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Exhibit 10-14A, Annual Report on Form 10-K
for the year ended December 31, 1996
Commission File Number 1-3671
LEASE AGREEMENT
This Lease Agreement (this "Lease") is made and entered into on the
date, between or among the parties and upon the terms and conditions hereinafter
set forth.
SECTION 1. INFORMATION
1.1 Date of Lease: December 20,1996
1.2 "Landlord": Rhode Island Economic Development Corporation, a
Rhode Island public corporation formed pursuant to Chapter 64
of Title 42 of the Rhode Island General Laws, 1956 as amended
1.3 "Landlord's Address": ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Landlord may change such address at any time by giving notice of such change to
Tenant.
1.4 "Tenant":
a. Name: Electric Boat Corporation, a Delaware corporation
b. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇
1.5 The "Premises": That portion of Landlord's land, buildings
and site improvements thereon located on the property described in Exhibit A
hereto. All Exhibits are attached hereto and made a part hereof.
1.6 Additional Parties: As a portion of the Premises is owned by
the State of Rhode Island (the "State") and subject to the terms of that certain
Lease and Operating Agreement between the State and the Rhode Island Airport
Corporation, a subsidiary corporation of Landlord ("RIAC"), dated June 25,1993
(the "Airport Lease"), the State and RIAC are parties to this Lease for the
purposes of confirming their respective consent to the terms hereof pursuant to
Section 11.2(a) of the Airport Lease.
1.7 "Term" of Lease:
From: January 1, 1997 to and including: December 31,2006
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1.8 Purpose: Operation of a business for the manufacturing and
fabrication of ships, including submarines and other metal fabrication
industries with related administrative and support uses as may be required.
1.9 Rental:
(a) The following shall be the Base Rentals ("Base Rentals")
to be paid on an annual and monthly basis for the periods set forth below:
Date Rental Date Rental Annual Monthly
commences terminates Base Rental Base Rental
--------- ---------- ----------- -----------
a. January 1,1997 December 31,1998 $1,827,428 $152,285.66
b. January 1,1999 December31, 2004 $1,327,428 $110,619.00
c. January 1, 2005 December31, 2006 $ 827,428 $ 68,952.33
(b) Employment Rent Incentive.
(i) Base Rental shall be adjusted based upon employment
incentives which are the result of full-time equivalent employees of Tenant
working at the Premises or other real property and facilities owned by Tenant
and located at the Quonset/Davisville Port and Commerce Park (the Premises and
such other facilities of Tenant located at Quonset/Davisville are referred to in
this Section 1.9 as the "ERI Site"- from the term Employment Rent Incentive
Site) and employed by or on behalf of Tenant. For purposes hereof, full-time
equivalent employees ("FTE") shall mean that person or persons who work at the
ERI Site a combined equivalent of no less than 35 hours per week. Such rental
incentives shall be based upon the following amounts of FTE of Tenant located
upon the ERI Site:
Below 800 FTE An increase of annual basic rental equal to $500
for each FTE below 800 employed at the
Premises by ▇▇▇▇▇▇.
800 to and including 1,000 FTE No change in basic annual rental
From 1,001 FTE to and including
1,500 FTE 1% reduction in annual basic rental for each 50
FTE
Above 1,500 FTE 2% reduction for each 50 FTE
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(ii) Upon the commencement date of the term of this Lease,
Tenant shall notify Landlord in writing of the number of FTE working for or on
behalf of Tenant at the ERI Site. Every six months thereafter during the Term of
this Lease, Tenant shall certify to Landlord the daily average number of FTE
working for or on behalf of it at the ERI Site for the preceding six-month
period, and base annual Rental adjustment calculations shall be made by Landlord
and Tenant pursuant to the Terms hereof. Base Rental shall be adjusted, if such
adjustment is necessary pursuant to the terms hereof, based upon the FTE
calculations set forth in such certification from Tenant to Landlord.
(iii) All certifications of FTE from Tenant to Landlord shall
be subject to audit by Landlord at reasonable times and no more frequently than
four times per year.
1.10 "Additional Rent": Any amounts, payments, or other charges,
credits or funds due from Tenant to Landlord or others hereunder in any form
whatsoever (other than Base Rental) shall be "Additional Rent" hereunder, shall
be in the nature of Rental for purpose of determining Landlord's rights and
Tenant's obligations with respect thereto and shall be due and payable without
deduction or setoff other than as set forth in this Lease.
1.11 "Additional Premises": That parcel of land and building thereon
commonly known as Building 17 and more particularly identified as Parcel 4 on
Exhibit A attached hereto. Tenant shall lease the Additional Premises from
Landlord pursuant to all terms and conditions set forth herein, except as
follows:
(a) Tenant shall lease the Additional Premises for a term of
two (2) years commencing January 1, 1997 and terminating December 31, 1998 (the
"Additional Premises Initial Term"). Tenant shall have the right to lease from
Landlord the Additional Premises for two (2) renewal terms of four (4) years
each by notifying Landlord ninety days prior to the expiration of the then
current term of Tenant's desire to so exercise its option to renew (each such
renewal term is hereinafter referred to as the Additional Premises Renewal
Term).
(b) Tenant shall pay as additional rent for the use of the
Additional Premises during the Additional Premises Initial Term an amount equal
to One Hundred Thousand ($100,000) Dollars in one lump sum payment on or before
April 30, 1997. Tenant, if it exercises its right to extend the term and
continues to occupy the Additional Premises, shall pay as additional rent for
the Additional Premises Renewal Term an amount equal to Eighty Thousand
($80,000) per year of each year of the Additional Premises Renewal Term, payable
in advance in equal monthly installments.
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1.12 Exhibit Completion Deadline. Landlord and ▇▇▇▇▇▇ hereby agree
to cooperate and negotiate in good faith the completion, execution and delivery
of all Exhibits referred to herein or attached hereto on or before January 31,
1997. If, after such good faith efforts, Landlord and Tenant for any reason fail
to so complete, execute and deliver such Exhibits, then in such event either
party shall have the right to terminate this Lease upon notice to the other
party. In such event, ▇▇▇▇▇▇ agrees that it shall be deemed a holdover Tenant
pursuant to terms and conditions of existing agreements between Landlord and
Tenant prior to this Lease.
SECTION 2. -RENTAL. UTILITIES AND OTHER CHARGES
2.1 Rentals: Tenant shall pay the Base Rental amounts set forth in
this Lease, during the applicable periods, in monthly installments. Monthly Base
Rentals shall be paid in advance on or before the first day of each month;
provided, however, ▇▇▇▇▇▇▇▇ agrees to send to Tenant an invoice for each month's
rent no earlier than thirty (30) days prior to such rent being due, and ▇▇▇▇▇▇
agrees to pay such rent within 30 days of receiving such invoice. Base Rental
for the calendar month during which a term begins or ends, if not a full month,
shall be apportioned. If any monthly Base Rental or Additional Rent or other
amount or charge due to Landlord is not received by Landlord as provided herein,
then the amount due shall bear a late charge at the rate per year equivalent to
the prime rate of interest as published in the Wall Street Journal plus two (2%)
percent until receipt by Landlord. Notwithstanding anything herein to the
contrary, in no event shall the interest charged, reserved and/or taken in this
Lease exceed the maximum allowed by and determined in accordance with applicable
law. When payments are made by check, they shall be treated as paid to Landlord
on the date of receipt of the check, if the check clears; but, if the check is
not paid, payment shall be deemed made only when Landlord has received good
funds. The foregoing shall not limit Landlord's rights in the event of a default
by ▇▇▇▇▇▇.
2.2 Utilities:
(a) Landlord shall cause to be provided to Tenant such water
and sewerage disposal services as may be reasonably required by Tenant. Except
when occasioned by the negligent performance of Landlord's obligations
hereinabove set forth, Landlord shall have no responsibility or liability for
delays, lapses or cessation of such utility services arising out of labor
disputes, strikes, fires, storms, floods, freezing, earthquakes, explosion,
civil disorders, acts of public enemy, sabotage, delays in transportation,
energy or fuel shortages, unavoidable casualties, mechanical failures, or any
other cause beyond its control. In any event, Landlord shall have no liability
for consequential damages flowing from any delay, lapse or cessation of utility
services. Landlord shall also have the right, in time of energy shortage or
rationing, to allocate utility services among the various users thereof in such
manner as is necessary and equitable or as may be required by the United States.
(b) Landlord shall permit all of its existing facilities to be
used to supply public services in common with others to the Premises, including
electricity, telephone, telegraph, trucking, railroad and other transportation
services. In particular, Landlord shall permit the Narragansett Electric Company
to provide service to Tenant over Landlord's existing power
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distribution facilities and shall cause Landlord to permit Narragansett Electric
Company, at its own expense, to install, operate and maintain such secondary
power transformation and distribution facilities as may be required to meet the
requirements of Tenant. In the event that the existing systems for providing
public services to the Premises shall become unavailable for any reason
whatsoever, Landlord shall permit access for construction of new systems to the
Premises through such portions of the other lands of Landlord as Landlord shall
reasonably deem appropriate, the cost of constructing any such distribution
system to be borne by the Tenant or the company furnishing such public services.
(c) Charges for water and sewer furnished to Tenant under the
terms of this lease shall be based on engineering estimates acceptable to
Landlord and Tenant. Charges for sewerage disposal services furnished to Tenant
shall be based upon the amount of water furnished to Tenant. Charges for utility
services shall be established from time to time by Landlord on an equitable, non
discriminatory basis. In establishing such charges, account shall be taken of
all costs and other charges associated with the provision of utility services
including without limitation, the cost of fuels, labor and materials, insurance,
repair and maintenance, appropriate charges or reserves established by Landlord
for capital improvements and replacements to the facilities rendering utility
services, and general administrative overhead.
(d) Landlord shall bill Tenant monthly for water and sewer
services furnished during the prior month. Tenant shall pay for such utility
services within thirty (30) days after the end of each month, or fifteen (15)
days after receipt by Tenant of a bill for such services whichever is later.
Notwithstanding such payment, Tenant may subsequently contest the reasonableness
of any service charges or their compliance with the provisions of this Lease,
and if such contest is not resolved by mutual agreement, it shall be resolved
consistent with the terms of this Lease.
(e) Tenant shall purchase from Landlord, and Landlord shall
sell to Tenant, steam heat utilized by Tenant pursuant to terms set forth in the
Steam Heat Supply Agreement to be entered into upon the execution of this Lease
in substantially the form of Exhibit B attached hereto.
2.3 Payment in Lieu of Taxes: Landlord shall pay from rental received
from Tenant, to the Town of North Kingstown, payments in lieu of taxes ("PILOT")
pursuant to terms and conditions agreed upon from time to time by Landlord and
said Town of North Kingstown. Tenant shall pay directly to the Town of North
Kingstown taxes and assessments lawfully imposed by the Town of North Kingstown
upon Tenant for its personal property and assessable improvements or fixtures
located upon the Premises.
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SECTION 3. PREMISES
Landlord, in consideration of the rents, covenants and agreements to be
paid, kept and performed by ▇▇▇▇▇▇ as herein provided, hereby demises and leases
to Tenant the Premises described above.
SECTION 4. PURPOSE
The Premises shall be used solely for the purpose set forth above and
not for any unlawful purpose. Any use of the Premises in violation of this
provision may be enjoined by Landlord without prejudice to any other remedy
therefor.
SECTION 5. RENTALS
Tenant shall pay all Base Rental and Additional Rent and other amounts
and charges due to Landlord as set forth above at ▇▇▇▇▇▇▇▇'s address as
hereinabove set forth or at such place as Landlord, from time to time, shall
designate in writing.
SECTION 6. MAINTENANCE AND USE OF PREMISES
6.1 Tenant shall keep the Premises neat and clean and shall promptly
remove its rubbish, waste products, garbage, refuse and trash from the Premises
at its own expense. Tenant further agrees that Tenant shall: refrain from
placing in the sewerage system any chemical, waste or substance which may
require special treatment or may cause damage or injury to the sewerage system
and pay the cost of any repair or damage in the sewerage system necessitated by
any violation of this undertaking, and not enter into any service, maintenance
or other contracts relating to the Premises which shall terminate after or not
be terminable by Tenant upon (in which latter event, Tenant shall so terminate
same) the expiration of the Term hereof.
6.2 Tenant, at its expense, shall also keep the Premises, including the
setting of glass in windows and doors, and all fixtures, piping, roofing,
equipment and apparatus of every kind, nature and description, in good order,
condition and repair, including the replacement of integral parts thereof,
reasonable wear and tear excepted. Such repairs and replacements shall be
effected with all due dispatch and shall be of good and workmanlike quality and
class equal to the original work or installation. Tenant shall not cause or
permit any waste or injury to the Premises and shall keep the Premises free from
any and all objectionable noises, odors, rubbish and debris. Tenant shall
continuously comply with and observe all statutes, ordinances, rules, codes,
requirements, laws, regulations, orders and/or decrees of the federal, state and
city governments, or any departments, bureaus or agencies thereof or of any
insurance inspection or rating bureau, whether now in force or which may in the
future be promulgated. including, but not limited to, those relating to
environmental, waste products, garbage, refuse or trash, building, zoning and
other matters and the provisions of the Occupational Safety and Health Act of
1970, as amended, and the regulations thereunder, and any expense resulting from
such compliance shall be borne by Tenant. Tenant shall, at its expense, make all
repairs and improvements to the Premises and parking areas. Tenant shall also,
at its own expense, make all repairs necessary to the exterior and
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structural components of the Premises. On or before January 31, 1997, Landlord
and Tenant shall jointly complete a video taped assessment of the condition of
the Premises which shall serve as a baseline against which Tenant will maintain
the Premises; provided, however, if during the course of completing such video
tape Landlord discovers that the Premises or any portion thereof are in need of
repair pursuant to agreements between Landlord and Tenant prior to the date of
this Lease, then Tenant and Landlord shall agree upon the extent of additional
repairs to be performed by ▇▇▇▇▇▇.
6.3 Any substantial or structural alterations, improvements or
additions to the Premises shall be at Tenant's expense and made in accordance
with all applicable governmental laws and regulations, in a good and workmanlike
manner and without any lien or encumbrance therefor. Any alterations shall
become part of the realty unless Landlord otherwise agrees in writing; and, at
the expiration or termination of this Lease, shall remain on the Premises or
shall be removed by Tenant (Tenant restoring any resulting damage to the
Premises) at its expense) as Landlord may elect; provided, however, that any
structural alterations of Tenant so consented to by Landlord and agreed, in such
consent by Landlord, to remain at the Premises at the expiration or termination
of this Lease, shall not be required to be removed by Tenant. Also at the
expiration or termination of this Lease, Tenant shall remove its goods and
effects (including trade fixtures) and, at the request of Landlord (other than
as set forth in the preceding sentence), all alterations, additions,
improvements and installations, whether made in replacement of, substitution of,
or addition to existing facilities, all at Tenants expense; and shall peaceably
and quietly surrender to Landlord possession of the Premises and all erections
and additions made to the same (as Landlord may have elected), and, in any
event, Tenant shall also surrender any piping, electrical installations, switch
boxes, transformers, meters, lighting fixtures, all wiring both for light and
power up to the point that the same may be attached to any machines; and shall
leave the Premises broom clean and in good repair, order and condition in all
respects, reasonable wear and tear excepted. Tenant's obligations to observe and
perform this covenant shall survive the expiration or termination of this Lease.
In the event of ▇▇▇▇▇▇'s failure to remove any of Tenant's property from the
Premises, Landlord is authorized, without liability to Tenant for loss or
damages thereto, and at the sole risk of Tenant, to remove and store any of the
property at Tenant's expense, or retain same under ▇▇▇▇▇▇▇▇'s control or to sell
at public or private sale, without notice, any or all of the property not so
removed and to apply the net proceeds of such sale to the payment of any sum due
hereunder, or to destroy such property.
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6.4 Any contractors performing work on behalf of Tenant with respect to
the structural integrity of the Premises must be approved in writing in advance
by Landlord, such approval to not be unreasonably withheld or delayed. Tenant
may submit for ▇▇▇▇▇▇▇▇'s approval a list of contractors Tenant proposes to use
during the term of this Lease.
6.5 Tenant shall not erect or maintain upon the Premises any signs,
advertisements or notices unless: 1) said signs, advertisements and notices are
installed according to all applicable restrictive covenants or rules and
regulations or design criteria imposed by Landlord upon the Premises; and 2)
Tenant shall have first obtained the written approval of Landlord as to the
size, design, color and location of such sign, advertisement and notice, such
approval not to be unreasonably withheld. Tenant shall be responsible for all
damage to the Premises resulting from the installation, maintenance and removal
of such signs, advertisements and notices.
6.6 Tenant shall not permit or commit any waste in or about the
Premises.
6.7 Tenant shall not use or occupy or permit the Premises to be used or
occupied in any unlawful manner or for any illegal purpose or in such manner as
to constitute a nuisance. Tenant and its servants, employees, agents, visitors,
invitees or licensees will faithfully observe and comply with such reasonable
rules and regulations as Landlord hereafter may, at any time or from time to
time, make and communicate in writing to Tenant which, in the reasonable
judgment of Landlord, shall be necessary for the reputation, safety, care or
appearance of the Premises or the Premises or the preservation of good order
therein, or the operation or maintenance of the Premises or the equipment
thereof.
6.8 Landlord shall not be responsible for security at the Premises.
6.9 All personal property owned or installed by Tenant in the Premises
shall be listed from time to time on the so-called Electric Boat Asset List and
on the Government Property Control List, and may be removed by Tenant at any
time provided that the Tenant shall, at its expense, repair any damage, holes or
openings caused or occasioned by such removal. Any such personal property of the
Tenant left upon the Premises after the termination of the Lease may, at the
election of Landlord, be removed at Tenant's expense and sold, stored or
discarded, or be deemed to have been abandoned and to belong to Landlord.
SECTION 7. RIGHTS OF LANDLORD
In addition to any other rights of Landlord set forth herein, Landlord
shall have the following rights, exercisable without liability to Tenant for
damage or injury to property, persons or business, without effecting an
eviction, constructive or actual, diminution of services, or disturbance of
Tenant's use or possession or giving rise to a claim for setoff or abatement of
Base Rental and Additional Rent, or excusing Tenant from the full performance of
its obligations under this Lease:
a. To enter upon the Premises in accordance with ▇▇▇▇▇▇'s
security, procedures to inspect the Premises; and, during the last year of the
Term, to show them to
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prospective tenants; or, at any reasonable time, to prospective purchasers or
mortgagees of the Premises;
b. To take any and all measures, including inspection, making
repairs, alterations, additions and improvements to the Premises as may be for
the safety, protection, improvement, or preservation of the Premises, it being
agreed that any obligation to do so and the payment of the cost thereof shall be
in accordance with the other provisions of this Lease;
c. To close all or portions of the roads providing access to
the Premises parking lot for the purpose of effecting repairs, or alterations,
so long as reasonable access is provided to the Premises; and
d. Landlord reserves the right to alter, reduce, increase,
relocate and change, from time to time, driveways, roads, walkways so long as
reasonable access is provided to the Premises.
SECTION 8. TENANT'S INDEMNITY AND INSURANCE
(a) Tenant shall keep the Premises and its personal property,
at its sole cost and expense, insured for the mutual benefit of Landlord and
Tenant, as their interests may appear, during the term and any extensions of
this Lease, against loss or damage by fire and against loss or damage by other
risks now or hereafter embraced by "extended coverage" and "difference in
conditions coverage," in an amount equal to the full replacement value of the
Premises and its personal property.
(b) Tenant shall maintain at its sole cost and expense, but
for the mutual benefit of Landlord and ▇▇▇▇▇▇, all as their interests may
appear:
(i) Liability insurance against claims for property damage,
bodily injury, or death, in the amount of Ten Million Dollars ($10,000,000)
in respect of any one accident or occurrence;
(ii) Workers' compensation insurance covering Tenant except
that Tenant may "self-insure" its Workers' Compensation liability to the extent
permitted under Rhode Island law.
Tenant may effect for its own account any insurance not required under the
provisions of this Lease.
(c) All insurance provided for in this Section 8 shall be
effected under valid, enforceable policies issued by insurers of recognized
responsibility which are licensed to do business in the State of Rhode Island.
Tenant shall furnish the Landlord copies of each policy and proof of payment of
premiums if such policy does not provide for notice to Landlord prior to
cancellation and shall provide certificates of insurance to each party insured.
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(d) All policies of insurance provided for in this Section 8
shall name Landlord, and Tenant, as an insured, all as their respective
interests may appear and shall specify that the proceeds shall be paid to
Tenant. Each such policy shall contain a provision that no act or omission of
any insured shall affect or limit the obligation of the insurance company to pay
the amount of any loss sustained, and to the extent obtainable, shall contain an
agreement by the insurer that such policy shall not be cancelled without at
least thirty (30) days' prior written notice to Landlord; and that the insurer
will not be subrogated to any claim any insured might otherwise have against any
other insured arising out of such loss.
(e) In the event of any damage or loss by fire or other
casualty to the Premises or personal property, Tenant shall, only to the extent
insurance proceeds are available or adequate for such purpose, with all
deliberate speed, at its sole cost and expense, repair, replace and restore the
Premises to their prior condition insofar as practicable.
(f) ▇▇▇▇▇▇ agrees to indemnify landlord against any and all
claims for damages, charges or liabilities, including attorneys' fees, arising
from Tenant's negligent activities with respect to the Premises.
SECTION 9. EMINENT DOMAIN
9.1 In the event that the entire Premises or such portion thereof as
would deprive Tenant of all beneficial use of the Premises is taken or condemned
by any competent authority for any public or quasi-public use or purpose, or is
sold as a result of an impending taking or condemnation (a "taking") this Lease
shall terminate as of the date of the taking. If a taking relates only to a
portion of the Premises or Tenant is not deprived of all beneficial use of the
Premises, Landlord (after such taking or condemnation and the determination of
Landlord's award therein) shall expend so much as may be necessary of the net
amount of Landlord's award in effecting any restoration necessary to make the
Premises tenantable and the Lease shall continue without reduction of the rent.
In any event of a taking, Tenant shall be entitled to a pro rata refund of any
rental paid in advance and all compensation awarded and" paid for such taking
shall belong to and be the property of Landlord irrespective of the basis upon
which it is awarded, Tenant hereby specifically assigning to Landlord any award
or compensation for the value of Tenant's leasehold estate. Tenant may, however,
claim and recover from the condemning authority, but not from Landlord,
compensation for damages recoverable only by ▇▇▇▇▇▇, in Tenant's own right, for
or on account of any cost or loss to which ▇▇▇▇▇▇ might be put in removing
▇▇▇▇▇▇'s merchandise, furniture, trade fixtures and equipment and loss of
business and improvements paid for by Tenant and expenses compensable to Tenant
by statute.
SECTION 10. QUIET ENJOYMENT
Tenant, subject to the terms and provisions of this Lease, on paying
the rent and performing all the covenants, terms and conditions in this Lease
contained to be performed on the part of Tenant, may peacefully hold and enjoy
the Premises during the Term hereof without any let or hindrance by Landlord or
any person claiming by, through or under it. This covenant and all other
covenants of the Landlord contained in this Lease shall be binding upon Landlord
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and ▇▇▇▇▇▇▇▇'s successors only with respect to breaches occurring during
Landlord's and ▇▇▇▇▇▇▇▇'s successors respective ownership of ▇▇▇▇▇▇▇▇'s interest
hereunder.
SECTION 11. SUBORDINATION. ATTORNMENT AND NON-DISTURBANCE
This lease is subject and subordinate to all mortgages and bond
indentures which may now or hereafter affect the Premises, and to all advances
made thereunder, the interest thereon, and all renewals, modifications,
consolidations, replacements and extensions thereof if the mortgagee named in
said mortgage shall elect by written notice delivered to Tenant to subject and
subordinate the rights and interest of Tenant under this Lease to the lien of
its mortgage. Alternatively, any mortgagee may elect to give the rights and
interests of Tenant under this Lease priority over the lien of its mortgage. In
the event of either of such election, and upon notification by such mortgagee to
Tenant to that effect, the rights and interests of Tenant under this Lease shall
be deemed to be subordinate to or to have priority over, as the case may be, the
lien of said mortgage whether this Lease is dated prior to or subsequent to the
date of said mortgage. This clause shall be self-operative and no further
instrument of subordination shall be required by any mortgagee. In confirmation
of such subordination, Tenant shall execute and deliver, within fifteen (15)
days of a request therefore, any certificate that Landlord may reasonably
request. Tenant hereby constitutes and appoints Landlord ▇▇▇▇▇▇'s
attorney-in-fact to execute any such certificate or certificates for and on
behalf of Tenant. Any subordination of this Lease pursuant to this Section 11
and ▇▇▇▇▇▇'s obligation to execute a subordination agreement is dependent upon
▇▇▇▇▇▇'s receipt of a non-disturbance agreement with terms customary to those of
similar transactions in North Kingstown, Rhode Island at the time of the request
therefor from any lender requiring such subordination agreement. In the event
Tenant fails to execute such agreement within fifteen (15) business days after
demand in writing, ▇▇▇▇▇▇ does hereby make, constitute and irrevocably appoint
Landlord as its attorney in fact and in its name, place and stead so to do. The
execution by ▇▇▇▇▇▇▇▇, on behalf of Tenant, of such subordination agreement
after said fifteen (15) business days period shall be conclusive evidence that
▇▇▇▇▇▇▇▇ has obtained for Tenant's behalf a non-disturbance agreement in
conformance with the provisions of this Section so long as such agreement
contains a provision substantially as follows: "provided, however, anything
herein to the contrary notwithstanding, Tenant upon keeping the terms, covenants
and conditions to be kept by it pursuant to the Lease and not being in default
thereunder, shall have use and possession of the Premises as contemplated by the
Lease and any successor in interest to Landlord shall from and after the date it
succeeds to Landlord's interest in the Premises, perform Landlord's obligations
in accordance with the terms of the Lease." If, in connection with obtaining
financing for the Premises, a lender shall request reasonable modifications in
this Lease as a condition to such financing, Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such modifications
do not materially or adversely increase the obligations of Tenant hereunder or
materially or adversely affect the leasehold interest hereby created or Tenant's
use and enjoyment of the Premises. In the event that a mortgagee or any
purchaser at foreclosure sale or judicial proceedings shall succeed to the
interest of Landlord, this Lease, nevertheless, shall continue in full force and
effect, and ▇▇▇▇▇▇ agrees to attorn to such mortgagee or purchaser and to
recognize such mortgagee or purchaser as its Landlord.
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SECTION 12. NO REPRESENTATIONS BY LANDLORD
No representations or promises with respect to the Premises, except as
are herein expressly set forth, have been made by Landlord or any other party on
Landlord's behalf (including any real estate broker), and ▇▇▇▇▇▇ agrees that it
will have examined the Premises prior to the Commencement Date and will take the
same in their condition and state of repair at the Commencement Date. The taking
of possession of the Premises by Tenant shall be conclusive evidence as against
Tenant that the Premises were in satisfactory condition and in conformity with
the provisions of this Lease at the time such possession was so or is taken.
SECTION 13. RIGHT TO PAY MONEY TO EFFECT PERFORMANCE
If Tenant at any time or from time to time shall fail to perform any of
the covenants, terms and conditions in this Lease contained to be performed on
the part of Tenant, Landlord may, only in the event of emergency, immediately,
or at any time thereafter during such emergency, without notice, perform the
same for the account of Tenant, and in any such event, any monies paid by
Landlord for such purpose shall be deemed to be Additional Rent due hereunder
and shall be payable forthwith to Landlord upon rendition of an invoice
therefor.
SECTION 14. ASSIGNMENT
Tenant shall not assign, mortgage, pledge or otherwise encumber this
Lease or its interest herein, or sublet the whole or any part of the Premises
without first obtaining on each occasion the consent in writing of Landlord,
which consent shall not be unreasonably withheld or delayed. In case of any such
approved assignment, the assignee shall assume in writing to Landlord the
performance and observance of all the covenants, terms and conditions in this
Lease contained, to be kept and performed on the part of Tenant, and such
writing of assumption shall be delivered to Landlord simultaneously with such
assignment. In the event of any such approved assignment or subletting,
notwithstanding any assumption hereof by the assignee or subtenant, Tenant shall
remain primarily liable for the performance of all of said covenants, terms and
conditions. Notwithstanding the foregoing, if Tenant desires to assign this
Lease or sublet all or a part of the Premises, Landlord shall be noticed and may
elect to terminate this Lease as to the Premises in the event of a desired
assignment or as to such part or all thereof which Tenant desires to sublet, and
enter into a new lease with the intended assignee or subtenant, upon such terms
as may be agreed between Landlord and such assignee or subtenant, and this Lease
shall terminate as to the applicable part or all of the Premises upon the
effectiveness of such new lease. Further, in any assignment or subletting
consented to by Landlord: any Base Rental and Additional Rent greater than that
set forth on this Lease shall inure to the benefit of Landlord. Tenant, by its
execution of this Lease, consents to any changes in this Lease to be made by the
Landlord and such assignee or subtenant; provided same do not materially or
adversely increase the obligations of Tenant hereunder. The foregoing
notwithstanding, upon written notice to the Landlord, Tenant may assign this
Lease to any entity owned by more than 51% by General Dynamics, and upon such
assignment, Tenant shall be relieved from its obligations hereunder; provided
that General
13
Dynamics or such new assignee (subject to Landlord's reasonable approval which
will not be unreasonably withheld or delayed) assumes such obligations in
writing.
SECTION 15. LANDLORD'S REMEDIES
15.1 If, at any time subsequent to the date of this Lease, any one or
more of the following events (an "Event of Default") shall happen, time being of
the essence:
a. Tenant shall default in the due and punctual payment of any
Base Rental, Additional Rent, amount, charge or other sum due hereunder within
five (5) working days after the due date thereof; or
b. Tenant shall neglect or fail to perform or observe any of
the other covenants or agreements herein contained on the part of Tenant to be
performed or observed and Tenant shall fail to remedy the same within ten (10)
working days after notice to Tenant specifying such neglect or failure, or if
such Event of Default is of such a nature that Tenant cannot reasonable remedy
the same within such ten (10) day period, Tenant shall fail to commence promptly
to remedy the same and to prosecute such remedy to completion with all due
diligence and continuity; or
c. Tenant's leasehold interest in the Premises shall be taken
on execution, by other process of law or as a result of the exercise of any
creditor's rights; or
d. Tenant or any guarantor of this Lease shall make an
assignment for the benefit of creditors; or
e. Tenant shall vacate or abandon the Premises for ten (10)
consecutive days, except for reasons of public emergencies or damage to the
Premises; or
f. Tenant or any guarantor of this Lease shall seek or consent
to or acquiesce in the appointment of any receiver or liquidator of Tenant or of
all or any substantial part of its property; or
g. A petition shall be filed by or against Tenant or any
guarantor of this Lease under any law seeking any reorganization, arrangement,
readjustment, composition, liquidation, dissolution, stay, injunction or other
similar relief under any present or future state or federal statute, law or
regulation and shall remain undismissed or unstayed for an aggregate of thirty
(30) days, or if any debtor in possession (whether or not Tenant), receiver or
liquidator of Tenant or of all or any substantial part of Tenant's properties or
of the Premises shall be appointed without the consent or acquiescence of Tenant
and such appointment shall remain undismissed or unstayed for an aggregate of
thirty (30) days; then in any such case, Landlord may terminate this Lease by
notice to Tenant, specifying a date not less than five (5) days after the giving
of such notice on which this Lease shall terminate and this Lease shall come to
an end on the date specified therein as fully and completely as if such date was
the date herein originally fixed for the termination hereof, and Tenant shall
then peacefully quit and surrender the Premises
14
to Landlord but Tenant shall remain liable as hereafter provided. All costs and
expenses incurred by or on behalf of Landlord occasioned by such Event of
Default including, without limiting the foregoing generality, reasonable
attorney's fees and other costs of collection, recovery of possession and the
exercise of any right or remedy permitted Landlord hereunder shall be paid by
▇▇▇▇▇▇.
15.2 Upon any such expiration or termination of this Lease, Tenant
shall quit and peacefully surrender the Premises to Landlord, and Landlord, upon
or at any time after any such expiration or termination, may without further
notice, enter upon and re-enter the Premises and possess and repossess itself
thereof, by "self-help", so-called (if allowed by law), summary proceedings,
ejectment or otherwise, and may dispossess Tenant and remove Tenant and all
other persons and property from the Premises and may have, hold and enjoy the
Premises and the right to receive all rental income of and from the same.
15.3 At any time or from time to time after any such expiration or
termination, Landlord may relet the Premises or any part thereof, in the name of
Landlord or otherwise, for such term or terms (which may be greater or less than
the period which would otherwise have constituted the balance of the Term of
this Lease) and on such conditions (which may include concessions or free rent)
as Landlord, in its reasonable discretion, may determine and may collect and
receive the rents therefor.
15.4 No such expiration or termination of this Lease shall relieve
Tenant of its liability and obligations under this Lease, and such liability and
obligations shall survive any such expiration or termination. In the event of
any such expiration or termination, whether or not the Premises or any part
thereof shall have been relet, Tenant shall pay to the Landlord the Base Rental,
Additional Rent and all other sums, amounts and charges required to be paid by
Tenant up to the time of such expiration or termination of this Lease, and
thereafter Tenant, until the end of what would have been the Term of this Lease
in the absence of such expiration or termination, shall be liable to Landlord
for, and shall pay to Landlord, as and for liquidated and agreed current damages
for Tenant's default: (a) the equivalent of the amount of the Base Rental,
Additional Rent and the other sums, amounts and charges which would be payable
under this Lease by Tenant if this Lease were still in effect, less (b) the net
proceeds of any reletting effected pursuant to the provisions of paragraph 15.3
hereof, after deducting all Landlord's expenses in connection with such
reletting, including, without limitation, removal and warehousing of Tenant's
property, removal of Tenant's improvements, additions, alterations and the like,
all repossession costs, brokerage commissions, legal expenses, attorneys' fees,
alteration costs and expenses of preparation of the Premises for such reletting.
Tenant shall pay such damages (herein called "deficiency") to Landlord monthly
on the days on which the Rental would have been payable under this Lease if this
Lease were still in effect, and Landlord shall be entitled to recover from
Tenant each monthly deficiency as the same shall arise; or, at any time after
any such expiration or termination, whether or not Landlord shall have collected
any monthly deficiencies as aforesaid, Landlord shall be entitled to recover
from Tenant, and Tenant shall pay to Landlord, on demand, as and for liquidated
and agreed final damages for ▇▇▇▇▇▇'s default the entire amount of the
deficiency if the Premises have been relet, or, if the Premises have not been
relet, the excess of the aggregate of the Base Rental for the balance of the
Term, any Additional
15
Rent for the balance of the Term, any sums, amounts and other charges which may
reasonably be anticipated hereunder for the balance of the Term and Landlord's
expenses as set forth above over the then fair market rental value of the
Premises for the same period. If, after ▇▇▇▇▇▇▇▇ has recovered the foregoing
from Tenant, Landlord shall relet the Premises or a part thereof, it shall
reimburse Tenant to the extent Tenant has paid amounts to Landlord and in
amounts not to exceed the Base Rental, Additional Rent, sums, amounts, charges
and expenses actually paid by Tenant to Landlord.
15.5 For purposes of this Section 15, Additional Rent shall include
utilities consumed in the Premises to maintain the structural integrity of the
same while vacant; provided, however, that this provision shall not apply to
facilities to which Tenant does not apply heat in the ordinary course of its
operations.
15.6 Tenant hereby expressly waives, so far as permitted by law, the
service of any notice of intention to re-enter provided for in any statute, or
of the institution of legal proceedings to that end, and Tenant, for and on
behalf of Tenant and all persons claiming through or under Tenant also waives
any and all right of redemption or re-entry or repossession or to restore the
operation of this Lease in case Tenant shall be dispossessed by a judgment or by
warrant of any court or judge or in case of re-entry or repossession by Landlord
or in case of any expiration or termination of this Lease. Tenant, so far as
permitted by law, waives and will waive trial by jury in any action, proceeding
or counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, ▇▇▇▇▇▇'s use or occupancy of the Premises,
or any claim of injury or damage. The terms "enter", "re-enter", "entry" or
"re-entry", as used in this Lease are not restricted to their technical legal
meaning.
15.7 In the event of any breach or anticipatory breach by Tenant of any
of the covenants, agreements, terms or conditions contained in this Lease, the
Landlord shall be entitled to enjoin such breach or anticipatory breach.
Landlord shall have the right to invoke any right and remedy allowed at law or
in equity or by statute or otherwise as though re-entry, summary proceedings,
and other remedies were provided for in this Lease. An anticipatory breach
shall, for purposes of this Section 15.7, be deemed to be an event which, with
the passage of time or the giving of notice or both, would constitute an Event
of Default.
15.8 Each right and remedy of Landlord provided for in this Lease or
otherwise existing at law or in equity shall be cumulative and shall be in
addition to every other right or remedy provided for in this Lease, or now or
hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Landlord of any one or more of the
rights or remedies provided for in this Lease, or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude or waive the
simultaneous or later exercise by Landlord of any or all other rights or
remedies provided for in this Lease, if any, or now or hereafter existing at law
or in equity or by statute or otherwise.
15.9 In the event of a default by Tenant hereunder, the Tenant shall be
responsible for any reasonable attorney's fees of Landlord incurred in enforcing
the provisions of this Lease.
16
SECTION 16. NO WAIVER
The failure of Landlord to seek redress for violation of, or to insist
upon the strict performance of, any covenant, term or condition of this Lease or
any of the rules established by Landlord under the provisions of this Lease,
shall not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Landlord of Base Rental or Additional Rent, with knowledge of the
breach of any such covenant, term, condition or rule shall not be deemed a
waiver of such breach and no provision of this Lease shall be deemed to have
been waived by Landlord unless such waiver be in writing signed by the Landlord.
Payment by Tenant, or acceptance by Landlord, of a lesser amount than shall be
due from Tenant to Landlord shall not be treated otherwise than as a payment on
account. The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant. No act or thing done by ▇▇▇▇▇▇▇▇, its
servants and agents, during the term of this Lease, shall constitute an eviction
by Landlord, nor shall it be deemed an acceptance of a surrender of the
Premises, and no agreement to accept such surrender shall be valid unless in
writing, signed by Landlord.
SECTION 17. LANDLORD'S LIEN - Omitted Intentionally
SECTION 18. HOLDING OVER
If Tenant shall hold possession of the Premises beyond the Term without
Landlord's written consent Tenant shall pay to Landlord one and one-half (1-1/2)
times the latest Base Rental, plus Additional Rent and other sums, amounts and
charges for each month during which Tenant shall retain such possession. The
provisions of this paragraph shall not operate as a bar or as a waiver by
Landlord of any right of re-entry or election provided under Section 15 hereof
or available to Landlord under common law.
17
SECTION 19. NO BROKER
Tenant represents that the Premises were not presented to it or to any
person representing it by any broker or other person, and that no broker or
person was involved in the leasing of the Premises, and warrants that no claim
for commission for said leasing shall be presented to Landlord and shall
indemnify and hold harmless Landlord from any such claims and any legal fees
incidental thereto. Landlord represents that no broker or person was involved in
the leasing of the Premises to Tenant and warrants that no claim for commission
for said leasing shall be presented to Tenant and shall indemnify and hold
harmless Tenant from any such claims and any legal fees incidental thereto.
SECTION 20. NOTICE
All notices and other communications given, authorized or required
hereunder shall be in writing and shall be given by personal delivery, mailing
the same by certified or registered mail, return receipt requested, postage
prepaid, by telecopy, or causing same to be delivered by prepaid overnight
carrier with receipt to the parties at their addresses set forth above, or in
either case, to such other person or at such other address as either party may
hereafter designate by notice to the other party. All such notices and other
communications to Landlord shall also be so given to ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Incorporated, 2300 Hospital Trust Tower, Providence, Rhode Island 02903,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. and all such notices and other
communications to Tenant shall also be so given to Vice President and General
Counsel, Electric Boat Corporation, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇-0989 and Site Manager Electric Boat Corporation, Quonset Point/Davisville
Industrial Park, North Kingstown, Rhode Island 02852. Any such notices and other
communications given by other means shall not be effective. The date of actual
receipt of a notice shall be deemed the date of service of notice; provided,
however, that, in the event that an addressee refuses to accept delivery or
acknowledge receipt, then notice shall be deemed to have been served on the
earlier of the date of hand delivery, the next business day in the case of
delivery by overnight carrier, or five days after the date mailed.
SECTION 21. CAPTIONS
The captions appearing in this Lease are intended only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Lease or the intent of any provision hereof.
18
SECTION 22. RECORDING OF LEASE
The parties agree that this Lease shall not be recorded, but Landlord
and Tenant hereby agree, upon request of either party, to enter into a
memorandum of lease in recordable form, setting forth the actual time of
commencement and time of termination of this Lease and such other provisions,
except rental provisions, with respect to this Lease as will put on notice any
third party of the existence of this Lease. Such notice shall expressly state
that it is executed pursuant to the provisions contained in this Lease and is
not intended to vary the terms and conditions of this Lease. Such notice shall
be substantially in the form set forth in Exhibit C. Upon the expiration or
termination of this Lease, Tenant shall execute and deliver to Landlord, upon
the request of Landlord, an instrument in recordable form, reasonably
satisfactory to Landlord, certifying that this Lease has expired or terminated.
Tenant hereby constitutes and appoints Landlord ▇▇▇▇▇▇'s attorney in fact to
execute any such instrument for and on behalf of Tenant, if ▇▇▇▇▇▇ has not
executed and delivered such instrument to Landlord within fifteen (15) days of
notice of Landlord requesting same.
SECTION 23. PARTIES AND DEFINITIONS
The terms "Landlord" and "Tenant" wherever used in this Lease shall
include the successors and assigns of said parties (subject to the assignment
provisions hereof), and if either of the parties shall not be a corporation,
said term shall also include the heirs, executors and administrators of said
party, wherever the context requires or permits of such construction, and all of
the covenants, terms and conditions herein contained shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors and
said assigns of the parties in the same manner as if they were expressly
mentioned (except as otherwise expressly provided herein). The term "Landlord"
as used in this Lease means only the owner for the time being of the Premises so
that in the event of any sale of the Premises, Landlord shall be and it hereby
is entirely freed and relieved of all covenants and obligations of Landlord
hereunder, it being understood and agreed that the purchaser has assumed and
agreed to carry out any and all obligations of Landlord hereunder. Each term and
provision of this Lease to be performed by Tenant shall be construed to be joint
and several and both a covenant and a condition. The reference contained to
successors and assigns of Tenant is not intended to constitute a consent to an
assignment by Tenant or to vary the provisions of Section 14 hereof.
SECTION 24. PARTIAL INVALIDITY
If any term, covenant, condition or provision of this Lease or the application
thereof to any person or circumstances shall, at any time or to any extent, be
invalid or unenforceable, the remainder of this Lease and the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each
term, covenant, condition and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
19
SECTION 25. HAZARDOUS WASTE
Notwithstanding any terms or conditions set forth in this Section 25 to
the contrary, Landlord and Tenant agree that Tenant shall not be liable or
responsible to Landlord for any Environmental Condition (as defined below) upon
the Premises which was caused by a party other than Tenant (or under Tenant's
control or supervision) or which existed prior to Tenant's occupancy of the
Premises.
25.1 For the purposes of this paragraph "hazardous waste" and
"hazardous substance" shall have the meaning set forth in the Resource,
Conservation and Recovery Act of 1980, 42 U.S.C. Sss.6901, et seq. ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Sss.9601, et seq. ("CERCLA"), and any Rhode Island statutes as such
statutes may be amended, or as defined in any federal or state regulations
adopted pursuant to or in furtherance of such Acts or statutes. "Oil" shall be
defined as petroleum or any petroleum products in any form.
25.2 Tenant shall:
a. Not manufacture, generate, store, treat or dispose of
(except in compliance with all laws, ordinances, and regulations pertaining
thereto) any dangerous and/or hazardous waste, material, element or substance or
oil or gas or substance detrimental to the environment on the Premises or
arrange with another person for the same;
b. Upon the request of Landlord, take all such action,
including, without limitation, the conducting of engineering tests and sampling
by parties reasonably satisfactory to Landlord (all at the sole expense of
Tenant) to confirm that no dangerous and/or hazardous waste, material element or
substance or oil or gas or substance detrimental to the environment is being
manufactured, generated, stored, treated or disposed of by Tenant or General
Dynamics Corporation on the Premises; and
c. Provide Landlord with written notice: upon ▇▇▇▇▇▇'s
obtaining knowledge of any potential or known release or threat of release, of
any dangerous and/or hazardous waste, material, element or substance or oil or
gas or substance determined by the appropriate governmental authority to be
detrimental to the environment at or from the Premises and by any person for
whose conduct Tenant is responsible or whose liability may result in a lien on
property of Tenant; upon ▇▇▇▇▇▇'s receipt of any notice to such effect from any
federal, state or other governmental authority; and upon ▇▇▇▇▇▇'s obtaining
knowledge of any incurrence of any reimbursable expense or loss by such
governmental authority in connection with the assessment, containment, or
removal of any dangerous and/or hazardous waste, material, element or substance
or oil or gas or substance determined by the appropriate governmental authority
to be detrimental to the environment for which expense or loss Tenant may be
liable or for which expense a lien may be imposed upon the property of Tenant.
20
d. With regard to underground storage tanks (if any) used by
it or General Dynamics Corporation at the Premises, at its expense, comply with
any statute, ordinance or regulation of any governmental authority having
jurisdiction over same.
25.3 Tenant will not use the Premises at any time in such a manner as
to cause a violation of or to give rise to a removal or restoration obligation
under any statute, ordinance, order, decree or other common law of any state,
federal, municipal or other governmental body or agency having jurisdiction over
the Premises, including, without limitation, RCRA and CERCLA or any similar law,
rule, regulation, order, judgment or decree; and Tenant agrees that no such
violation or obligation will be created by the removal of any hazardous waste,
hazardous substance, oil, gas and/or substance detrimental to the environment
from the Premises by ▇▇▇▇▇▇. During or after the Term, in the event Landlord's
environmental consultant reasonably determines it necessary, Landlord may, at
the expense of Tenant, conduct survey, soil and ground water sampling and such
other testing on the Premises as Landlord shall deem appropriate to assess
whether Tenant or General Dynamics Corporation is or was in violation of the
covenants contained in this Section 25 and Tenant agrees and covenants to
undertake and complete, at its sole expense, and as soon as practicable, such
removal, restoration, cleanup or other remedial action as Landlord shall, in its
reasonable discretion, deem necessary to cure or otherwise adequately respond to
any violation of environmental laws which are attributable to Tenant's or
General Dynamics Corporation's use of the Premises.
25.4 Tenant further agrees, in addition to the foregoing and not in
limitation thereof, to indemnify, defend and hold harmless Landlord from and
against any and all claims, demands, liabilities, costs, expense, penalties,
damages and losses, including, without limitation, attorney's fees, as
incurred, (payable quarterly upon written demand) resulting from or related to
any Environmental Condition (as hereinafter defined) caused by it or General
Dynamics Corporation or any violation of any Environmental Law (as hereinafter
defined) caused by it or General Dynamics Corporation in connection with the
Premises including, but not limited to, any claim for personal injury or
property damage arising from any such Environmental Condition or violation of
any Environmental Law asserted by third parties against Landlord, any
liabilities sustained or incurred by Landlord for the containment, removal,
remedy, cleanup or abatement of any contamination arising from any
Environmental Condition or any violation of any Environmental Law caused by it
or General Dynamics Corporation. The term "Environmental Law" shall mean any
law, regulation, rule or order of any governmental entity relating to pollution
or protection of the environment (including ambient air, surface water, ground
water, land surface or subsurface strata), including without limitation CERCLA,
as amended, RCRA, as amended, and other laws, regulations, rules and ordinances
relating to emissions, discharges or releases of pollutants, contaminants,
chemicals, industrial, toxic or hazardous substances or solid or hazardous
wastes or oil or gas or any substance detrimental to the environment
(collectively "Polluting Substances") or the manufacture, processing,
distribution, use, treatment, handling, storage, disposal and transportation of
Polluting Substances. The term "Environmental Condition" shall mean the
presence, whether discovered or undiscovered, in surface water, ground water,
drinking water supply, land surface, subsurface strata, above ground and
underground tanks or other containers, or ambient air of any Polluting
Substances arising out of
21
or otherwise related to the operations or other activities (including the
disposition of such materials or substances) conducted or undertaken at the
Premises.
25.5 In the event of any discharge, spillage, contamination,
uncontrolled loss, seepage or filtration of a Hazardous Waste, Hazardous
Substance and/or Polluting Substance within the Premises as a result of any
conduct of or omission by Tenant, or General Dynamics Corporation, or any
employee or agent of or independent contractor engaged by Tenant or General
Dynamics Corporation. Tenant shall contain, remove or mitigate the same
immediately in accordance with all applicable federal, state or local laws,
ordinances, rules or regulations.
SECTION 26. FORCE MAJEURE.
The period of time during which either party is prevented or delayed in
their performance or the making of any improvements or repairs or fulfilling any
obligation other than the payment of Base Rental, Additional Rent, or any other
payments required under this Lease, due to unavoidable delays caused by fire,
catastrophe, strikes or labor disputes, civil disorders, Acts of God or the
public enemy, governmental prohibitions, notices of violations (whether present
or future) or regulations or inability to obtain materials by reason of such
regulations, or other causes beyond a party's reasonable control, shall be added
to a party's time for performance of the obligation and the party shall not be
liable because of such delay of performance.
SECTION 27. SUBMISSION OF INSTRUMENT
No lease or obligation on the part of Landlord or Tenant to enter into
a lease shall arise until this instrument has been executed and delivered by
Landlord and Tenant to each other.
SECTION 28. ENTIRE AGREEMENT.
This Lease contains the entire agreement between the parties,
supersedes any other and all previous leases between Tenant and Landlord with
respect to the Premises, and may not be changed orally or by any agreement
between the parties unless it is in writing, executed by the parties hereto.
Notwithstanding any terms herein to the contrary, any covenants or agreements of
Tenant with respect to Environmental Conditions shall survive and remain in full
force and effect.
SECTION 29. RELATIONSHIP OF PARTIES.
Nothing contained herein shall be deemed or construed by the parties
hereto nor by any third party as creating the relationship of principal and
agent or of partnership or joint venture between the parties hereto, it being
understood and agreed that neither the method of computation of rent or any
other provision herein contained, nor any acts of the parties hereto, shall be
deemed to create any relationship between the parties hereto other than landlord
and tenant.
22
SECTION 30. EXECUTION AND COUNTERPARTS.
This Lease may be executed in one or more parts, all of which shall
constitute but one agreement.
SECTION 31. GOVERNING LAW.
This Lease shall be construed in accordance with the laws of the State
of Rhode Island.
SECTION 32. INABILITY TO PERFORM.
This Lease and the obligations of Tenant to pay Base Rental, Additional
Rent and any other sums, amount and charges hereunder and perform all of the
other covenants and agreements hereunder on the part of Tenant to be performed
shall in no way be affected, impaired or excused because Landlord is unable to
fulfill any of its obligations under this Lease or to supply or is delayed in
supplying any service to be supplied pursuant hereto by reason of strike or
labor troubles, governmental preemption in connection with a national emergency
or by reason of any rule, order, notice of violation (whether present or future)
or regulation of any governmental agency or any department or subdivision
thereof or by reason of the conditions of supply and demand which have been or
are affected by war or natural catastrophe. The terms and provisions of this
Section 32 are subject to the terms and provisions of Section 26 of this Lease.
SECTION 33. NOTICE TO MORTGAGEE.
After receiving written notice from any person, firm or other entity
that it holds a mortgage which includes as part of the mortgaged property the
Premises, Tenant shall, so long as such mortgage is outstanding, be required to
give such holder of the same notices as may be given to Landlord under the terms
of this Lease, but such notice may be given by Tenant to Landlord and such
holder concurrently.
SECTION 34. ESTOPPEL CERTIFICATES.
Tenant and Landlord shall, at any time and from time to time upon not
less than ten (10) days prior written request by the other or any mortgagee,
execute, acknowledge and deliver to the requesting party within said period a
statement in writing (and in form reasonably satisfactory to the requesting
party) certifying that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that this Lease is in full force and
effect as modified and stating the modifications), the dates to which the Base
Rental, Additional Rent and other amounts, sums and charges have been paid in
advance, if any, stating whether or not, to the best knowledge of the signer of
such certificate, Landlord or Tenant is in default in performance of any
covenant, agreement, term, provision or condition contained in this Lease and,
if so, specifying each such default to which the signer may have knowledge, the
existence of any claimed counterclaims or defenses to this Lease, the
Commencement Date and the time of termination, and any other
23
matters as may be reasonably requested, it being intended that any such
statement delivered pursuant hereto may be relied upon by any prospective
purchaser of the Premises or of the interest of the Landlord therein, any
mortgagee or prospective mortgagee thereof, or any prospective assignee of any
mortgage thereof or any such party requesting the same.
SECTION 35. ASSIGNMENT OF RENTS.
With reference to any assignment by Landlord of Landlord's interest in
this Lease, or the rents payable hereunder, conditional in nature or otherwise,
Tenant consents thereto and agrees that the execution thereof by Landlord and
the acceptance thereof by the holder or the exercise by such holder of its
rights under such assignment shall never be deemed an assumption by such holder
of any of the obligations of Landlord hereunder, unless such holder shall, by
written notice to Tenant, specifically otherwise elect.
SECTION 36. MECHANIC'S LIENS.
Tenant agrees to promptly discharge (either by payment or by filing of
the necessary bond, or otherwise) any mechanic's, materialman's or other lien
against the Premises, and/or the Landlord's interest therein, which may arise
out of any payment due for or purported to be due for any labor, services,
materials, supplies or equipment alleged to have been furnished to or for Tenant
in, upon or about the Premises.
SECTION 37. ASSIGNMENT BY LANDLORD.
Landlord shall have the right to assign this Lease to any other party,
in which event Landlord's obligations under this Lease shall terminate as of the
date of such assignment for events occurring after such date.
SECTION 38. INDEPENDENT COVENANTS.
This Lease shall be construed as though the covenants herein between
Landlord and Tenant are independent and not dependent. Tenant shall not be
entitled to any setoff of the Base Rental, Additional Rent or other sums,
charges or amounts owing hereunder against the Landlord if Landlord fails to
perform its obligations set forth herein, except as herein specifically set
forth. The foregoing shall in no way impair the right of Tenant to commence a
separate action against the Landlord for any violation by Landlord of the
provisions hereof so long as notice is first given to Landlord and any holder of
a mortgage covering the Premises whose address Tenant has been notified of in
writing and an opportunity has been granted to Landlord and such holder to
correct such violation as otherwise provided herein.
SECTION 39. CONFIDENTIALITY.
Each party acknowledges that it will have access to certain financial
information of the other party. Such information shall not be released to the
public and will be provided, subject to
24
this paragraph, only to those parties who have a legitimate need for such
information, including accountants, lawyers, lenders, potential buyers,
mortgagees and similar parties.
SECTION 40. LANDLORD'S LIABILITY omitted intentionally
SECTION 41. MISCELLANEOUS.
41.1 Easements. Landlord shall execute and deliver to Tenant easements
for access to the cantilever crane of Tenant and for utility access to the
cantilever crane in substantially the form of Exhibits D, E and F attached
hereto and made a part hereof. Tenant agrees to release and discharge other
easements in favor of Tenant, if any, which are superseded by such cantilever
crane easements attached hereto.
41.2 Landlord's Role as Agent. The State and RIAC acknowledge that
Landlord is their agent for purposes of administering the terms of this Lease
for those portions of the Premises which are comprised of property owned by the
State and subject to the Airport Lease. Such agencies hereby convey upon the
Landlord the right to perform all acts, give any consents and approvals, and
take any and all further action as may be required or permitted by Landlord
under the terms of this Lease and without limiting the foregoing generally, to
demand and receive rents, insurance proceeds and any other sums due and payable
under the terms of this Lease; to provide and fix utility rates as set forth
herein; to give and receive notices, including notices of default; to disperse
funds; to submit disputes to arbitration; to sue on behalf of the State and the
Rhode Island Airport Corporation with respect to the enforcement of the terms of
this Lease. Any right of indemnification, immunity or claim which may be
protected by insurance and against subrogation of claims provided for in this
Lease for the benefit of Landlord is hereby granted by Tenant to the Landlord,
and any successor agent or agents named hereafter.
41.3 Restrictive Covenants. Tenant shall not erect on the Premises any
building, structure or object which would constitute an obstruction or hazard to
airport operations or air navigation pursuant to all federal regulations; Tenant
agrees to permit, for the use and benefit of the public, the passage of aircraft
in the air space above the Premises, together with such noise and such air space
as may be inherent in the operation of aircraft, now known or hereafter used,
for navigation or flight in said air space, or for the landing on, taking off
from, or operating of Quonset State Airport; this Lease shall be subordinate to
such rules and regulations governing the use, maintenance, operation and
development of the Quonset State Airport, as may be from time to time
promulgated by Landlord, RIAC or the State pursuant to Federal Aviation
Administration Regulations; and this Lease shall be subject to deed restrictions
appearing of record including:
(a) Non-Discrimination Easement for Passage of Aircraft -
those covenants not to discriminate and the easement for unobstructed passage of
aircraft above the Premises and those other easements and restrictions contained
in those deeds of the United States of America to the Landlord (former Rhode
Island Port Authority and Economic Development Corporation ) the first such
dated November 20, 1978 and recorded in the Town of North Kingstown Land
25
Evidence Records located at Book 317, Page 65, and the second such dated
November 11,1980 and recorded in the Town of North Kingstown Land Evidence
Records at Book 348, Page 243, and also contained in the Airport Deed, as the
same may be appertain to and run with the Premises; and
(b) Protective Controls - that Declarations of Restrictions dated
November 12, 1982 by the Grantor recorded in the Town of North Kingstown Land
Evidence Records at Book 380, Page 211, and, without limiting the foregoing
generally, the Quonset Point/Davisville Development Restrictions referred to
therein, a copy of which has been granted to Tenant and General Dynamics
Corporation.
26
SECTION 42. AMENDMENTS, ADDITIONS AND DELETIONS TO LEASE
Any alterations or deletions herein were made in the Lease before
execution and any additional provisions to which the parties have agreed and
which are added herein or in any Addenda attached hereto shall be considered a
part hereof.
IN WITNESS WHEREOF, the parties have executed this Lease on the date set forth
above.
WITNESS: LANDLORD:
Rhode Island Economic Development
Corporation
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- -------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Its: Executive Director
-----------------------------
WITNESS: TENANT:
Electric Boat Corporation
/s/ ▇.▇. ▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- --------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Its: President
------------------------------
27
EXHIBIT A
(Detailed plan and Description of Premises and Additional Premises)
28
EXHIBIT B
STEAM HEAT SUPPLY AGREEMENT
(to be negotiated, completed, executed and delivered pursuant to the terms of
the Lease)
29
EXHIBIT C
MEMORANDUM OF LEASE
1. Lessor: Rhode Island Economic Development Corporation
2. Lessee: Electric Boat Corporation
3. Description of Premises: See Exhibit annexed hereto and made a
part hereof.
4. Term of Lease: From January 1, 1997 to and including December
21, 2006.
5. The terms and conditions of the Lease Agreement of which this
instrument is a Memorandum are hereby incorporated herein by reference.
6. This Memorandum of Lease is executed pursuant to the
provisions contained in Section 22 of that Lease Agreement and is not intended
to vary the terms and conditions of that Lease Agreement.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ have executed these presents this
_____ day of ____________, 1996.
WITNESS:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
STATE OF RHODE ISLAND
COUNTY OF
In said County of and State on the ________ day of December, 1996,
before me personally appeared ________, to me known and known by me to be the
persons executing the foregoing instrument, and they acknowledged said
instrument, by them executed, to be their free act and deed.
---------------------------------
Notary Public
(In accordance with Section 34-11 of the
Rhode Island General Laws, 1956, as amended)
30
EXHIBIT D
TEMPORARY CANTILEVER CRANE EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the RHODE ISLAND ECONOMIC
DEVELOPMENT CORPORATION, a Rhode Island public corporation, for and in
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration paid by ELECTRIC BOAT CORPORATION, a Delaware corporation with an
address of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-0989, the receipt and
sufficiency of which is hereby acknowledged, does hereby grant unto said
Grantee, its successors and assigns, a non-exclusive easement in, on and over
the parcel of real estate set forth and more particularly described on Schedule
A attached hereto and made a part hereof, for a term of ten (10) years
commencing on January 1, 1997 and terminating December 31, 2006 for the purpose
of ingress and egress to and from a cantilever crane providing access to waters
of the Narragansett Bay, with all riparian rights attendant thereto.
The Grantee, its successors and assigns, shall have the right to enter
upon the parcel of real estate described on Schedule A attached hereto with men
and equipment for the purpose of ingress and egress by it to said cantilever
crane.
The Grantee, for itself, its successors and assigns, by accepting and
recording this easement, acknowledges and agrees that: It accepts the rights to
the parcel of real estate described on Schedule A in its present condition; it
shall, thereafter, at its expense, install, repair, maintain and operate said
easement area and cantilever crane; upon any occasion of disturbance by any of
the Grantee, its successor and assigns, of the land area within the parcel
described above, said Grantee, its successors and assigns, shall restore that
land area as nearly as possible to its former condition prior to such
disturbance (or as mutually agreed upon by said ▇▇▇▇▇▇▇ and Grantor), said
restoration to be without delay; and the maintenance of said easement area shall
be the responsibility and at the sole risk of said Grantee, its successors and
assigns.
The Grantor, its successors and assigns, reserves the right to utilize
the parcel of real estate described above for any purpose whatsoever; provided,
however, that such use does not interfere with the easement herein granted.
TO HAVE AND TO HOLD the same with all rights, privileges and
appurtenances thereof or "hereunto pertaining and to the use of said ▇▇▇▇▇▇▇,
its successors and assigns, for the term of ten years as set forth herein, for
the special purpose of being used and improved as said Cantilever Crane
Easement.
31
IN WITNESS WHEREOF, the Rhode Island Economic Development Corporation
has executed this Easement as of this day of December, 1996.
THE RHODE ISLAND ECONOMIC
DEVELOPMENT CORPORATION
By:
--------------------------
Its:
--------------------------
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In said County and State on the _____ day of December, 1996, before me
personally appeared , of the Rhode Island Economic Development Corporation, to
me known and known by me to be the party executing the foregoing instrument and
he/she acknowledged said instrument by him so executed to be his free act and
deed and the free act and deed of said corporation.
------------------------------
NOTARY PUBLIC
My Commission Expires:
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32
SCHEDULE A
(LEGAL DESCRIPTION OF EASEMENT AREA)
33
EXHIBIT E
PERMANENT CANTILEVER CRANE EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the RHODE ISLAND ECONOMIC
DEVELOPMENT CORPORATION, a Rhode Island public corporation, for and in
consideration of the sum of $1.00 and other good and valuable consideration paid
by ELECTRIC BOAT CORPORATION, a Delaware corporation with an address of ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0989, the receipt and sufficiency
of which is hereby acknowledged, does hereby grant unto said Grantee, its
successors and assigns, a non-exclusive easement in, on and over the parcel of
real estate set forth and more particularly described on Exhibit A attached
hereto and made a part hereof for the purpose of ingress and egress to and from
a cantilever crane providing access to waters of the Narragansett Bay, with all
riparian rights attendant thereto, such easement to be perpetual and run with
land of said Grantee, subject to the terms and conditions hereof.
The Grantor, on behalf of itself, its successors and assigns, shall
have the right to relocate said easement area from time to time; provided,
however, that (i) such relocated easement area shall be confirmed in writing by
said Grantor and delivered to Grantee and recorded with the Land Evidence
Records of the Town of North Kingstown; and (ii) such relocated easement area
shall be in an area and of a type and nature which will allow Grantee the
ability to move to and from said cantilever crane its machinery, equipment, and
product made by it; and (iii) such relocated easement area shall have a load
bearing capacity to so facilitate such movement by said Grantee.
The Grantee, its successors and assigns, shall have the right to enter
upon the parcel of real estate described on Schedule A attached hereto, or as
relocated from time to time as set forth herein, with men and equipment for the
purpose of ingress and egress by it of said cantilever crane.
The Grantee, for itself, its successors and assigns, by accepting and recording
this Easement, acknowledges and agrees that: It accepts the rights of the parcel
of real estate described on Schedule A, or as relocated by Grantor from time to
time as set forth herein, in its present condition; it shall, thereafter, at its
expense, install, repair, maintain and operate said easement area and cantilever
crane; upon any occasion of disturbance by any of the Grantee, its successors
and assigns, of the land area within the parcel described above. said Grantee,
its successors and assigns, shall restore that land area as nearly as possible
to its former condition prior to such disturbance (or as mutually agreed upon by
said ▇▇▇▇▇▇▇ and Grantor), said restoration to be without delay; and the
maintenance of said easement area shall be the responsibility and at the sole
risk of said ▇▇▇▇▇▇▇, its successors and assigns.
The Grantor, its successors and assigns, reserves the right to utilize
the parcel of real estate described above for any purpose whatsoever; provided,
however, that such use does not interfere with the easement granted herein.
34
TO HAVE AND TO HOLD the same with all rights, privileges and
appurtenances thereof or "hereunto pertaining and to the use of said ▇▇▇▇▇▇▇,
its successors and assigns for the perpetual term as set forth herein, for the
special purpose of being used and improved as said cantilever crane easement.
IN WITNESS WHEREOF, the RHODE ISLAND ECONOMIC DEVELOPMENT CORPORATION
has executed this easement as of this ___ day of December, 1996.
THE RHODE ISLAND ECONOMIC
DEVELOPMENT CORPORATION
By:
---------------------------
Its:
----------------------------
STATE OF
COUNTY OF
In said County and State on the day of December, 1996 before me
personally appeared _ , of THE RHODE ISLAND ECONOMIC DEVELOPMENT CORPORATION, to
me known and known by me to be the party executing the foregoing instrument and
▇▇▇▇▇▇ acknowledged said instrument by him so executed to be his free act and
deed and the free act and deed of the corporation.
-------------------------------
NOTARY PUBLIC
My Commission Expires:
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35
EXHIBIT F
TEMPORARY UTILITY EASEMENTS
KNOW ALL MEN BY THESE PRESENTS. that the RHODE ISLAND ECONOMIC
DEVELOPMENT CORPORATION, a Rhode Island public corporation, for and in
consideration of the sum of $1.00 and other good and valuable consideration paid
by Electric Boat Corporation, a Delaware corporation with an address of ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0989, the receipt and sufficiency
of which is hereby acknowledged, does hereby grant unto said Grantee, its
successors and assigns, a non-exclusive easement in, on and over the parcel of
real estate set forth and more particularly described on Exhibit A attached
hereto and made a part hereof, for a term of ten years commencing on January 1,
1997 and terminating December 31, 2006 for the purpose of installation, repair,
maintenance and operation of utility and electric lines, conduits and service
equipment for facilities of Grantee and leased from Grantee from Grantor.
The Grantee, its successors and assigns, shall have the right to enter
upon the parcel of real estate described on Exhibit A attached hereto with men
and equipment for the purpose of such installation, repair, maintenance and
operation by it of said utility and electric lines, conduits and equipment.
The Grantee, for itself, its successors and assigns, by accepting and
recording this easement, acknowledges and agrees that: It accepts the rights to
the parcel of real estate described on Exhibit A in its present conditions; it
shall, thereafter, at its expense, install, repair, maintain and operate said
easement area and such utility lines, conduit and equipment; upon any occasion
of disturbance by any of the Grantee, its successors and assigns, of the land
area within the parcel described above, said Grantee, its successors and
assigns, shall restore that land area as nearly as possible to its former
condition prior to such disturbance (or as mutually agreed upon by said ▇▇▇▇▇▇▇
and Grantor), said restoration to be without delay; and the maintenance of said
easement area shall be the responsibility and at the sole risk of said Grantee,
its successors and assigns.
The Grantor, its successors and assigns, reserves the right to utilize
the parcel of real estate described above for any purpose whatsoever; provided,
however, that such use does not interfere with the easement herein granted.
36
TO HAVE AND TO HOLD the same with all rights, privileges and
appurtenances thereof or "hereunto pertaining and to the use of said ▇▇▇▇▇▇▇,
its successors and assigns, for the term of ten years as set forth herein, for
the special purpose of being used and improved as said utility easement.
IN WITNESS WHEREOF, the RHODE ISLAND ECONOMIC DEVELOPMENT CORPORATION
has executed this easement as of this _day of December, 1996.
THE RHODE ISLAND ECONOMIC
DEVELOPMENT CORPORATION
By:
----------------------------
Its:
-----------------------------
STATE OF
COUNTY OF
In said County and State on the _____day of December, 1996 before me
personally appeared ____________________, _______________________ of THE RHODE
ISLAND ECONOMIC DEVELOPMENT CORPORATION, to me known and known by me to be the
party executing the foregoing instrument and he/she acknowledged said instrument
by him so executed to be his free act and deed and the free act and deed of said
corporation.
-------------------------------
NOTARY PUBLIC
My Commission Expires:
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