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Exhibit: 10.23T
LEASE AGREEMENT
between
NOREAST MANAGEMENT LLC
and
TMC/SOUNDPRINTS, INC.
NORWALK, CONNECTICUT June 19, 1996
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LEASE AGREEMENT
This Lease Agreement is entered into this th day of March, 1996 by and between
Noreast Management LLC with an office at 353 Main Avenue, Norwalk, Connecticut
06851-1552 (hereinafter referred to as "Lessor") and TMC/Soundprints Inc., a
division of Trudy Corporation, with an office at 165 Water Street, South
Norwalk, Connecticut 06854 (hereinafter referred to as "Lessee").
1. Description of the Premises
Lessor leases to Lessee the entire building, approximately 26,000
square feet, located at 353 Main Avenue, Norwalk, Connecticut 06851
(the "building") together with the entire parking lot consisting of
approximately 65 parking spaces (such building, parking lot, and the
remainder of the land upon which the building sits, hereinafter
referred to as the "premises").
2. Representations and Warranties
The Lessor represents and warrants that it is a duly constituted and
validly existing limited liability corporation organized under the laws
of Connecticut and has power to enter into and perform this Lease
Agreement. This Agreement constitutes a valid and legally binding
obligation of the Lessor, enforceable according to its terms. Neither
the execution and delivery of this Lease Agreement, the consummation of
the transactions contemplated hereby, nor the fulfillment by the Lessor
of or compliance by the Lessor with the terms and conditions hereof is
prevented or limited by or conflicts with or results in a breach of any
provision contained in the partnership agreement which creates and
establishes the Lessor.
The Lessee represent and warrants that it is a duly constituted and
validly existing corporation, organized under the laws of the State of
Delaware and has power to enter into and perform this Lease Agreement.
This Agreement constitutes a valid and legally binding obligation to
the Lessee, enforceable according to its terms. Neither the execution
and delivery of this Lease Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment by the Lessee of
or compliance by the Lessee with the terms and conditions hereof is
prevented or limited by or conflicts with or results in a breach of the
Certificate of Incorporation and By-laws of the Lessee.
3. Compliance with Laws
(a) Lessee shall, at Lessee's sole cost and expense, promptly comply
with all present and future laws, orders, and regulations of all state,
federal, municipal and local governments, departments, commissions, and
boards and any direction of any public officer pursuant to law with
respect to the building and premises if arising out of Lessee's use or
manner of use of the premises or the building. Without limiting the
foregoing, Lessee agrees that (i) it has not prior to the execution of
this lease conducted or permitted, and will not at any time during the
term of this lease conduct or permit, any operations or activity on the
premises which results in the discharge of hazardous waste (as defined
in any applicable Federal or Connecticut statute or
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regulation) on the premises or the pollution (as defined in any
applicable Federal or Connecticut statute or regulation) of surface
water, ground water or soil on the premises, (ii) it has not prior to
the execution of this lease conducted or permitted, and will not at any
time during the term of this Lease conduct or permit, any operations or
activity on the premises which result in the premises constituting an
"establishment" as defined in the Connecticut Transfer Act, (iii) it
has not prior to the execution of this lease permitted and will not
will not at any time during the term of this Lease permit, the presence
or installation of asbestos containing materials on the premises, and
(iv), should any of the foregoing covenants be breached, it will
remediate the contamination in satisfaction of all applicable Federal
and Connecticut statutes and regulations. Lessee shall not do or permit
any renovations or alterations to the premises or any act or thing to
be done in or to the premises which is contrary to law, including all
applicable laws, regulations and codes of the City of Norwalk and any
other governmental entity with jurisdiction over the premises, relating
to building, renovating or altering the premises and to public health
and safety, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by
Lessee for the benefit of the Lessor. Lessee represents and warrants
that all renovations and alterations made heretofore to the premises
have been, and that all renovations and alterations made hereunder will
be, in compliance with all such applicable laws, regulations and codes.
Lessee shall not bring or permit to be brought or kept in or on the
premises, any inflammable, combustible, or explosive fluid, material,
chemical, or substance, with the exception of routine chemicals used in
office cleaning and machinery maintenance, or cause or permit any odors
of cooking or other process, or any unusual or other objectionable
odors to permeate from the premises. Lessee agrees to indemnify and
hold Lessor harmless against, and to pay all costs, expenses, fines,
penalties, or damages, which may be imposed upon the Lessor or which
the Lessor may suffer by reason of Lessee's breach of any provision of
this Article 3.
(b) Lessee shall perform and observe the terms and conditions to be
performed on the part of the Lessee under the provisions of this Lease
Agreement. Payment of rent shall be in accordance with Paragraph 10 of
this Lease. Lessee shall not commit or permit to be committed on the
premises by Lessee or any other person any act or omission which shall
violate any material term or condition of the Lease.
4. Subordination
This Lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to
all renewals, modifications, consolidations, replacements, and
extensions of any such underlying leases and mortgages. This clause
shall be self-operative and no further instrument of subordination
shall be required by any ground or underlying Lessor or by any
mortgagee, affecting any lease or the real property of which the
demised premises are a part. In confirmation of such subordination,
Lessee shall execute promptly any certificate that Lessor may request.
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5. Eminent Domain
If the whole or any part of the demised premises shall be acquired by
Eminent Domain for any public or quasi public use or purpose, then and
in that event, the term of this Lease shall cease and terminate from
the date of title vesting in such proceeding and Lessee shall have no
claim for the value of any unexpired term of said Lease.
6. Destruction
(a) If the leased premises or any part thereof shall be damaged by fire
or other casualty, Lessee shall give immediate notice thereof to Lessor
and this Lease shall continue in full force and effect except as
hereinafter set forth.
(b) If the leased premises are partially or totally damaged or rendered
partially or totally unusable by fire or other casualty, Lessee shall
give immediate notice thereof to Lessor and this Lease shall continue
in full force and effect, and the damage thereto shall be repaired, or
the premises shall be fully restored and rebuilt, by and at the expense
of the Lessee.
(c) Nothing contained above shall relieve Lessee from liability that
may exist as a result of damage from fire or other casualty.
7. Assignment
Lessee, for itself, its heirs, executors, administrators, legal
representatives, successors and assigns expressly covenants that it
shall not assign, mortgage, or encumber this agreement, nor sublet, or
suffer or permit the leased premises or any part thereof to be used by
others, without prior written consent of Lessor in each instance; which
consent will not be unreasonably withheld. If this Lease be assigned,
or if the leased premises or any part thereof be sublet or occupied by
anybody other than the Lessee, Lessor may, after default by Lessee,
collect rent from the assignee, sub-tenant, or occupant as tenant. In
no event, however, shall Lessee be relieved of its obligation to pay
the full amount of rent due under this Lease. The consent by Lessor to
an assignment or subletting shall not in any wise be construed to
relieve Lessee from obtaining the express written consent of Lessor to
any further assignment or subletting.
8. Examination of Premises and Repairs
(a) Neither Lessor nor Lessor's agents have made any representations or
promises with respect to the building, the land upon which it is
erected or the leased premises, the rents, expenses of operation, or
any other matter or thing affecting or related to the premises except
as herein expressly set forth and no rights, easements or licenses are
acquired by Lessee by implication or otherwise except as expressly set
forth in the provisions of this Lease. The Lessee has inspected the
building and the leased premises and is thoroughly acquainted with
their condition, and agrees to take the Premises in "as is" condition
after certain repairs and improvements are effected at the expense of
the Lessor. Lessee further acknowledges that the taking of possession
of the leased premises by Lessee shall be conclusive evidence that the
said
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premises and the building of which the same form a part, were in good
and satisfactory condition at the time such possession was so taken.
(b) Lessee, unless herein specified to the contrary, shall maintain all
portions of the building, both exterior and interior. Throughout the
term of this Lease, Lessee shall take good care of the leased premises
and the fixtures and appurtenances therein, and at its sole cost and
expense, make all non-structural repairs thereto as and when needed to
preserve them in good working order and condition. Lessee shall also,
at its sole cost and expense, make all structural building repairs
related to Lessee's occupancy. All such repairs shall be made in
accordance with all applicable laws, regulations and codes of the City
of Norwalk and any other governmental entity with jurisdiction over the
premises. If the leased premises be or become infested with vermin,
Lessee shall at Lessee's expense, cause the same to be exterminated
from time to time to the satisfaction of the Lessor. Except as
specifically provided elsewhere in the Lease Agreement, there shall be
no allowance to the Lessee for the diminution of rental value and no
liability on the part of the Lessor by reason of inconvenience,
annoyance or injury to business arising from Lessor, Lessee or others
making or failing to make any repairs, alterations, additions, or
improvements in or to any portion of the building, or in or to the
leased premises or the fixtures, appurtenances or equipment thereof.
The provisions of this Paragraph 8 (b) with respect to the making of
repairs shall not apply in the case of fire or other casualty which are
dealt with elsewhere.
9. Term
The Premises are leased for an eight (8) year term commencing on July
1, 1996 and ending June 30, 2004 unless sooner terminated as
hereinafter provided.
10. Rent
(a) In consideration of the premises, the Lessee agrees to pay to the
Lessor as rent for the premises $110,000.00 per annum (equivalent to
$4.15 per square foot per annum). All rent shall due and payable in
advance in equal monthly installments of $9,166.67, on the 1st day of
each and every calendar month during said term at 353 Main Avenue,
Norwalk, CT 06851-1552, or at such other place, as the Lessor may
designate. Monthly rental for any partial month shall be prorated at
the rate of 1/30th of monthly rental per day.
(b) The Lessee shall be responsible for cleaning and daily maintenance
of the leased premises and surrounding property including payment for
trash removal, pallet disposal, graffiti removal, snow plowing and
removal, sanding of ice on the parking lot and sidewalks, cutting of
grass, and maintenance of planting beds, shrubs and trees.
(c) The Lessee shall pay local property taxes due and owing on the
property as of the date of this lease. Further, the Lessee shall be
responsible for all real property taxes. Lessee shall pay promptly such
sum upon written notification from Lessor.
(d) Lessee shall pay all utility bills, and fire and security alarm
service bills.
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(e) The lessee shall be responsible for day to day maintenance on the
building, including repairs to the facility, the heating and cooling
system, window repair, plumbing, and the like. The lessor shall be
responsible for repair of the roof.
11. Use
Lessee shall use and occupy the premises only for office use, storage,
light assembly and other uses normally connected therewith and for
other purposes that will not impair the appearance, character, or
reputation of the building and premises.
12. Alterations. Additions and Improvements
Lessee shall not make any alterations, additions, or improvements on or
to the premises without first obtaining the written consent of Lessor,
which consent shall not be unreasonably withheld. Any work, performed
by Lessee shall be at Lessee's expense, and Lessee shall use
contractors or mechanics first approved by Lessor, which approval shall
not be unreasonably withheld. All fixtures and all paneling,
partitions, railing and like installations, installed in the premises
at any time by Lessee shall, upon installation, become the property of
Lessor and shall remain upon and be surrendered with the leased
premises unless Lessor, by notice to Lessee no later than twenty days
prior to the date fixed as the termination of the Lease, elects to
relinquish Lessor's rights thereto and to have them removed by Lessee,
in which event, the same shall be removed from the premises by Lessee
on or before the expiration of the Lease, at Lessee's expense. Nothing
contained in this provision shall prevent Lessee from removing all
office furniture or machines, equipment, and trade fixtures customarily
used in the business of the Lessee. Notwithstanding the foregoing, at
the expiration of the term of this Lease, any alterations, additions or
improvements shall be removed at Lessee's expense, if so requested by
Lessor, and Lessee shall repair and restore any damage to the leased
premises or the building due to such removal. Lessee agrees that all
work performed under this Article 12 shall be in compliance with all
applicable laws, including all applicable laws, regulations, and codes
of the City of Norwalk and any other governmental entity with
jurisdiction over the premises.
13. Access to Premises
(a) Lessor or Lessor's agents shall have the right (but shall not be
obligated) to enter the leased premises in any emergency at any time,
and, at other reasonable times, to examine the same and to make such
repairs, replacements and improvements as Lessor may deem necessary
and reasonably desirable to any portion of the building or which Lessor
may elect to perform, in the premises, following Lessee's failure to
make repairs or perform any work which Lessee is obligated to perform
under this Lease, or for the purpose of complying with laws,
regulations, and other directions of governmental authorities. Lessee
shall promptly reimburse Lessor for Lessor's costs and expenses,
including the value of the time spent by Lessor's employees, in making
such repairs, replacements and improvements.
(b) Throughout the term hereof, Lessor shall have the right to enter
the leased premises at reasonable hours for the purpose of showing
the same to prospective purchasers or mortgagees of the building, and
during the last six months of the term for the purpose of showing the
same
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to prospective tenants and may, during said six (6) month period, place
upon the premises the usual notice "to let" and "for sale" which
notices Lessee shall permit to remain without molestation.
14. Brokerage
Lessee represents that in the negotiation of this Lease, it has dealt
with no brokers.
Lessor represents that in the negotiation of this Lease, it has dealt
with no brokers.
15. Indemnification and Insurance
Lessor or its agents shall not be liable for any injury to persons or
damage to property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain, ice, or snow or leaks from any
part of the building of which the leased premises are a part or from
pipes, appliances or plumbing works or from the roof, street, or
sub-surface or from any other place or by dampness or by any other
cause of whatsoever nature unless through the gross negligence of
Lessor, its agents, servants, or employees. Lessee shall, during the
entire term hereof, keep in full force and effect with a reputable
insurance company a policy of general public liability and property
damage insurance in standard form in favor of Lessor and Lessee against
claims for bodily injury or death or property damage occurring in or
upon the leased premises, effective from the date Lessee enters into
possession of the leased premises. Such insurance shall be in the
amount of not less than $5,000,000 combined single limit coverage for
bodily injury and property damage issued by carriers acceptable to the
Lessor. Certificate(s) evidencing such insurance coverage listing
Noreast Management LLC as Additional Insured, respects being building
owner and landlord, shall be delivered to Lessor not later than the
commencement of the term of this Lease and annually thereafter and
shall contain a clause that the insurer will not cancel or materially
change the insurance without first giving the Lessor thirty days prior
written notice.
Lessee shall, during the entire term hereof, keep in full force and
effect with a reputable insurance company, (i) a fire and all other
perils insurance policy in standard form, providing replacement cost
coverage of the building (which coverage shall be no less than
$2,700,000) and in an amount sufficient to avoid penalty under any
co-insurance clause, and (ii) a loss of rent insurance policy, in
standard form, providing for coverage of not less than $500,000 per
annum. Noreast Management LLC shall be named as Additional Insured,
respects being building owner and landlord, in both policies described
at (i) and (ii), above. Certificate(s) of insurance evidencing such
coverage shall be delivered to Lessor not later than the commencement
of the term of this Lease and annually thereafter and shall contain a
clause that the insurer will not cancel or materially change the
insurance without first giving the Lessor thirty days prior written
notice.
Lessee shall indemnify and save harmless Lessor, its partners and
agents against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses, including reasonable attorneys'
fees, paid, suffered, or incurred by Lessor, its partners and agents,
as a result of (i) any breach by Lessee, Lessee's agents, contractors,
employees, invitees, or licensees, of any
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covenant, condition, representation or warranty contained in this
Lease, or (ii) the negligence of the Lessee, Lessee's agents,
contractors, employees, invitees, or licensees, or (iii) any injury to
persons or damage to property resulting from any of the causes set
forth in the first sentence of the first paragraph of this Article 17.
In case any action is brought against Lessor, its partners or agents,
by reason of any such claim, Lessee, upon written notice from Lessor,
will at Lessee's expense, resist or defend such action or proceeding by
Counsel of Lessee's choosing and Lessor's consent shall not be
unreasonably withheld. Lessee shall conduct the defense of such action
or proceeding, including settlement thereof, in good faith and in a
manner protective of Lessor's interest. No settlement of any such
action or proceeding may be made without Lessor's consent, which shall
not unreasonably be withheld.
16. Notices
In every instance where it shall be necessary or desirable for the
Lessor to serve any notice or demand upon Lessee, such notice or demand
shall be deemed sufficiently given or made if in writing and mailed to
Lessee by registered or certified United States mail, postage prepaid,
or overnight nationally recognized carrier addressed to Lessee at the
Premises. Any notice by Lessee to Lessor must be sent by registered or
certified United States mail, postage prepaid, or overnight nationally
recognized carrier. Each party may by written notice designate an
alternative address for service of notice. All notices shall be sent to
the addresses below:
If to Lessee: TMC/Soundprints Inc.
353 Main Avenue
Norwalk, CT 06851-1552
If to Lessor: Noreast Management LLC
35") Main Avenue
Norwalk, CT 06851-1551
17. Default
(a) If the Lessee shall fail to pay the monthly rental charge when due
and such default shall not have been fully cured within fifteen (15)
business days of such due date, or if Lessee defaults in the prompt and
full performance of any other material provision of this Lease and said
default is not corrected within thirty (30) days after written notice
from Lessor to Lessee of said default, then and in any such event the
Lessor may, upon five (5) days written notice, terminate this Lease and
Lessee's right to possession thereunder, and Lessor may re-enter the
premises. In such event, this Lease shall end and expire as fully and
completely as if the expiration of such five (5) day period were the
date herein definitely fixed for the end and expiration of this Lease
and the term thereof and Lessee shall remain liable as hereinafter
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provided.
(b) If Lessee becomes insolvent, or if there shall be filed by or
against Lessee in any court pursuant to any statute either of the
United States or of any state a petition in bankruptcy or insolvency or
for the reorganization or for the appointment of a receiver or trustee
of all or a portion of Lessee's property, and within thirty (30) days
thereof Lessee fails to secure a discharge thereof or if Lessee makes
an assignment for the benefit of creditors, this Lease shall ipso facto
be canceled and terminated. In which event neither Lessee nor any
person claiming through or under Lessee or by virtue of any statute or
of an order of any court shall be entitled to possession of the leased
premises and Lessor, in addition to the rights and remedies given
herein and by virtue of any other provision elsewhere in this Lease or
by virtue of any statute or rule of law, may retain as liquidated
damages any rent, security, deposit or moneys received by it from
Lessee or others in behalf of Lessee upon the execution hereof.
(c) Lessee expressly waives any right of redemption. Notwithstanding
any re-entry, the liability of Lessee for the rent shall not be
extinguished for the balance of the term thereof.
(d) In the event of a termination of this Lease, Lessor shall be
entitled to recover from the Lessee or Lessee's legal representatives,
as liquidated damages, the sum of (a) the rent then due and additional
rent payable for the remainder of the term of this Lease, and (b) all
reasonable expenses of Lessor incurred in recovering possession of the
premises and relating to the same including reasonable costs of
repairing and renovating the Premises, rent discounts and concessions
for future tenants, and reasonable attorney's and broker's fees, less
(c) the net amount if any, of the rents collected on account of the
subsequent lease or leases of the leased premises for each month of the
period which would otherwise have constituted the balance of the term
of this Lease. The failure of Lessor to re-let the Premises or any part
or parts thereof shall not release or affect Lessee's liability for
damages. In no event shall Lessee be entitled to receive any excess of
net rent collected over the sums payable by Lessee to Lessor hereunder.
Lessor agrees to use its best efforts to mitigate any damage which may
be payable by Lessee pursuant to this subparagraph.
18. Lessee's Obligations under Lease
Lessee warrants to Lessor that it has and will comply in all respects
in the prompt and full performance of all of Lessee's obligations under
the Lease, and shall continue during the term of this Lease to pay to
Lessor the rent as required under this Lease.
19. Successors and Assigns
The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Lessor and Lessee and their respective
heirs, distributees, executors, administrators, successors, and except
as otherwise provided in this Lease, their assigns.
The undersigned Lessee acknowledges that this Lease is made for
commercial purposes and waives any right of notice and hearing under
Section 52-278(a) and 52-278(n) of the Connecticut General Statutes, as
now or hereafter amended, or any successor act thereto, and
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authorizes the attorney for Lessor to issue a writ for prejudgment
remedy without court order. The undersigned Lessee acknowledges being
engaged primarily in commercial pursuits and that this Lease is made in
connection with the undersigned's business activities.
20. Holding Over
Any holding over at the expiration of this Lease with the consent of
the Lessor shall be on a month-to-month basis, which tenancy may
thereafter be terminated as provided by the laws of the State of
Connecticut. During any holdover tenancy, Lessee shall pay the same
rate of rental on a monthly basis as is in effect at the time of
termination of this Lease, unless otherwise agreed upon, and both
parties shall be bound by all the terms and conditions of this Lease.
21. Costs of Litigation
Subject to Section 24 hereof, if any legal action is instituted to
enforce this Lease, the prevailing party shall be entitled to recover
reasonable attorneys' fees and court costs from the other party. If
Lessee defaults in the observance or performance of any material term
or covenant of this Lease, then, unless otherwise provided for in this
Lease, Lessor may immediately or at any time thereafter and without
notice perform the obligation of Lessee thereunder and if Lessor, in
connection therewith or in connection with any default by Lessee in the
covenant to pay rent hereunder, makes any expenditures for legal fees,
in instituting, prosecuting, or defending any actions or proceeding,
such sums so paid or obligations incurred with interest and costs shall
be deemed additional rent hereunder and shall be paid by Lessee within
five (5) days of rendition of any bill or statement therefor, and if
Lessee's lease term shall have expired at the time of such
expenditures, such sums shall be recoverable by Lessor as damages.
22. Termination and Surrender
Lessee shall surrender the premises on the last day of the term of the
Lease. Lessor shall have the right to place and maintain on the
premises "For Rent" and "For Sale" signs during the last six (6) months
of the term of this Lease. Lessee shall, at the expiration of the
Lease, surrender the keys to the premises to Lessor.
23. Severability
If any provision of this Lease or any application thereof shall be
invalid or unenforceable, the remainder of this Lease and any other
application of such provision shall not be affected thereby.
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24. Quiet Enjoyment
Upon due performance by Lessee of its covenants and agreements under
this Lease, Lessor covenants the Lessee shall and may at all times
peaceably and quietly have, hold, and enjoy the leased premises during
the Lease term. Notwithstanding anything in the Agreement to the
contrary, if this covenant of quiet enjoyment is breached and Lessee is
made a party to any legal proceedings affecting its right of possession
or if Lessee is unable to use and enjoy the leased premises due to the
action of the Connecticut Development Authority, Chase Bank of
Connecticut (the Trustee), or any action constituting bondholder
eviction. Lessor shall reimburse Lessee for all reasonable attorneys'
fees and other expenses incurred by it in defending its right to this
Lease and for all losses, damages, and other expenses arising out of
any such breach of this covenant of quiet enjoyment. Notwithstanding
anything in this Lease Agreement to the contrary, Lessee may apply all
such fees, expenses, losses, and damages to the rent due or to become
due.
25. Headings
The Article headings are for convenience and reference only and shall
not be used to limit or otherwise affect the meaning of any provision
of this Lease.
26. Governing Law
This Lease shall be construed in accordance with and governed by the
laws of the State of Connecticut.
27. Relationship of Parties
Lessor and Lessee shall not be considered or deemed to be joint
venturers or partners and neither shall have the power to bind or
obligate the other except as set forth herein.
28. Modification
No changes, additions, or interlineation made to this Lease shall be
binding unless initialed by both parties.
29. Entire Agreement
This Lease supersedes all agreements previously made between the
parties relating to this subject matter, other than the Lease currently
effective, between the parties, covering a portion
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of the premises. With the exception of the currently effective Lease,
there are no other understandings or agreements between them.
IN WITNESS WHEREOF, Lessor and Lessee have signed this Lease this __th day of
June, 1996.
TMC/SOUNDPRINTS INC. NOREAST MANAGEMENT LLC
/s/ Peter P. Ogilvie /s/ William W. Burnham
- ----------------------------- -----------------------------------
Peter P. Ogilvie William W. Burnham
Vice President, Finance Member
Date: 6/19/96 Date: 6/19/96
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