Areas, provided
that Landlord shall not impair the Tenant's
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ability to operate its business, except temporary impairments required by said
changes; (b) make such improvements, alterations and repairs to the Common Areas
as may be required by governmental authorities or by utility companies servicing
the Building; and (c) construct, maintain and operate lighting and other
facilities on all said areas and improvements and to police the same. Tenant
agrees that Landlord may change the form of ownership of the Building into a
common interest community, such as a condominium or cooperative, so long as such
change does not affect Tenant's rights or obligations under this Lease. The
creation of said common interest community will not grant to Tenant any rights
not specifically enumerated hereunder. The use of the Common Areas shall be
subject to such reasonable regulations and changes therein as Landlord shall
make from time to time, including (but not by way of limitation) the right to
close from time to time, if necessary, all or any portion of the Common Areas to
such extent as may be legally sufficient, in the opinion of Landlord's counsel,
to prevent a dedication thereof or the accrual of rights of any person or of the
public therein; provided, however, Landlord shall do so at such times and in
such manner as shall minimize any disruption to Tenant.
6.05 Access to Premises. Landlord reserves and shall at all times have
the right to enter the Premises at all reasonable times during normal business
hours and upon reasonable advance notice to inspect same, to supply any service
to be provided by Landlord to Tenant hereunder, to show the Premises to
prospective purchasers, mortgagees or tenants, and to alter, improve or repair
the Premises and any portion of the Building, without abatement of Annual Base
Rent or Additional Rent, and may for that purpose erect, use and maintain
scaffolding, pipes, conduits and other necessary structures in and through the
Premises where reasonably required by the character of the work to be performed,
provided that the entrance to the Premises shall not be blocked thereby,
Landlord shall use its best efforts to minimize the inconvenience to Tenant and
further provided that the business of Tenant shall not be interfered with
unreasonably. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises or any other loss occasioned thereby, except
that Tenant does not waive any claim for damages, loss or liability incurred as
the result of negligence by Landlord, its employees and agents. For each of the
aforesaid purposes, landlord shall at all times have and retain a key with which
to unlock all of the doors in, upon and about the Premises, excluding Tenant's
vaults and safes and any area designated as a "clean" room, or special security
areas (designated in advance), and Landlord shall have the right to use any and
all means that landlord may deem necessary or proper to open said doors in an
emergency, in order to obtain entry to any portion of the Premises.
6.06 Interruption of Services. Landlord shall not be liable for any
interruption in or failure to furnish any services or utilities when such
interruption or failure is caused by acts of God, accidents, breakage, repairs,
strikes, lockouts, other labor disputes, the making of necessary repairs,
alterations or improvements to the Premises or the Building, the inability to
obtain an adequate supply of fuel, steam, water, electricity, labor or other
supplies, any event included in Section 16.13, or by any other condition beyond
Landlord's
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reasonable control, including, without limitation, any governmental energy
conservation program, and Tenant shall not be entitled to any damages resulting
from such failure nor shall such failure relieve Tenant of the obligation to pay
the Annual Base Rent and Additional Rent reserved hereunder or constitute or be
construed as a constructive or other eviction of Tenant unless such failure
continues for a period of three months or more. In the event any governmental
entity promulgates or revises any statute, ordinance or building, fire or other
code or imposes mandatory or voluntary controls or guidelines on Landlord or the
Building or any part thereof, relating to the use or conservation of energy,
water, gas, light or electricity or the reduction of automobile or other
emissions or the provision of any other utility or service provided with respect
to this Lease or in the event Landlord is required or elects to make alterations
to any part of the Building in order to comply with such mandatory or voluntary
controls or guidelines, Landlord may, in its sole discretion, comply with such
mandatory or voluntary controls or guidelines or make such alterations to the
Building. Such compliance and the making of such alterations shall in no event
entitle Tenant to any damages, relieve Tenant of the obligation to pay the full
Annual Base Rent and Additional Rent reserved hereunder or constitute or be
construed as a constructive or other eviction of Tenant unless such failure
continues for a period of three months or more.
6.07 No Eviction. Landlord and its agents and representatives shall
have the right to enter upon the Premises for any and all of the purposes set
forth in this Article and may exercise any and all of the foregoing rights
without being deemed guilty of a forcible or unlawful entry into, or a detainer
of, the Premises, or an eviction, actual or constructive of Tenant from the
Premises, or any portion thereof, and without incurring any liability to Tenant
therefor, to change the arrangement and/or location of entrances or passageways,
doors and doorways, and corridors, elevators, stairs, toilets and other public
parts of the Building.
ARTICLE 7
CONDUCT OF BUSINESS BY TENANT
7.01 Permitted Use. The Premises shall be used and occupied for light
manufacturing and general office and clerical work, including but not limited to
a thermoplastic extrusion coating and fiberoptic cable processing facility.
Tenant shall occupy and use the Premises during the term for the purpose above
specified and no other use or uses. Tenant and all sublessees or assignees of
Tenant shall not use or occupy, or permit the use or occupancy of, the Premises
or any part thereof for any use other than the sole uses specifically set forth
above or in any illegal manner, or in any manner that, in Landlord's judgment,
would materially adversely affect or interfere with any services required to be
furnished by Landlord to Tenant or to any other tenant or occupant of the
Building, or with the proper and economical rendition of any such service.
7.02 Applicable Laws. Tenant, at Tenant's expense, shall comply
promptly with the laws, ordinances, rules, regulations and orders of all
governmental authorities in effect
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from time to time during the Term that shall impose any duty on Landlord or
Tenant with respect to the Premises or the use and occupancy thereof (including,
without limitation, a special aquifer permit for the Town of Killingly, the
Americans with Disabilities Act and the Federal Occupational Safety and Health
Act of 1970), and will obtain any and all licenses and permits necessary for any
such use. Tenant shall not be required to make any structural Alterations (as
defined in Section 8.03, below) in or to the Premises in order to comply with
the foregoing, unless such Alterations shall be necessitated or occasioned, in
whole or in part, by the acts, omissions or negligence of Tenant, or any person
claiming through or under Tenant, or any of their servants, employees,
contractors, agents, visitors or licensees, or by the use or occupancy or manner
of use or occupancy of the Premises by Tenant or any such person, or is required
by reason of a breach of any of Tenant's covenants and agreements hereunder. Any
work or installation made or performed by or on behalf of Tenant or any person
claiming through or under Tenant pursuant to the provisions of this Article
shall be made in conformity with, and subject to the provisions of Sections
7.04, 8.02 and 8.03.
7.03 Landlord's Rules and Regulations. Tenant shall faithfully observe
and comply with the rules and regulations attached to this Lease as Exhibit C,
and all modifications thereof and additions thereto from time to time put into
effect by Landlord. Tenant shall not use or permit the use of the Premises in
any manner that will create waste or a nuisance, or which shall tend to
unreasonably disturb other tenants of the Building, Landlord shall not be
responsible to Tenant for the nonperformance of any of said rules and
regulations by any other tenants or occupants on the Building, but will use its
best efforts to investigate and remedy reasonable complaints from Tenant. In the
event of an express and direct conflict between the terms, covenants, agreements
and conditions of this Lease and the terms, covenants, agreements and conditions
of such rules and regulations, as modified and amended from time to time by
Landlord, this Lease shall control.
7.04 No Liens. Tenant shall keep the Premises and Building free from
any liens or encumbrances arising out of any work performed, material furnished
or obligations incurred by or for Tenant or any person or entity claiming
through or under Tenant. Prior to Tenant performing any construction or other
work on or about the Premises for which a lien could be filed against the
Premises or the Building, Tenant shall obtain satisfactory lien waiver
agreements with each contractor who is to perform such work or furnish any
material. If any mechanics' or other lien shall be filed against the Premises or
the Building purporting to be for labor or material furnished or to be furnished
at the request of the Tenant, then Tenant shall at its expense cause such lien
to be discharged of record by payment, bond or otherwise, within thirty (30)
days after the filing thereof. If Tenant shall fail to cause such lien to be
discharged of record within such thirty (30) day period, in addition to any
other remedy available to it for such a default, Landlord may cause such lien to
be discharged by payment, bond or otherwise, without investigation as to the
validity thereof or as to any offsets or defenses thereto, and Tenant shall,
upon demand, reimburse Landlord for all amounts paid and costs incurred
including reasonable attorneys' fees, in having such lien discharged of record.
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7.05 Hazardous Materials.
(a) Tenant shall not dispose of or release, or permit the disposal or
release of, any hazardous or toxic waste or substance governed by the provisions
of 42 U.S.C. Section 6901 et seq. or 42 U.S.C. Section 9601 et seq., or by any
federal, state or local laws, in, above, on or under the Premises or the
Building ("Hazardous Substance"). Tenant shall remove, clean-up and remedy any
Hazardous Substance on the Premises or Building proven to be caused by Tenant to
the extent required by applicable law, provided that the presence of such
Hazardous Substance resulted from the action or inaction of Tenant, its
employees, subleasees, assignees, contractors or agents.
(b) Tenant hereby grants Landlord the right to inspect the Premises at
reasonable times and upon reasonable advance notice throughout the Term of this
Lease, to determine that Tenant is in compliance with applicable environmental
laws and Tenant agrees to allow Landlord to review all of Tenant's records
necessary to ascertain that Tenant is in compliance with applicable
environmental laws. Tenant shall cooperate with Landlord in satisfying any legal
requirements imposed upon Landlord resulting solely from Tenant's operations in
the Premises, and shall, upon request, furnish complete information to Landlord
concerning the use or existence of any hazardous substances, contamination or
pollution at the Building. All records and information disclosed to Landlord
hereunder shall be treated by Landlord as highly confidential business
information of Tenant and will not be disclosed by Landlord to third parties
without Tenant's prior written consent.
(c) Tenant shall defend, indemnify and hold harmless Landlord from and
against any and all liability, loss, suits, claims, actions, causes of action,
proceedings, demands, costs, penalties, fines and expenses, including, without
limitation, reasonable attorneys' fees, consultants' fees, and clean-up costs
resulting from the presence of any Hazardous Substance on the Premises or the
Building proven to be caused by Tenant, or arising out of any material
violation(s) by Tenant of any applicable law regarding Hazardous Substances.
7.06 Tenant's Failure to Maintain. If Landlord gives Tenant notice of
the necessity of any repairs or replacements required to be made under Section
8.02 and Tenant fails to commence diligently to effect the same within 30 days
thereafter (except that no notice will be required in case of any emergency
repair or replacement necessary to prevent substantial damage or deterioration),
Landlord, at its option and in addition to any other remedies, may proceed to
make such repairs or replacements and the expenses incurred by Landlord in
connection therewith, shall be due and payable from Tenant upon demand as
Additional Rent; provided, that Landlord's making any such repairs or
replacements shall not be deemed a waiver of Tenant's default in failing to make
the same, and for them provided that Landlord will use its best efforts to
minimize the costs incurred by it in making such repairs or replacements.
7.07 Surrender. Upon the expiration or sooner termination of the Term,
Tenant will quietly and peacefully surrender to Landlord the Premises in as good
condition as when
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Tenant took possession, ordinary wear and tear excepted, and otherwise as is
required in Article 8. Tenant shall surrender the Premises to Landlord at the
end of the Term hereof, without notice of any kind, and Tenant waives all right
to any such notice as may be provided under any laws now or hereafter in effect
in Connecticut.
ARTICLE 8
ALTERATIONS, IMPROVEMENTS AND SIGNAGE
8.01 Landlord's Obligations. Landlord will maintain all structural
components of the Building, including, without limitation, the roof, foundation,
exterior and load-bearing walls (including exterior windows and doors), the
structural floor slabs and all other structural elements of the Premises, as
well as the common elements of the Building and the HVAC system, in good repair,
reasonable wear and use excepted. Maintenance and repair expenses caused by
Tenant's willful misconduct or grossly negligent acts or omissions shall be paid
directly to Landlord by Tenant upon demand and shall not constitute a Common
Area Contribution. Landlord, at its own cost and expense, shall pay for any
capital improvements carried out by Landlord at the Building. In the event of
repairs contemplated in the Sections entitled "Damage or Destruction" or
"Condemnation", the provisions of that Section shall control. Landlord shall not
be liable for and, except as provided in Articles 10 and 11 hereof, there shall
be no abatement of Annual Base Rent with respect to any injury to or
interference with Tenant's business arising from any repairs, maintenance,
alteration or improvement in or to any portion of the Building, including the
Premises, or in or to the fixtures, appurtenances and equipment therein, unless
any injury, loss, liability or damage incurred by Tenant results from the
willful acts of negligence of Landlord, its employees or agents.
8.02 Tenant's Obligations.
(a) Tenant shall take good care of the Premises, and at Tenant's cost
and expense, shall make all repairs and replacements as and when Landlord deems
reasonably necessary, to preserve the Premises in good working order for
premises of this age and type, normal wear and tear exempted, and in a clean,
safe and sanitary condition, including, without limitation, the windows and
plate glass doors, floors and interior walls, as well as those parts and
fixtures of the heating, air-conditioning, ventilating, electrical, lighting
(including revamping), plumbing and sprinkler systems that are within the
Premises, will not overburden the floor, and will commit no waste.
Notwithstanding the foregoing, Tenant is not obligated to restore the Premises
to a condition superior to the condition of the Premises as of the commencement
of Tenant's occupancy.
(b) Tenant shall repair, at its cost, all deteriorations or damages to
the Building occasioned by its negligent acts or omissions or willful
misconduct. If Tenant does not make such repairs to the Building promptly,
Landlord may, but need not, make such repairs, and Tenant shall promptly pay the
cost thereof, provided that Landlord uses its best efforts to
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minimize such costs. All repairs and replacements made by or on behalf of Tenant
or any person claiming through or under Tenant shall be made and performed (a)
at Tenant's cost and expense and at such time and in such manner as Landlord may
designate, (b) by contractors or mechanics approved by Landlord, such approval
not to be unreasonably withheld (c) so that same shall be at least equal in
quality, value, and utility to the condition of the work or installation at the
time of the damage caused by Tenant, (d) in accordance with the Rules and
Regulations for the Building adopted by Landlord from time to time in effect at
the time the damage occurs and in material compliance with all applicable laws
and regulations of governmental authorities having jurisdiction over the
Premises, and (e) pursuant to plans, drawings and specifications which have been
reviewed and approved by Landlord prior to the commencement of the repairs or
replacements, such approval not to be unreasonably withheld, and subject to all
other terms and conditions of this Lease, including, but not limited to, Section
7.04.
8.03 Alterations. Tenant shall not make or permit any alterations in or
additions to the mechanical, plumbing, HVAC or electrical systems in the
Building, and shall not make or permit any decorations, alterations,
installations, additions or improvements, structural or otherwise (the
"Alterations") in or to the Premises without Landlord's advance written consent
in each and every instance, such consent not to be unreasonably withheld. All
Alterations permitted by Landlord and made by or on behalf of Tenant or any
person claiming through or under Tenant shall be made and performed (a) at
Tenant's cost and expense and at such time and in such manner as Landlord may
designate, (b) by contractors or mechanics approved by Landlord, (c) so that
same shall be at least equal in quality, value, and utility to the condition of
the work or installation at the time the alteration is commenced, (d) in
accordance with the Rules and Regulations for the Building adopted by Landlord
from time to time in effect at the time Tenant submits a request for consent to
make Alterations and in material compliance with all applicable laws and
regulations of governmental authorities having jurisdiction over the Premises,
(e) pursuant to plans, drawings and specifications which have been reviewed and
approved by Landlord prior to the commencement of the Alterations, such approval
not to be unreasonably withheld, and (f) subject to all other terms and
conditions of this Lease including, but not limited to, Section 7.04. Tenant
shall submit to Landlord a final certificate of occupancy upon completion.
Tenant shall have no right to enter upon, or alter in any way, the roof of the
Building without the prior written consent of Landlord. Any damage caused by
Tenant shall be payable by Tenant to Landlord upon demand and shall not
constitute an Operating Expense.
8.04 Tenant's Property. Any trade fixtures, furnishings, equipment and
personal property placed in the Premises that are removable without damage to
the Building or the Premises, whether the property of Tenant or leased by
Tenant, are herein sometimes called "Tenant's Property". Any replacements of any
property of Landlord, whether made at Tenant's expense or otherwise, shall be
and remain the property of Landlord. Any of Tenant's Property remaining on the
Premises at the expiration of the Term shall be removed by Tenant at Tenant's
cost and expense, and Tenant shall, at its cost and expense, repair any
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damage to the Premises or the Building caused by such removal. Any of Tenant's
Property. not removed from the Premises prior to the expiration date of this
Lease shall, at Landlord's option, become the property of Landlord or Landlord
may remove such Tenant's Property, and Tenant shall pay to Landlord, Landlord's
cost of removal and of any repairs in connection therewith within ten (10) days
after Tenant's receipt of a bill therefor. Tenant's obligation to pay any such
costs shall survive any termination of this Lease.
8.05 Ownership and Removal. All appurtenances, additions, fixtures and
improvements attached to or installed in or upon the Premises, whether placed
there by Tenant or by Landlord, shall be Landlord's property and shall remain
upon the Premises at the termination of this Lease by lapse of time or otherwise
without compensation or allowance or credit to Tenant. Landlord may require, in
its discretion, the removal by Tenant of any property which has been attached to
or installed in the Premises. Tenant shall pay to Landlord or its designees the
cost of repairs of any damage to the Premises or Building and losses caused by
the removal of such property.
8.06 Signage. Landlord shall have the absolute and exclusive right to
approve or disapprove the content, design, size and location of any and all
interior and/or exterior signs, graphics or window advertising erected and/or
maintained on the interior or exterior of the Premises or, Building and Tenant
shall not install or maintain any sign or graphics on the exterior or interior
of the Premises or Building without first obtaining Landlord's written approval
and consent, such approval and consent not to be unreasonably withheld. If
required by Landlord, Tenant shall purchase identification signs for the
exterior of the Building, each of said signs to be of a size and design to be
approved in writing by Landlord, and installed at a place designated by
Landlord. Tenant shall be responsible for all costs of signage which shall be
billed individually to Tenant.
ARTICLE 9
INSURANCE
9.01 (a) Tenant's Insurance. Tenant, at its own expense, shall obtain
and keep in force with companies reasonably acceptable to Landlord during the
Term: (a) comprehensive general liability insurance against liability for bodily
injury and property damage, including contractual liability, in the amount of
$2,000,000.00 maximum combined single limit; (b) property insurance, including
standard fire and extended coverage insurance, in amounts necessary to provide
replacement cost coverage, for Tenant's Property, trade fixtures, machinery,
equipment, furniture, furnishings and any Alterations in which Tenant has an
insurable property interest, including, without limitation, vandalism and
malicious mischief and sprinkler leakage coverage; (c) plate glass insurance for
the Premises; (d) Workers' Compensation Insurance as required by all applicable
law; and (e) any other insurance reasonably required by Landlord.
Such limits shall be for any greater amounts as may be reasonably indicated by
circumstances from time to time existing.
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(b) Landlord's Insurance. Landlord, at its own expense, shall obtain
and keep in force with companies reasonably acceptable to Tenant during the Term
covering the Building and the Land: (a) comprehensive general liability
insurance against liability for bodily injury and property damage, including
contractual liability, in the amount of $2,000,000.00 maximum combined single
limit. Such limit shall be for any greater amounts as may be reasonably
indicated by circumstances from time to time existing. The aforesaid insurance
shall be in companies and in form and substance reasonably satisfactory to
Tenant. Such insurance shall name Tenant as an additional insured, shall
specifically include the liability assumed hereunder by Landlord (provided that
the amount of such insurance shall not be construed to limit the liability of
Landlord hereunder), and shall provide that it is primary insurance, and not
excess over or contributory with any other valid, existing and applicable
insurance in force for or on behalf of Tenant, and shall provide that Tenant
shall receive thirty (30) days' written notice from the insurer prior to any
cancellation or change of coverage. Landlord shall deliver the policy of such
insurance or certificates thereof to Tenant on or before the Commencement Date,
and thereafter at least thirty (30) days before the expiration date of an
expiring policy. Landlord's compliance with the provisions of this Section
9.01(b) shall in no way limit Landlord's liability under any other provisions of
this Lease.
9.02 Delivery of Policies. The aforesaid insurance shall be in
companies and in form, substance and amount (where not above stated) reasonably
satisfactory to Landlord. Such insurance shall name Landlord as an additional
insured, shall specifically include the liability assumed hereunder by Tenant
(provided that the amount of such issuance shall not be construed to limit the
liability of Tenant hereunder), and shall provide that it is primary insurance,
and not excess over or contributory with any other valid, existing and
applicable insurance in force for or on behalf of Landlord, and shall provide
that Landlord shall receive thirty (30) days' written notice from the insurer
prior to any cancellation or change of coverage. Tenant shall deliver copies of
policies of such insurance or certificates thereof to Landlord on or before the
Commencement Date, and thereafter at least thirty (30) days before the
expiration dates of expiring policies. Tenant's compliance with the provisions
of this Article 9 shall in no way limit Tenant's liability under any of the
other provisions of this Lease. Tenant hereby unconditionally assigns to
Landlord all of Tenant's rights under its insurance coverages called for
hereunder in respect to all Alterations attached to or installed in the
Premises, which, by virtue of Section 8.04 herein, is the property of Landlord.
9.03 Increased Insurance Risk. Tenant shall not do or permit anything
to be done, or keep or permit anything to be kept in the Premises, which would:
(a) be a material violation of any governmental law or regulation, (b)
invalidate or be in conflict with any material provision of any fire or other
insurance policies covering the Building or any property located therein
(provided that Tenant is given a copy of such insurance policies to review).
Tenant, at Tenant's expense, shall comply in all material respects with all
rules, orders, regulations or requirements of the American Insurance
Association (formerly the National Board of Fire Underwriters) and with any
similar body that shall hereafter perform the function of such Association.
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9.04 Tenant's Indemnity. Tenant agrees to protect, indemnify and save
harmless landlord, from and against any and all loss, cost, liability, damage
and expense including, without limitation, claims, demands, penalties, causes of
action, costs and expenses and reasonable attorneys' fees imposed upon and
incurred by or asserted against Landlord from the following: (a) an Event of
Default (as defined in Section 13.01), (b) the use or occupancy or manner of use
or occupancy of the Premises by Tenant or any person claiming through or under
Tenant, (c) the condition of the Premises or any occurrence or happening on the
Premises from any cause whatsoever except those conditions which are not caused
by Tenant, (d) any acts, omissions or negligence of Tenant or any person
claiming through or under Tenant, or of the contractors, agents, servants,
employees, visitors or licensees of Tenant or any such person, in, on or about
the Premises or the Building, either prior to, during, or after the expiration
of, the Term including, without limitation, any acts, omissions or negligence of
Tenant in the making or performing of any Alterations in or to the Premises, or
(e) for personal injury, death or property damage, occasioned by any use,
occupancy, condition, occurrence, omission or negligence referred to in the
preceding clauses. In case any action, suit or proceeding is brought against
Landlord by reason of any such occurrence, Tenant will, at Tenant's expense,
resist and defend such action, suit or proceeding or cause the same to be
resisted or defended by counsel reasonably approved by Landlord, such approval
not to be unreasonably withheld. Tenant's obligations under this Section 9.04
are subject to Landlord notifying Tenant in writing of any claim by a third
party for which Tenant would be required to indemnify Landlord hereunder within
five days of becoming aware of such claim.
9.05 Limitation on Landlord's Liability. Landlord shall not be
responsible or liable to Tenant for any loss or damage to Tenant, or its
business (including any loss of income therefrom) or its property occasioned by
or through the acts or omissions of persons occupying adjoining premises or any
part of the premises adjacent to or connected with the Premises or any part of
the Building, unless such loss or damage results from the intentional misconduct
or negligence of Landlord, or its employees, contractors, agents, servants,
visitors or licensees.
9.06 Waiver of Claims.
(a) Landlord and Tenant hereby agree and hereby waive any and all
rights of recovery against each other for loss or damage occurring to the
Premises or the Building or any of Landlord's or Tenant's Property contained
therein regardless of the cause of such loss or damage to the extent that the
loss or damage is covered by the injured party's insurance or the insurance the
injured party is required to carry under this Lease, whichever is greater
(without regard to any deductible provision in any policy). This waiver does not
apply to claims caused by a party's willful misconduct.
(b) Each party will assure that its insurance permits waiver of
liability and contains a waiver of subrogation. Each party shall secure an
appropriate clause in, or an endorsement to, each insurance policy obtained by
or required to be obtained by Landlord
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or Tenant, as the case may be, under this Lease, pursuant to which the insurance
company: (i) waives any right of subrogation against Landlord or Tenant as the
same may be applicable, or (ii) permits Landlord or Tenant, prior to any loss to
agree to waive any claim it might have against the other without invalidating
the coverage under the insurance policy. If, at any time, the insurance carrier
of either party refuses to write (and no other insurance carrier licensed in
Connecticut will write) insurance policies which consent to or permit such
release of liability, then such party shall notify the other party and upon the
giving of such notice, this Section shall be void and of no effect.
ARTICLE 10
CASUALTY
10.01 Damage or Destruction.
(a) Tenant shall give prompt notice to Landlord of any damage by fire
or other casualty to the Premises. In the event that the Premises (other than
Tenant's Alterations), or any part thereof, or access thereto, shall be damaged
or destroyed by fire or other insured casualty, but the Tenant shall continue to
have reasonably convenient access to the Premises and no portion of the Premises
(other than Tenant's Alterations) shall thereby be rendered unfit for use and
occupancy by the Tenant for the purposes set forth in Section 7.01, the
Landlord, provided Landlord's mortgagee so permits, shall repair such damage or
destruction (except damage or destruction to Tenant's Property or Tenant's
Alterations, unless Landlord receives insurance proceeds covering Tenant's
Alterations) with reasonable diligence. During the period when such repair work
is being conducted, Annual Base Rent and Additional Rent shall not be abated or
suspended.
(b) In the event that the Premises, or any part thereof, or access
thereto, shall be so damaged or destroyed by fire or other insured casualty that
the Tenant shall not have reasonably convenient access to the Premises or any
portion of the Premises shall thereby be otherwise rendered unfit for use and
occupancy by the Tenant for the purposes set forth in Section 7.01, and if in
the sole judgment of the Landlord the damage or destruction may be repaired
within one hundred eighty (180) days after the occurrence of the damage or
destruction, then the Landlord shall so notify the Tenant within thirty (30)
days after the occurrence of the damage or destruction and shall repair such
damage or destruction (except damage or destruction to Tenant's Property or
Tenant's Alterations) with reasonable diligence, provided Landlord's mortgagee
so permits. In the event that the Landlord shall not complete such repairs
within one hundred eighty (180) days after the occurrence of the damage or
destruction, then the Tenant shall have the right to terminate the term of this
lease by giving written notice of such termination to the Landlord within thirty
(30) days after the end of such one hundred eighty (180) day period; provided,
however, that in the event that the completion of repairs shall be delayed by
strikes, governmental regulation, zoning laws, inability to obtain labor or
materials, from any other cause beyond the Landlord's control, the time for
completion shall be extended by the period of such delay,
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provided that in no event shall the repair take longer than 210 days. If in the
sole judgment of the Landlord the Premises, or means of access thereto, cannot
be repaired within one hundred eighty (180) days after the occurrence of the
damage or destruction and the Landlord does not give the Tenant the notice
referred to in this Section 10.01(b), then either party shall have the right to
terminate the term of this Lease by giving written notice of such termination to
the other party within the period of thirty (30) to forty-five (45) days after
the occurrence of such damage or destruction. If neither party gives such notice
of intention to terminate the term of this Lease, then the Landlord shall repair
the damage or destruction with reasonable diligence.
10.02 Abatement of Rent. In the event that Tenant shall not have
reasonably convenient access to the Premises or any portion of the Premises
shall be otherwise rendered unfit for use and occupancy by the Tenant for the
purposes set forth in Section 7.01 by reason of such damage or destruction, then
Annual Base Rent and Additional Rent shall be equitably suspended or abated
until the Landlord shall have substantially completed the repair of the Premises
and the means of access thereto. If such damage or destruction was caused by the
negligence or willful act or omission of the Tenant or any of its officers,
employees, contractors, agents or invitees, then there shall be no abatement of
Annual Base Rent or Additional Rent; an election by Landlord to carry rental
loss insurance shall in no way affect the provisions of this Article 10.
10.03 Events of Termination.
(a) If more than 25% of the gross rentable area of the Premises shall
be wholly or substantially damaged or destroyed by fire or other casualty at any
time during the last six (6) months of the Term, either Landlord or Tenant may
terminate this Lease by delivery of written notice of such termination to the
other party within thirty (30) days after the occurrence of such damage.
(b) Notwithstanding the provisions of this Article 10, if, prior to or
during the Term: (i) the Premises shall be so damaged by fire or other casualty
that, in Landlord's opinion, substantial alteration, demolition or restoration
of the Premises shall be required, or (ii) the Building shall be so damaged by
fire or other casualty that, in Landlord's reasonable estimate, the cost to
repair the damage will be more than 25% of the replacement value of the Building
immediately prior to the occurrence of the casualty (whether or not the Premises
shall have been damaged or rendered untenantable), then, in any of such events,
Landlord, at Landlord's option, and with the written consent of Landlord's
Mortgagee, may give to Tenant, within ninety (90) days after such fire or other
casualty, a thirty (30) days' notice of Expiration Date of this Lease and, in
the event such notice is given, this Lease and the term shall terminate upon the
expiration of such thirty (30) days with the same effect as if the date of
expiration of such thirty (30) days were the Expiration Date; and the Annual
Base Rent and Additional Rent shall be apportioned as
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of such date and any prepaid portion of Annual Base Rent or Additional Rent for
any period after such date and the Security Deposit shall be refunded by
Landlord to Tenant.
10.04 Insurance Proceeds Upon Termination. If this Lease is terminated
pursuant to any right given Landlord to do so under this Section, all insurance
proceeds payable with respect to the damage giving rise to such right of
termination (other than insurance proceeds payable to Tenant covering Tenant's
losses for destruction of its property and business interruption) shall be paid
to Landlord and Tenant shall have no claim therefor. No damages, compensation or
claim shall be payable by the Landlord to Tenant, or any other person, by reason
of inconvenience, loss of business or annoyance arising from any damage or
destruction, or any repair thereof, as is referred to in this Article 10.
10.05 Scope of Landlord's Repairs. In the event Landlord elects or
shall be obligated to repair or restore any damage or destruction as aforesaid,
the scope of work shall be limited to the original basic building and interior
work, and Landlord shall have no obligation to restore or replace Tenant's
Property or Tenant's Alterations (unless Landlord receives the insurance
proceeds covering Tenant's Alterations).
ARTICLE 11
CONDEMNATION
11.01 Condemnation of Premises.
(a) In the event that the whole or a substantial part of the Premises
shall be condemned or taken in any manner for any public or quasi-public use,
including, without limitation, a conveyance or assignment in lieu of a
condemnation or taking, this Lease and the term and estate hereby granted shall
automatically cease and terminate as of the earlier of the date of the vesting
of tide or the date of dispossession of Tenant as a result of such condemnation
or other taking.
(b) If less than the whole or a substantial part of the Premises shall
be so condemned or taken, and after such condemnation, taking or sale, the
Premises can be used for the same purpose as prior thereto in the manner and to
the extent Tenant previously conducted its operations, the Lease term shall
automatically cease only on the part so taken, as of the earlier of the date of
the vesting of title or the date of dispossession of Tenant as a result of such
condemnation or taking.
11.02 Taking of Building. If: (a) more than 25% of the gross rentable
area of the Building shall be condemned, taken or sold, or (b) if any portion of
the Building shall be so condemned or taken, or if any adjacent property or
street shall be condemned or improved by a public or quasi-public authority in
such a manner as to require the use of any part of the Premises or of the
Building, so as to require, in the opinion of Landlord, a substantial alteration
or reconstruction of the Building, then this Lease may be terminated
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by Landlord, as of the earlier of (i) the date of the vesting of title, or the
date of dispossession as a result of such condemnation or taking, or (ii) by
written notice from Landlord to Tenant that the termination shall occur on the
sixtieth (60) day following Landlord's receipt of notice of the date on which
said vesting or dispossession will occur. In such event, the Annual Base Rent
and Additional Rent hereunder shall be apportioned as of such date.
11.06 Temporary Taking. This Lease shall not be affected if the taking
authority by the exercise of its power of eminent domain shall take the use or
occupancy of the Premises or any part thereof for a temporary period
(hereinafter, "Temporary Taking"). The full amount of Annual Base, Additional
Rent and other charges payable by the Tenant under this Lease shall be abated
during such temporary taking. Except only to the extent that the Tenant may be
prevented from so doing pursuant to the terms of the order of the taking
authority, Tenant shall continue to perform and observe all its other
obligations under this Lease, as though the Temporary Taking had not occurred.
Tenant shall be entitled to receive the entire amount of any award made for the
Temporary Taking, whether paid by way of damages, rent or otherwise, unless the
period of temporary use or occupancy shall extend to or beyond the Expiration
Date of this Lease, in which case the award shall be apportioned between
Landlord and Tenant as of the Expiration Date, but Landlord shall in that
circumstance receive the entire portion of the award that is attributable to
physical damage to the Premises and the restoration thereof to the condition
immediately prior to the taking.
11.04 Awards. Except as provided in the preceding Section 11.03,
Landlord shall be entitled to the entire award in any condemnation proceeding or
other proceeding for taking for public or quasi-public use, including, without
limitation, any award made for the value of the leasehold estate created by this
Lease. No award for any partial or entire taking shall be apportioned, and
Tenant hereby assigns to Landlord any award that may be made in such
condemnation or other taking, together with any and all rights of Tenant now or
hereafter arising in or to same or any part thereof; provided, however, that
nothing contained herein shall be deemed to give Landlord any interest in or to
require Tenant to assign to Landlord any award made to Tenant specifically for
its relocation expenses or the taking of personal property and fixtures
belonging to Tenant provided that such award does not diminish or reduce the
amount of the award payable to Landlord.
11.05 Abatement of Rent. In the event of a partial condemnation or
other taking that does not result in a termination of this Lease as to the
entire Premises, then the Annual Base Rent shall be adjusted in proportion to
that portion of the Premises taken by such condemnation or other taking.
Landlord shall, at its expense, make all necessary repairs or alterations to the
Building so as to constitute the remaining Premises a complete architectural
unit to the extent that the same may be feasible, provided that Landlord shall
not be obligated to undertake any such repairs and alterations if the cost
thereof exceeds the award resulting from such taking. Any such abatement shall
cease upon substantial completion of such repairs and restoration.
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ARTICLE 12
ASSIGNMENT AND SUBLETTING
12.01 Assignment.
(a) Tenant shall not directly or indirectly, voluntarily or by
operation of law, sell, assign, encumber, pledge or otherwise transfer this
lease, the Premises or Tenant's leasehold estate hereunder (collectively,
"Assignment"), without Landlord's prior written consent in each instance. Such
consent not to be unreasonably withheld, provided, however that Tenant may
assign Tenant's leasehold estate and this Lease to any Affiliate of Tenant. For
the purpose of this Agreement, Affiliate shall mean any party which controls, is
controlled by, or is under common control with, Tenant.
(b) if Tenant desires at any time to enter into an Assignment of this
Lease, it shall first given written notice to Landlord of its desire to do so,
which notice shall contain: (i) the name of the proposed assignee, (ii) the
nature of the proposed assignee's business to be carried on in the Premises,
(iii) the terms and provisions of the proposed Assignment including any sum(s)
payable to Tenant as consideration for entering into the Assignment, or (iv)
such financial and other information as Landlord may reasonably request
concerning the proposed assignee (the "Assignment Notice").
(c) At any time within thirty (30) days after Landlord's receipt of the
Assignment Notice, Landlord may by written notice to Tenant elect to: (i) take
an Assignment of Tenant's leasehold estate specified in Tenant's notice
hereunder, (iii) consent to the Assignment, or (iv) disapprove the Assignment,
provided that prior to electing any of options (i), (ii) or (iv), Landlord will
consider and will not unreasonably withhold consent to the proposed Assignment.
In the event Landlord elects to take an Assignment from Tenant as described in
subsection (i) above, the rent payable by Landlord as tenant thereunder shall be
the lower of that set forth in Tenant's notice or the Annual Base Rent payable
by Tenant under this Lease at the time of the Assignment. In the event Landlord
elects the option set forth in subsection (i) above, then Landlord shall have
the right to use the Premises for any legal purpose in its sole discretion and
the right to further assign or sublease the Premises without the consent of
Tenant. If Landlord consents to the Assignment within said thirty (30) day
period, Tenant may thereafter within ninety (90) days, enter into such
Assignment, upon the terms and conditions set forth in the Assignment; provided,
that if any sum is payable to Tenant in consideration such sum will be paid to
Landlord as Additional Rent prior to the execution of the Assignment. In
addition, if any amounts are payable to Tenant as rent under the Assignment,
then Tenant shall pay to Landlord monthly during the term of such Assignment as
Additional Rent an amount equal to any amount by which the total of all such
rent payable to Tenant exceeds the monthly Annual Base Rent then payable by
Tenant under the Lease.
(d) If Landlord consents to an Assignment by Tenant, the assignee shall
assume
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the primary responsibility for Tenant's Obligations hereunder, provided that no
consent by Landlord to any Assignment by Tenant shall relieve Tenant of
secondary liability for any obligation to be performed by Tenant under this
Lease, whether arising before or after the Assignment, but not any obligation
which arises during any renewal or extension of this Lease. The consent by
Landlord to any Assignment shall not relieve Tenant from the obligations to
obtain Landlord's express written consent to any other or subsequent Assignment.
Any Assignment that is not in compliance with this Section 12 shall be void and,
at the option of Landlord, shall constitute a material default by Tenant under
this Lease. The acceptance of Annual Base Rent or Additional Rent by Landlord
from a proposed assignee shall not constitute the consent to such Assignment by
Landlord.
(e) The following shall be an Assignment for purposes of this Article
12: (i) if Tenant is a partnership, any change in the ownership (voluntary,
involuntary, by operation of law or otherwise) of 50% or more of the aggregate
of the partnership interests in Tenant existing on the date of execution hereof,
or the dissolution of the partnership; (ii) if Tenant is a corporation whose
shares are not publicly traded, any dissolution, merger, consolidation or other
reorganization of Tenant, or any change in the ownership (voluntary,
involuntary, by operation of law, creation of new stock or otherwise) of 50% or
more of its capital stock from the ownership existing on the date of the
execution hereof (other than a transfer to an Affiliate); (iii) if Tenant is any
other entity (except a corporation or other entity whose shares are publicly
traded), any dissolution or any change in the ownership (voluntarily,
involuntarily, by operation of law or otherwise), of 50% or more in the
aggregate of an interest in Tenant by any party or parties in interest on the
date of execution hereof; or (iv) the sale of 50% or more of the value of the
assets of Tenant. Landlord's consent to any such Assignment will not be deemed a
consent to any subsequent Assignment. As used in this Section 12.01(e), the term
"Tenant" shall also mean any entity which has guaranteed Tenant's obligations
under this Lease, and the prohibition hereof shall be applicable to any sales or
transfers of the stock or partnership interests of said guarantor.
(f) Each assignee, shall assume, as provided in this Section 12.01(f),
all obligations of Tenant under this Lease and shall be primarily liable for the
payment of Annual Base Rent and Additional Rent, and for the performance of all
the terms, covenants, conditions and agreements herein contained on Tenant's
part to be performed for the balance of the Term. No Assignment otherwise
permitted hereunder shall be binding on Landlord unless the assignee or Tenant
shall deliver to Landlord within ten (10) days of execution a counterpart of the
Assignment and an instrument in recordable form to be provided by Landlord that
contains a covenant of assumption by the assignee and form to Landlord,
consistent with the requirements of this Section 12.01(f), but the failure or
refusal of the assignee to execute such instrument of assumption shall not
release or discharge the assignee from its liability as set forth above.
(g) In no event shall this Lease be assigned or assignable by operation
of law or by voluntary or involuntary bankruptcy proceedings or otherwise, and
in no event shall this
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Lease or any rights or privileges hereunder be an asset of Tenant under any
bankruptcy, insolvency, reorganization or other debtor relief proceedings.
12.02 Subletting.
(a) Tenant shall not directly or indirectly, permit the Premises to be
occupied by anyone other than Tenant or sublet the Premises (collectively,
"Sublease") or any portion thereof without Landlord's prior written consent in
each instance, which consent shall not be unreasonably withheld, provided,
however, that Tenant may make an Assignment to any of its Affiliates.
(b) If Tenant desires at any time to enter into a Sublease of the
Premises or any portion thereof, it shall first give written notice to Landlord
of its desire to do so, which notice shall contain: (i) the name of the proposed
subtenant or occupant, (ii) the nature of the proposed subtenant's or occupant's
business to be carried on in the Premises, (iii) the portion(s) of the Premises
to be subject to Sublease and the square feet thereof and the other terms and
provisions of the proposed Sublease including any sum(s) payable to Tenant as
consideration for entering into the Sublease, and (iv) such financial and other
information as Landlord may reasonably request concerning the proposed subtenant
or occupant (the "Sublease Notice").
(c) At any time within thirty (30) days after Landlord's receipt of the
Sublease Notice, Landlord may by written notice to Tenant elect to: (i) Sublease
itself the portion of the Premises specified in Tenant's notice or any portion
thereof, (ii) consent to the Sublease, or (iii) withhold consent to the
Sublease, provided that prior to electing any of options (i), (ii) or (iii),
Landlord will consider and will not unreasonably withhold consent to the
proposed sublet. In the event Landlord elects to sublease from Tenant as
described in subsection (i) above, the sub-rent payable by Landlord to Tenant
shall be the lower of that set forth in Tenant's notice or the Annual Base Rent
payable by Tenant under this Lease at the time of the Sublease (or a
proportionate amount thereof representing the portion of the Premises subject to
the Sublease if less than the entire Premises is subject to the Sublease). In
the event Landlord elects the option set forth in subsection (i) above with
respect to a portion of the Premises, then (A) Tenant shall at all times provide
reasonable and appropriate access to such portion of the Premises and use of any
common facilities, and (B) Landlord shall have the right to use such portion of
the Premises for any legal purpose in its sole discretion and the right to
further sublease the portion of the Premises subject to Landlord's election
without the consent of Tenant. If Landlord consents to the Sublease within said
thirty (30) day period, Tenant may thereafter within ninety (90) days, enter
into such Sublease of the Premises or portion thereof, upon the terms and
conditions set forth in the Sublease Notice; provided, that if any sum is
payable to Tenant in consideration of Tenant's entering into such Sublease, then
Tenant shall pay such sum to Landlord prior to the execution of the Sublease. In
addition, if any amounts are payable to Tenant as sub-rent under the Sublease,
Tenant shall pay to Landlord monthly during the
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term of such Sublease on account as Additional Rent the amount by which such
monthly sub-rent exceeds the product of: (i) the monthly Annual Base Rent then
payable by Tenant under the Lease, and (ii) the fraction derived by dividing the
square feet of the portion of the Premises subject to the Sublease by the total
rentable area of the Premises.
(d) If Landlord consents to a sublet by Tenant, the sublessee shall
assume the primary responsibility for Tenant's obligations hereunder with
respect to the sublet portion of the Premises, provided that no consent by
Landlord to any Sublease by Tenant shall relieve Tenant of secondary liability
for any obligation to be performed by Tenant under this Lease with respect to
the sublet portion of the Premises, whether arising before or after the
Sublease. The consent by Landlord to any Sublease shall not relieve Tenant from
the obligation to obtain Landlord's express written consent to any other or
subsequent Sublease. Any Sublease that is not in compliance with this Article 12
shall be void and, at the option of Landlord, shall constitute a material
default by Tenant under this Lease. The acceptance of Annual Base Rent or
Additional Rent by Landlord from a proposed sublessee shall not constitute the
consent to such Sublease by Landlord.
(e) Each sublessee, shall assume, as provided in this Section 12.02(e),
all obligations of Tenant under this Lease and shall be and remain primarily
liable for the payment of Annual Base Rent and Additional Rent, and for the
performance of all the terms, covenants, conditions and agreements herein
contained on Tenant's part to be performed for the balance of the Term with
respect to the portion of the Premises being sublet. No Sublease otherwise
permitted hereunder shall be binding on Landlord unless the sublessee or Tenant
shall deliver to Landlord within ten (10) days of execution a counterpart of the
Sublease and an instrument in recordable form to be provided by Landlord that
contains a covenant of assumption by the sublessee consistent with the
requirements of this Section 12.02(e), but the failure or refusal of the
sublessee to execute such instrument of assumption shall not release or
discharge the sublessee from its liability as set forth above.
(f) INTENTIONALLY DELETED
(g) Upon the occurrence of an Event of a Default, if the Premises or
any part thereof are then sublet, Landlord, in addition to any other remedies
herein provided, or provided by law, may at its option collect directly from
such subtenant all rents becoming due to Tenant under such sublease and apply
such rent against any sums due to it by Tenant hereunder, and no such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of its obligations hereunder.
12.03 Right of First Refusal.
(a) In the event any or all of Tenant's interest in the Premises and/or
this Lease is transferred by operation of law to any trustee, receiver or other
representative or agent of Tenant, or to Tenant as a debtor in possession, and
subsequently any or all of Tenant's interest in the Premises and/or this Lease
is offered or to be offered by Tenant or any
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trustee, receiver, or other representative or agent of Tenant as to its estate
or property, (such person, firm or entity being hereinafter referred to as the
"Grantor"), for assignment, conveyance, lease, or other disposition to a person,
firm or entity other than Landlord, (each such transaction being hereinafter
referred to as a "Disposition"), it is agreed that Landlord has and shall have a
right of first refusal to purchase, take, or otherwise acquire the same upon the
same terms and conditions as the Grantor thereof shall accept upon such
Disposition to such other person, firm, or entity; and as to each such
Disposition the Grantor shall give written notice to Landlord in reasonable
detail of all of the terms and conditions of such Disposition within twenty (20)
days next following its determination to accept the same but prior to accepting
the same, and it shall not make the Disposition until and unless Landlord has
failed or refused to accept such right of first refusal as to the Disposition,
as set forth herein.
(b) Landlord shall have twenty (20) days next following its receipt of
the written notice as to such Disposition in which to exercise the option to
acquire Tenant's interest by such Disposition, and the exercise of the option by
Landlord shall be effected by written notice to that effect sent to the Grantor
by certified or registered mail; but nothing herein shall require Landlord to
accept a particular Disposition or any Disposition, nor does the rejection of
any one such offer of first refusal constitute a waiver of release of the
obligation of the Grantor to submit other offers hereunder to Landlord. In the
event Landlord accepts such offer of first refusal, the transaction shall be
consummated pursuant to the terms and conditions of the Disposition described in
the notice to Landlord. In the event Landlord rejects such offer of first
refusal, Grantor may consummate the Disposition with such other person, firm, or
entity; but any decrease in price of more than two percent (2%) of the price
sought from Landlord or any change in the terms of payment for such Disposition
shall constitute a new transaction requiring a further option of first refusal
to be given to Landlord hereunder.
ARTICLE 13
DEFAULTS AND REMEDIES
13.01 Events of Default. The occurrence of any one or more of the
following events shall constitute an event of default (each an "Event of
Default") hereunder:
(a) Nonpayment of Annual Base Rent or Additional Rent. Failure to pay
any installment of Annual Base Rent or Additional Rent due and payable
hereunder, upon the date when said payment is due, such failure continuing for a
period of ten (10) business days after receipt by Tenant of written notice
thereof.
(b) Other Obligations. Failure to perform any obligation, agreement or
covenant under this Lease other than those matters specified in subparagraph (a)
of this Section 13.01, such failure continuing for thirty (30) business days
after written notice by Landlord
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to Tenant specifying such failure, provided that it shall not constitute an
Event of Default hereunder if Tenant commences and diligently pursues the cure
of such failure within such thirty (30) day period.
(c) Abandonment. Vacation or abandonment of the Premises for a
continuous period in excess of thirty (30) business days.
(d) Removal. Any removal or attempted removal, without the prior
approval of Landlord, of any of Tenant's equipment, appliances, or personal
property from the Premises for any reason other than the normal and usual
operation of Tenant's business.
(e) General Assignment. A general assignment by Tenant or Tenant's
guarantor (if any) for the benefit of creditors to the extent permitted by
applicable law.
(f) Bankruptcy. The filing of any voluntary petition in bankruptcy by
Tenant or Tenant's guarantor (if any), or the filing of an involuntary petition
in bankruptcy by Tenant's creditors or any of guarantor's creditors, which
involuntary petition remains undischarged for a period of thirty (30) business
days to the extent permitted by applicable law.
(g) Receivership. The employment of a receiver to take possession of
substantially all of Tenant's assets or any guarantor's assets or the Premises,
if such receivership remains undissolved for a period of thirty (30) business
days after creation thereof to the extent permitted by applicable law.
(h) Attachment. The attachment, execution or other judicial seizure of
all or substantially all of Tenant's assets or any guarantor's assets or the
Premises, if such attachment or other seizure remains thirty or undischarged for
a period of thirty (30) business days after the levy thereof.
(i) Insolvency. The admission by Tenant or Tenant's guarantor (if any)
in writing of its inability to pay its debts as they become due, the filing by
Tenant or Tenant's guarantor (if any) of a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, the filing by
Tenant or Tenant's guarantor (if any) of an answer admitting or failing timely
to contest a material allegation of a petition filed against Tenant or Tenant's
guarantor (if any) in any such proceeding or, if within thirty (30) days after
the commencement of any proceeding against Tenant or Tenant's guarantor (if any)
seeking any reorganization, or arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed.
13.02 Remedies. Upon the occurrence of any Events of Default by Tenant
which is not cured by Tenant within the grace periods specified in Section 13.01
hereof, Landlord shall have the following rights and remedies, in addition to
all other rights or remedies available
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to Landlord in law or equity:
(a) Landlord may cure or perform for the account of Tenant any such
matter or obligation in default by Tenant and Tenant shall immediately pay on
account as Additional Rent any expenditures made and the amount of any
obligations incurred in connection therewith, plus interest, from the date of
any such expenditure, at the Default Rate set forth in Section 4.05;
(b) Landlord may accelerate all Annual Base Rent and Additional Rent
due for the balance of the Term of this Lease and declare the same to be
immediately due and payable. In determining the amount of any future payments
payable to Landlord on account of Additional Rent under Article 5, Landlord may
make such determination based upon the amount of such Additional Rent paid or
payable by Tenant for the full year immediately prior to such default;
(c) Landlord, at its option, may serve notice upon Tenant that this
Lease and the then unexpired Term hereof shall cease and expire and terminate on
the date specified in such notice without any right on the part of the Tenant to
save the forfeiture by payment of any sum due or by the performance of any term,
provision, covenant, agreement or condition broken; and, thereupon and at the
expiration of the time limit in such notice, this Lease and the Term hereof
granted, as well as the right, title and interest of the Tenant hereunder, shall
wholly cease and expire and terminate in the same manner and with the same force
and effect as if the date fixed in such notice were the date herein granted for
expiration of the Term of this Lease. Thereupon, Tenant shall immediately quit
and surrender the Premises to Landlord by summary proceedings, detainer,
ejectment or otherwise and remove all occupants thereof and, at Landlord's
option, any property or fixtures thereon without being liable for any damages
therefor. Upon termination of this Lease, Landlord will be entitled to recover
as damages (1) all Annual Base Rent and Additional Rent and other sums due and
payable by Tenant on the date of termination; (2) an amount equal to the value
of the Annual Base Rent and Additional Rent and other sums provided herein to be
paid by Tenant for the residue of the Term hereof, less the fair rental value of
the Premises for the residue of the Term (taking into account the amount of rent
to be received from replacement tenants (if in fact it is possible to relet the
Premises), and the time and expenses necessary to identify and obtain the
replacement tenant or tenants, including without limitation, expenses relating
to recovery of the Premises, preparation for reletting and for reletting itself
including without limitation, brokerage commissions, operating expenses,
reasonable attorney fees, rent concessions, and alteration costs); and (3) the
cost of performing any other covenants to be performed by Tenant.
(d) Landlord may, re-enter and repossess the Premises or any part
thereof, and remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof, without such-entry and possession terminating the Lease
or releasing Tenant, in whole or in part, from any of Tenant's obligations under
this Lease including the obligation to pay Annual Base Rent and Additional Rent
for the full Term. In such Event, Landlord, at its
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option, may attempt in its own name, as agent for Tenant, if this Lease not be
terminated or in its own behalf if this Lease be terminated, to relet all or any
part of such Premises for and upon such terms and to such persons, firms or
corporations and for such period or periods as Landlord, in its sole discretion,
shall determine, including the term beyond the termination of this Lease; and
Landlord shall not be required to accept any tenant offered by Tenant (but will
not unreasonably withhold acceptance) or observe any instruction given by
Tenant about such reletting. For the purpose of such reletting, Landlord may
decorate or make any repairs, changes, alterations or additions in or to the
Premises to the extent deemed by Landlord desirable or convenient and the cost
of such decoration, repairs, changes, alterations or additions, shall be charged
to and be payable by Tenant as: (a) Additional Rent hereunder, or (b) in the
event the Lease has been terminated, as damages. Tenant shall also pay to
Landlord upon demand any brokerage commissions and reasonable attorneys' fees
incurred by Landlord in connection with the foregoing. Any sums collected by
Landlord from any new tenant obtained on account of the Tenant shall be credited
against the balance of the Annual Base Rent and Additional Rent due hereunder as
aforesaid. Tenant shall pay to Landlord monthly, on the days when the Annual
Base Rent due would have been payable under this Lease, the amount due hereunder
less the amount obtained by Landlord from such new tenant. Tenant agrees that
Landlord may file to recover any sums falling due under the terms of this
Section from time to time, and all reasonable costs and expenses of Landlord,
including reasonable attorney's fees and costs incurred in connection with such
suit shall be paid by Tenant.
(e) All rents received by Landlord in any reletting shall be applied
first to the payment of such expenses as Landlord may have incurred in
recovering possession of the Premises and in reletting the same; second, to the
payment of any costs and expenses incurred by Landlord either for making
necessary repairs to the Premises or in curing any default on the part of Tenant
in any covenant or condition herein made binding upon Tenant, and, last, toward
the payment of rent due from Tenant under the terms of this Lease, with interest
at the lowest Prime Rate quoted in the Wall Street Journal; and Tenant expressly
agrees to pay any deficiency then remaining. Any rents received upon reletting
of the Premises in excess of the costs, expenses and rents due Landlord
described in this subsection shall be paid to Tenant upon the expiration of this
Lease.
(f) Any and all property belonging to Tenant or to which Tenant is or
may be entitled which may be removed from the Premises by Landlord pursuant to
the authority of this Lease or applicable law, may be handled, removed or stored
in a commercial warehouse or otherwise by Landlord at Tenant's risk and expense
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges for such property so
long as the same shall be in Landlord's possession or under Landlord's control.
(g) Landlord shall have the right of injunction, in the event of a
breach or threatened breach by Tenant of any of the agreements, conditions,
covenants or terms
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hereof, to restrain the same and the right to invoke any remedy allowed by law
or in equity, whether or not other remedies, indemnity or reimbursements are
herein provided. The rights and remedies given to Landlord in this Lease are
distinct, separate and cumulative remedies; and no one of them, whether or not
exercised by Landlord, shall be deemed exclusive of any of the others.
13.03 No Accord and Satisfaction. Landlord may collect and receive any
rent due from Tenant, and the payment thereof shall not constitute a waiver of
or affect any notice or demand given, suit instituted or judgment obtained by
Landlord, or be held to waive, affect, change, modify or alter the rights or
remedies that Landlord has against Tenant in equity, at law, or by virtue of
this Lease. No receipt or acceptance by Landlord from Tenant of less than the
monthly rent herein stipulated shall be deemed to be other than a partial
payment on account for any due and unpaid stipulated rent; no endorsement or
statement on any check or any letter or other writing accompanying any check or
payment of rent to Landlord shall be deemed an accord and satisfaction, and
Landlord may accept and negotiate such check or payment without prejudice to
Landlord's rights to (i) recover the remaining balance of such unpaid rent, or
(ii) pursue any other remedy provided in this Lease.
13.04 Claims in Bankruptcy. Nothing herein shall limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of any such termination, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, the damages are to be proved, whether or not the
amount be greater, equal to or less than the amount of the loss or damage
referred to above.
13.05 Default by Landlord. Landlord's failure to perform or observe any
of its Lease obligations for more than thirty (30) business days after Tenant
has delivered written notice thereof to Landlord shall constitute a default
under this Lease; provided, however, that if the nature of Landlord's obligation
is such that more than thirty (30) days are required for performance then
Landlord shall not be in default if Landlord commences performance within such
thirty (30) day period and thereafter diligently prosecutes the same to
completion. Tenant shall identify the Lease provisions containing the Landlord's
obligations that are the subject of Tenant's complaint and specify in reasonable
detail the nature and extent of Landlord's failure with respect thereto. If
Landlord commits a default, Tenant may pursue any remedies given in this Lease
or under the law, including but not limited to, terminating this Lease.
ARTICLE 14
NONDISTURBANCE AND RIGHTS OF MORTGAGE HOLDERS
14.01 Subordination.
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(a) Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, Tenant agrees that this
Lease and Tenant's tenancy hereunder are and shall be automatically subject and
subordinate at all times to (a) the lien of any mortgage that may now exist or
hereafter be executed in any amount for which the Building, or Landlord's
interest or estate in any of said items is specified as security; and (b)
renewals, modifications, consolidations, replacements, and extensions of any of
the foregoing. Notwithstanding the foregoing, Landlord and the holder of such
mortgage lien on the Building (the "Landlord's Mortgagee") shall have the right
to partially subordinate or cause to be subordinated such lien to this Lease,
and Tenant agrees to promptly execute an agreement satisfactory in substance and
form to Landlord's Mortgagee upon written request of Landlord's Mortgagee.
Tenant's agreement in this Section 14.01(a) is subject to the agreement of
Landlord's Mortgagee not to disturb Tenant's possession and occupancy of the
Premises or join Tenant in any such action as a party defendant so long as
Tenant has not committed an Event of Default.
(b) In the event that any such mortgage is foreclosed or a conveyance
in lieu of foreclosure is made for any reason, Tenant shall, at the option of
Landlord's Mortgagee or the grantee or purchaser in foreclosure, notwithstanding
any subordination of any such lien to this Lease, attorn to and become the
Tenant of the successor in interest to Landlord at the option of such successor
in interest. Tenant covenants and agrees to execute and deliver, upon request by
Landlord, Landlord's Mortgagee, or by Landlord's successor in interest and in
the form requested by Landlord, Landlord's Mortgagee, or by Landlord's successor
in interest, any additional documents evidencing the priority or subordination
of this Lease with respect to the lien of any such first mortgage including a
Subordination and Attornment Agreement satisfactory to Landlord, Landlord's
Mortgagee, and Landlord's successors in interest.
(c) If Landlord's Mortgagee shall succeed to the interest of Landlord
under this Lease, Landlord's Mortgagee shall assume and perform Landlord's
obligations under this Lease only while it is the fee owner of the Building and
shall not be (i) liable for any breach, act or omission of any prior landlord,
including Landlord; (il) subject to offsets, claims or defenses which Tenant
might have against prior landlords; (iii) bound by the payment of the rent for
more than the current month to any prior landlord.
14.02 Estoppel Certificates. Tenant shall at any time, and from time to
time, upon not less than fifteen (15) days prior written notice from Landlord
execute, acknowledge and deliver to Landlord, to any prospective purchaser, or
Landlord's Mortgagee, a written certificate of Tenant certifying: (a) that
Tenant has accepted the Premises and the commencement date and termination date
of this Lease; (b) that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as modified and stating the modifications), and has not been assigned; (c) that
there are not, to Tenant's knowledge, any uncured defaults on the part of the
Landlord or Tenant hereunder, or specifying any defaults that exist; (d) whether
or not there are then
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existing any defenses against the enforcement of any of the obligations of
Tenant under this Lease (and, if so, specifying same); (e) that Tenant has
received all required contributions from Landlord on account of Tenant's
improvements; (f) the dates, if any, to which the Annual Base Rent and
Additional Rent and other charges under this Lease have been paid and the
amounts of said Annual Base Rent and Additional Rent, and that no Annual Base
Rent, Additional Rent, or security deposit has been paid in advance of its due
date, and (g) any other information that may reasonably be required by any of
such persons. It is intended that any such certificate of Tenant delivered
pursuant to this Section 14.03 may be relied upon by Landlord and any
prospective purchaser, Lessor, Landlord's Mortgagee, or Other Mortgagee(s) of
any part of the Building. Tenant's failure to deliver such Certificate within
said fifteen day period shall be a default hereunder and shall be conclusive
upon Tenant that this Lease is in full force and effect and unmodified, and that
there are no uncured defaults in Landlord's performance hereunder.
14.03 Quiet Enjoyment. Landlord hereby represents and warrants that it
has fee simple title to the Building and the Land and full legal right and
authority to enter into this lease and perform its obligations hereunder. Upon
Tenant paying the Annual Base Rent and Additional Rent and performing all of
Tenant's obligations under this Lease, Tenant may peacefully and quietly enjoy
the Premises during the Term as against all persons or entities lawfully
claiming by or through Landlord; subject, however, to the provisions of this
Lease and to the rights of Landlord's Mortgagee or Other Mortgagee(s).
ARTICLE 15
NOTICES
15.01 Manner of Notice. Except as otherwise expressly provided in this
Lease, any bills, statements, notices, demands, requests or other communications
given or required to be given under this Lease shall be effective only if
rendered or given in writing, sent by registered or certified mail or delivered
personally, (a) to Tenant (i) at Tenant's address set forth above, if sent prior
to Tenant's taking possession of the Premises, or (ii) at the Building if sent
subsequent to Tenant's taking possession of the Premises, or (iii) at any place
where Tenant or any agent or employee of Tenant may be found if sent subsequent
to Tenant's vacating, deserting, abandoning or surrendering the Premises, or (b)
to Landlord at Landlord's address set forth above, or (c) to such other address
as either Landlord or Tenant may designate as its new address for such purpose
by notice given to the other in accordance with the provisions of this Section
15.01. Any such bill, statement, notice, demand, request or other communication
shall be deemed to have been rendered or given three (3) days after the date
when it shall have been mailed as provided in this Section 15.01 if sent by
registered or certified mail, or upon the date personal delivery is made.
ARTICLE 16
MISCELLANEOUS
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16.01 Brokers. Landlord and Tenant warrant to each other that they have
had no dealings with any broker, agent or finder in connection with this Lease.
Both parties hereto agree to protect, indemnify and hold harmless the other from
and against any and all expenses with respect to any compensation, commissions
and charges claimed by any broker, agent or finder with respect to this Lease or
the negotiation thereof that is made by reason of any action or agreement by
such party.
16.02 Attorney's Fees. If on account of any default by Tenant in
Tenant's obligations under the terms of this Lease, it becomes necessary or
appropriate for Landlord to employ attorneys or other persons to enforce any of
Landlord's rights or remedies hereunder, Tenant agrees to pay all reasonable
fees of such attorneys and other persons and all other costs of any kind so
incurred.
16.03 Notice of Lease. Upon the Commencement Date of this Lease, either
party shall upon the request of the other, join in the execution of a notice of
lease pursuant to Section 47-19 of the Connecticut General Statutes and either
party may record the same. Tenant shall not record this Lease, and any recording
of this Lease or any memorandum thereof (other than as contemplated by the
preceding sentence) shall constitute an Event of Default by Tenant, entitling
Landlord to pursue any and all remedies available. to Landlord under this Lease.
At the expiration or earlier termination of this Lease, Tenant shall, at the
request of Landlord, execute and deliver to Landlord a quit-claim deed, lease
cancellation instrument or other instrument of release in form suitable for
recording, provided that such document does not have the effect of waiving any
claims that either Landlord or Tenant may have against the other arising out of
this Lease. In the event that Tenant does not execute and deliver such an
instrument to Landlord within ten (10) days following Landlord's written request
therefor, Landlord is hereby irrevocably authorized to execute any such
instrument of release on behalf of Tenant and record the same, and Tenant hereby
appoints Landlord as its attorney-in-fact, which power is coupled with an
interest, to accomplish the foregoing.
16.01 No Partnership. Any intention to create a joint venture or
partnership relation between the parties hereto is hereby expressly disclaimed.
Landlord shall not by the execution of this Lease in any way or for any purpose,
become (i) a partner of Tenant in the conduct of Tenant's business or otherwise,
or (ii) a joint venturer or a member of a joint enterprise with Tenant.
16.05 Multiple Options. In the event that Tenant has any multiple
options to expand, extend or renew this Lease, a later option cannot be
exercised unless the prior option to expand, extend or renew this Lease has been
properly exercised in accordance with the terms of this Lease.
16.06 No Merger. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger unless Lender
so elects, and shall, at the option of Landlord, terminate all or any existing
subtenancies or may, at the option of
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Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
16.07 Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and enforceable to the full extent permitted by law. No remedy or
election hereunder shall be deemed exclusive, but shall wherever possible, be
cumulative with all other remedies at law or in equity. Neither this Lease nor
any term or provision hereof may be changed, waived, discharged or terminated
orally, and no breach thereof shall be waived, altered or modified, except by a
written instrument signed by the party against which the enforcement of the
change, waiver, discharge or termination is sought. Any right to change, waive,
discharge, alter or modify, or terminate this Lease shall be subject to the
prior express written consent of Landlord's Mortgagee.
16.08 No Waiver. No waiver by Landlord of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach of the
same or any other provision. No waiver of any breach shall affect or alter this
Lease, but each and every term, covenant and condition of this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent breach thereof. No reference to any specific right or remedy shall
preclude Landlord from exercising any other right or from having any other
remedy or from maintaining any action to which it may otherwise be entitled at
law or in equity. No failure by Landlord to insist upon the strict performance
of any agreement, term, covenant or condition hereof, or to exercise any right
or remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of any
such breach, agreement, term, covenant or condition.
16.09 Bind and Inure. The terms, provisions, covenants and conditions
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant, and, except as otherwise provided herein, their respective heirs, legal
representatives, successors and assigns; provided, however, upon the sale,
assignment or transfer by the Landlord named herein (or by any subsequent
landlord) of its interest in the Building, as owner or lessor, including any
transfer by operation of law, the Landlord (or any subsequent landlord) shall be
relieved from all subsequent obligations or liabilities under this Lease, and
all obligations subsequent to such sale, assignment or transfer (but not any
obligations or liabilities that have accrued prior to the date of such sale,
assignment or transfer) shall be binding upon the grantee, assignee, or other
transferee; any such grantee, assignee, or other transferee shall, by accepting
such interest, be deemed to have assumed such subsequent obligations and
liabilities. Notwithstanding anything to the contrary set forth herein, if
Landlord's Mortgagee or Other Mortgagee(s) shall succeed to Landlord's interests
hereunder, then Landlord's Mortgagee or Other Mortgagee(s) shall not be deemed
to have assumed any obligations or liabilities under this Lease which arose
prior to the date any such Mortgagee shall have requested Tenant to attorn to
such Mortgagee.
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16.10 Landlord's Liability. (a) The term "Landlord" as used herein and
throughout the Lease shall mean only the owner or owners at the time in question
of the fee title or a tenant's interest in a ground lease of the Building and
this Lease. In the event of any transfer of such title or interest from and
after the date of such transfer, Landlord herein named (and in case of any
subsequent transfers, the then grantor) and each of its partners, principals,
shareholders, beneficiaries or co-tenants (as the case may be) shall be relieved
of all liability as respects Landlord's obligations hereunder thereafter to be
performed, provided that (i) the transferee of the title and interest of
Landlord (and in case of any subsequent transfers, the then grantors) shall
automatically, by acceptance of the instrument of transfer agree to assume and
perform all of Landlord's obligations under this Lease; and (ii) any monies in
the hands of Fabrilock, Inc. or the then grantor at the time of such transfer,
in which Tenant has an interest (the Security Deposit), shall be delivered to
the grantee.
(b) Landlord agrees to protect, indemnify and save harmless Tenant,
from and against any and all loss, cost, liability, damage and expense,
including) without limitations, claims, demands, penalties, causes of action,
costs and expenses and reasonable attorneys' fees imposed upon and incurred by
or asserted against Tenant related to (a) The failure by Landlord to observe any
of its covenants set forth herein or the breach by Landlord of any of its
representations and warranties set forth herein, (b) any acts, omissions or
negligence of Landlord or any person claiming through or under Landlord, or if
the contractors, agents, servants, employees, visitors or licensees of Landlord
or any such person, in, on or about the Premises or the Building, either prior
to, during, or after the expiration of, the Term, including, without limitation,
any acts, omissions or negligence in the maintenance of the Building and the
Common Area or (c) for personal injury, death or property damage occasioned by
any use, occupancy, condition, occurrence, omission or negligence of Landlord
referred to in the preceding clauses. In case any action, suit or proceeding is
brought against Tenant by reason of any such occurrence, Landlord will, at
Landlord's expense, resist and defend such action, suit or proceeding or cause
the same to be resisted or defended by counsel reasonably approved by Tenant,
such approval not to be unreasonably withheld.
(c) Landlord's Liability for Environmental Matters.
(i) Definitions.
(a) "Environmental Condition" shall mean the presence of
Hazardous Materials at the Facility which requires removal, remediation, or
corrective action pursuant to standards established under applicable
Environmental Laws or orders or other directives from any local, state or
federal government agency.
(b) "Environmental Laws" shall mean any applicable laws
relating to or imposing liability or standards of conduct concerning hazardous
or toxic materials and substances, air pollution (including noise and odors),
water pollution, liquid and solid waste, pesticides, drinking water, community
and employee health, environmental land use
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management, stormwater, sediment control, radiation, wetlands, endangered
species, environmental permitting and petroleum products, whether now in effect
or becoming effective at any time after the date hereof, including but not
limited to those dealing with public health and safety and the protection of the
environment, such as the Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C. 136 et seq., as amended; the Toxic Substance Control Act, 15 U.S.C. 2601
et seq., as amended; the Clean Water Act, 33 U.S.C. 1251 et seq., as amended;
the National Environmental Policy Act, 42 U.S.C. 4321 et seq., as amended; the
Solid Waste Disposal Act, 42 U.S.C. 6901 et seq., as amended; the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq.,
as amended; the Clean Air Act, 42 U.S.C. 7401 et seq., as amended; the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. 11001 et seq.; as amended;
the Occupational Safety and Health Act, 29 U.S.C. 651 et seq., as amended; the
Resource Conservation and Recovery Act, as amended; all Connecticut state and
county laws and ordinances relating to environmental, health and safety matters;
and all rules and regulations promulgated pursuant to such federal, state and
county laws and ordinances.
(c) "Hazardous Material" means any pollutant, contaminant,
hazardous, toxic or dangerous waste, substance or material, including, but not
limited to, any chemical products, petroleum substances, PCBs, asbestos, urea
formaldehyde, ammonia, nitrates, semi-volatile or purgeable organics, flammable
explosives, radioactive materials, hazardous waste, metals or other materials or
substances defined as or included in the definition of substances defined as
"hazardous substances," "hazardous materials," "solid waste," "hazardous waste,
"toxic substances" or analogous definitions under any Environmental Law.
(d) "Material Compliance" means compliance which is not
reasonably likely to produce any adverse change in or effect on the operations,
properties or condition (financial or otherwise), assets or liabilities of the
Tenant and which would not result in civil or criminal liability to any
individual.
(ii) Responsibility for Environmental Conditions. Landlord hereby
assumes all responsibility for all costs, debts, duties, obligations or
liabilities for (i) any environmental problem, hazard or condition created,
arising from or in existence prior to or as of the date of the commencement of
Tenant's occupancy of the Premises and (ii) any environmental problem, hazard or
condition created, arising or in existence after the commencement of Tenant's
occupancy of the Premises unless the environmental problem, hazard or condition
was created, arose from or came into existence as a result of acts or omissions
of Tenant, including in either case, without limitation, any such liabilities
associated with off-site disposal of any Hazardous Material or with any
obligations under any Environmental Law. Not to limit the generality of the
foregoing, Landlord will be responsible at its cost and expense for the removal,
remediation and correction of all Environmental Conditions at the land and/or
the Building for which it is responsible under this Section.
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(iii) Landlord's Representations and Warranties Regarding Environmental
Matters. Landlord represents and warrants to and for the benefit of Tenant, its
affiliates, and each of their stockholders, officers, directors, employees,
agents, successors and assigns, as follows:
(a) Landlord has provided to Tenant copies of all
studies, reports, notices, orders, warnings and similar documents in Landlord's
possession or control analyzing, describing or otherwise relating to
Environmental Conditions or activities at the Land and the Building;
(b) Landlord is conducting the operation of the
Building and Material Compliance with all applicable Environmental Laws and
directives of federal, state and local authorities, including, without
limitation, the preparation and maintenance of records; and
(iv) Indemnification for Environmental Liability. Landlord
shall defend, indemnify and hold harmless Tenant, its affiliates, and their
respective. stockholders, officers, directors, employees and agents from any and
all liabilities, losses, damages (including, without limitation, punitive
damages), claims and costs, related to or arising from (i) any breach of
Landlord's representations set forth in Section 16.10(c) (iii), above; (ii) the
failure by Landlord to fulfill any of its obligations under this Section 16.10
(c); (iii) liability for environmental problems, hazards or conditions effecting
or emanating from the Land or the Building which Tenant is not responsible for
and (iv) any and all actions (including, without limitation, enforcement actions
of any kind, administrative or judicial proceedings, and orders or judgments
arising out of or therefrom), suits, claims, proceeding, investigations, audits,
administrative or criminal penalties, injunctive or other relief (whether or not
based upon personal injury, property damage or contamination of, or adverse
effects upon, the environment, water tables or natural resources), costs and
other expenses (including attorneys' and consultants' fees, court costs and
amounts paid in settlement of any claims or actions) incident to any of the
foregoing.
(v) Rent Set Off. If Landlord is in default of its obligations
contained in Section 16.10(c) (iv) above and Tenant has had to make payment
because of such default of Landlord, Tenant may deduct such payments from its
rent and apply said payments toward reimbursement of Tenant.
16.11 Interpretation. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The words used in neuter
gender include the masculine and feminine. If there is more than one Tenant, the
obligations under this Lease imposed on Tenant shall be joint and several. The
captions preceding the articles of this Lease have been inserted solely as a
matter of convenience and such captions in no way define or limit the scope or
intent of any provision of this Lease. Submission of this instrument for
examination does not constitute a reservation of or option for lease of the
Premises, and it is not effective as a lease or otherwise until execution and
delivery by both
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Landlord and Tenant.
16.12 Time of Essence. Except as provided in Section 16.12, time is of
the essence with respect to the due performance of the terms, covenants and
conditions herein contained; provided, however that no delay or failure of
Landlord to enforce any of the provisions herein contained and no conduct or
statement of Landlord shall waive or affect any of Landlord's rights hereunder.
16.13 Force Majeure. Whenever during the Term it becomes impossible for
Landlord or Tenant to perform the obligations on either party's part to be
performed as a result of war, civil riots, labor disputes or strikes (other than
those caused by the willful act or omission of Landlord or Tenant), or Acts of
God or the elements, then Landlord or Tenant shall be excused from such
performance without penalty or other liability or a breach of or default under
this Lease to the other party for the period of time in which the event or
events giving rise to the impossibility of performance shall exist.
Notwithstanding anything to the contrary contained in this Section 16.13,
Landlord and Tenant agree that neither party shall be excused from the timely
performance of its obligations under this Lease for a period of time greater
than ninety (90) days.
16.14 Joint and Several. If two or more individuals, corporations,
partnerships or other business associations (or any combination of two or more
thereof) shall sign this Lease as Tenant, the liability of each such individual,
corporation, partnership or other business association to pay Annual Base Rent
and Additional Rent and perform all other obligations hereunder shall be deemed
to be joint and several, and all notices, payments and agreements given or made
by, with or to any one of such individuals, corporations, partnerships or other
business associations shall be deemed to have been given or made by, with or to
all of them. In like manner, if Tenant shall be a partnership or other business
association, the members of which are, by virtue of statute or federal law,
subject to personal liability, the liability of each such member shall be joint
and several.
16.15 Entire Agreement. This Lease, including the Exhibits hereto,
which are made part of this Lease, contain the entire agreement of the parties
and all prior negotiations and agreements are merged herein. Neither Landlord
nor Landlord's agents have made any representations or warranties with respect
to the Premises, the Building or this Lease except as expressly set forth
herein, and no rights, easements or licenses are or shall be acquired by Tenant
by implication or otherwise unless expressly set forth herein. Tenant covenants
and agrees that no diminution of light, air or view by any structure that may
hereafter be erected (whether or not by Landlord) shall entitle Tenant to any
reduction of Annual Base Rent or Additional Rent under this Lease, result in any
liability of Landlord or Tenant, or in any other way affect this Lease or
Tenant's obligations hereunder.
16.16 Authority. If Tenant signs as a corporation or a partnership,
each of the persons executing this Lease on behalf of Tenant does hereby
covenant and warrant that
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Tenant is a duly authorized and existing entity, that Tenant has and is
qualified to do business in Connecticut, that Tenant has full right and
authority to enter into this Lease, and that each and both of the persons
signing on behalf of Tenant are authorized to do so. Upon Landlord's request,
Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord
confirming the foregoing covenants and warranties.
16.17 Governing Law. This Lease and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with the laws of
the State of Connecticut.
16.18 Survival. All agreements, covenants and indemnifications
contained herein or made in writing pursuant to the terms of this Lease by or on
behalf of Tenant shall be deemed material and shall survive expiration or sooner
termination of this Lease.
16.19 Other Leases. Landlord reserves the absolute right to effect such
other tenancies in the Building as Landlord in the exercise of its sole business
judgment shall determine and notwithstanding any other provisions hereof. Tenant
does not rely on the fact, nor does Landlord represent, that any specific tenant
or number of tenants shall, during the term of this Lease or any extension
thereof, occupy any space in said Building.
16.20 No Representations. Other than as specifically stated herein,
Tenant has examined the Premises, is satisfied with its condition and takes the
Premises in "as is" condition with no representation or warranties whatsoever.
16.21 Building Name. The Building may be known by such name as
Landlord, in its sole discretion, may elect, and Landlord shall have the right
from time to time to change such designation or name without Tenant's consent.
ARTICLE 17
EXPANSION PREMISES
17.01 Expansion Premises. Superwinch, Inc. is currently the tenant of
approximately 17,540 square feet of space (the "Expansion Premises") in the
Building as shown on Exhibit A. The Expansion Premises is scheduled to be
vacated by Superwinch, Inc. on or about June 30, 1998.
17.02 Option for Expansion Premises.
(a) Provided: (i) There is not then occurring an Event of Default under
the terms of this Lease; (ii) this Lease is in full force and effect; and (iii)
Superwinch vacates the Expansion Premises, Tenant shall have the option to lease
the Expansion Premises.
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(b) The option contained in this section may only be exercised by
written notice to Landlord given on or before November 1, 1997.
(c) If Tenant shall fail to exercise its option during a period when
the option is available, when Tenant is not entitled to exercise its option or
when this instrument is no longer in full force and effect for any reason, the
option contained in this section shall be void.
(d) If Tenant exercises its option for the Expansion Premises, the
Expansion Premises shall become incorporated into the definition of Premises and
all of the terms and conditions of this Lease shall apply except that; (i) Base
Rent for the Expansion Premises shall be the same per square foot as Base Rent
is for the Premises and therefore, Base Rent shall be increased to an amount
equivalent to the Base Rent per square foot multiplied by the total number of
square feet for the whole Premises; (ii) the Security Deposit shall be
proportionately increased.
17.03 Base Rent for Expansion Premises. Base Rent for the Expansion
Premises shall be the same per square foot as Base Rent for the Premises.
17.04 Early Exercise of Option. If Superwinch vacates the Expansion
Premises before May 1, 1998, the time in which Tenant may exercise Tenant's
option shall be accelerated to a period of ten (10) days after notice of
Landlord that Superwinch will be or has vacated the Expansion Premises.
17.05 Latest Time For Option. If Superwinch vacates the Expansion
Premises after June 30, 1998, and Tenant has exercised its option to lease the
Expansion Premises, Tenant shall occupy the Expansion Premises and Base Rent
(and additional rent and the security deposit) shall be increased within ten
(10) days of when Superwinch vacates.
17.06 Toilets. Tenant shall allow the Tenant of the Expansion Premises
to use the toilets in the Premises.
ARTICLE 18
RELATIONSHIP OF TENANTS AND SPACE
The Building is currently occupied or will soon be occupied as follows:
Applied Photonic Devices, Inc. ("APD") 36,410 square feet ("Premises")
Staples, Inc. ("Staples") 26,250 square feet ("Staples Premises")
Superwinch, Inc. ("Superwinch") 17,520 square feet (Superwinch Premises")
80,180 square feet
The lease between Landlord and Staples is expected to terminate before
the APD lease or the Superwinch Lease. The Superwinch Lease is expected to
terminate before the
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APD lease.
When Staples vacates the Staples Premises, provided (i) there is not
then occurring an Event of Default under this Lease and (ii) this Lease is in
full force and effect, the Staples Premises shall become part of the Premises
and it shall be included in the term "Premises" as used in this Lease. All terms
of this Lease shall continue to apply to the term Premises except:
(a) Annual Base Rent shall increase to $172,315.00 and the consecutive
monthly payments shall increase to $14,359.58; and
(b) The Security Deposit shall be increased to $28,719.16.
When the increases called for in items (a) and (b) above have happened,
Landlord shall notify Superwinch that Superwinch must vacate the Superwinch
Premises and enter into the Staples Premises. When Superwinch vacates the
Superwinch Premises and enters into the former Staples Premises, APD shall enter
into and take possession of the former Superwinch Premises.
When the Superwinch Lease is terminated, provided (i) there is not then
occurring an Event of Default under this Lease and (ii) this Lease is in full
force and effect, the APD Premises shall become part of the Premises and it
shall be included in the term "Premises" as used in this Lease. All terms of
this Lease shall continue to apply to the term Premises except:
(a) Annual Base Rent shall increase to $220,495.00 and the consecutive
monthly payments shall increase to $18,374.58; and
(b) The Security Deposit shall be increased to $36,749.16.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
day and year first above written.
WITNESSED BY: LANDLORD:
/s/Annette M. Dwyer
------------------
Annette M. Dwyer FABRILOCK, INC.
/s/David P. DaVia BY: /s/ James M. Godbout
------------------
David P. DaVia
TENANT:
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/s/Annette M. Dwyer APPLIED PHOTONIC DEVICES, INC.
-------------------
Annette M. Dwyer
/s/David P. DaVia BY: /s/ Crawford L. Cutts
-------------------
David P. DaVia
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STATE OF CONNECTICUT )
) ss. Brooklyn
COUNTY OF WINDHAM )
On this the 5th day of February, before me, the undersigned,
personally appeared James M. Godbout, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument and
acknowledged that he is a general partner of FABRILOCK, INC., a general
partnership and that he, in such capacity being authorized so to do, executed
the same as his free act and deed and the free act and deed of the partnership
for the purposes therein contained by signing the name of such general
partnership as such general partner.
IN WITNESS WHEREOF, I hereunto set my hand.
[Affix Notarial Seal]
/s/ Annette M. Dwyer
-------------------------
Court/Notary Public
My Commission Expires: 10/31/98
STATE OF CONNECTICUT )
) ss. Brooklyn
COUNTY OF WINDHAM )
On this the 6th day of February, before me, the undersigned, personally
appeared Crawford L. Cutts, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument and acknowledged that
he is a general partner of APPLIED PHOTONIC DEVICES, INC., a general
partnership and that he, in such capacity being authorized so to do, executed
the same as his free act and deed and the free act and deed of the partnership
for the purposes therein contained by signing the name of such general
partnership as such general partner.
IN WITNESS WHEREOF, I hereunto set my hand.
[Affix Notarial Seal]
/s/ Annette M. Dwyer
-------------------------
Court/Notary Public
My Commission Expires: 10/31/98
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EXHIBIT A
Schematic drawing of Building
TO BE SUPPLIED BY LANDLORD
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EXHIBIT B
LEGAL DESCRIPTION
An industrial/office building located at 300 Lake Road, Killingly, Connecticut
06110 containing 88,000 square feet.
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EXHIBIT C
RULES AND REGULATIONS ATTACHED TO
AND MADE A PART OF THIS LEASE
1. Tenant shall not display, inscribe, print, paint, maintain or affix
on any place or in or about the Building any sign, notice, legend, direction,
figure or advertisement, except on the doors of the Premises and on the
Directory Boards, if any, and then only such name or names and matter, and in
such color, size, style, place and materials, as shall first have been approved
in writing by Landlord.
2. Tenant shall not advertise the business, profession or activities of
Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities, and shall
not use the name of the Building for any purpose other than as the business
address of Tenant, and Tenant shall never use any picture or likeness of the
Building in any circulars, notices, advertisements or correspondence without
Landlord's prior written consent.
3. Tenant shall not use the Premises for housing accommodations or
lodging or sleeping purposes, or do any cooking therein, or use any illumination
other than electric light, or use or permit to be brought into the Building any
flammable oils or fluids such as gasoline, kerosene, naphtha, and benzine, or
any explosives, radioactive materials or other articles deemed hazardous to
life, limb or property.
4. Tenant shall not contract for any work or service which might
involve the employment of labor incompatible with the Building employees or
employees of contractors doing work or performing services by or on behalf of
Landlord or with the terms and conditions of any collective bargaining agreement
to which landlord or Landlord's agents or contractors may be a party.
5. Tenant shall not place anything or allow anything to be placed near
the glass of any window, door, partition or wall which may appear unsightly from
outside the Premises.
6. No Tenant shall have any property stored outside, except with the
prior consent of landlord.
7. All sidewalks, halls, passages, exits, entrances, elevators and
stairways of the Building, if any, shall not be obstructed by any Tenant or used
by him for any purpose other than for ingress to and egress from his respective
Premises no shall any door be locked during normal business hours. No Tenant and
no employees or invitees of Tenant shall go upon the roof of the Building.
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8. Tenant shall not alter any lock nor install any new or additional
locks or any bolts on any door of the Premises, except with the prior consent of
Landlord, which consent shall not be unreasonably withheld.
9. Tenant shall not overload the floor of the Premises or mark, drive
nails, screw or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof. Tenant may fasten its equipment to the
floor of the Premises.
10. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Premises or the
Building.
11. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air-conditioning other than that supplied by Landlord.
12. Landlord will direct Tenant as to where and how telephone and
telegraph wire are to be introduced. No boring or cutting for wires will be
allowed without the consent of Landlord. The location of telephones, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
13. Each Tenant, upon the termination of his tenancy, shall deliver to
Landlord the keys of offices, rooms and toilet rooms which shall have been
furnished Tenant or which Tenant shall have had made, and in the event of loss
of any keys so furnished, shall pay the Landlord therefor.
14. Landlord reserves the right to exclude or expel from the Building
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of the Rules and Regulations of the Building.
15. No vending machine or machines of any description shall be
installed, maintained or operated outside the Premises without the written
consent of Landlord.
16. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
17. Any permitted corrosive, flammable or other special wastes shall be
handled for disposal as directed by Landlord.
18. Tenant's use of the Common Areas shall be limited to access and
parking purposes
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and under no circumstances shall Tenant be permitted to store any goods or
equipment, conduct any operations or construct or place any improvements,
barriers or obstructions in the Common Areas, or otherwise adversely affect the
appearance thereof, without the prior consent of Landlord.
19. Tenant shall keep the Premises at a temperature sufficiently high
to prevent freezing of water in pipes and fixtures.
20. Tenant agrees to handle and dispose of all rubbish, garbage, and
waste from Tenant's operations in accordance with regulations established by
Landlord and not permit the accumulation (unless in concealed metal containers),
or burning of any rubbish or garbage in, or about any part of the Building, and
not permit any garbage or rubbish to be collected or disposed of from the
Premises except by Landlord or its designee (but the prices to be charged
therefor shall be reasonable).
21. Tenant shall not change (whether by alteration, replacement,
rebuilding or otherwise) the exterior color and/or architectural treatment of
the Premises or of the Building in which the same are located, or any part
thereof.
22. Tenant shall not use the plumbing facilities for any purpose other
than for which they were constructed, or dispose of any garbage or other foreign
substance therein, whether through the utilization of so-called "disposal" or
similar units, or otherwise.
23. INTENTIONALLY OMITTED
24. Tenant shall not install any awnings in or on the Premises which
are visible to public view outside the Premises.
25. Tenant shall not permit window cleaning or other exterior
maintenance and janitorial services in and for the Premises to be performed
except by such person(s) as shall be approved by Landlord and except during
reasonable hours designated for such purposes by Landlord.
26. Tenant shall not use any fork-lift truck, tow truck or any other
machine for handling freight in such a manner as to cause damage to the
Building. Tenant shall be individually liable for any damages incurred by a
violation of this provision.
27. Tenant shall not install, operate or maintain in the Premises any
electrical equipment which will overload the electrical system therein, or any
part thereof, beyond its reasonable capacity for proper and safe operation as
determined by Landlord in light of the over-all system and requirements therefor
in the Building, or which does not bear underwriters' approval.
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28. Landlord reserves the right to make such other and further
nondiscriminatory Rules and Regulations as in its judgment may be necessary or
desirable for the safety, care and cleanliness of the Premises and the Building
and for the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations hereinabove stated and any additional Rules and
Regulations which are adopted.
29. Notwithstanding the restrictions contained in Section 3, 11 and 17
of these Rules and Regulations, Tenant may keep at the Premises and use at the
Premises fuels, cleaning chemicals and hazardous substances in such reasonable
amounts for such purposes necessary for Tenant to lawfully conduct Tenant's
business as permitted in Section 7.01 herein.
Landlord's Initials: Tenant's Initials:
______________ _________________
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