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Exhibit 10.21
AGREEMENT of LEASE, made as of this 6th day of October, 1997, between
1608 DEVELOPMENT LIMITED PARTNERSHIP, a Connecticut limited partnership with an
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, hereinafter referred
to as Owner, and ORIEL INSTRUMENTS CORPORATION, a Delaware Corporation, with an
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ hereinafter referred
to as Tenant.
WITNESSETH:
Owner hereby leases to Tenant and Tenant hereby hires from Owner approximately
31,700 rentable square feet of space in the building known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ which demised premises constitute the entire
building and are more specifically set forth in the floor plan annexed hereto as
Exhibit A, for the term of ten (10) years (or until such term shall sooner cease
and expire as hereinafter provided) as set forth in Article 33 hereof at the
annual rate specified in Article 63 hereof, which Tenant agrees to pay in equal
monthly installments in advance on the first day but no later than the tenth day
of each month during said term, at the office of Owner or such other place as
Owner may designate, without any setoff or deduction whatsoever except as
specifically otherwise set forth herein. The terms "premises," "leased
premises," and "demised premises" shall all mean and constitute the entire
building, including the addition, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇. Owner represents that it has good, marketable title to
the building known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and full authority to enter into
this lease. The building known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is the Demised
Premises and the adjacent driveways, parking areas, and landscaped areas
constitute the common areas. During the term of this Lease and any extension
period thereof, Tenant is hereby granted a nonexclusive easement, but an
exclusive easement for parking and loading as set forth in Article 37 of this
lease, over these common areas for ingress and egress to and from the public
street known as Long Beach Boulevard and the building. This easement shall
expire or terminate simultaneously with this Lease. The Demised Premises and
common areas are a part of Stratford Executive Park, which is comprised of
similar buildings in the Lordship Boulevard area of Stratford, Connecticut,
which buildings are managed by Owner.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and permitted
assigns, hereby covenant as follows:
1. Peaceful Possession: The Owner covenants that the Tenant, on paying
the said rental and performing the covenants and conditions in this lease
contained, shall and may peaceably and quietly have, hold and enjoy the demised
premises for the term aforesaid.
2. Purpose: The Tenant covenants and agrees that the demised premises
may be used for general offices, assembly, manufacturing and research together
with a machine shop for the Tenant's named business and for no other purpose,
including, without limitation, operation of business of manufacturing
instruments and components for electro-optic research, provided such use is in
accordance with the Certificate of Occupancy for the building, and Tenant agrees
not to use or permit the premises to be used for any other purpose without the
prior written consent of the Owner, not to be unreasonably withheld or delayed.
Owner represents that the Premises may lawfully be used for said purposes.
3. Default in Payment of Rent: The Tenant shall, without any previous
demand therefor, pay to the Owner, or its agent, the said rent at the times and
in the manner above provided. In the event of the non-payment of said rent, or
any installment thereof, at the times and in the manner above provided, and if
the same shall remain in default for ten (10) days after notice, or if the
Tenant shall be dispossessed for non-payment of rent, as set forth in section 18
hereof or if the leased premises shall be deserted or vacated and
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Tenant is in default beyond any applicable cure period, the Owner or its agents
shall have the right to and may enter the said premises either by force or
otherwise, without being liable for any prosecution or damages therefor, and may
relet the premises and receive the rent therefore, upon such terms as shall be
satisfactory to the Owner, and all rights of the Tenant to repossess the
premises under this lease shall be forfeited. Such re-entry by the Owner shall
not operate to release the Tenant from any rent to be paid or covenants to be
performed hereunder during the full term of this lease. For the purpose of
reletting, the Owner shall be authorized to make such repairs or alterations in
or to the leased premises as may be necessary to place the same in similar order
and condition as of the date hereof. The Tenant shall be liable to the Owner for
the cost of such repairs or alterations, and all expenses of such reletting.
If the sum realized or to be realized from the reletting is insufficient to
satisfy the monthly or term rent provided in this lease, the Owner, at its
option, may require the Tenant to pay such deficiency month by month, The Tenant
shall not be entitled to any surplus accruing as a result of the reletting. The
Tenant agrees to pay, as additional rent, all attorney's fees and other expenses
incurred by the Owner in enforcing any of the obligations under this lease.
4. Condition of Premises, Repairs and Alterations: The Tenant shall
keep the demised premises in the same good condition as of the date hereof,
reasonable wear and tear and damage by casualty and condemnation excepted, and
shall, paint the said premises as may be necessary to keep them in the same good
condition as of date hereof. Tenant shall at its expense, make all repairs of
any nature to the demised premises or the building caused by the negligence of
Tenant, its servants, employees, invitees or licensees or caused by the moving
of Tenant's fixtures, furniture or equipment. The Tenant shall quit and
surrender the premises at the end of the demised term in the same good condition
as of the date hereof as the reasonable use thereof will permit, reasonable wear
and tear and damage by casualty and condemnation excepted. The Tenant shall not
make any material alterations, additions, or improvements to said premises
without the prior written consent of the Owner, not to be unreasonably withheld
or delayed. Tenant shall, at its expense, prior to making any permitted
alterations, obtain all permits, approvals and certificates required by any
applicable governmental entities and upon completion obtain certificates of
final approval thereof and develop duplicates of all such permits, approvals and
certificates to Owner. All erections, alterations, additions and improvements,
whether temporary or permanent in character, which may be made upon the premises
either by the Owner or the Tenant, except furniture, personal property, shielded
CE test room, or moveable trade fixtures installed at the expense of the Tenant,
shall be the property of the Owner and shall remain upon and be surrendered with
the premises as a part thereof at the termination of this lease, without
compensation to the Tenant, unless Owner, at the time of approval of the
alterations, elects to relinquish Owner's right thereto and to have all or some
of them removed by Tenant, in which event the same shall be removed from the
demised premises by Tenant prior to the expiration of this lease, at Tenant's
expense. Tenant shall repair any damage due to any such removal and all property
remaining in the premises at the end of the term after Tenant's removal shall be
deemed abandoned and may, at Owner's election, either be retained as Owner's
property or removed from the premises by Owner, at Tenant's expense. The Tenant
further agrees to keep said premises and all parts thereof in a clean and
sanitary condition and free from trash, inflammable material and other
objectionable matter. If Tenant fails, after ten business days written notice,
to proceed with due diligence to make repairs as required hereby, the same may
be made by Owner at Tenant's expense, which shall be collectible as additional
rent. Owner shall have no liability to Tenant with respect to the failure or
delay in making repairs to the demised premises or the building or to any
fixtures or equipment contained therein except as otherwise provided in this
lease. The term "material" shall mean those alterations, additions, or
improvements to the premises which
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cost in excess of $50,000.00 and which are structural in nature. This section
shall not apply to Tenant's initial improvements to the premises as described
herein.
5. Liability of Owner: The Owner shall not be responsible for the loss
of or damage to property, or injury to persons, occurring in or about the
demised premises, by reason of any existing or future condition, in said demised
premises or the property of which the premises are a part, or for the acts,
omissions or negligence of other persons or tenants in and about the said
property except for Owner's, its agents, servants, and licensees' negligence or
except as otherwise set forth herein. The Tenant agrees to indemnify and save
the Owner harmless from all claims and liability for losses of or damage to
property, or injuries to persons occurring in or about the demised premises
except for claims arising from Owner's, its agents, invitees, servants, and
licensees' negligence:
a. Owner warrants and represents that, as of the Term Commencement Date
(which shall be sixteen (16) weeks after Lease execution), (i) the premises
shall be in compliance with all applicable laws, codes, ordinances, orders,
rules and regulations of any governmental or other public authority, (ii) all
electrical, plumbing, lighting, fire protection and heating, ventilation and air
conditioning systems shall be in good condition and repair, and (iii) there
shall be no restrictions or other legal impediments, either imposed by law
(including without limitation applicable zoning and building codes or
ordinances) or by instrument, which would prevent the use of the premises for
the permitted uses hereunder. If at any time during the Term, as the same may be
extended, applicable law shall not permit the use of the premises as aforesaid,
then Tenant, without waiving any other right Tenant may have on account thereof,
may terminate this Lease upon no less than thirty (30) days written notice to
Owner.
b. Owner shall indemnify, defend hold harmless Oriel, its parent,
subsidiaries, divisions, and affiliates, and their respective officers,
directors, shareholders and employees, from and against any and all damages,
liabilities, actions, causes of action, suits, claims, demands, losses, costs
and expenses (including without limitation reasonable attorneys' fees and
disbursements and court costs) to the extent arising from or in connection with
the negligence or willful misconduct of Owner, its agents, employees,
representatives or contractors.
The party seeking indemnification under this Lease (the "Indemnified
Party") shall provide prompt written notice of any thirty party claim to the
party from whom such indemnification is sought (the "Indemnifying Party"). The
Indemnifying Party shall have the right to assume exclusive control of the
defense of such claim or, at the option of the Indemnifying Party, to settle the
same. The Indemnified Party agrees to cooperate reasonably with the Indemnifying
Party in connection with the performance of the Indemnifying Party's
indemnification obligations under this Lease. In the event that the Indemnifying
Party fails to perform such obligations, the Indemnified Party shall have the
right to perform such obligations at the Indemnifying Party's reasonable
expense.
Notwithstanding anything to the contrary contained in this Agreement,
in no event shall either party be liable for any indirect, special,
consequential or incidental damages (including without limitation damages for
loss of use of facilities or equipment, loss of revenue, loss of profits or loss
of goodwill), regardless of whether such party (i) has been informed of the
possibility of such damages or (ii) is negligent.
6. Services and Utilities: Owner shall cause utilities and services
to be furnished to the demised premises for the benefit of the Tenant and paid
for as follows: water, by the Tenant; gas by the Tenant; electricity by the
Tenant; heat by the Tenant; refrigeration by the Tenant; and hot water by the
Tenant. The Owner shall not be liable for any interruption or delay in any of
the above services for any reason except for Owner's
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negligence. All utilities furnished to the demised premises are separately
metered and serve the demised premises exclusively. Owner shall put bills in
Tenant's name prior to the Commencement Date. Tenant's obligation to pay bills
shall not begin until the Commencement Date.
7. Right to Inspect and Exhibit: Upon prior advance notice the Owner,
or its agents, shall have the right to enter the demised premises at reasonable
hours in the presence of Tenant and with minimal interference to Tenant's
business to run telephone or other wires, or to make such repairs, additions or
alterations as it shall deem necessary for the safety, preservation or
restoration of the improvements, or for the safety or convenience of the
occupants or users thereof (there being no obligation, however, on the part of
the Owner to make any such repairs, additions or alterations except as otherwise
set forth herein), or to exhibit the same to prospective purchasers and put upon
the premises a suitable "For Sale" sign. For six months prior to the expiration
of the demised term, the Owner, or its agents, may similarly exhibit the
premises in accordance with the terms of the preceding sentence to prospective
tenants, and may place the usual "To Let" signs thereon.
8. Damage or Destruction
8.1 If all or a portion of the premises is damaged by fire or other
casualty, Owner will give Tenant written notice ("Owner's Repair Notice") of the
time which will be needed to repair such damage, as determined by Owner in its
reasonable discretion, and the election (if any) which Owner has made according
to this Article 8. Such notice will be given before the 60th day (the "notice
date") after the fire or other casualty. If Owner fails to give Tenant Owner's
Repair Notice within sixty (60) days after the fire or other casualty, Tenant
may notify Owner that Owner's Repair Notice has not been given, and Tenant may
terminate this Lease if Owner fails to give Owner's Repair Notice within ten
(10) days after this reminder notice is received by Owner. To exercise this
termination right, Tenant must give Owner notice of termination at any time
after the expiration of said ten (10) day period but before Owner's Repair
Notice is given.
8.2 If all or a portion of the Premises is damaged by fire or other
casualty to an extent which may be repaired within one hundred eighty (180) days
after the notice date, as reasonably determined by Owner and Tenant, Owner will
promptly begin to repair the damage after the notice date and will diligently
pursue the completion of such repair. In that event, this Lease will continue in
full force and effect except that Annual Fixed Rent and Additional Rent, as
defined in Article 63d., will be abated on a pro rata basis from the date of the
damage until the date of the substantial completion of such repairs (the "repair
period") based on the proportion of the rentable area of the Building Tenant is
unable to use during the repair period. Notwithstanding the foregoing, if a
repair that Owner determined could be made within one hundred eighty (180) days
after the notice date is not substantially completed within said one hundred
eighty (180) day period, Tenant may terminate this Lease upon notice to Owner
given at any time after the expiration of said one hundred eighty (180) day
period, but before the repair is substantially completed; provided, however,
that Owner may nullify Tenant's termination if Owner substantially completes the
repair within thirty (30) days after receipt of Tenant's termination notice.
Tenant's termination notice shall state that this Lease will terminate thirty
(30) days after Owner's receipt of the notice unless Owner substantially
completes the repair within said thirty (30) day period.
8.3 If all or a portion of the Premises is damaged by fire or other
casualty to an extent that may not be repaired within one hundred eighty (180)
days after the notice date, as reasonably determined by Owner, and the damage
materially impairs Tenant's use of the Premises, then (i) Owner may cancel this
Lease by written notice given to Tenant on or before the notice date or (ii)
Tenant may cancel this Lease by written notice given to
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Owner within thirty (30) days after Owner's delivery of a written notice that
the repairs cannot be made within such one hundred eighty (180) day period. If
either party cancels this Lease in accordance with the preceding sentence, this
Lease shall terminate thirty (30) days after the date of the cancellation
notice. If neither Owner nor Tenant so elects to cancel this Lease, Owner will
diligently proceed to repair the Premises, and Annual Fixed Rent and Additional
Rent will be abated on a pro rata basis during the repair period based on the
proportion of the rentable area of the Building Tenant is unable to use during
the repair period. Notwithstanding the foregoing, if a repair to be made in
accordance with this Section 8.3 is not substantially completed within two
hundred ten (210) days after the notice date (or within such longer time period
as is specified in Owner's Repair Notice), Tenant may terminate this Lease upon
notice to Owner given at any time after the expiration of said two hundred ten
(210) day period (or the expiration of such longer time period as is specified
in Owner's Repair Notice), but before the repair is substantially completed;
provided, however, that Owner may nullify Tenant's termination if Owner
substantially completes the repair within thirty (30) days after receipt of
Tenant's termination notice. Tenant's termination notice shall state that this
Lease will terminate thirty (30) days after Owner's receipt of the notice unless
Owner unless Owner substantially completes the repair within said thirty (30)
day period.
8.4 Tenant shall be responsible for the repair or replacement of all of
Tenant's personal property that is damaged or destroyed.
8.5 Time is of the essence in this Section 8.
9. Observation of Laws, Ordinances, Rules and Regulations: The Tenant
agrees to observe and comply with all laws, ordinances, rules and regulations of
the Federal, State, County and Municipal authorities applicable to the business
to be conducted by the Tenant in the demised premises. As clarification to the
proceeding section, Tenant shall comply with all laws which are particular to
Tenant's specific use of the premises (but not to the premises itself). The
Tenant agrees not to do or permit anything to be done in said premises, or keep
anything therein, which will obstruct or interfere with the rights of other
tenants, or conflict with the regulations of the Fire Department or with any
insurance policy upon said improvements or any part thereof. In the event of any
increase in insurance premiums resulting from the Tenant's occupancy of the
premises, or from any act or omission on the part of the Tenant, the Tenant
agrees to pay said increase in insurance premiums on the improvements or
contents thereof as additional rent. As set forth in this lease, Owner shall be
responsible at Owner's sole expense for capital improvements necessary to keep
the building in good order and repair and necessary to keep the building in
compliance with all laws, ordinances, rules and regulations of federal, state,
country and municipal authorities.
10. Subordination to Mortgages and Deeds of Trust: This Lease is
subject and is hereby subordinated to all present and future mortgages, deeds of
trust and other encumbrances affecting the demised premises or the property of
which said premises are a part. Tenant agrees to execute, at no expense to
Owner, any instrument which may be deemed necessary or desirable by Owner to
further effect the subordination of this Lease to any such mortgage, deed of
trust or encumbrance. Tenant shall attorn to the holder of any mortgage
acquiring title by virtue of a conveyance or through foreclosure proceedings.
Anything herein to the contrary notwithstanding, the subordination of this Lease
to future mortgages will be conditioned upon Tenant receiving from the mortgagee
a subordination, nondisturbance and attornment agreement substantially in the
form of Exhibit "E" hereto, or such other form as may be the standard form used
by the mortgagee and reasonably acceptable to Tenant. Owner represents that
there is no Mortgagee or Ground Lessee of record.
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11. Rules and Regulations of Owner: The rules and regulations regarding
the demised premises as set forth in Article 56, hereof, as well as any other
and further reasonable rules and regulations which shall be made by the Owner,
shall be observed by the Tenant and by the Tenant's employees, agents and
customers. The Owner reserves the right to rescind any presently existing rules
applicable to the demised premises, and to make such other and further
reasonable rules and regulations as, in its judgment, may from time to time be
desirable for the safety, care and cleanliness of the premises, and for the
preservation of good order therein, which rules, when so made and notice thereof
given to the Tenant, shall have the same force and effect as if originally made
a part of this lease. Such other and further rules shall not, however, be
inconsistent with the proper and rightful enjoyment by the Tenant of the demised
premises or derogate from Tenant's rights hereunder. Owner shall enforce
uniformly the rules and regulations in the Stratford Executive Park and
provisions of any other lease but Owner shall not be liable to Tenant for any
violation of same by Owner or by any other tenant, their respective servants,
agents, invitees or licensees.
12. Violation of Covenants, Forfeiture of Lease, Re-entry by Owner: In
case of violation by the Tenant of any of the covenants, agreements and
conditions of this lease, or of the rules and regulations now or hereafter to be
reasonably established by the Owner, and upon failure to discontinue such
violation within thirty (30) days after written notice thereof given to the
Tenant or as long as Tenant is diligently proceeding to cure, such longer period
if such violation is incapable of curing within thirty (30) days, this lease
shall thenceforth, at the option of the Owner, become null and void, and the
Owner may re-enter without further notice or demand. The rent in such case shall
become due, be apportioned and paid on and up to the day of such re-entry, and
the Tenant shall be liable for all loss or damage resulting from such violation
as aforesaid. No waiver by the Owner of any violation or breach of condition by
the Tenant shall constitute or be construed as a waiver of any other violation
or breach of condition, nor shall lapse of time after breach of condition by the
Tenant before the Owner shall exercise its option under this paragraph operate
to defeat the right of the Owner to declare this lease null and void and to
re-enter upon the demised premises after the said breach or violation. If there
shall be an event of default under this lease at the date fixed for the
commencement of any renewal or extension period, Owner may cancel such renewal
or extension by written notice to Tenant.
13. Notices: All notices and demands, legal or otherwise, incidental to
this lease, or the occupation of the demised premises, shall be in writing. If
the Owner or its agent desires to give or serve upon the Tenant any notice or
demand, it shall be sufficient to send a copy thereof by certified mail,
addressed to the Tenant at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇, with a copy to: Thermo Electron Corporation, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel. Notices from
the Tenant to the Owner shall be sent by certified mail or delivered to the
Owner at the place hereinbefore designated or to such party or place as the
Owner may from time to time designate in writing. Notices shall be deemed
delivered three (3) days after deposit in the US Mail.
14. Bankruptcy, Insolvency, Assignment for Benefit of Creditors: It is
further agreed that if at any time during the term of this lease the Tenant
shall make any assignment for the benefit of creditors, or be decreed insolvent
or bankrupt according to law, or if a receiver shall be appointed for the Tenant
and not dismissed within ninety (90) days, then Tenant shall be deemed in
default hereunder and the Owner may, at its option terminate this lease,
exercise of such option to be evidenced by notice to that effect served upon the
assignee, receiver, trustee or other person in charge of the liquidation of the
property of the Tenant or the Tenant's estate and Tenant, but such termination
shall not release or discharge any payment of rent payable hereunder and then
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accrued, or any liability then accrued by reason of any agreement or covenant
herein contained on the part of the Tenant, or the Tenant's legal
representatives.
15. Eminent Domain
15.1 A taking of all or any part of the Premises under the exercise of
the right of condemnation or eminent domain is referred to hereafter as a
"Taking". The date upon which the condemnation authority takes possession of the
portion of the Premises Taken is referred to hereafter as the "Taking Date". In
this Article, the "Taken" means that the Premises have been subject to a Taking.
15.2 If all of the Premises are Taken, (a) this Lease shall terminate
on the Taking Date, and (b) the Annual Fixed Rent, Additional Rent and other
charges payable by Tenant hereunder shall be apportioned and paid to the Taking
Date.
15.3 If (i) more than twenty-five (25%) percent of the rentable area of
the Building is Taken, (ii) more than twenty-five (25%) percent of the parking
spaces on the Premises is Taken, or (iii) access to the Premises is
substantially impaired because of a Taking, then Owner or Tenant may terminate
this Lease by written notice to other party given within thirty (30) days after
the Taking Date. If either party elects to terminate this Lease in accordance
with the preceding sentence, the Annual Fixed Rent, Additional Rent and other
charges payable by Tenant hereunder shall be apportioned and paid to the Taking
Date.
15.4 If a Taking occurs and this Lease is not terminated, this Lease
shall continue unaffected, except that (i) the Annual Fixed Rent shall be
reduced as of the Taking Date to the Annual Fixed Rent in effect immediately
before the Taking multiplied by the fraction, the numerator of which shall be
the value of the untaken portion of the Premises (valued after the Taking and
any restoration) and the denominator of which shall be the value of the Premises
immediately prior to the Taking, (ii) Tenant shall continue to pay all
Additional Rent due with respect to the remaining Premises, (iii) Owner and
Tenant shall make any adjustments needed between them as a result of any
overpayment or underpayment of Additional Rent and Annual Fixed Rent with
respect to the portion of the Premises that has been Taken, and (iv) Owner shall
make appropriate alterations, in its reasonable judgment to the Premises to
restore the Premises as nearly as practicable to their condition before the
Taking, but Owner shall only be required to expend for this purpose any
condemnation proceeds that Owner receives.
15.5 Tenant shall neither have nor make any claim whatsoever for any
award or payment for the Premises or any part thereof, and in any event Tenant
shall neither have nor make any claim whatsoever for any award or payment for
the value of Tenant's leasehold under this Lease or for the value of the
unexpired Term. Notwithstanding the foregoing, Tenant will have the right to
assert a claim against the condemning authority in a separate action for
Tenant's moving expenses, trade fixtures and any unamortized alterations paid
for by Tenant.
15.6 If Owner becomes aware of a condemnation proceeding pertaining to
the Premises, Owner shall promptly give notice thereof to Tenant. Subject to any
applicable procedural rules, Owner, Tenant and their counsel may both appear in
the proceeding.
15.7 Time is of the essence in this Section 15.
16. Lease Provisions Not Exclusive: The rights and remedies of Owner
set forth herein are not intended to be exclusive but as additional to all
rights and remedies the Owner would otherwise have by law.
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17. Limitation re: Default in Rent: Notwithstanding anything to the
contrary herein (i) Tenant shall not be deemed in default in the payment of
Annual Fixed Rent unless Tenant fails to pay the same when due and thereafter
cure such default within ten (10) days after notice of such default from Owner;
provided, however, that if Owner shall have given two such notices in any
calendar year, any subsequent failure by Tenant, during such calendar year, to
pay Annual Fixed Rent on the due date thereof shall be deemed an immediate
default hereunder without any requirement of notice nor opportunity to cure, and
(ii) Tenant shall not be deemed in default in the payment of any additional rent
due hereunder unless Tenant fails to pay the same when due and thereafter cure
such default within ten (10) days after notice of such default from Owner;
provided, however, that if Owner shall have given two such notices in any
calendar year, any subsequent failure by Tenant, during such calendar year, to
pay fixed additional rent on the due date thereof shall be deemed an immediate
default hereunder without any requirement of notice nor opportunity to cure.
18. Remedies of Owner: In the case of any default, re-entry, expiration
and/or dispossess by summary proceedings or otherwise, (a) the rent, and
additional rent, shall become due thereupon and be paid up to the time of such
re-entry, dispossess and/or expiration, (b) Owner may relet the premises or any
part or parts thereof, either in the name of Owner or otherwise, for a term or
terms, which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in this lease, (c)
Tenant or the legal representatives of Tenant shall also pay Owner as damages
for the failure of Tenant to observe and perform said Tenant's covenants herein
contained, any deficiency between the rent hereby reserved and/or covenanted to
be paid and the net amount, if any, of the rents collected on account of the
subsequent lease or leases of the demised premises for each month of the period
which would otherwise have constituted the balance of the term of this lease.
The failure of Owner to re-let the premises or any part or parts thereof shall
not release or affect Tenant's liability for damages. In computing such damages
there shall be added to the said deficiency such expenses as Owner may incur in
connection with re-letting, such as legal expenses, attorneys' fees, brokerage,
advertising and for keeping the demised premises in good order or for preparing
the same for re-letting. Any such damages shall be paid in monthly installments
by Tenant on the rent day specified in this lease and any suit brought to
collect the amount of the deficiency for any month shall not prejudice in any
way the rights of Owner to collect the deficiency for any subsequent month by a
similar proceeding. Owner, in putting the demised premises in good order or
preparing the same for re-rental may, at Owner's option, make such reasonable
alterations, repairs, replacements, and/or decorations in the demised premises
as Owner, in Owner's sole judgment, considers advisable and necessary for the
purpose of re-letting the demised premises, and the making of such alterations,
repairs, replacements, and/or decorations shall not operate or be construed to
release Tenant from liability hereunder as aforesaid. Owner agrees to mitigate
damages.
Owner shall in no event be liable in any way whatsoever for failure to re-let
the demised premises, or in the event that the demised premises are re-let, for
failure to collect the rent thereof under such re-letting, and in no event shall
Tenant be entitled to receive any excess, if any, of such net rents collected
over the sums payable by Tenant to Owner hereunder. In the event of a default by
Tenant of any of the covenants or provisions hereof, Owner shall have the right
of injunction and the right to invoke any remedy allowed at law or in equity as
if re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this lease of any particular remedy, shall not preclude Owner
from any other remedy, in law or in equity.
19. Fees and Expenses: If Tenant or Owner shall default in the
observance or performance of any term or covenant on Tenant's or Owner's part to
be observed or
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performed under or by virtue of any of the terms or provisions in any article of
this lease, then, unless otherwise provided elsewhere in this lease Tenant or
Owner may, not less than ten (10) days (or such longer period as set forth
herein) after notice to Tenant or Owner (except in cases of emergency) and
Tenant's or Owner's failure to cure such default within such ten (10) day period
(or such longer period as set forth herein), or at any time thereafter perform
the obligation of Tenant or Owner thereunder. If Owner or Tenant, in connection
with the foregoing or in connection with any default by Tenant or Owner
hereunder, makes any expenditures or incurs any obligations for the payment of
money, including but not limited to reasonable attorney's fees, in instituting,
prosecuting or defending any action or proceedings, then Tenant or Owner will
reimburse Tenant or Owner for such sums so paid or obligations incurred with
interest and costs. The foregoing expenses incurred by reason of Tenant's or
Owner's default shall be paid to Tenant or Owner within thirty (30) days of
rendition of any ▇▇▇▇ or statement to Tenant or Owner therefor. If the lease
term shall have expired at the time of making such expenditures or incurring
such obligations, such sums shall be recoverable by Owner or Tenant as damages.
All sums paid to Owner shall be deemed additional rent.
20. No Representations by Owner: Owner or Owner's Agents have made no
representations, warrantees or promises with respect to the Demised Premises or
common areas except as herein expressly set forth.
21. End of Term: Upon the expiration or other termination of the term
of this lease, Tenant shall quit and surrender to Owner the demised premises,
broom clean, in the same good order and condition as delivered to Tenant,
ordinary wear and damages which Tenant is not required to repair as provided
elsewhere in this lease excepted, damages by casualty and condemnation excepted,
and Tenant shall remove all its property from the demised premises. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of this lease. If the last day of the term of this Lease or
any renewal thereof, falls on Sunday, this lease shall expire at noon on the
preceding Saturday unless it be a legal holiday in which case it shall expire at
noon on the preceding business day.
22. Intentionally omitted.
23. No Waiver: The failure of Owner to seek redress for violation of,
or to insist upon the strict performance of any covenant or condition of this
lease or of any of the Rules or Regulations, set forth or hereafter adopted by
Owner, 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 failure of Tenant to seek redress for violation of, or to insist
upon the strict performance of any covenant or condition of this lease to be
observed or performed by Owner 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 Owner of rent with knowledge of the breach
of any covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. All checks tendered to Owner
as and for the rent of the demised premises shall be deemed payments for the
account of Tenant. Acceptance by Owner of rent from anyone other than Tenant
shall not be deemed to operate as an attornment to Owner by the payor of such
rent or as a consent by Owner to an assignment or subletting by Tenant of the
demised premises to such payor, or as a modification of the provisions of this
lease. No act or thing done by
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Owner or Owner's agents during the term hereby demised shall be deemed an
acceptance of a surrender of said premises and no agreement to accept such
surrender shall be valid unless in writing signed by Owner. No employee of Owner
or Owner's agent shall have any power to accept the keys of said premises prior
to the termination of the lease and the delivery of keys to any such agent or
employee shall not operate as a termination of the lease or a surrender of the
premises.
24. Waiver of Trial by Jury: It is mutually agreed by and between Owner
and Tenant that the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties against the other (except for personal injury or property damage) on any
matters whatsoever arising out of or in any way connected with this lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of said premises,
and any emergency statutory or any other statutory remedy.
25. Force Majeure: If Owner or Tenant is unable to fulfill any of its
obligations under this Lease (except for Tenant's obligations to pay Rent
hereunder) or is prevented or delayed from doing so by reason of strikes or
labor troubles or any other legitimate cause beyond Owner's or Tenant's control,
including governmental preemption in connection with a national emergency or by
reason of any rule, order or regulation of any federal, state or municipal
government or agency or any board, bureau, commission, department or body
thereof, or by reason of the conditions of supply and demand which have been or
are affected by way of hostilities or other similar or dissimilar emergency
(collectively, "Force Majeure Delays"), Owner's or Tenant's obligation to
perform shall be delayed by the number of days of Force Majeure Delays which
shall not exceed sixty (60) days.
26. Water and Sewer Charges: Upon the Term Commencement Date, Owner
shall contact the Bridgeport Hydraulic Company and transfer the account for
water usage of the premises to Tenant and Tenant shall be responsible for paying
bills from the Bridgeport Hydraulic Company or its successor as of the
Commencement Date of this lease, throughout the term of this lease and
throughout any extension term. The meter number for this account is ▇▇▇▇▇▇▇▇.
Tenant agrees to pay for water consumed, as shown on said meter as and when
bills are rendered, and on default in making such payment Owner may pay such
charges and collect the same from Tenant, as additional rent. Tenant covenants
and agrees to pay, as additional rent, the sewer rent, charge or any other tax,
rent, levy or charge which now or hereafter is assessed, imposed or a lien upon
the demised premises or the realty of which they are part pursuant to law, order
or regulation made or issued in connection with the use, consumption,
maintenance or supply of water, water system or sewage or sewage connection or
system; however, Tenant shall not be required to pay any such amounts with
respect to the period of one year from the Commencement Date. Independently of
and in addition to any of the remedies reserved to Owner hereinabove or
elsewhere in this lease, Owner may ▇▇▇ for and collect any monies to be paid by
Tenant or paid by Owner for any of the reasons or purposes hereinabove set
forth.
27. Sprinklers: The sprinkler system originally installed by Owner in
the demised premises was installed in accordance with all applicable laws and
regulations, and anything elsewhere in this lease to the contrary
notwithstanding, if any bureau, department or official of the federal, state or
local government recommend or require any changes, modifications, alterations,
or additional sprinkler heads or other equipment be made or supplied in an
existing sprinkler system by reason of Tenant's particular business, or the
location of Tenant's partitions, trade fixtures, or other contents of the
demised premises. As clarification to the preceding sentence, Tenant shall, at
Tenant's expense, promptly make such sprinkler system installations, changes,
modifications, alterations, and supply additional sprinkler heads or other
equipment necessitated by its
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particular use of the Premises whether the work involved shall be structural or
non-structural in nature. If Tenant's business necessitates additional
monitoring, Tenant shall pay to Owner as additional rent, Tenant's portion of
the contract price for any additional sprinkler supervisory service and any
additional sprinkler alarm service. However, if during the term of this lease,
or, if Tenant extends the term of this lease as provided herein, during the
final year of any extension thereof, as the case may be, Tenant shall be
required to perform any work under this Article, Tenant shall not be required to
pay the cost thereof in an amount greater than a fraction of such cost, the
numerator of which shall equal the number of days remaining in the term and the
denominator of which shall equal 3,650 (plus number of days in extended term).
Notwithstanding anything to the contrary contained herein, Owner shall maintain
at its expense the sprinkler systems and modify, alter, or change the sprinkler
system if required in accordance with all applicable laws and regulations that
are not due to or the result of Tenants particular business or wall and fixture
locations.
28. Services: Owner reserves the right to stop service of the heating,
plumbing and electric systems, when necessary by reason of accident, or
emergency , for repairs, alterations, replacements or improvements, in the
reasonable judgment of Owner desirable or necessary to be made, until said
repairs, alterations, replacements or improvements shall have been completed
only if minimal interference with Tenant's business operations and advance
notice is given to Tenant and Tenant consents to such interruption except in the
case of emergency.
29. Captions: The Captions are inserted 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.
30. Intentionally Omitted
31. Estoppel Certificate: Tenant, at any time, and from time to time,
within thirty (30) days after notice from Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or corporation specified by
Owner, a certification concerning the status of this Lease and Tenant's
occupancy of the demised premises, including without limitation that this Lease
is unmodified in full force and effect (or, if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), stating the dates to which the rent and additional rent have
been paid, and stating whether or not there exists any default by Owner under
this Lease, and, if so, specifying each such default. See Exhibit "F".
32. Successors and Assigns: The covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of Owner and Tenant
and their respective heirs, distributees, executors, administrators, successors,
and permitted assigns.
33. Commencement and Expiration of Term: Subject to the provisions of
Article 63, the term of this Lease and the annual fixed rental and additional
rent payable hereunder shall commence on a date (herein called the "Commencement
Date") which shall be sixteen (16) weeks after the lease is signed and fully
executed, and shall end ten (10) years from the Commencement Date, except that
if such expiration date shall be on any day other than the last day of the
calendar month, the term of the lease shall be extended to and shall expire on
the last day of such calendar month, which ending date is herein called the
"Expiration Date" or shall end on such earlier date upon which said term may
expire or be canceled or terminated pursuant to any of the conditions or
covenants of this lease or pursuant to law. In no event shall the Commencement
Date occur prior to December 5, 1997. The rent billing date shall be the first
of the month. If the Commencement Date falls on a date other than the first of
the month, the initial rent invoice shall be prorated accordingly. Promptly
after commencement of the term of this
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lease the parties shall enter into a supplementary agreement confirming the
Commencement Date and Expiration Date of the term of this lease.
34. Broker: Tenant represents to Owner and Owner represents to Tenant
that in the negotiation of this Lease it dealt with no real estate broker or
salesman except ▇▇▇▇▇▇▇ ▇. GRETSCH, JR. of COMMERCIAL AND INDUSTRIAL REAL ESTATE
BROKERAGE. Owner shall compensate such broker pursuant to separate agreement.
Each party hereby agrees to indemnify the other party and hold the other
harmless from any and all losses, damages and expenses arising out of any
inaccuracy of the above representation, including court costs and reasonable
attorney's fees. Owner shall have no liability for brokerage commissions arising
out of a permitted sublease by Tenant, and Tenant shall and does hereby
indemnify Owner and hold it harmless from any and all liability for brokerage
commissions arising out of any such sublease for brokers retained by Tenant.
35. Number of Parking Spaces: Owner agrees to make available to Tenant
for its sole exclusive use the following parking spaces:
(a) 104 spaces for employees, visitors, and invitees which shall be not
more than 250 yards from an entrance to Tenant's premises.
These spaces shall be provided in accordance with the terms and conditions of
Article 37 herein and shown on Exhibit "A".
36. Taxes: (a) Commencing on the Commencement Date, Tenant agrees to
pay as additional rent one hundred (100%) percent of the real estate tax for the
period of occupancy, which may be imposed upon the land and building for the
Town of Stratford's Tax Parcel Identification Number 0987200 of which the
demised premises are a part. One hundred (100%) percent is the proportion which
the rentable area of the demised premises bears to the rentable area of the
building of which it is a part. This amount shall be paid whether same results
from a higher tax rate, or (except as set forth above) an increase in the
assessed valuation of the property of which the demised premises are a part, or
both. A tax ▇▇▇▇ and records of the taxing authority shall be sufficient
evidence of the amount of taxes and be used for calculations of the amount to be
paid by Tenant. Tenant shall pay such additional rent within thirty (30) days
after receipt of ▇▇▇▇ for such rent from Owner. Owner shall furnish to Tenant
pertinent copies of tax bills which form the basis for such additional rent
promptly upon written request of Tenant. Attached as Exhibit "G", is a copy of
the tax ▇▇▇▇ for the October 1, 1996 Grand List.
(b) In addition to the taxes payable by the Tenant pursuant to the
preceding Article 36 (a), Tenant agrees to pay, as additional rent, any
increases in real estate taxes which are based on an increase in the assessed
value resulting from physical improvements to the demised premises made by
Tenant, which improvements include the items included in Owner's Work, as set
forth in Article 63 hereof.
(c) If any other tax or assessment shall be levied by the Town, County
or other Municipal authority in lieu of the aforesaid taxes, or in addition to
the aforesaid taxes, and same shall be considered a real estate tax, then the
increase payable hereunder shall apply to such new or additional tax. Owner
agrees to pay tax bills when due to not prejudice the right of Tenant to file
any tax abatements. Tenant shall have the right to contest any tax assessment
and commence a legal proceeding against the authority having the assessment
jurisdiction. Owner shall sign any reasonable abatement application or any other
reasonable legal documents required to file for an abatement and any appeal of
the denial thereof.
(d) After the first five (5) years of the lease term or any extension
term, notwithstanding anything to the contrary, the cost of a "Shared
Assessment" (as defined
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below) that is not warranted by Tenant's particular use of the Premises shall be
allocated between Owner and Tenant as follows: Tenant's share shall equal the
total amount of the Shared Assessment multiplied by a fraction, the numerator of
which shall be the number of months remaining in the Term on the date of the
assessment and the denominator of which shall be the number of months in the
useful life of the improvement for which the assessment was made (but this
fraction shall not be greater than 1/1.) Owner's share shall be the balance of
the amount of the Shared Assessment. For an assessment to be a Shared
Assessment, each of the following conditions must apply: (i) the assessment must
be for: (a) an improvement benefiting the Premises that has a useful life of
more than one (1) year, (b) special assessment related to sewer, water or taxes
and (ii) the amount of the assessment must exceed $5,000.
Nothing in this Lease shall require Tenant to pay any federal, state or
municipal business, income or excess profits or gross receipts taxes assessed
against Owner, or any federal, state or municipal estate, succession,
inheritance or transfer taxes of Owner, or corporation franchise taxes imposed
upon any corporate owner of the fee of the Premises. Owner represents and
warrants to Tenant that, as of the date hereof (i) there are not past due taxes,
and (ii) there are no pending abatements or tax appeals relating to the
Premises. Owner shall timely remit to the appropriate taxing authority any taxes
that are Owner's responsibility to pay under this Article.
37. Parking: As shown on Exhibit "D", the parking areas for trucks and
delivery vehicles made available in front of loading docks or loading areas are
not to be considered parking spaces but are provided solely for the efficient
loading and unloading of goods. Owner hereby grants to Tenant the right to use
those loading areas and docking areas as shown on Exhibit D, which loading areas
and docking areas are for the sole and exclusive use of Tenant. It is intended
that Tenant shall have the right for its own use of not more than the spaces
designated in Article 35 hereof, but if Tenant, its agents, employees, licenses
or invitees actually use more than said number of spaces on a regular basis,
Owner shall have the option of either requiring Tenant to pay to Owner
THIRTY-FIVE ($35.00) DOLLARS per month for each additional space so used during
the term hereof, or to cause Tenant to immediately cease and desist from so
using said additional spaces.
Tenant, its agents, servants, employees or invitees shall not cause or
permit any of its automobiles, trucks or other motor vehicles to be parked
overnight anywhere within Stratford Executive Park, except as permitted above.
It shall be the obligation of Tenant to insure that its officers and
employees will park in the areas so designated and will not obstruct the areas
of other tenants nor park along road sides and other areas not specifically
designated for parking. Owner shall have the right to use any lawful means to
enforce the parking regulations which have been promulgated in accordance with
the terms of this Lease, including but not limited to, the rules contained
hereinbelow.
38. Common Area Charge: Tenant shall pay as additional rent hereunder
(on a pro-rata monthly basis) an amount equal to $1.84 per square foot (or, viz,
$58,328 per lease year, the first lease year commencing on the Commencement Date
and ending one year thereafter and each subsequent lease year beginning on the
anniversary date of the prior lease year and ending one year thereafter), to
cover the cost to Owner of the expenses of common area maintenance. These
expenses include structural maintenance and repairs, insurance, snow plowing and
sanding parking areas, landscape maintenance, sprinkler system maintenance and
repairs, management, and administration. Commencing with the first anniversary
after the Commencement Date and annually thereafter, Tenant's Common Area
Charges shall be increased by an amount equal to $1.84 multiplied by the one (1)
year percentage of increase, if any, in the most recent
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Revised Consumer Price Index published closest to each anniversary date of the
prior lease year by the Bureau of Labor Statistics of the United States
Department of Labor for all urban wage earners and clerical workers - U.S. city
average (or any successor or substitute index appropriately adjusted) (1967
equals 100). For example, if the lease Commencement Date is December 1, 1997,
then for the first calculation (additional rent due for lease year two per
article 38) multiply $1.84 by a fraction, the denominator of which is fixed for
all calculations shall be the Index number for November, 1997 and the numerator
shall be the Index number for November, 1998. From the result of this
computation, there shall be deducted $1.84 and the difference shall be the
additional rent to be paid pursuant to this article. For the second calculation
(additional rent due for lease year three (3) per article 38), multiply $1.84 by
a fraction, the denominator or which is the Index number for November 1997 and
the numerator shall be the Index number for November 1999. From the result of
this computation, there shall be deducted $1.84 and the difference shall be the
additional rent to be paid pursuant to this article. Until the increase under
this paragraph is computed and a statement thereof is furnished to Tenant by
Owner, Tenant agrees to continue to pay the then current Common Area Charge
attributable to Tenant's annual share of common area charges as previously
determined under this paragraph. Within thirty (30) days following receipt of
the Owner's statement of the recomputed common area charge, Tenant shall pay any
increase for any prior months in the current lease year and shall thereafter pay
any monthly increases until the next recomputation of such charges. Any such
increase shall be considered additional rent hereunder. If publication of the
Consumer Price Index shall be discontinued, the parties hereto shall thereafter
accept comparable statistics on the cost of living as computed and published by
any comparable agency of the United States Government or any subdivision
thereof, or if no such statistics are available, comparable statistics published
by a financial periodical of recognized authority to be reasonably selected by
Owner and reasonably agreed to by Tenant. In the event of (i) use of comparable
statistics in place of the Consumer Price Index, as described above, or (ii) the
publication of the Index at other than monthly intervals, revisions shall be
made in the method of computation set forth in this Article 38 as the
circumstances may require to carry out the intent of this Article.
39. Insurance: 1. (a) Liability Insurance - Tenant agrees to provide
and keep in force comprehensive general public liability insurance against
claims arising out of the operation and control of the premises, in limits of
not less than $2,000,000.00 combined bodily injury and property damage. Owner
may periodically review, but not more often than once every two years the
adequacy of such coverage and to the extent commercially reasonable shall have
the right to require Tenant to increase the coverage equal to the amount of
coverage customarily carried by owners and/or tenants of similar buildings in
similar locations in the Stratford/Bridgeport area. Tenant has the right to
increase its deductibles to amounts that are considered prudent in the Fairfield
County area of Connecticut. The original of any such policy or certificate
thereof shall be delivered to the Owner showing that Owner has been named as an
additional insured except to extent of Owner's negligence or willful misconduct,
and renewals thereof shall be delivered to the Owner at least five (5) days
before the expiration of any existing policy. All such insurance shall be with
companies of recognized responsibility licensed to do business in the State of
Connecticut and shall provide that same may not be canceled by the carrier
without at least ten (10) days prior written notice to each insured. If Tenant
shall not deliver evidence of the existence of such insurance as required
herein, Owner may procure such insurance, at Tenant's expense, and Tenant shall,
on demand, reimburse Owner, as additional rent, for the cost thereof.
(b) Any failure on Tenant's part to promptly dispose of Tenant's
rubbish or accumulations of flammable material on the premises may have the
effect of increasing the insurance rate on the building and involve the Tenant
herein with additional liability.
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(c) Tenant shall be responsible for any increase in Owner's insurance
premium specifically caused by any subtenant of Tenant. The preceding sentence
shall not be deemed to be an implication that Owner consents to any subleasing
of the premises unless otherwise permitted in this lease.
(d) Tenant shall have the right to provide for its insurance under any
blanket policy carried by Tenant.
2. (i) During the term of this Lease, Owner shall maintain standard
commercial general liability insurance or equivalent form with a limit of not
less than $3,000,000 each occurrence. If such insurance contains a general
aggregate limit, it shall apply separately to this Lease or be no less than two
times the occurrence limit. Such insurance shall also: (i) include Tenant, its
officers and employees as insureds with respect to this Lease (such coverage not
to contain any special limitations on the scope of its protection afforded to
the prior listed insureds); and (ii) be primary with respect to any negligent
acts of Owner to any insurance or self-insurance programs covering the Tenant,
its officers and employees.
(ii) During the term of this Lease, Owner shall maintain all risk
property insurance on the Building, the Premises including all improvements,
alterations, additions or improvements made by it or Tenant during the Term, and
the Common Areas, insuring 100% of the replacement value thereof. All policies
shall provide protection against any peril included within the classification
"Fire and Extended Coverage" together with insurance against flood or water
damage, sprinkler damage, vandalism, explosion and malicious mischief.
(iii) During the term of this Lease, Owner shall maintain workers'
compensation insurance with statutory limits and employers' liability insurance
with limits of not less than $1,000,000 each accident.
(iv) Insurance to be carried by either party shall be maintained
with an insurer(s) holding a Best Rating of B+ or higher.
A Certificate of the insurer evidencing the existence and amount
of each required insurance policy shall be delivered by each party to the other
before the date Tenant is first given the right of possession of the Premises,
and thereafter within thirty (30) days after any written demand. No such policy
shall be cancelable except after thirty (30) days written notice to Owner and
Tenant. Each party shall furnish the other with proof of renewal or qualified
replacement policies at least ten (10) days before expiration of the original.
All coverages required under this Lease shall be maintained for the duration of
this Lease.
40. Owner's Obligations: (a) Notwithstanding anything contained herein
to the contrary in Article 4 hereof, the Tenant shall not be obligated to make
any repairs to the roof, foundation, all exterior utility lines, exterior walls,
load-bearing interior walls, common areas, parking and loading dock areas,
repairs mandated by law or any structural defects not caused by Tenant's
particular use of the premises (collectively, "Structural Repairs") unless said
repairs are made necessary by the omission, negligence or misconduct of Tenant
or Tenant's servants, employees, invitees or licensees. Owner shall perform at
its expense all Structural Repairs not required to be made by Tenant under this
subparagraph 40 (a). Tenant shall notify Owner of the same. If, within twenty
(20) days after such notice Owner fails to complete such repairs (or, if such
repairs are of a nature that they cannot reasonably be completed within such
twenty (20) day period, Owner fails to commence such repairs within such twenty
(20) day period and thereafter diligently prosecute the same to completion),
then Tenant may cause such repairs to be made at Owner's reasonable expense. If
Owner in good faith disputes its obligation to make
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any repair, such dispute shall be resolved by arbitration in Bridgeport,
Connecticut under the auspices and rules of the American Arbitration
Association. Tenant's right to cure set forth in the previous sentence shall be
subject to any such arbitration proceeding.
(b) Owner shall clean and remove snow and ice (or, if the removal of
ice is not reasonably possible, salt and sand the same) except that Tenant shall
remove snow and ice at Tenant's entrances and on any walkways solely for
Tenant's pedestrian use, or on any steps or ▇▇▇▇▇▇ or platforms leading to
Tenant's premises.
(c) Owner shall not be obligated to remove snow from areas in the
vicinity of Tenant's entrances or loading areas which were obstructed by a
parked vehicle at the time Owner's snow removal equipment was servicing the
area. Owner shall not be obligated to institute snow plowing unless the
accumulation exceeds one (1) inch.
(d) Owner shall not be required, unless otherwise agreed to in writing,
to furnish any service during hours other than those set forth in this Lease.
(e) Owner shall maintain at its expense the access roads and parking
areas in good order and repair. Tenant shall perform, at its expense, any
necessary repairs and maintenance with respect to the loading dock serving the
demised premises.
(f) Owner shall comply, at its expense, with those laws, ordinances,
rules and regulations (collectively, "Laws and Ordinances") applicable to the
building or the use and occupancy thereof, which Laws and Ordinances neither
Tenant nor any other occupant of the building is obligated to comply with.
41. Tenant's Obligations: (a) Tenant agrees not to employ any
contractor in connection with any services, provisions, alterations or
maintenance, unless Owner has first consented in writing to the contractor
(which consent shall not be unreasonably withheld or delayed), it being the
intention of Owner to limit the number of such contractors employed in the
Stratford Executive Park. Owner's disapproval of any contractor selected by
Tenant must be accompanied by the designation of two or more contractors
acceptable to Owner, whose prices must be reasonably competitive. In the event
Owner does not approve or disapprove Tenant's contractor within seven (7)
business days after receipt of written request therefor, then the contractor so
selected by Tenant shall be deemed to have been approved by Owner.
(b) With respect to any work to be performed by the Tenant on the
demised premises, in addition to any other limitations set forth in this Lease,
Owner does not consent to the reservation of any title by any conditional vendor
or secured party to any property which may be affixed to the realty so as to
become a part thereof, wholly or in any portion without material injury to the
freehold.
(c) Tenant shall within a reasonable time period remove snow, litter or
debris from the walkways, steps, leading from the common areas to Tenant's
entrances, exits and loading areas provided such walkways and steps are for the
sole use of Tenant.
(d) Tenant agrees, at its sole cost and expense, and throughout the
term of this Lease, to maintain in working order (including changing of filters
at least four (4) times per year), repair where necessary, the heating and air
conditioning units and systems by using reputable heating and air conditioning
contractors on a systematic basis, reasonably acceptable to Owner. Tenant shall
submit on demand evidence of its maintenance contracts, as aforesaid. Tenant's
obligations under this subparagraph (d) shall be conditioned upon Owner's
initial installation of heating and air conditioning equipment meeting the
criteria of Exhibits B and C hereto. Owner represents and warrants that the HVAC
systems serving the Building will be on the Commencement Date in good
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working order and repair. During the term of the Lease, Tenant agrees to make
repairs to the HVAC systems, not covered by Owner's warranty, so long as Tenant
shall not pay for a repair for any one HVAC unit which costs more than
$5,000.00. Any repair to one unit which costs more than $5,000.00 shall be a
shared capital replacement. Owner, however, shall be responsible for the
replacement of the HVAC systems and the replacement cost ("shared capital
replacement") shall be amortized over the life of the equipment and shall be
paid for as follows: Tenant's share shall equal the total cost of the shared
capital replacement multiplied by a fraction, the numerator which shall be the
number of months remaining in the Term (together with the number of months in
any exercised options to extend the Term) , at the time the shared capital
replacement is made and the denominator of which shall be the number of months
in the useful life of the shared capital replacement. Owner's share shall be the
balance of the cost. Each party shall pay its share of the cost of a shared
capital replacement directly to the contractor in accordance with the payment
terms in the contract. If Owner and Tenant fails to pay its share of the shared
capital replacement within thirty (30) days after their respective share is due,
than that party shall be in default of its lease obligations. In addition,
Tenant shall be allowed access to the roof to make any repairs to the HVAC
systems which are required by the terms of this Lease, it being agreed that this
access shall not require Tenant to make any repairs except those which are
specifically specified in the Lease. Upon the Lease Execution Date, Owner shall
provide Tenant with access to the Premises so that Tenant may make reasonable
repairs, additions and improvements to the Premises which Owner approves of by
execution of this Lease.
(e) Tenant agrees to purchase gas and electricity or any other fuel or
source of energy at any time being supplied to the demised premises from the
public utility company or the appropriate vendor servicing the demised premises
and shall pay directly to the applicable utility company or the appropriate
vendor the consumption of electricity and gas or other fuel referred to above.
Except for Owner's negligence or willful misconduct, Owner shall not in any way
be liable or responsible to Tenant for any loss or damage or expense which
Tenant may sustain or incur if either the quantity or character of electrical or
other such service is changed or is no longer available or suitable for Tenant's
requirements, where such change is due to circumstances beyond Owner's control.
Owner's responsibility shall be solely limited to the repair of any lines or
pipes serving the demised premises, the repair of which may be the
responsibility of Owner under the terms of this lease except for Tenant's
negligence or willful misconduct. In no event shall Owner be held responsible
for any failure on the part of the utility company to repair or service its
lines if such repair is not the Owner's responsibility or involves the line or
property of the utility company.
(f) Owner shall have the right to purchase energy or energy sources
other than those available for the public utility company or companies serving
the premises provided that such changes are mandated by public authority. Where
such allocation is not on a metered basis, but on a rent inclusion basis, the
allocation payable by Tenant shall be established by Owner's duly qualified
professional engineer. In the event Tenant disputes any such allocation, Tenant
may employ a reputable consultant to make a survey of the cost of such energy to
the demised premises. The determination of such consultant shall be promptly
submitted to Owner. If Owner's and Tenant's consultants cannot mutually agree as
to the cost of such energy, the matter shall be submitted to arbitration in
accordance with the rules of the American Arbitration Association. Pending
determination of such consultants' reports Tenant shall continue to pay the
charges as billed by Owner. Each party shall pay the cost of its own consultant.
Any final adjustment shall be made at the time of the arbitration award. Owner
shall not in any way be liable or responsible to Tenant for any loss or damage
or expense which Tenant may sustain or incur if either the quantity or character
of the energy to the building is changed or is no longer available or suitable
for Tenant's requirements, except that Owner shall
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diligently pursue such remedies as are reasonably consistent with the other
terms of this Lease, and as are reasonably within Owner's control.
(g) Tenant shall, at Tenant's expense, keep the demised premises clean
and in order, reasonable wear and tear and damage by casualty excepted, to the
reasonable satisfaction of Owner, and for that purpose shall employ the person
or persons, or corporations approved by Owner in accordance with
subparagraph 41(a) hereof.
(h) In addition to the provisions of subparagraph 41 (c), Tenant shall
pay the cost of removal of any of Tenant's refuse and rubbish from the building.
Tenant shall independently contract for the removal of such refuse and rubbish.
(i) Window coverings are for the Tenant's account and are discretionary
except where the demised premises front onto a roadway facing the front
entranceway of Tenant's premises. Where Tenant's industrial, as opposed to
office uses, are visible from the roadway, then in such event Tenant shall,
throughout the term of this Lease, provide draperies, blinds, or other suitable
coverage reasonably satisfactory to Owner on any windows so located except along
the rear drive.
(j) Tenant shall keep all interior sides of the windows in the demised
premises reasonably clean. However, Tenant shall not be required to clean
windows more often than once every year. Owner shall be required to clean the
outside of the windows no more than twice each year.
(k) Tenant shall replace, at the expense of Tenant, any and all plate
and other glass damaged or broken from any cause whatsoever in and/or around the
demised premises, and insure and keep insured at Tenant's expense all plate and
other glass in the demised premises for and in the name of Owner excepting,
however, Owner's negligence or misconduct. If such insurance cannot be obtained
at reasonable rates, Tenant may self-insure.
(l) Tenant will make application for telephone service directly to the
telephone company. Owner does not initiate or provide said service.
(m) Tenant shall pay the bills for lighting Tenant's entrances, loading
areas, common areas serving the Premises, and parking areas which Owner warrants
are separately metered.
42. Notwithstanding any other provisions contained in the instant Lease
herein to the contrary, Owner shall have the right, at any time (when, in
Owner's reasonable judgment,) the demised premises become substantially vacant,
to enter upon same for the purposes of preventative maintenance or otherwise,
whether or not Tenant has furnished the Owner with a key to the demised premises
prior thereto. If no key has been furnished by Tenant to Owner, and Owner is
required to break the existing lock or locks and insert new locks therein,
Tenant shall reimburse Owner for the cost thereof and same shall be deemed
additional rent due hereunder.
Owner shall furnish Tenant with keys to the demised premises at or
prior to the lease execution date so that Tenant may make reasonable repairs,
additions and improvements to the Premises which Owner approves of by execution
of this Lease per the provisions of Article 47.
Tenant shall continue to maintain the demised premises so as to prevent
damage thereto until the later of lease expiration or the date Tenant vacates
and surrenders the demised premises. Without limiting the foregoing Tenant shall
continue to supply heat
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and electricity to demised premises, together with all other utilities as
reasonably determined by Owner.
GENERAL
43. It is understood and agreed that this Lease is submitted to the
Tenant for signature with the understanding that it shall not bind the Owner or
Tenant unless and until it has been executed by the Owner and Tenant and
delivered to the Tenant or Tenant's attorney.
44. Intentionally Omitted
45. Any striking out or deletion of any portion of this Lease was done
as a matter of convenience for the purpose of execution, and the language
omitted is not to be given any effect whatsoever in construing this Lease.
46. Intentionally omitted.
47. Preparation for Occupancy and Possession: (a) The demised premises
shall be completed and prepared for Tenant's occupancy in a good workmanship
manner, and subject to the provisions of Article 63 hereto. Tenant and its
contractor shall be entitled to access to the demised premises prior to the
completion of Owner's work only so long as Tenant, its contractor and
subcontractors work in conformity with and do not materially interfere, in
Owner's reasonable judgment, with Owner, its contractors or subcontractors in
the completion of Owner's work
Owner may withdraw the license granted to Tenant to perform any work within the
demised premises pursuant to this subparagraph upon twenty-four (24) hours
written notice to Tenant in the event the Tenant's work interferes with Owner's
work and provided that Tenant does not cause a cessation of such interference
within such 24 hour period. Worker's Compensation, public liability insurance
and property damage insurance, all in amounts and with companies reasonably
satisfactory to the Owner shall be maintained by Tenant and/or its contractors
and subcontractors and certificates of such insurance shall be furnished to the
Owner prior to the commencement of any Tenant work. Tenant's selection of all
contractors and subcontractors must be in conformance with Article 41.
(b) The demised premises shall be deemed to be "substantially
completed" on the date on which Owner's work as shown on Exhibit "D" has been
completed and reasonably accepted by Tenant as complete notwithstanding the fact
minor or insubstantial details of construction, mechanical adjustment or
decoration remain to be performed, the noncompletion of which would not
materially interfere with Tenant's ability to begin Tenant's work as shown on
Exhibit "J". Within thirty (30) days after possession of the demised premises is
tendered following substantial completion of Owner's Work, Tenant shall provide
a punch list to Owner of items of Owner's Work requiring correction, and Owner
shall use best efforts to correct the items appearing on Tenant's punch list
within thirty (30) days thereafter with minimum interference with Tenant's use
of premises. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought. Owner shall guarantee the
work, shown on Exhibit's "B", "C" and "D", be responsible for and be obligated
to repair any of its work for a period of two (2) years after the Commencement
Date and latent defects during the lease term.
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(c) If the substantial completion of the demised premises is delayed by
reason of: (i) any act or omission of Tenant or any of its employees, agents or
contractors, including the failure of Tenant to comply with any of its
obligations under the work specifications; or (ii) any failure of Tenant or any
of its employees, agents, or contractors (not due to any act or omission of
Owner or any of its employees, agents or contractors) to execute Tenant's work
with reasonable speed and diligence; or (iii) any material changes by Tenant in
its drawings or specifications or any material changes or substitutions
requested by Tenant, then the demised premises shall be deemed substantially
completed on the date when they would have been substantially completed but for
such delay.
(d) Owner agrees to reasonably cooperate with Tenant in securing the
Certificate of Occupancy for the Premises.
48. Tenant may apply to Owner for the installation of signage. Such
requests shall be accompanied by a sketch showing the sign desired, its size,
type and manner of mounting specifying the materials and finishes employed in
the manufacture of same. Approval by Owner shall not constitute approval for
purposes of complying with rules and regulations of any public agencies
applicable. Owner will cooperate with Tenant in seeking any sign permits. It
shall be Tenant's obligation to secure such permissions or permits at Tenant's
expense. All approvals of Owner are not to be unreasonably withheld or delayed.
Owner authorizes Tenant to apply for any sign permits.
49. Whenever reference is made herein to public halls, elevators,
corridors, etc. and if none such are present on or about the premises demised
herein then such references shall have no relevance to the terms herein.
50. Wherever reference is made in this Lease to "business days", such
business days shall exclude also all days observed by unions having jurisdiction
over employees of Owner, Owner's managing agent, or Owner's cleaning contractor
as legal holidays.
51. The terms and provisions of this lease shall be construed in
accordance with and governed by the laws of the State of Connecticut.
52. Intentionally Omitted.
53. Mechanic's Liens: Tenant will not permit, during the term hereby
granted, any mechanic's or other lien or order for payment of work, labor,
services, or materials furnished or to be furnished to, attach to or affect the
demised premises or any portion thereof, and agrees that no such lien or order
shall under any circumstances attach to or affect the fee, leasehold or other
estate of the Owner herein, or the building. The Tenant's obligation to keep the
demised premises in repair, and its right to make alterations therein, if any,
shall not be construed as the consent of the Owner to the furnishing of any such
work, labor or materials within the meaning of any present or future lien law.
Notice is hereby given that the Tenant has no power, authority or right to do
any act which may create, or be the foundation for, any lien upon the fee or
leasehold estate of the Owner in the demised premises or upon the land or
building of which they are a part of the improvements now erected or hereafter
to be erected upon the demised premises or the land or building of which the
demised premises are a part; and if any such mechanic's or other lien or order
shall be filed against the demised premises or the land or building of which the
demised premises are a part, the Tenant shall, within thirty (30) days
thereafter, discharge said lien or order by payment, deposit or by bond fixed in
a proper proceeding according to law. If the Tenant shall fail to take such
action, or shall not cause such lien or order to be discharged within thirty
(30) days after the filing thereof, the Owner may pay the amount of such lien or
discharge the same by deposit or bond or in any other manner according to law,
and pay any judgment recovered in any action to establish or foreclose such lien
or order, and any amount so paid, together with
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the reasonable expenses incurred by the Owner, including all reasonable
attorney's fees and disbursements incurred in any defense of any such action,
bonding or other proceeding, shall be deemed additional rent.
54. Wherever reference is made to the building or the Stratford
Executive Park, it shall mean the building or the Executive Park in which the
demised premises are located.
55. Work Specifications: The plans prepared by Owner in accordance with
Article 63 hereof are subject to revision based on the rules and regulations of
such reviewing agencies as the local board of inspectors, the state labor
department, OSHA and related agencies. Any changes in door swings, arrangements
of exits and/or passages mandated by such agencies shall be binding on Owner and
Tenant as if they had been incorporated into the original plans as attached
hereto unless Tenant can propose an alternative change that is acceptable to the
authority mandating the changes.
Owner shall have the right to add exits, entrances or passageways
whenever necessary to comply with present or future regulation by applicable
public authority. Tenant shall pay the cost thereof where the requirement for
such addition is due solely to Tenant's special use of premises and not the use
of premises in general.
56. RULES AND REGULATIONS: The following Rules and Regulations are
uniformly and consistently enforced throughout the Stratford Executive Park.
A. Tenant and its officers, employees, agents, customers and invitees
shall have the right, in common with Owner and all others to whom Owner has
granted or may hereafter grant rights, to use the common areas as designated
from time to time by Owner subject to such reasonable rules and regulations as
Owner may, from time to time, impose including the designation of special areas
in which cars, trucks and other vehicles owned by the Tenant, its officers,
employees, agents, customers and invitees (including customers, shippers, etc.)
must be parked. Tenant shall, upon request, promptly furnish to Owner the
license number of the cars and trucks operated by Tenant, its officers and
employees. Tenant shall not at any time interfere with the rights of Owner,
their officers, employees, agents, customers and invitees to use any part of the
parking areas and other common areas not specifically allocated to Tenant.
B. At Owner's sole cost and expense, without limiting the provisions of
Paragraph 35, Owner may promulgate such rules and regulations with regard to the
use of common areas to prevent the loss to Owner of exclusive control over said
area.
C. It shall be Tenant's responsibility to keep the loading areas free
of all refuse and debris and to arrange promptly for removal of any such
materials which are not removed as part of Tenant's regular refuse removal
contract. If Tenant fails to remove substances such as, but not limited to
miscellaneous lumber, pallets, crates, packing materials, barrels or drums, etc.
Owner shall have the right upon ten (10) days written notice to remove or to
arrange for the removal of such substances, and to charge Tenant the reasonable
cost thereof, which shall constitute additional rent under the terms of this
Lease. Tenant shall promptly repair any damages to structures, paved areas and
other common areas which have been damaged by Tenant, its agents, employees,
servants or licensees. Tenant shall not store any goods outside the building.
Tenant can use the loading area to park its storage trailer.
D. Upon vacating the premises, Tenant shall surrender to Owner
originals or duplicate copies of all contracts and invoices in Tenant's
possession for mechanical maintenance, services for heating and air conditioning
equipment, including dates of service and nature of service performed. No
security deposit (if then on deposit with Owner) shall be returnable until
Tenant has complied with the conditions hereinabove.
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Nothing contained in this paragraph, however, shall be deemed to give Tenant the
right to bind Owner in any way, and no service contract shall run beyond the
term of this Lease as same may be terminated hereunder unless consented to in
writing by Owner.
E. Tenant shall, subject to the other applicable terms of this Lease,
remove, on vacating the premises, any private telephone systems, communicating
systems or security systems unless Owner has specifically consented in writing
to their remaining on the premises.
F. Wherever Tenant shall have affixed wall coverings, wall fixtures
such as wall shelving, hooks, pictures, etc. to the walls and shall have
covered, obscured or penetrated Owners standard painted finish, Tenant shall be
responsible, upon removal from the premises, to leave behind a wall surface that
is intact, generally acceptable in color or type, and if not easily repaintable,
shall be removed and the surface restored to a paintable condition. Where such
wall coverings are serviceable or repairable they may be left in place.
G. Tenant shall, upon vacating the premises, promptly surrender to
Owner l keys to the premises. If keys have not been returned, Tenant shall be
liable for the cost to Owner of replacing locks and keys.
H. Notwithstanding anything contained in Article 4 hereof, Tenant may
make nonstructural repairs without Owner's consent and may, if approved by Owner
in writing, which approval shall not be unreasonably withheld, delayed or
conditioned, make interior structural alterations provided Tenant complies with
all of the following conditions with respect to any such alteration costing in
excess of $50,000.00:
1. Tenant furnishes Owner a plan of the proposed alterations prior
to construction for Owner's prior written approval;
2. Tenant furnished Owner with an "as built" plan upon completion
of alterations;
3. Tenant will obtain all governmental permits and pay all
applicable governmental fees;
4. Tenant will use only contractors reasonably approved by Owner
and duly licensed for such work where applicable;
5. Tenant will perform all alterations in a good and workmanlike
manner in accordance with standards at least equivalent to the standard
prevailing in the building or buildings of which the demised premises form a
part.
6. Tenant accepts full responsibility for any changes in
sprinklers, passages, legal exits, etc. which may be necessitated solely by such
alterations and shall not do any work which shall adversely affect the remainder
of the building of which the demised premises form a part;
7. Should such alterations result in any change in assessment due
to the improvements made, Tenant will pay all such additional taxes as may
become due on account of such alterations or improvements as set forth in
Article 36 (c);
8. Upon vacating the space, Tenant agrees to remove such
alterations and to reconstitute the premises to the condition in which they were
delivered, normal wear and tear excepted, if so requested by Owner unless Owner
has waived this requirement in writing;
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9. In the event Tenant shall be authorized by Owner to remove any
partitions, Tenant shall be responsible for any repairs to be specifically
authorized to remove said partitions, whether installed by Owner or Tenant. Such
partitions shall be deemed part of the realty and shall not be removed. Nothing
herein contained shall prevent Owner, however, from requiring Tenant to remove
any installation installed by or on behalf of Tenant of whatever nature
whatsoever;
10. Except in the event of an emergency and as permitted by Section
41d, Tenant shall not make any installation on or through the roof, nor shall
Tenant or Tenant's agents enter upon the roof or place objects thereon without
the specific written permission of Owner. Owner makes no representation, implied
or expressed, as to the load bearing capacity of the roof at any one point, and
Tenant shall be responsible for any construction, reconstruction or
reinforcement necessary to make the roof suitable for Tenant's installation
purposes. Tenant shall, however, not be responsible for any construction,
reconstruction or reinforcement on the roof if repairs are required of Tenant
under this Lease, it being agreed that Owner has represented that the roof is
capable of supporting HVAC equipment necessary to maintain the building with
ample heat and air conditioning.
I. If carpeting is furnished by Owner and if credit has been given
towards such carpeting for the omission of the standard vinyl composite floor
tile, then, in that event, even though Tenant may have contributed toward the
cost of the carpeting, the carpeting will remain the property of the Owner.
Where Tenant has paid for carpeting in full, and where such carpeting is
installed on the top of standard vinyl composite tile, Tenant may remove
carpeting upon vacating the premises provided all tackless installation strips
are removed, all floor tile has been repaired or replaced as necessary, and all
vinyl base or other floor base has been reset to the level of the tile floor,
repairing whatever wall or floor damage or repainting may be necessary. Wherever
carpeting is installed by the Tenant, by Tenant's contractors or at Tenant's
direction, no carpeting shall be installed with an integral foam rubber backing,
nor shall carpeting be installed by gluing or other forms of cementing directly
to the floor. Where such carpeting is installed in contravention to this
provision, Tenant shall be liable for the costs of removing such glues or
cements and reconstituting the floor to its original condition, and recovering
with acceptable carpet installed in an acceptable manner, or with 1/8" vinyl
composite tile satisfactory to Owner.
J. The water and wash closets and plumbing fixtures shall not be used
for any purpose other than those for which they were designed or constructed and
no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
K. Tenant shall not sweep or throw or permit to be swept or thrown from
the demised premises any dirt or other substances out of the doors or stairways
or loading docks of the building.
Tenant shall not bring or permit to be brought or kept in or on the
demised premises any illegal amounts of flammable, combustible or explosive
fluid, material, chemical or substance, or cause or permit any odors of cooking
or other processes, or any unusual or other objectionable odors to permeate in
or emanate from the demised premises.
L. Tenant's use of electric current shall not exceed the capacity of
the then existing feeders to the building or the risers or wiring installation
and Tenant may not use any electrical equipment which, in Owner's reasonable
opinion, will overload such installations.
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57. If the Tenant intends to remain in possession of the premises
beyond the termination of the Lease term herein, the Tenant shall give written
notice, by Certified Mail, Return Receipt Requested, to the Owner to such effect
at least ninety (90) days prior to the date on which Tenant expects to vacate
the premises. For the time period which constitutes the holdover tenancy, the
monthly rental shall be one hundred fifty (150%) percent of the total monthly
rent paid during the last month of the Lease term herein. Subsequent to the
first ninety (90) days of the holdover period the rental shall be that which the
Owner shall determine from time to time not to exceed two hundred (200%)
percent.
58. Tenant shall look solely to the interest of the Owner in the
building for the satisfaction of Tenant's remedies, and no other property or
assets of the Owner shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies. For the purposes of this
Article 58, "the interest of the Owner in the building" shall be deemed to
include Owner's interest in the proceeds of a sale of the building or in
insurance and/or condemnation proceeds arising out of a casualty to or taking of
the building.
59. Intentionally omitted.
60. Any provision of this lease which requires Owner not to
unreasonably withhold its consent or approval shall never be the basis for an
award of damages or give rise to a right of setoff or termination to Tenant, but
may be the basis for a declaratory judgment or specific injunction with respect
to the matter in question.
61. If Tenant shall fail to pay when due any installment of Annual
Fixed Rental or any additional rent Tenant shall pay on the tenth day after the
due date thereof a late charge equal to five (5%) percent of the unpaid amount.
In addition, if Tenant shall fail to pay within fifteen (15) days after the due
date, any installment of fixed annual rental or any additional rent, Tenant
shall pay interest thereon at an annual rate equal to two percent above the rate
designated as its prime rate by Fleet Bank CT. (or its successor) as of the due
date, such interest being payable for the period from the due date to the date
of payment. Such interest shall be deemed additional rent.
62. Security Deposit: Upon the Term Commencement Date, Tenant shall
deliver to Owner, an irrevocable Letter of Credit, in the amount of $35,000 as
security for the payment, performance and observance by Tenant, of the terms,
conditions, and provisions of this Lease. Tenant's failure to deliver the Letter
of Credit within thirty (30) days after the date due shall be deemed a default
by Tenant hereunder. Tenant shall have the right at any time during the Term of
this Lease to substitute cash for the Letter of Credit in which case the Letter
of Credit shall be returned to Tenant simultaneously with Tenant's delivery of
the cash security deposit. The Letter of Credit shall be in the form and
substance of the sample letter of credit attached hereto as Exhibit "H", name
the Owner as its beneficiary, and expire no sooner than the termination of this
Lease. If the initial term of the Letter of Credit will expire sooner than the
termination date of this lease, Tenant shall, from time to time as necessary,
renew or extend the original letter of credit and any subsequent letter of
credit not less than ten (10) days prior to its stated expiration date. If
Tenant fails to furnish such renewal or replacement Letter of Credit prior to
the stated expiration date of the Letter of Credit, then held by Owner, Owner
may draw upon such Letter of Credit and hold the proceeds thereof as a security
deposit pursuant to the terms of this Article. Owner may, from time to time,
without prejudice to any other remedy, use all or a portion of the security
deposit to make good any arrearages of rent, to repair damages to the Premises
caused by Tenant or otherwise to satisfy any other covenant or obligation of
Tenant hereunder. If Owner transfers its interest in the premises during the
Lease Term, Owner shall assign the security deposit to the transferee.
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The security deposit, whether a Letter of Credit or cash, shall be
returned to Tenant within five (5) days after the Termination Date of this Lease
provided there is no event of default hereunder.
63. Owner's Work, Fixed Rent, and Tenant's Work: (a) Upon execution of
this Lease by Tenant and Owner, Owner shall cause work to be performed by Owner
in the demised premises as shown on Exhibit D. Owner shall perform the work
called for on Exhibit "D", and shall diligently proceed to complete the same
according to the following schedule: The existing 27,700 square foot building
interior demolition work shall be completed by Owner in three (3) weeks and
after completion available for Tenant to begin Tenant's work. The 4,000 square
foot addition shall be of the same design and quality as the existing building
and shall be completed by Owner in eight (8) weeks and after completion,
available for Tenant to begin Tenant's work. The Building and the 4,000 square
foot addition will function as one building. Owner's work shall be performed in
accordance with the specifications and conditions set forth in Exhibits B, C,
and D hereto.
(b) Should Owner fail to complete its work on time, Owner shall deliver
a written notice to Tenant on the date Owner's work should have been completed
advising Tenant of the "Revised Completion Date." Should the Revised Completion
Date exceed five (5) days beyond the time periods specified in Article 63.(a)
then the Commencement Date of this lease shall be delayed for the same number of
days beyond the original time periods specified in Article 63.(a). Should Owner
fail to deliver the premises to Tenant per Article 63.(a) after sixty (60) days
of delays which delays were not caused by any Force Majeure Delays, then Tenant
shall have the right to terminate this lease.
(c) Upon execution of this Lease by Owner and subject to the provisions
of Article 63.(a), Tenant shall cause plans to be prepared and cause work to be
performed by Tenant at Tenant's sole cost and expense in the demised premises.
These plans shall be called Exhibit "J". Exhibit "J" shall be subject to Owner's
approval, which shall not be unreasonably withheld, delayed or conditioned. If
Owner has not disapproved by notice to Tenant (with specifics) Exhibit "J"
within five (5) business days after receipt thereof, Exhibit "J" shall be deemed
approved by Owner. Tenant shall perform the work call for on Exhibit "J" and
shall diligently proceed to complete the same after approval of Exhibit "J" by
Owner. Tenant shall complete its work per the provisions of Article 56. H,
numbers 1, 2, 3, 4, 5, 6, and 7 along with all other applicable provisions of
this Lease.
(d) The annual fixed rent payable hereunder shall be as follows, with
the first lease year commencing on the Commencement Date and each subsequent
lease year commencing on the first day of the thirteenth month thereafter:
Annual Fixed Rent Additional Rent Lease Year(s)
----------------- --------------- -------------
$198,125 plus additional rent per Articles 36 and 38 1
$198,125 plus additional rent per Articles 36 and 38 2
$198,125 plus additional rent per Articles 36 and 38 3
$198,125 plus additional rent per Articles 36 and 38 4
$198,125 plus additional rent per Articles 36, 38 & 69 5
$198,125 plus additional rent per Articles 36, 38 & 69 6
$198,125 plus additional rent per Articles 36, 38 & 69 7
$198,125 plus additional rent per Articles 36, 38 & 69 8
$198,125 plus additional rent per Articles 36, 38 & 69 9
$198,125 plus additional rent per Articles 36, 38 & 69 10
Upon substantial completion of Owner's work, Tenant will pay to Owner
$21,371.08 thirty (30) days after notice, which represents Tenant's first
monthly rent obligation for the first lease year of the initial term hereof.
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64. Provided there is no Event of Default under this Lease at the time
of exercise of any Option Term or at the Commencement of the Option Term, Tenant
shall have two separate options to extend the term of this Lease for a period of
five (5) years each from the date upon which it would otherwise expire upon the
following terms and conditions:
The first option may be exercised only by written notice by Tenant to
Owner at least ninety (90) days prior to expiration of the base term of this
Lease and the second option may be exercised by written notice by Tenant to
Owner at least one hundred eighty (180) days prior to the expiration of the
First Option Term of this Lease.
64.A. FIRST OPTION TERM. Tenant shall have an option to extend the term
of this Lease for an additional period of five (5) years (first option term)
(Years 11-15) from the date upon which it would otherwise expire, upon the same
terms and conditions as herein provided, except that (i) Owner shall have no
obligation to perform any work in the demised premises except as otherwise set
forth herein and (ii) the Annual Fixed Rental for each year of the first option
term shall be the greater of (x), the Annual Fixed Rental for lease year 10 and
(y), the Fair Rental Value of the premises for like office, research and testing
space with ancillary assembly space.
64.B. During this option term, additional rental payments for Tenant's
pro-rata share of taxes and common area maintenance under Articles 36 and 38 of
this lease shall continue to be computed as if the initial lease term had been
15 years.
64.C. SECOND OPTION TERM. Tenant shall have an option to extend the
term of this Lease for an additional period of five (5) years (second option
term) (Years 16-20 from the date upon which it would otherwise expire, upon the
same terms and conditions as herein provided, except that (i) Owner shall have
no obligation to perform any work in the demised premises except as otherwise
set forth herein and (ii) the Annual Fixed Rental for each year of the second
option term shall be the greater of (x) the Annual Fixed Rental for lease year
15 and (y) the Fair Rental Value of the premises for like office, research and
testing space with ancillary assembly space.
64.D. SECOND OPTION TERM. During this option term, additional rental
payments for Tenant's pro-rata share of taxes and common area maintenance under
Articles 36 and 38 of this lease shall continue to be computed as if the initial
lease term had been 20 years.
64.E. FAIR RENTAL VALUE. The initial determination of Fair Rental Value
for like kind office, research and testing space with ancillary assembly space
shall be made by Owner. Owner shall give notice to Tenant of the proposed Fair
Rental Value at least four months prior to the commencement of the option term.
If Owner and Tenant shall fail to agree upon the Fair Rental Value proposed by
Owner within sixty (60) days, then Owner and Tenant each shall give notice to
the other setting forth the name and address of an arbitrator designated by the
party giving such notice. If either party shall fail to give notice of such
designation within five days of such notice, then the arbitrator chosen shall
make the determination alone. If two arbitrators shall have been designated,
such two arbitrators shall make their determinations of Fair Rental Value for
like kind office, research and testing space with ancillary assembly space in
writing and give notice thereof to each other and to Owner and Tenant. Such two
arbitrators shall have thirty days after the receipt of notice of each other's
determinations to confer with each other and to attempt to reach agreement as to
the determination of Fair Rental Value. If such two arbitrators shall concur as
to the determination of Fair Rental Value, such concurrence shall be final and
binding upon Owner and Tenant. If such two arbitrators shall fail to concur,
then such two arbitrators shall immediately designate a third arbitrator, who
shall satisfy the requirements set forth herein for an arbitrator. All
arbitrators designate or chosen hereunder shall be commercial real estate
appraisers,
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brokers or consultants who shall have had at least ten (10) years continuous
experience in the business of commercial real estate in Fairfield County,
Connecticut. The third arbitrator shall conduct such hearings and investigations
as he may deem appropriate and shall, within thirty (30) days after his
selection, choose one of the determinations of the two arbitrators originally
selected by the parties, and that choice by the third arbitrator shall be
binding upon Owner and Tenant. The determination rendered in accordance with the
provisions of this paragraph shall be final and binding in fixing Fair Rental
Value. The arbitrators shall not have the power to add to, modify or change any
of the provisions of this Lease. Each party shall pay its own expenses in
connection with any arbitration under this paragraph, including the expenses and
fees of any arbitrator selected by it in accordance with the provisions of this
paragraph. The parties shall share equally the fees and expenses of the third
arbitrator, if any, selected under this paragraph. If the two arbitrators
selected by the parties shall fail to agree upon the designation of a third
arbitrator within five business days, then either party may apply to the
American Arbitration Association or any successor thereto having jurisdiction
for the designation of such third arbitrator.
64.F. If for any reason Year Eleven Rent or Year Sixteen Rent shall not
have been determined prior to the commencement of the option term, then until
such Year Eleven Rent or Year Sixteen Rent shall have been finally determined,
the interim Annual Fixed Rental payable hereunder shall equal 100% of the sum of
the Annual Fixed Rental payable by Tenant as of the expiration of the initial
lease term. Once the Year Eleven Rent or Year Sixteen Rent has been determined,
the same shall be payable as of the commencement of the Option Term, and any
necessary adjustment in the amount of the rents therefor paid by Tenant shall be
made within thirty (30) days by Owner.
65. If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty within the last year of the initial term or
any extended term, Tenant may elect to terminate this lease by notice to Owner
written within sixty (60) days after such casualty; whereupon this lease shall
expire as if the termination date had occurred effective as of the date of
casualty and Tenant shall forthwith quit, surrender and vacate the demised
premises without prejudice, however, to Owner's rights and remedies against
Tenant hereunder prior to such termination and any rent owing shall be paid to
the date of casualty. If Tenant does not terminate the Lease, Owner shall
restore the Premises in accordance with the casualty provisions of the Lease set
forth in Article 8.
66. In the event that Tenant shall desire to sublet the demised
premises or to permit the same to be occupied by any person other than Tenant,
its officers or employees, in its entirety, Tenant shall submit in writing to
Owner the name of the proposed subtenant or occupant, the nature of and
character of its business, the terms and conditions of the proposed subletting,
reasonable and necessary information as to the financial responsibility and
standing of the proposed subtenant and such other information as Owner may
reasonably request. Owner shall not unreasonably withhold or delay its consent
to the proposed subletting. No such consent by Owner to Tenant's subletting
shall constitute a release by Owner of Tenant's obligations under this Lease,
and no such consent shall be deemed to permit subtenant to further sublet any or
all of the demised premises. In no event shall Tenant be permitted to advertise
the demised premises at a rental less than the prevailing or reasonable rental
for similar space at the time of the execution of such sublease. Tenant shall
have the herein right to sublet the demised premises provided Tenant is not then
in default beyond any applicable cure period under the terms and conditions of
this lease. The word "surrender" as used above shall imply that if Owner accepts
such surrender, Tenant shall thereafter be relieved of any further obligations
under this Lease. Tenant shall not sublet any portion of the premises nor
assign, mortgage or encumber this lease without the prior written consent of
Owner in each instance without consent of Owner not to be unreasonably withheld
or delayed.
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67. Except in case of emergency, any entry by Owner into the demised
premises as permitted hereunder shall be made subject to the provisions of
Article 7 of this Lease.
68: ENVIRONMENTAL REQUIREMENTS FOR HAZARDOUS WASTE AND MATERIALS:
A. No activity shall be undertaken on the demised premises or property of which
it is a part ("Premises") by Tenant which would cause (i) the premises to become
a hazardous waste treatment, storage or disposal facility in violation of the
Solid Waste Disposal Act, as amended, 42 U.S.C. 6901 et seq., as the same may be
amended, from time to time ("RCRA"), or any similar state laws, regulations or
local ordinances, (ii) a release or threatened release of any hazardous
substance from the premises which would cause Owner to incur response costs
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. 9601-9657, as the same may be amended from time
to time ("CERCLA"), or any similar state laws, regulations or local ordinances,
(iii) the discharge of Hazardous Materials into any waters of the United States,
or the emission of any air pollutant, in violation of either the Clean Water
Act, as amended, 33 U.S.C. 1251 et seq., or the Clean Air Act, as amended, 42
U.S.A. 7401, et seq., or any similar state laws, regulations or local
ordinances, or (iv) the manufacture, processing, distribution in commerce, use,
or disposal of any chemical substance or mixture in violation of the Toxic
Substances Control Act, 15 U.S.C. Section 2601, et seq. (the "Act");
B. Tenant and Owner shall comply strictly and in all respects with the
requirements of the Environmental Laws and shall notify the other promptly in
the event of any violation of Environmental Laws, as defined above in Article
68.A upon the Premises, and shall promptly forward to the other copies of all
orders, notices, permits, applications or other communications and reports in
connection with any such violation or any other matters relating to the
Environmental Laws as they may affect the Premises;
C. In connection with Tenant's use of the building and with respect to any
violation caused by Tenant, its agents, employees, servants or licenses of laws
governing the use of the Premises by Tenant, Tenant shall indemnify Owner and
hold Owner harmless from and against all loss, liability, damage and expense,
including reasonable attorney's fees, suffered or incurred by Owner, its
successors or assigns (i) under or on account of Tenant's violation of the
Environmental Laws, including the assertion of any lien thereunder; and (ii) the
use, generation, treatment or storage or disposal of any Hazardous Materials by
Tenant, its agents, employees, servants, or licenses;
D. Owner agrees to indemnify, defend and hold harmless Tenant, its parent,
subsidiaries, divisions and affiliates, and their respective officers,
directors, shareholders and employees, from and against any and all liabilities,
losses, damages, suits, actions, causes of action, costs, expenses (including
without limitation reasonable attorneys' fees and disbursements and court
costs), penalties, fines, demands, judgments, claims or liens (including without
limitation liens or claims imposed under any so-called "Superfund" or other
environmental legislation) arising from or in connection with the presence at,
over or under the Property of all Hazardous Materials, excepting, however, any
Hazardous Materials brought onto the Property by Tenant, or the subsequent
removal thereof from, the Property. For purposes of this Lease, Hazardous
Materials shall mean substances defined as "hazardous substances", "toxic
substances", "oil" or "hazardous waste" in The Federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended; The
Federal Hazardous Materials Transportation Act, as amended; and all state,
federal and local laws regulating Hazardous Materials as such substances are
defined in the regulations adopted and publications promulgated pursuant to said
laws, but shall not include those substances or products used in amounts and for
purposes approved by governmental authorities or those typically used, stored,
generated or
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disposed of in a facility of this type provided such substances have been and
are used, stored, generated or disposed of in compliance with all environmental
laws. Owner represents and warrants that the Premises are free of Hazardous
Materials as of the date hereof. In the event of any violation of Environmental
laws by Tenant affecting the premises, if Tenant shall fail to comply with any
of the requirements of the Environmental Laws, Owner may at its election, but
without the obligation to do so, give such notices and/or cause such work to be
performed at the premises and/or take any and all other actions as Owner shall
deem necessary or advisable in order to remedy said violation or cure said
failure of compliance, and any amounts paid as a result thereof, together with
interest thereon at the interest rate after default set forth in the Lease from
the date of payment by Owner, shall be immediately due and payable by Tenant to
Owner as additional rent and shall to the extent permitted by law have the
benefit of any lien hereby created as a part of this Lease. The occurrence,
presence or discharge of any Hazardous Materials by Tenant shall not constitute
an Event of Default under this Lease so long as Tenant complies with the
requirements of Environmental Laws as provided above and has not caused the
presence or discharge of Hazardous Materials in violation of Environmental Laws.
Should a discharge of Hazardous Materials occur on the Premises which by
Environmental Law requires Tenant or reasonably warrants Tenant to perform
testing, then upon receiving Owner's consent which shall not be unreasonably
withheld, conditioned or delayed, Tenant shall perform the testing. Tenant
agrees to restore any areas of the Land and Premises affected by such testing to
the grade which existed immediately prior to such testing and indemnify, defend,
and hold harmless Owner from any loss or damage from its testing on the
Property.
Whenever the Environmental Law statute or regulation requires the
"owner or operator" to obtain a permit that is due to Tenant's particular use of
the Premises, Tenant shall do such act or obtain such permit at its sole cost
and expense, it being the intention of the parties hereto that Owner shall be
free of all expenses and obligations arising from or in connection with
compliance therewith and that Tenant shall fulfill all such obligations and pay
all such expenses.
The Tenant and Owner shall promptly notify the other in writing of any
order or pending or threatened action by any regulatory agency or other
governmental body, or any claims made by any third party, relating to Hazardous
Materials on, or emanations from, the premises, and shall promptly furnish the
other with copies of any correspondence of legal pleadings in connection
therewith. In addition, the Owner and Tenant shall have the right, but shall not
be obligated, to notify any state, federal or local governmental authority of
information which may come to its attention with respect to Hazardous Materials
on or emanating from the premises and Tenant irrevocably releases Owner from any
claims of loss, damage, liability, expense or injury relating to or arising
from, directly or indirectly, any such disclosure.
Following (i) any spill affecting the premises caused by Tenant, (ii)
any violation of the Environmental Laws with respect to the premises caused by
Tenant, (iii) any order, action or threatened action by any regulatory agency or
other governmental body, or any claim made by any third party, relating to
Hazardous Materials on, or emanations from the premises caused by Tenant, (iv)
or at any time following the occurrence of an Event of Default by Tenant with
respect to Paragraph 68, the Owner may require the Tenant to provide the Owner,
at the expense of the Tenant, an inspection or audit of the premises, prepared
by a qualified consultant reasonably approved by Owner, certifying as to the
presence or absence of Hazardous Materials, or to permit the Owner to so inspect
or audit the premises at the Tenant's expense, and Tenant hereby grants Owner,
its employees, agents, and independent contractors, the right to enter upon the
premises for the purpose of conducting tests, soil borings, the installation of
monitoring ▇▇▇▇▇ and such other tests as Owner deems reasonably necessary or
desirable. Owner agrees to restore the Building (including Premises) and any
areas on the Land and Premises affected by such testing to
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the grade which existed immediately prior to such testing and indemnify, defend,
and hold harmless Tenant, its parent, subsidiaries, divisions and affiliates
from any loss or damage from its entry onto the Property.
The party seeking indemnification under this Lease (the "Indemnified
Party") shall provide prompt written notice of any third party claim to the
party from whom such indemnification is sought (the "Indemnification Party").
The Indemnifying Party shall have the right to assume exclusive control of the
defense of such claim or, at the option of the Indemnifying Party, to settle the
same. The Indemnified Party agrees to cooperate reasonably with the Indemnifying
Party in connection with the performance of the Indemnifying Party's
indemnification obligations under this Lease. In the event that the Indemnifying
Party fails to perform such obligations, the Indemnified Party shall have the
right to do so at the Indemnifying Party's expense.
Notwithstanding anything to the contrary contained in this Agreement,
in no event shall either party be liable for any indirect, special,
consequential or incidental damages (including without limitation damages for
loss of use of facilities or equipment, loss of revenue, loss of profits or loss
of goodwill), regardless of whether such party (i) has been informed of the
possibility of such damages or (ii) is negligent.
E. Survival of Lease Expiration. Tenant and Owner agrees that each and every
provision of these provisions shall survive the expiration or earlier
termination of the term of this lease, the parties hereto expressly
acknowledging and agreeing that Owner and Tenant would not enter into this lease
but for the provisions of these provisions and the aforesaid survival thereof.
69. "Cost of Living Increase"
69.1 In addition to the Annual Fixed Rent, and additional rent, which
the Tenant has agreed to pay hereunder, Tenant shall also pay, as additional
rent, each year after lease year 4, such amount as is determined in accordance
with the provisions of this Article 69.
(i) Commencing with the beginning of the fifth year of the lease
term and every year thereafter during the original term only, the Base Rent
(which is defined in lease year five to be $198,125 and each following year to
be the sum of $198,125 and all additional rent due per Article 69 prior to the
time of the current Cost of Living Increase calculation), shall be increased by
the one (1) year percentage change in the Consumer Price Index (CPI) for New
York, New York Northeaster New Jersey (all items), (the "Index"), by multiplying
the then current Base Rent by a fraction, the denominator of which shall be the
Index number for the twelfth month of lease year three and every year thereafter
and the numerator of which shall be the Index number for the twelfth month of
lease year four and every lease year thereafter. From the result of this
computation there shall be deducted the then current Base Rent and the
difference shall be the additional rent to be paid pursuant to this article. As
clarification to the preceding, the formula to be used for the Cost of Living
Increase shall be calculated as follows: For example, if the lease Commencement
Date is December 1, 1997, then for the first calculation (additional rent due
for lease year five per article 69), the denominator shall be the index number
for November of the year 2000 and the numerator shall be the index number for
November of the year 2001 and the Base Rent equals $198,125. For the second
calculation (additional rent due for lease year six per this Article 69) the
denominator shall be the index number for November of the year 2001 and the
numerator shall be the index number for November of the year 2002 and the Base
Rent equals the sum of $198,125 and the additional rent due per this article for
lease year five. The Base Rent increase shall not exceed a three (3%) percent
increase in any one year period. If such Index is no longer available, a
substitute equivalent Index shall be employed. If the Owner and
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Tenant cannot agree upon a substitute equivalent Index, the American Appraisal
Association shall be called upon to designate the Index. The cost attendant
thereto shall be divided equally between Owner and Tenant.
(ii) The Owner shall, within a reasonable time after computing
such increase, give the Tenant notice of the increase so determined. Any dispute
between the parties as to any such computation shall be determined by
arbitration.
(iii) No adjustments or recomputations retroactive or otherwise,
shall be made because of any revision which shall later be made in the first
published figure for any month.
(iv) Such additional rent shall be paid in twelve (12) equal
payments to Owner within thirty (30) days after Owner has billed Tenant
therefor.
(v) The balance of this additional rent shall be paid in monthly
installments together with the fixed rent payable for said month.
70. Additional Provisions:
a. Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have the right to make, without Owner's consent, an assignment of
this Lease or subletting of all or any portion of the premises to (a) a parent,
subsidiary, affiliate or division of Tenant, (b) any entity with which or into
which Tenant may consolidate or merge, or (c) any entity acquiring all or
substantially all of the assets of Tenant. Tenant must remain liable.
b. Notwithstanding anything to the contrary contained herein, in no
event shall Tenant be obligated to make any repairs or replacements which would
constitute items of expense which are required as the result of the negligence
or willful misconduct of Owner, its agents, employees, representatives or
contractors, or the failure of Owner to perform any of its obligations under
this Lease, all of which repairs and replacements shall be made by Owner at
Owner's sole cost and expense. Owner shall maintain, at its sole cost and
expense, the foundation, floorslab, exterior walls, load-bearing interior walls,
steel frame, structural portions, roof, gutters, downspouts of the Building,
common areas, parking areas, as well as all utility lines, pipes and plumbing,
serving but located outside of the Building (including all underground utility
lines, pipes and plumbing that are not the responsibility of any utility
company), in good, clean and safe repair, order and condition. Owner shall make
all repairs and replacements without, to the extent practicable, interfering
with the conduct of Tenant's business.
c. Notwithstanding anything to the contrary contained in this Lease,
Owner and Tenant each hereby waives all rights of recovery against the other
party, and such other party's insurance carrier (by way of subrogation or
otherwise), for all losses or damages to the premises, any improvements thereon
or any personal property of either party therein, to the extent such waiver does
not invalidate the insurance coverage of either party and to the extent such
losses or damages are covered by insurance the damaged party is required to
carry hereunder or otherwise elects to maintain; provided, however, that the
foregoing waiver by either party shall not apply with respect to any loss or
damage to the extent caused by the negligence or willful misconduct of the other
party, its agents, employees, representatives or contractors.
d. In addition to the foregoing, Tenant and Owner shall enter into a
Notice of Lease which will be recorded with the Registry of Deeds in which the
Building is located.
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IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
FOR: 1608 DEVELOPMENT LIMITED PARTNERSHIP
------------------------------------
Stratford Executive Park, Inc.
Managing General Partner
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: 10/6/97
-------------------------------- ---------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: President
FOR: ORIEL INSTRUMENTS CORPORATION
------------------------------------
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Date: 10/6/97
-------------------------------- ---------
Its: Chairman
STATE OF CONNECTICUT)
) ss: Stratford
COUNTY OF FAIRFIELD )
On this 6th day of October, 1997, before me personally appeared
▇▇▇▇▇ ▇▇▇▇▇ signer and sealer of the foregoing instrument and acknowledged the
same to be his free act and deed, before me as a duly authorized officer of
Oriel Instruments Corporation.
IN WITNESS WHEREOF, I hereunder set my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Notary Public
My Commission Expires:
Feb. 28, 2002
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EXHIBIT B
STRATFORD EXECUTIVE PARK
BUILDING STANDARD WORK LETTER
STRATFORD EXECUTIVE PARK consists of attractive campus-type office and flexible
use buildings, with continuous windows framed in architectural metal,
accentuated with brick columns and panels. Glass front entrance doors are
provided as necessary. Discretely concealed loading docks and delivery doors are
provided in the rear of the building. Parking in provided along the front office
elevation and in the rear delivery areas. The entire perimeter is attractively
landscaped. Grounds and the building roof and structure will be maintained by
the Owner.
WINDOWS: Solar-bronze tinted double-glazed insulating glass set in
Duranodic bronze square tubing.
FLOOR SLAB: Concrete slab on grade with wire mesh reinforcement. Load
capacity 300 lbs/psf +/-.
INTERIOR: Per Exhibit "J".
DOORS: Per Exhibit "J".
CEILINGS: Per Exhibit "J".
LIGHTING: Per Exhibit "J".
OUTLETS: Per Exhibit "J".
SWITCHES: Per Exhibit "J".
PLUMBING: Overhead copper water lines. Underground plastic storm drains
and plastic sanitary sewer lines.
FLOORS: Per Exhibit "J".
COLUMNS: Structural steel. Average bay size: 45' x 50'.
LAVATORIES: Per Exhibit "J".
HVAC: Office areas: combination rooftop heating and air conditioning
units with full ducted delivery system. Heating is gas fired.
PAINTING: Per Exhibit "J".
ELECTRIC
SERVICE: 4 wire, 3 phase, 120/208 volt service. Separate meter
installed on premises.
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GAS SERVICE: Heat supplied by gas unit; separate meter or sub-meter
installed on premises.
HOT WATER: Individual electrical hot water heater.
SPRINKLER
SYSTEM: Automatic wet pipe system installed throughout with water flow
tamper, and low temperature alarms monitored twenty-four (24)
hours a day, throughout each year.
CEILING
HEIGHT: Office area hung ceiling: approximately 9'6". Unfinished
areas: to joists, 14'6" clear +/-.
DELIVERY
SYSTEM: Docks and/or Drive-in Doors.
ENTRANCES: Individual aluminum glass entry door in office area.
ROOFING: Four-ply ▇▇▇▇▇ Corning Permaply R System or equal, consisting
of 1-7/8" Fiberglass insulation, Fiberglass base sheet,
and three plys of Fiberglass fabric laminated with
hot asphalt.
The following items pertinent to tenant's space are not furnished by Owner and
will be at Tenant's initiative and expense.
TELEPHONES: Tenant shall make arrangements for installation of telephone
service. Owner will not provide or initiate such service.
ENTRY ALARM
SYSTEM: Tenant shall make arrangements for installation of alarm
system, or use of any existing one already on the premises.
WINDOW
COVERING: Tenant will provide own blinds or curtains. Air conditioning
specifications are based on availability of blinds or curtains.
OPTIONAL ITEMS: Wall, ceiling and floor finishes other than standard,
including accent colors, and more than one color per room.
Glass and sound conditioned partitions. Extra width and full
height doors. Dedicated electric circuits. Electric outlets
other than in office areas.
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EXHIBIT C
WORK SPECIFICATIONS
BUILDING
The entire building is heated and air conditioned by roof-mounted combination
heating/cooling units and a duct system to maintain, for heating, 70 degree F.
inside when outside temperature is 0 degree F., with a maximum wind velocity of
15 MPH and, for cooling inside 80 degree F. dry bulb with a 50% relative
humidity when outside temperature is 95 degree F. dry bulb and 75 degree F. wet
bulb. Air conditioning specifications are designed on the basis of doors and
windows being closed, as well as all areas in the air conditioned premises being
provided with venetian blinds, shades or drapes which shall be closed, depending
on the position of the sun.
ELECTRIC SERVICE
Electric service furnished to the premises shall be 1,600 Amperes 120/208V, 3
phase 4 wire.
FLOOR LOAD
Floors are rated for a maximum load of 300 lbs. per square foot. (Specify if
more than one floor load).
REST ROOMS
Per Exhibit "J".
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EXHIBIT "E"
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
AGREEMENT dated the _____ day of _____________, 199__, between_________
_____________________________________________, ("MORTGAGEE"), and______________,
_______________________________________, ("TENANT").
RECITALS:
A. Tenant has entered into a certain lease (the "LEASE") dated ______
with __________________________________ as lessor ("LANDLORD"), covering certain
premises known as _________________________________________ (the "PREMISES") and
located in _________________________________________(the "PROPERTY"); and
B. Mortgagee has made or has agreed to make a mortgage loan in the
amount of _____________ (the "MORTGAGE") to Landlord, secured by the Property,
and the parties desire to set forth their agreement herein.
NOW, THEREFORE, in consideration of the mutual covenants herein, the
parties hereby agree as follows:
1. The Lease is and shall be subject and subordinate to the Mortgage
and to all renewals, modifications, consolidations, replacements and extensions
thereof, to the full extent of amounts secured thereby and interest thereon.
2. Tenant shall attorn to and recognize any purchaser at a foreclosure
sale under the Mortgage, any transferee who acquires the Property by deed in
lieu of foreclosure, and the successors and assigns of such purchaser(s), as its
landlord for the unexpired balance (and any extensions, if exercised) of the
term of the Lease upon the same terms and conditions set forth in the Lease.
3. If it becomes necessary to foreclose the Mortgage, Mortgagee will
not terminate the Lease nor join Tenant in summary or foreclosure proceedings so
long as Tenant is not in default under any of the terms, covenants, or
conditions of the Lease at such time. Mortgagee will recognize the Tenant, as
lessee under the lease, if it should succeed to the interest of the Landlord so
long as Tenant is not in default under any of the terms, covenants, or
conditions of the Lease at such time.
4. If Mortgagee succeeds to the interest of Landlord under the Lease,
Mortgagee shall not be: (a) liable for any act or omission of any prior landlord
(including Landlord); (b) liable for the return of any security deposit; (c)
subject to any offsets or defenses which Tenant might have against any prior
landlord (including Landlord); (d) bound by any rent or additional rent which
Tenant might have paid for more than the current month to any prior landlord
(including Landlord); (e) bound by any amendment or modification of the Lease
made without its consent;
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5. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their successors and assigns.
6. Tenant shall give Mortgagee, by certified mail, a copy of any notice
of default served upon the Landlord, to be sent to the address of Mortgagee
indicated below. If Landlord shall have failed to cure such default within the
time provided for in the Lease, then Mortgagee shall have an additional 30 days
within which to cure such default, or if such default cannot be cured within
that time, then such additional time as may be necessary to cure such default
if, within such 30 days Mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings, of necessary to effect such cure), in
which event the Lease shall not be terminated while such remedies are being so
diligently pursued. Mortgagee's notice address is ______________________________
______________________________________________________________.
7. Tenant acknowledges that it has notice that the Lease and the rent
and all sums due thereunder have been assigned to Mortgagee as part of the
security for the obligations secured by the Mortgage. In the event Mortgagee
notifies Tenant of an event of default under the Mortgage and demands that
Tenant pay its rent and all other sums due under the Lease to Mortgagee, Tenant
will honor such demand and pay its rent and all other sums due under the Lease
to Mortgagee and Landlord hereby consents.
8. With respect to any options for additional space and any option to
extend or renew provided to Tenant under the Lease, Mortgagee shall recognize
the same if Tenant is entitled thereto under the Lease after the date on which
Mortgagee succeeds as Landlord under the Lease by virtue of foreclosure or deed
in lieu of foreclosure or Mortgagee takes possession of the Premises; provided,
however, that Mortgagee shall not be responsible for any acts of any prior
landlord under the Lease, or the act of any tenant, subtenant or other party
which prevents Mortgagee from complying with the provisions hereof, and Tenant
shall have no right to cancel the Lease or to make any claims against Mortgagee
on account of such acts.
9. This Agreement may not be modified orally or in any manner than by
an agreement in writing signed by the parties hereto or their respective
successors in interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective heirs, personal
representatives, successors and assigns, and any purchaser or purchasers at
foreclosure of the Property or any portion thereof, and their respective heirs,
personal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed these presents as
of the day and year first above written.
Mortgagee:__________________________________
By:_________________________________________
Its:
Tenant:_____________________________________
By:_________________________________________
Its:
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EXHIBIT "F"
TENANT ESTOPPEL CERTIFICATE
TO: __________________________________________________________ ("LENDER") and/or
whom else it may concern:
THIS IS TO CERTIFY THAT:
1. The undersigned is the lessee ("TENANT") under that certain lease dated
________________________, 19__ ( the "LEASE") by and between ___________________
as lessor ("LANDLORD") Tenant, covering those certain premises commonly known
and designated as ________________________________ ("PREMISES").
2. The Lease has not been modified, changed, altered, assigned,
supplemented or amended in any respect (except as indicated below; if none,
state "NONE"). The Lease is not in default and is valid and in full force and
effect on the date hereof. The Lease is the only lease or agreement between
Tenant and Landlord affecting or relating to the Premises. The Lease represents
the entire agreement between Landlord and Tenant with respect to the Premises.
________________________________________________________________________________
________________________________________________________________________________
3. Tenant is not entitled to, and has made no agreement(s) with Landlord
or its agents or employees concerning free rent, partial rent, rebate of rent
payments, credit or offset or deduction in rent, or any other type of rental
concession, including without limitation, lease support payments or lease
buy-outs (except as indicated below; in none, state "NONE").
________________________________________________________________________________
________________________________________________________________________________
4. Tenant has accepted and now occupies the Premises, and is and has been
open for business since ____________, 19__. The Lease term began ______________,
19__. The termination date of the present term of the Lease, excluding
unexercised renewals, is _______________, 19__.
5. Tenant has paid rent for the Premises for the period up to and
including _____________,19__. The fixed minimum rent is $___________. Additional
rent (including Tenant's share of tax increases and cost of living increases)
payable by Tenant presently is $_________ per month. No such rent has been paid
more than one (1) month in advance of its due date, except as indicated below
(if none, state "NONE"). Tenant's security deposit is $__________ .
________________________________________________________________________________
________________________________________________________________________________
6. No event has occurred and no condition exists which, with the giving of
notice or the lapse of time or both, will constitute a default under the Lease.
Tenant has no existing defenses or offsets against the enforcement of this Lease
by Landlord.
7. Tenant has received payment or credit for tenant improvement work in
the total amount of $_________ (or if other than cash, describe below; if none,
state
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"NONE"). All conditions under this Lease to be performed by Landlord have
been satisfied. All required contributions by Landlord to Tenant on account of
Tenant's tenant improvements have been received by Tenant.
________________________________________________________________________________
________________________________________________________________________________
8. The Lease contains, and Tenant has, no outstanding options or rights of
first refusal to purchase the Premises or any part thereof all or any part of
the real property of which the Premises are a part.
9. No actions, whether voluntary or otherwise, are pending against Tenant
or any general partner of Tenant under the bankruptcy laws of the United States
or any state thereof.
10. Tenant has not sublet the Premises to any sublessee and has not
assigned any of its rights under the Lease, except as indicated below (if none,
state "NONE"). No one except Tenant and its employees occupies the Premises.
11. The address for notices to be sent to Tenant is as set forth in the
Lease.
12. To the best of Tenant's knowledge, the use, maintenance or operation of
the Premises complies with, and will at all times comply with, all applicable
federal, state, county or local statutes, laws, rules and regulations of any
governmental authorities relating to environmental, health or safety matters
(being hereinafter collectively referred to as the Environmental Laws).
13. The Premises have not been used and Tenant does not plan to use the
Premises for any activities which, directly or indirectly, involve the use,
generation, treatment, storage, transportation or disposal of any petroleum
product or any toxic or hazardous chemical, material, substance, pollutant or
waste.
14. Tenant has not received any notices, written or oral, of violation of
any Environmental Law or of any allegation which, if true, would contradict
anything contained herein and there are no writs, injunctions, decrees, orders
or judgments outstanding, no lawsuits, claims, proceedings or investigations
pending or threatened, relating to the use, maintenance or operation of the
Premises, nor is Tenant aware of a basis for any such proceeding.
15. Tenant acknowledges that all the interest of Landlord in and to the
Lease has been duly assigned to Lender, and that pursuant to the terms thereof,
all rent payments under the Lease shall continue to be paid to Landlord in
accordance with the terms of the Lease unless and until Tenant is notified
otherwise in writing by Lender or its successors or assigns.
It is particularly noted that:
(1) Under the provisions of this assignment, the Lease cannot be
terminated (either directly or by the exercise of any option which
could lead to termination) or modified in any of its terms, or
consent be given to the release of any party having liability
thereon, without the prior written consent of Lender or its
successors or assigns, and without such consent, no rent may be
collected or accepted more than one (1) month in advance.
39
40
(2) The interest of Landlord in the Lease has been assigned to Lender
for the purposes specified in the assignment. Lender, or its
successors or assigns, assumes no duty, liability or obligation
whatever under the Lease or any extension or renewal thereof.
(3) Any notices sent to Lender should be sent by certified mail and
addressed to:
___________________________________
___________________________________
___________________________________
16. Tenant agrees to give any Mortgagee and/or Trust Deed Holders
("Mortgagee"), by certified mail, a copy of any notice of default served upon
Landlord, provided that prior to such notice Tenant has been notified in writing
(by way of Notice of Assignment of Rents and Leases, or otherwise), of the
address of such Mortgagee. Tenant further agrees that if Landlord shall have
failed to cure such default within the time provided for in this Lease, then the
Mortgagee shall have an additional 60 days within which to cure such default or
if such default cannot be cured within that time, then such additional time as
may be necessary to cure such default shall be granted if within such 60 days
Mortgagee has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to, commencement of foreclosure
proceedings, if necessary to effect such cure), in which event the Lease shall
not be terminated while such remedies are being so diligently pursued.
17. This certification is made to induce Lender to make certain fundings,
knowing that Lender relies upon the truth of this certification in disbursing
said funds.
18. The undersigned is authorized to execute this Estoppel Certificate on
behalf of Tenant.
Signed and dated this ____ day of _______________, 19__.
TENANT: ________________________________________
By: ________________________________________
Its:
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EXHIBIT "A"
[DRAWING OF FLOOR PLAN]
41
42
EXHIBIT "D"
[DRAWING OF FLOOR PLAN]
Owner's Work
1. remove all existing walls, fixtures, and all nonstructural elements in the
existing 27,700 square foot building as shown.
2. construct a 4,000 square foot addition as shown which includes: main
sprinkler piping, one 200 amp electric panel, one 10 ton roof-top hvac unit.
Tenant's Work
1. all modifications, alterations, and additions to the 27,700 square foot
building and the 4,000 square foot addition per Exhibit "J".
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EXHIBIT "G"
-------------------
TOWN OF STRATFORD CT FOR RECEIPT
REAL ESTATE TAX ▇▇▇▇ RETURN WITH PAYMENT
-------------------
----------------------------------------------------------------------------------------------------------------
LIST NUMBER ON GRAND LIST OF PROP DESC. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
96 ▇▇▇▇▇▇▇▇▇ OCT 1, 1996 I.D. NUMBER 0987200 1031-0299
----------------------------------------------------------------------------------------------------------------
TOTAL TAX DUE MILL GROSS ASSESSMENT
$ 37,525.95 RATE 32.49 1,155,000
----------------------------------------------------------------------------------------------------------------
FIRST PAYMENT DUE SECOND PAYMENT DUE ADJUSTMENTS EXEMPTION
JULY 1, 1997 JANUARY 1, 1988
NET ASSESSMENT
$ 18,762.98 $ 18,762.97 1,155,000
----------------------------------------------- -------------------------------------------
OFFICE USE ONLY
1608 DEVELOPMENT LTD PARTNERSHIP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
-------------------
TOWN OF STRATFORD CT OFFICE COPY
REAL ESTATE TAX ▇▇▇▇ RETURN WITH PAYMENT
-------------------
----------------------------------------------------------------------------------------------------------------
LIST NUMBER ON GRAND LIST OF PROP DESC. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
96 ▇▇▇▇▇▇▇▇▇ OCT 1, 1996 I.D. NUMBER 0987200 1031-0299
----------------------------------------------------------------------------------------------------------------
TOTAL TAX DUE MILL GROSS ASSESSMENT
$ 37,525.95 RATE 32.49 1,155,000
----------------------------------------------------------------------------------------------------------------
FIRST PAYMENT DUE SECOND PAYMENT DUE ADJUSTMENTS EXEMPTION
JULY 1, 1997 JANUARY 1, 1988
NET ASSESSMENT
$ 18,762.98 $ 18,762.97 1,155,000
----------------------------------------------- -------------------------------------------
OFFICE USE ONLY
1608 DEVELOPMENT LTD PARTNERSHIP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
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EXHIBIT "H"
FORM OF LETTER OF CREDIT
------------------------
ADVISED BY: AIRBORNE EXPRESS ISSUANCE DATE:
THROUGH: DIRECT
BENEFICIARY/LANDLORD: IRREVOCABLE STANDBY
LETTER OF CREDIT
NO.
CREDIT AMOUNT:
APPLICANT/ACCOUNTEE/TENANT: USD
DATE AND PLACE OF
EXPIRY:
AT OUR COUNTERS
IN:
LADIES AND GENTLEMEN:
WE HEREBY ISSUE OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR
FOR THE ACCOUNT OF THE APPLICANT FOR AN AGGREGATE AMOUNT NOT TO EXCEED
/100 US DOLLARS AVAILABLE FOR PAYMENT BY PRESENTATION OF YOUR
DRAFT(S) DRAWN ON OURSELVES AT SIGHT, AND ACCOMPANIED BY THE FOLLOWING
DOCUMENTS:
1. YOUR STATEMENT/CERTIFICATE, ON YOUR LETTERHEAD, SIGNED BY A PERSON
PURPORTING TO BE YOUR AUTHORIZED OFFICER/OFFICIAL/REPRESENTATIVE, APPROPRIATELY
COMPLETED IN THE FOLLOWING FORM:
"THE UNDERSIGNED AN AUTHORIZED OFFICER/OFFICIAL/REPRESENTATIVE OF
"LANDLORD", HEREBY CERTIFIES WITH REGARD TO STATE STREET BANK STANDBY LETTER OF
CREDIT NO. THAT THE AMOUNT DRAWN HEREUNDER REPRESENTS THE AMOUNT
PRESENTLY DUE AND OWING TO LANDLORD UNDER THAT CERTAIN LEASE AGREEMENT
("LEASE") EXECUTED BY AND BETWEEN LANDLORD AND THE "TENANT" AND FURTHER
CERTIFIES EITHER THAT
A. A DEFAULT UNDER THE LEASE EXISTS AND HAS CONTINUED UNCURED BEYOND ALL
APPLICABLE GRACE PERIODS, THAT ALL NOTICES REQUIRED UNDER THE LEASE WITH REGARD
THERETO HAVE BEEN DULY GIVEN,
OR
B. WE ARE IN RECEIPT OF BANK NOTICE OF NON-EXTENSION OF THEIR
LETTER OF CREDIT NO. , AND THE TENANT HAS FAILED TO PROVIDE A REPLACEMENT
LETTER OF CREDIT ACCEPTABLE TO LANDLORD AS REQUIRED UNDER THE LEASE."
2. THE ORIGINAL OF THIS LETTER OF CREDIT (FOR ENDORSEMENT OF DRAWING),
WHICH WILL BE RETURNED UNLESS CREDIT IS FULLY UTILIZED.
PARTIAL DRAWINGS ARE PERMITTED.
45
PAGE TWO OF L/C NO.
DRAFT(S) MUST INDICATE THE NAME OF THE ISSUING BANK, THE LETTER OF CREDIT
NUMBER AND MUST BE PRESENTED AT THIS OFFICE, (THE ADDRESS SPECIFIED BELOW.)
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR AN ADDITIONAL PERIOD OF ONE YEAR
FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE HEREOF, BUT NOT BEYOND
UNLESS AT LEAST FORTY FIVE (45) DAYS PRIOR TO ANY SUCH EXPIRATION DATE WE
NOTIFY YOU BY CERTIFIED MAIL, THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT
FOR ANY SUCH ADDITIONAL PERIOD. UPON RECEIPT BY YOU OF SUCH NOTICE, YOU MAY
DRAW HEREUNDER YOUR DRAFT(S) AT SIGHT ON OURSELVES FOR THE THEN FULL AMOUNT OF
THIS LETTER OF CREDIT ACCOMPANIED BY YOUR STATEMENT AS SPECIFIED ABOVE.
THIS LETTER OF CREDIT IS TRANSFERABLE IN ITS ENTIRETY, BUT NOT IN PART
AND MAY BE SUCCESSFULLY TRANSFERRED TO ANY TRANSFEREE WHO SUCCEEDED YOU AS
LANDLORD. IF IT IS YOUR INTENTION TO TRANSFER YOUR INTEREST HEREUNDER, KINDLY
RETURN THE CREDIT INSTRUMENT TO US FOR APPROPRIATE ENDORSEMENT AND FURNISH US
WITH YOUR INSTRUCTIONS. PLEASE NOTE YOUR SIGNATURE ON YOUR REQUEST FOR TRANSFER
MUST BE AUTHENTICATED BY YOUR BANK. OUR TRANSFER FEE OF 1/4 OF 1% MINIMUM USD
150.00 MUST BE PAID BY YOU FOR THE TRANSFER. (TRANSFER FORM IS ATTACHED.) IN THE
EVENT OF TRANSFER ALL REQUIRED DOCUMENTS MUST BE EXECUTED BY THE TRANSFEREE.
THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR OBLIGATIONS TO
YOU, AND OUR UNDERTAKING SHALL NOT IN ANY WAY BE AMENDED OR AMPLIFIED BY
REFERENCE TO ANY DOCUMENTS, INSTRUMENTS OR ANY AGREEMENT REFERRED TO HEREIN OR
TO WHICH THIS LETTER OF CREDIT RELATES, AND SUCH REFERENCE, IF ANY, SHALL NOT
BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT, INSTRUMENT OR
AGREEMENT.
EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS
SUBJECT TO THE "UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS,
INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION N.500 (1993 REVISION)".
WE ENGAGE WITH YOU THAT ALL DRAFT(S) DRAWN UNDER AND IN COMPLIANCE WITH
THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED ON
PRESENTATION TO US AT OUR OFFICE AT STREET.
ATTN:
VERY TRULY YOURS,
