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TRANSACT TECHNOLOGIES INCORPORATED
EXHIBIT 10.28
LEASE OF INDUSTRIAL PROPERTY
FOR AND IN CONSIDERATION of the mutual covenants herein contained, the
parties hereto do hereby agree as follows:
1. Incorporated Terms. The following terms are incorporated by
reference into this Agreement:
(a) DATE OF LEASE: July 30, 1997
(b) NAME AND ADDRESS OF LANDLORD: PYRAMID CONSTRUCTION COMPANY
000 Xxxxx Xxxxxxxx Xxxxxxxx
P.O. Box 369
Ramsey, NJ 07446-0369
(c) NAME AND ADDRESS OF TENANT: MAGNETEC CORP.
0 Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
(d) DESCRIPTION OF PROPERTY: 5,013 square feet of office space in Wallingford,
CT through March 31, 2005.
*Effective April 1, 2005 through March 31, 2008,
nine (9) acres in Wallingford, CT, consisting of
15,013 s.f. of office space and 32,000 s.f. of
light manufacturing located in Medway Park, and
shown as Lot 2 on the Resubdivision Plan prepared
by Xxxxx X. XxXxxxxx & Associates dated November
2, 1993.
(e) TERM OF LEASE: Approximately Ten (10) Years
Commencement Date: At Completion
Expiration Date: Xxxxx 00, 0000
(x) PERMITTED USE: Office and light manufacturing and use incidental
thereto.
(g) SECURITY DEPOSIT: None
(h) BROKER: None
(i) RIDER TO LEASE: Option to Renew # 1
Option to Renew # 2
(j) TENANT's S.I.C. NUMBER: 3577
(k) FIXED RENTAL SCHEDULE:
The Fixed Rent payable by Tenant to Landlord shall be at the annual rate
and payable in the monthly installments as follows'
Period Monthly Installment Annual Rate
------ ------------------- -----------
Completion-03/31/99 $ 3,500.00 $ 42,000.00
04/01/99-03/31/00 $ 3,570.00 $ 42,840.00
04/01/00-03/31/01 $ 3,641.33 $ 43,696.00
04/01/01-03/31/02 $ 3,714.17 $ 44,570.00
04/01/02-03/31/03 $ 3,788.50 $ 45,462.00
04/01/03-03/31/04 $ 3,864.25 $ 46,371.00
04/01/04-03/31/05 $ 3,941.50 $ 47,298.00
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04/01/05-03/31/06 $34,056.83* $408,682.00*
04/01/06-03/31/07 $34,137.25* $409,647.00*
04/01/07-03/31/08 $34,219.25* $410,631.00*
If Tenant chooses not to exercise option at Lease expiration, Tenant
must pay to Landlord the unamortized portion of the addition. If tenant vacates
at Lease end, the calculation formula for the unamortized portion of the
addition will be figured at 9-1/4% over a twenty (20) year amortization on
$350,000.00 as indicated on the attached loan progress chart. If, however, the
warehouse is expanded where the percentage of office space is twenty percent
(20%) or less, then no moneys will be due for the unamortized portion of this
$350,000.00 office expansion.
(l) ESTIMATED MONTHLY ADDITIONAL RENT: $ 540.00
*04/01/05-03/31/08: $5,265.00
(m) GUARANTOR: TransAct Technologies, Inc.
2. Description of Property. Landlord hereby leases to Tenant and Tenant
hereby hires from Landlord, the land (the "Land"), building (the "Building")
and other improvements described in Section l(d) (collectively the "Property")
and shown on the site plan attached hereto as Exhibit A. Exhibit A sets forth
the general layout of the building and property and no material changes shall be
made to the plan without Tenant's consent. Landlord shall, at its sole cost and
expense, obtain all necessary governmental approvals for construction of the
building, and Landlord shall perform all work with respect to the building and
site improvements in conformance with Exhibits B and C attached hereto. Landlord
and Tenant acknowledge that complete construction drawings will replace Exhibits
B and C in this Lease-once said drawings are prepared. The substituted Exhibits
B and C shall be in conformance with Exhibits B and C as originally made a part
hereto.
3. Term. The term of the Lease (the "Term") shall commence on the date
set forth in Section l(e) (the "Commencement Date") and terminate on the date
set forth in Section l(e) (the "Expiration Date"), except as hereinafter
provided.
Notwithstanding the above, the Lease Term shall commence on the
Occupancy Date, which shall be deemed to mean the earlier of (a) the date on
which Tenant takes occupancy and conducts business, or (b) the date on which
Landlord has obtained a Certificate of Occupancy or temporary Certificate of
Occupancy (provided the municipal authorities allow use and occupancy under a
temporary certificate of occupancy) for the Property and has substantially
completed same and made same available for Tenant's occupancy, provided that
Landlord shall have given Tenant thirty (30) days' written notice of the date on
which the Building is to be substantially completed and available to Tenant.
"Substantially completed" shall mean that Landlord's work is in compliance with
the plans and specs in Exhibits B and C and subject only to minor punchlist
items on the punchlist provided by Tenant pursuant to Article 10 which will not
materially interfere with Tenant's use and occupancy of the Premises.
When the commencement and expiration dates of the Lease term have been
determined, as provided herein, Landlord and Tenant shall execute and deliver a
written statement, in recordable form, specifying the commencement and
expiration dates of the Lease Term. Such statement, when so executed and
delivered, will be deemed to be incorporated in, and become a part of, this
Lease.
Landlord may not be able to deliver possession of the Property to
Tenant on the date specified in Section l(e) as the Commencement Date. Landlord
shall not be liable to Tenant if Landlord does not deliver possession of the
Property to Tenant on the specified Commencement Date. In such event the
Commencement Date shall be delayed until possession of the Property is delivered
to Tenant and the Term shall be extended for a period equal to the delay in
delivery of possession of the Property to Tenant, plus the number of days
necessary to end the Term on the last day of a month. If Landlord does not
deliver possession of the Property to Tenant within six (6) months after the
specified Commencement Date, Landlord or Tenant may elect to cancel
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this Lease by giving written notice to the other at any time after the six month
period ends, and neither party shall have any further obligations to the other
under this Lease.
If Tenant occupies and uses the Property for normal operations prior to
the Commencement Date, the Term of the Lease shall then commence, but the
Expiration Date shall not be advanced. Tenant's early occupancy of the Property
shall be subject to all of the provisions of this Lease and Tenant shall pay the
rent and all other charges specified in this Lease from the Tenant's occupancy
date.
If delivery of possession of the Property to Tenant is on a date other
than the specified Commencement Date, at the request of either party, Landlord
and Tenant shall execute an instrument setting forth the Commencement Date and
Expiration Date.
The first Lease year shall be the period commencing on the Commencement
Date and ending twelve calendar months thereafter, provided, however, that if
the Commencement Date is not the first day of a month, the first Lease Year
shall commence on the Commencement Date and end twelve calendar months from the
last day of the month in which the Commencement Date occurs. Each succeeding
twelve calendar month period thereafter shall be a Lease Year.
4. Fixed Rent. Tenant shall pay to Landlord at the address(es) set
forth in Section l(b), or to such other person or at such other place as
Landlord may from time to time designate, without previous demand therefor and
without counterclaim, deduction or set-off, the rent ("Fixed Rent") set forth in
Section l(k), such Fixed Rent to be payable in monthly installments in advance
on the first business day of each month during the term of the Lease. If the
Commencement Date shall be other than the first day of a calendar month, Tenant
shall pay on the Commencement Date, the proportionate amount of Fixed Rent for
the balance of such month. The first monthly installment of Fixed Rent will be
paid by Tenant upon closing title for the purchase of the property by Landlord
for Tenant's building.
5. Net Lease. It is the intention of Landlord and Tenant that this is a
net Lease and that the Fixed Rent shall be absolutely net to Landlord and that
Tenant shall be solely responsible for and pay all costs for the use, operation,
maintenance, care and repair of the Property, except as otherwise expressly
provided herein. All obligations with respect to the Property payable by tenant
other than the Fixed Rent are additional rent under this Lease. The term "rent"
means the Fixed Rent and additional rent.
6. Real Property Taxes. (a) Tenant shall pay all real property
impositions during the Term. As used herein, the term "real property
impositions" means (i) any tax, assessment or other governmental charge of any
kind which at any time during the Term may be assessed, levied, imposed upon or
become due and payable with respect to the Property; (ii) any tax on the
Landlord's right to receive, or the receipt of rent or income from the Property
(excluding all federal or state income tax), or against Landlord's business of
leasing the Property; (iii) any tax or charge for fire protection, refuse
collection, streets, sidewalks or road maintenance or other services provided to
the Property by any governmental agency; and (iv) any tax replacing or
supplementing in whole or in part any tax previously included within the
definition of real property impositions under this Lease. During the first and
last years of the Term, the real property impositions payable by Tenant shall be
prorated for the fraction of the tax fiscal year included in the Term.
(b) Tenant shall pay real property impositions (as defined in Paragraph
(a) of this Section) to Landlord in monthly installments (in the manner set
forth in Section 4) on an estimated basis as determined by Landlord. Landlord
may adjust such estimate at any time and from time to time based upon Landlord's
experience and anticipation of such impositions. After the end of each calendar
year during the term, Landlord shall deliver to Tenant a statement setting forth
the actual real property impositions for such calendar year for which estimated
payments were made, the amount paid by Tenant on account thereof, and the amount
due to or from Tenant. If Tenant has paid less than the actual amount due,
Tenant shall pay the difference to Landlord (in the manner set forth in Section
4) within ten (10) days after Landlord's request therefor. Any amount paid by
Tenant which exceeds the amount due shall be credited against the
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next succeeding estimated payments due hereunder, unless the Term has then
expired, in which amount the excess amount shall be refunded to Tenant.
(c) If an assessment for public improvements is levied against the
Property, Landlord shall be deemed to have elected to pay such assessment in the
maximum number of installments then permitted by law (whether or not Landlord
actually so elects), and Tenant shall pay the installments payable during or
attributable to the Term, together with any interest due as a result of the
installment payments. Any installment for a period during which the Commencement
Date or Expiration Date occurs shall be prorated for the fraction of the period
included in the Term. Tenant may prepay the entire assessment in one installment
on the balance at any time if this will result in a net tax savings on the
property.
(d) Real property impositions do not include Landlord's federal or
state income, franchise, inheritance or estate taxes and Tenant shall have no
obligation in connection therewith.
(e) Tenant shall not, without Landlord's prior written consent, which
shall not be unreasonably withheld, institute or prosecute any appeal or other
proceeding with respect to any assessments for real property impositions or
assessments for public improvements levied, assessed or imposed upon or against
the Property. Landlord will bring such proceeding at Tenant's cost. In the event
Landlord is not using a contingency firm to appeal taxes, and Landlord is in the
process of finding a firm to appeal the taxes, then Tenant may provide a
proposed contract with a firm to handle the appeal and Landlord will use said
firm so long as the cost for the firm proposed by Tenant is materially less than
one the Landlord would have employed.
7. Insurance. (a) Landlord's Insurance. At all times during the term of
this Lease, Landlord will carry and maintain fire and extended coverage
insurance at full replacement cost agreed value, boiler, rental value insurance,
and sprinkler insurance covering the Property, and public liability (at a
minimum of $5,000,000 on a per occurrence basis) and property damage insurance
in such amounts as Landlord determines from time to time in its reasonable
discretion. Tenant will pay Landlord, as additional rent, for the costs of all
such insurance in accordance with the manner set forth for real property taxes
under Section 6(b) of the Lease.
(b) Tenant's Insurance. At all times during the term of this
Lease, Tenant will carry and maintain, at Tenant's expense, the following
insurance, in the amounts specified below or such other amounts as Landlord may
from time to time reasonably request, with insurance companies and on forms
satisfactory to landlord:
(i) Public liability and property damage liability insurance,
with a combined single occurrence limit of not less than $1,000,000.00. All such
insurance will specifically include, without limitation, contractual liability
coverage for the performance by Tenant of the indemnity agreements set forth in
Section 25 of this Lease.
(ii) Fire and extended coverage. insurance covering all
leasehold improvements in the Premises and all of Tenant's merchandise,
equipment, trade fixtures, appliances, furniture, furnishings and personal
property, from time to time in, on, or upon the Premises, in an amount not less
than the full replacement cost without deduction for depreciation from time to
time during the term of this lease, providing protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended peril (all risk), boiler, flood, glass
breakage and sprinkler leakage. All policy proceeds will be used for the repair
or replacement of the property damaged or destroyed; however, if this Lease
ceases under the provisions of Section 19, Tenant will be entitled to any
proceeds resulting from damage to Tenant's merchandise, equipment, trade
fixtures, appliances, furniture and personal property, and Landlord will be
entitled to all other proceeds.
(iii) Workmen's compensation insurance insuring against and
satisfying Tenant's obligations and liabilities under the workmen's compensation
laws of the state in which the Premises are located.
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(c) Forms of the Policies. All policies of liability insurance
which Tenant is obligated to maintain according to this Lease (other than any
policy of workmen's compensation insurance) will name Landlord and such other
persons or firms as Landlord specifies from time to time as additional insureds.
Original or true copies of original policies (together with copies of the
endorsements naming Landlord and any others specified by Landlord as additional
insureds) and evidence of the payment of all premiums of such policies will be
delivered to Landlord prior to Tenant's occupancy of the Premises and from time
to time at least thirty (30) days prior to the expiration of the term of each
such policy. All public liability and property damage liability policies
maintained. by Tenant will contain a provision that Landlord and any other
additional insureds, although named as an insured, will nevertheless be entitled
to recover under such policies for any loss sustained by Landlord and such other
additional insureds, its agents and employees as a result of the acts or
omissions of Tenant. All such policies maintained by Tenant will provide that
they may not be terminated or amended except after thirty (30) days' prior
written notice to Landlord. All public liability, property damage liability and
casualty policies maintained by Tenant will be written as primary policies, not
contributing with and not supplemental to the coverage that Landlord may carry.
No insurance required to be maintained by Tenant by this Section 7 will be
subject to more than a $5,000.00 deductible limit without Landlord's prior
written consent. All Tenant's policies required to be maintained under this
Lease shall contain "severability of interests" and "cross liability"
endorsements, and such policies shall be written by an insurance company having
a Best Rating of A (VI) or better.
(d) Adequacy of Coverage. Landlord, its agents and employees
make no representation that the limits of liability specified to be carried by
Tenant pursuant to this Section 7 are adequate to protect Tenant. If Tenant
believes that any of such insurance coverage is inadequate, Tenant will obtain,
at Tenant's sole expense, such additional insurance coverage as Tenant deems
adequate.
(e) Inadequate Insurance. Upon failure of Tenant to comply
with the provisions of Section 7, in addition to any other rights and remedies
of the Landlord, Landlord shall have a right to obtain such insurance, to pay
the premiums for the same, and to recover the cost of such insurance at once as
additional rent due from Tenant to Landlord under this Lease. In the event
Landlord fails to obtain insurance as specified in 7(a), Tenant, after notice to
Landlord and Landlord not obtaining required insurance within seven (7) days,
shall have a right to obtain and pay premiums for same and to recover the cost
at once from Landlord.
(f) Waiver of Subrogation. Landlord and Tenant each waive any
and all rights to recover against the other or against any other tenant or
occupant of the property, or against the officers, directors, shareholders,
partners, joint venturers, employees, agents, customers, invitees or business
visitors of such other party or of such other tenant or occupant of the
property, for any loss or damage to such waiving party arising from any cause
covered by any insurance required to be carried by such party. Landlord and
Tenant, from time to time, will use their respective insurers to issue
appropriate waiver of subrogation fights endorsements to all policies of
insurance carried in connection with the property or the Premises or the
contents of the property or the Premises. Tenant agrees to cause all other
occupants of the Premises claiming by, under, or through Tenant to execute and
deliver to Landlord such a waiver of claims and to obtain such waiver of
subrogation rights endorsements.
8. Utilities. Tenant shall pay, directly to the appropriate supplier,
the cost of all light, power, natural gas, fuel, oil, sewer service, sprinkler
stand-by service, water, telephone, refuse disposal and other utilities and
services supplied to the Property. Landlord shall not be liable to Tenant, and
Tenant's obligations under the Lease shall not be abated, in the event of any
interruption or inadequacy of any utility or service supplied to the Property.
Landlord will, however, be liable to Tenant in the event of interruption or
inadequacy of any utility due to Landlord's negligence. Tenant shall have the
right to contract for additional utilities supplied to the Premises, provided
Tenant undertakes all costs necessary to bring such additional utilities to the
property and subject to Landlord's review and approval of plans and
specifications for additional utility service. Said Landlord consent is not to
be unreasonably withheld.
9. Use of Property. (a) The Property may only be used for the use set
forth in Section l(f) and all uses incidental thereto.
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(b) Notwithstanding the foregoing, Tenant shall not use or
permit the Property to be used for (i) any unlawful purpose; (ii) in violation
of any certificate of occupancy covering the Property; (iii) any use which may
constitute a public or private nuisance or make voidable any insurance in force
relating to the Property; (iv) any purpose which creates or produces noxious
odors, smoke, fumes, emissions, noise or vibrations; or (v) any use which
involves or results in the generation, manufacture, refining, transportation,
treatment, storage, handling or disposal of petroleum products or hazardous
substances or wastes. However, the Tenant may store and handle substances which
are classified as hazardous provided they are incidental to the normal operation
of an office and light industrial manufacturing facility, and further provided
that such substances are stored, handles and disposed of in accordance with
applicable State and Federal statutes and regulations.
(c) Tenant shall not cause or permit any overloading of the
floors of the Building. Tenant shall not install any equipment or other items
upon or through the roof, or cause openings to be made in the roof, without
Landlord's prior written consent. Tenant shall not install any underground
storage tanks or facilities at the Property.
(d) No storage of any goods, equipment or materials shall be
permitted outside the Building on the Property; however, overnight parking of
company vehicles not storing goods is permissible.
10. Existing Conditions. Upon five (5) days written notice by Landlord
to Tenant, Tenant will conduct a walk-through inspection of the Premises with
Landlord and prepare a punch-list of items needing additional work by Landlord.
Other than the items specified in the punch-list, by taking possession of the
Premises, Tenant will be deemed to have accepted the Premises in their condition
on the date of delivery of possession; however, Landlord will be responsible for
repairs of latent defects for twelve (12) months from the Commencement Date. The
punch-list will not include any damage to the Premises caused by Tenant's
move-in or early access, if permitted. Damage caused by Tenant will be repaired
or correct by Landlord, at Tenant's expense. Tenant acknowledges that neither
Landlord nor its agents or employees have made any representations or warranties
as to the suitability or fitness of the Premises for the conduct of Tenant's
business or for any other purpose, nor has Landlord or its agents or employees
agreed to undertake any alterations or construct any improvements to the
Premises except as expressly provided in this Lease and Exhibits B and C to this
Lease. If Tenant fails to submit a punch-list to Landlord within three (3) days
of Tenant's inspection, it will be deemed that there are no items needing
additional work or repair (except for latent defects). Landlord's contractor
will complete all reasonable punch-list items within thirty (30) days after the
walk-through inspection or as soon as practicable after such walk-through.
11. Maintenance and Repairs. (a) Tenant shall keep and maintain the
Property (including all structural, non-structural, exterior, interior and
landscaped areas, and systems and equipment) in good order, condition and repair
during the Term. Tenant shall promptly replace any portion of the property or
any systems or equipment thereof which cannot be fully repaired. All repairs and
replacements shall be performed in a good and workmanlike manner. All of
Tenant's obligations to maintain and repair the Property shall be accomplished
at Tenant's sole expense. Tenant shall not be responsible to repair damages
occasioned by Landlord's gross negligence.
(b) Tenant shall keep and maintain all portions of the
Property and the parking areas, sidewalks and landscaped areas, in the same
condition as received from Landlord, reasonable wear and tear excepted, free of
dirt and rubbish, and clear the parking areas and sidewalks of accumulations of
snow and ice.
(c) During the Term, Tenant shall procure and maintain the
following service contracts: (i) contract for inspection and maintenance of the
roof of the Building (the inspections pursuant to such contract shall be made at
least annually); (ii) contract for the inspection, service, maintenance and
repair of all heating, ventilating and air conditioning equipment installed in
the Building (the inspection pursuant to such contract shall be made at least
quarterly); (iii) contract for maintenance of the landscaped areas of the
Property; however, Tenant is not obligated to
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provide a service contract for maintenance of landscaping provided Tenant
adheres to the maintenance obligations set forth in (b) above; and (iv) contract
for the inspection, testing, service, maintenance, and repair of the sprinkler
system in accordance with the requirements of the National Fire Protection
Association (NFPA) and the governmental bodies having jurisdiction. The identity
of each contractor and each contract shall be subject to Landlord's reasonable
approval. Copies of reports of inspections made hereunder shall be promptly
supplied to Landlord.
12. Alterations and Improvements. (a) Tenant shall not make any
alterations, additions or improvements to the Property (the "Alterations")
without Landlord's prior written consent, except for interior non-structural
Alterations which do not exceed $10,000.00 in cost which are not visible from
the outside of the Building and which meet all applicable laws and building
codes, and which do not affect the insurability or cost of insuring the
Premises. In no event shall Alterations reduce the size of the Building or
reduce the value of the Property. Tenant shall submit to Landlord detailed plans
and specifications for Alterations requiring Landlord's consent and reimburse
Landlord for all reasonable expenses incurred by Landlord in connection with its
review thereof. Tenant shall also provide to landlord for its reasonable
approval the identity of the contractor Tenant proposes to employ to construct.
the Alterations for those Alterations requiring Landlord's consent. All
Alterations shall be accomplished in accordance with the following conditions:
(1) Tenant shall procure all governmental permits and
authorizations for the Alterations, and obtain and provide to Landlord an
official certificate of occupancy and/or compliance upon completion of the
Alterations, if appropriate.
(2) Tenant shall arrange for extension of its general
liability insurance to apply to the construction of the Alterations. Further,
Tenant shall procure and maintain Builders Risk Casualty Insurance in the amount
of the full replacement cost of the Alterations and statutory Workers
Compensation Insurance covering persons employed in connection with the work.
(3) Tenant shall construct the Alterations in a good
and workmanlike manner utilizing materials of quality commensurate with others
in the building and in compliance with all laws and governmental regulations.
(b) Upon completion of the Alterations, if Landlord so
requests, Tenant shall provide Landlord with "as built" reproducible
transparency plans of the Alterations; however, Tenant will not be required to
provide plans for non-structural alterations which do not require a building
permit.
(c) Alterations shall be the property of Landlord and shall
remain on the Property upon termination of the Lease or, if Landlord so
requires, a portion of or all Alterations shall be removed by Tenant on or prior
to the termination of the Lease and Tenant shall restore the Property to its
condition prior to such Alterations, reasonable wear and tear excepted. Landlord
will, upon Tenant's request, notify Tenant of those Alterations which must be
removed at Lease end.
13. Covenant Against Liens. Tenant shall not have any right to subject
Landlord's interest in the Property to any mechanic's lien or any other lien
whatsoever. If any mechanic's lien or other lien, charge or order for payment of
money shall be filed as a result of the act or omission of Tenant, Tenant shall
cause such lien, charge or order to be discharged or appropriately bonded within
twenty (20) days after written notice from Landlord thereof, and Tenant shall
indemnify and save Landlord harmless from all liabilities and costs resulting
therefrom.
14. Signs. Tenant shall not place any signs on the Property without
Landlord's prior written approval of its design, location and manner of
installation, such approval not to be unreasonably withheld. In no event shall
any sign be installed on the roof or above the parapet height of the Building.
Tenant shall remove its signs upon termination of this Lease and restore the
Property to its condition prior to installation of the signs, reasonable wear
and tear excepted.
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15. Compliance with Law. Tenant shall take all necessary action to
conform to and comply with all laws, orders and regulations of any governmental
authority or Landlord's or Tenant's insurers, or any Landlord's Mortgagee, now
or hereafter applicable to the Property or Tenant's use or occupancy. Tenant
shall obtain all permits, including a certificate of occupancy, necessary for
Tenant's occupancy or use of the Property. Tenant has no obligation to obtain a
certificate of occupancy for any work specified to be done by Landlord in the
approved plans and specifications in Exhibit B. If the Tenant must make any
capital expenditure in accordance with this section, which expenditure is not
due to Tenant's specific use, Tenant will only pay a portion of the expense,
said portion to be calculated as the number of years remaining on the Lease
Term, or Extended Lease Term, divided by the depreciable life of the capital
expenditure under generally accepted accounting principles multiplied by the
capital expenditure. Tenant will not be required to make any capital
expenditures to conform the property to any laws, orders and regulation or any
governmental authority which were in existence as of the date of receipt of a
building permit for construction of the facility.
16. Environmental Representations and Compliance. (a) The Tenant, its
officers, partners, employees, agents and subsidiaries, agree to indemnify,
defend and hold the Landlord, its officers, partners, employees, successors or
assigns, harmless from any and all claims, causes of action, and any and all
damages, liabilities, costs and expenses of any kind whatsoever, including
fines, assessments, clean-up costs, shut-down fees, contractor's costs and
actual attorney fees, which arise out of, are asserted on account of, or
traceable to Tenant's use, storage, manufacture, dumping, leakage or the
carrying on of any activities or occurrence upon the Premises that is the
subject of this Lease relating to oil, waste oil, thinners, spirits, materials
all petro-chemical by-products, and any substance, material or compound
classified as toxic or hazardous under any federal, state or local environmental
law, and any other material or compound known to have an adverse environmental
impact. However, nothing herein contained shall make Tenant responsible for
conditions existing prior to Tenant's occupancy.
(b) In addition, Tenant hereby makes the following
representations with respect to Tenant's occupancy and use of the Premises to
Landlord, understanding that Landlord shall and does in fact rely thereon.
Tenant shall also indemnify, defend and hold Landlord harmless from any and all
claims, costs, damages, expenses, attorney fees, and causes of action arising as
a result of, or associated with these representations made by Tenant. However,
nothing herein contained shall make Tenant responsible for conditions existing
prior to Tenant's occupancy. (Note: Although clauses (1) through (4) below are
representations made in the present tense, these representations shall be
considered in compliance provided the representations are in fact accurate at
the time of occupancy and thereafter):
(1) Air Quality:
(i) Tenant represents that any and all air emission permits
required by state, local or federal authorities have been properly obtained and
will remain in force.
(ii) Tenant represents that its facility is in compliance with
any conditions attendant to such permits.
(iii) Tenant represents that its facility is and will remain
in compliance with Occupational Safety Health Act requirements governing
exposure of workers to hazardous materials in the workplace.
(2) Water Pre-Treatment:
(i) Tenant represents that any present discharge of industrial
waste water into the sewer system has been properly permitted by local, state or
federal authorities.
(ii) Tenant represents that all permits have been properly
complied with and that Tenant is not in violation of any permits, ordinances, or
compliance requirements.
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(3) Underground Storage Tanks:
(i) Tenant acknowledges that there are presently no
underground storage tanks upon the property and that none will be installed
without Landlord's specific written consent.
(4) Water Discharge:
(i) Tenant represents that any permits for such water
discharge have been properly obtained and are current and that Tenant is in
compliance therewith.
However, in the event of unintentional violation of any of these
representations, Tenant shall be entitled to the notice and cure rights provided
in Section 23 hereof.
(c) Tenant further understands and agrees that Landlord shall
be entitled to enter upon the Premises to conduct environmental audit
inspections, tests, borings, samplings and the like which Landlord deems
reasonable and necessary to determine the environmental status of the property.
Landlord shall provide prior notice and agrees not to interfere with Tenant's
occupancy; Landlord to repair any damage done to Premises; Landlord to indemnify
Tenant for any damage or accidents.
(d) Tenant agrees that it shall, at its sole cost and expense,
fulfill, observe and comply with all of the terms and provisions of all federal,
state and local environmental laws now in effect or hereinafter enacted, as any
of the same may be amended from time to time, and all rules, regulations,
ordinances, opinions, orders and directives issued or promulgated pursuant
thereto or in connection therewith, as and to the extent any of the foregoing
may be applicable to the Property and Tenant's use and occupancy thereof except
that Tenant shall not be obligated to make any changes to the structural
elements or building systems unless necessitated by Tenant's specific use.
(e) Within ten (10) days after written request by the Landlord
or any mortgagee of Landlord, and, in any event, on each anniversary of the
commencement date hereof, Tenant shall deliver to Landlord or Landlord's
mortgagee, as the case may be, a duly executed and acknowledged affidavit of
Tenant or Tenant's chief executive officer, certifying:
(1) The proper four digit Standard Industrial
Classification number ("S.I.C. number") relating to Tenant's then current use of
the Property (said S.I.C. number to be obtained by reference to the then current
Standard Industrial Classification Manual prepared and published by the
Executive Office of the President, Office of Management and Budget or the
successor to such publication). Tenant hereby represents, warrants and covenants
that its S.I.C. number as of the date of this Lease is as set forth in Section I
(i) hereof; and
(2) (a) That Tenant's use of the Property does not
involve and has not involved the generation, manufacture, refining,
transportation, treatment, storage, handling, or disposal of petroleum products
or hazardous substances or wastes (as hazardous substances and hazardous wastes
are defined in any Environmental Laws) on site, above ground or below ground
(all of the foregoing being hereinafter collectively referred to as the Presence
of Hazardous Substances); or (b) that Tenant's use does involve or has involved
the Presence of Hazardous Substances, in which event, such affidavit shall
describe in detail that portion of Tenant's operations which involves or
involved the Presence of Hazardous Substances. Said description shall identify
each Hazardous Substance and describe the manner in which it is or was
generated, handled, manufactured, refined, transported, treated, stored, and/or
disposed of. Tenant shall supply Landlord or Landlord's mortgagee with such
additional information relating to said Presence of Harzardous Substances as
Landlord or Landlord's mortgagee may request. However, the Tenant may store and
handle substances which are classified as hazardous provided they are incidental
to the normal operation of an office and light industrial manufacturing
facility, and further provided that such substances are stored, handles and
disposed of in accordance with applicable State and Federal statutes and
regulations.
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(f) Tenant shall provide Landlord with copies of all reports,
information and materials filed with or provided to any governmental agency or
authority pursuant to any of the environmental laws.
(g) In the event that, upon the date of termination or
expiration of the term of this Lease, Tenant has not satisfied and complied with
all requirements imposed upon Landlord or Tenant under any environmental laws or
by any governmental agency or authority pursuant to any environmental laws,
Tenant shall continue to pay Fixed Rent at the annual rent payable immediately
prior to such date of termination or expiration plus an increase for each year
until such obligation terminates, each such annual increase to be determined by
the percentage increase in the Consumer Price Index published by the Bureau of
Labor Statistics of the United States for All Urban Consumers (1982-1984 = 100).
Such increased portion of rent over the Fixed Rent shall be computed by the
increase in the Index from three (3) months prior to the initial Term of the
Lease to the later of three (3) months prior to the expiration of the Lease or
three (3) months prior to the anniversary of each continuance of the Lease
multiplied by the annual rental during the last year of the Lease. The increased
rental when added to the previous Fixed Rent shall become the new Fixed Rent. In
no event shall Fixed Rent be reduced below the amount payable for the prior
year. Such Fixed Rent shall be payable notwithstanding that Tenant may be barred
and precluded from occupying and using the Property. Such payments of Fixed Rent
shall continue until Tenant has complied in full with the requirements imposed
by environmental laws or by governmental agencies and authorities having
jurisdiction with respect thereto and has provided to Landlord written
confirmation from governmental agency or authority having jurisdiction that such
compliance has in fact occurred. Tenant shall, in addition to payments of Fixed
Rent as aforesaid, promptly pay any fines, penalties, levies or assessments
against the Property or Landlord which are imposed at any time or from time to
time as a result of any action, act or failure to act of the Tenant relating to
environmental laws. For as long as Tenant shall remain liable for rent under
this subparagraph (g), Tenant shall have control over any remediation efforts,
provided such remediation is in compliance with all applicable federal, state
and local laws.
(h) Tenant agrees that each and every provision of this
Section shall survive the expiration or earlier termination of the Term of this
Lease.
17. Landlord's Access. Landlord and its representatives may enter the
Property at all reasonable times (or at any time in the event of emergency) for
the purpose of inspecting the Property, or making any necessary repairs, or to
show the Property to prospective purchasers, investors, encumbrancers, tenants
or other parties, or for any other purpose Landlord deems necessary. During the
final six (6) months of the Term, Landlord may place customary "For Sale" or
"For Lease" signs on the Property. Landlord shall, in the exercise of its rights
under this Section, use its best efforts not to unreasonably interfere with
Tenant's use and occupancy of the Property.
18. Assignment and Subletting. Except as otherwise provided herein,
Tenant shall not assign or encumber Tenant's interest in this Lease, sublet any
portion of the Property, or grant concessions or licenses with respect to the
Property.
(a) If Tenant requests Landlord's consent to an assignment of
this Lease or a subletting of all of any part of the Premises, Tenant shall
submit to Landlord: (1) the name of the proposed assignee or subtenant; (2) the
terms of the proposed assignment or subletting together with a conformed or
photostatic copy of the proposed assignment or sublease; (3) the nature of
business of the proposed assignee or subtenant's business and its proposed use
of the Premises; (4) such information as to its financial responsibility and
general reputation as Landlord may require; and (5) a summary of plans and
specifications for revising the floor layout of the Premises.
(b) Upon the receipt of such information from Tenant, Landlord
shall have the option, to be exercised in writing within fifteen (15) days after
such receipt, to cancel and terminate this Lease if the request is to assign
this Lease or to sublet all of the Premises or, if the request is to sublet a
portion of the Premises only, to cancel and terminate this Lease with respect
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to such portion, in each case as of the date set forth in Landlord's notice of
exercise of such option.
(c) If Landlord shall cancel this Lease, Tenant shall
surrender possession of the Premises, or the portion of the Premises which is
the subject of the request, as the case may be, on the date set forth in such
notice in accordance with the provisions of this lease relating to surrender of
the Premises. If this Lease shall be canceled as to a portion of the Premises
only, the Minimum Rent and Additional Rent payable by Tenant hereunder shall be
abated proportionately according to the ratio that the number of square feet in
the portion of space surrendered (as computed by Landlord) bears to the Rentable
Area of the Premises.
(d) If Landlord shall elect not to exercise its option to
cancel and terminate this Lease with respect to all of part of the Premises as
above provided, Landlord agrees not to unreasonably withhold its consent to the
proposed assignment or sublease. However, if the proposed assignee or subtenant
is or has been a tenant of Landlord or Landlord's affiliates, or if the proposed
assignee or subtenant has had contact with Landlord or Landlord's affiliates
within twelve (12) months preceding the proposed assignment or sublease
regarding potentially leasing space from the Landlord or Landlord's affiliates,
then failure of Landlord to consent shall not be unreasonable. Landlord shall
notify Tenant, within twenty (20) days after Landlord's receipt of the
information described herein, whether (i) Landlord consents to the proposed
assignment or sublease or (ii) does not consent to the proposed assignment or
sublease. The cumulative change of more than fifty-one (51%) percent of the
ownership interest of Tenant shall be deemed to be an assignment of this Lease
requiring Landlord's consent. However, Tenant may assign this Lease of sublet
the Property, without Landlord's consent, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any corporation
resulting from the merger of or consolidation with Tenant, provided such
assignee shall assume all of Tenant's' obligations under this Lease, and such
assignee or sublessee shall then have a net worth at least equal to that of
Tenant on the date hereof.
(e) In the event of a permitted assignment or subletting,
Tenant shall remit to Landlord as additional rent each month during the
remainder of the Base Term fifty (50%) percent of any rent or other sums
received by Tenant from its assignee or sublessee in excess of the Fixed Rent
and other charges paid by Tenant allocable to the Property or portion thereof
sublet, as the case may be, and 100% of any rent or other sums received by
Tenant from its assignee or sublessee in excess of the Fixed Rent and other
charges paid by Tenant allocable to the Property or portion thereof sublet, as
the case may be for any term in effect beyond a ten (10) year term.
(f) No assignment or subletting hereunder, whether or not with
Landlord's consent, shall release Tenant from any obligations under this Lease,
and Tenant shall continue to be primarily liable hereunder. Unless otherwise
previously released from liability by Landlord, if Tenant's assignee or
sublessee defaults under this Lease, Landlord may proceed directly against
Tenant without pursuing its remedies against the assignee or sublessee. Consent
to one assignment or subletting shall not be deemed a consent to any subsequent
assignment or subletting. Landlord may consent to subsequem assignments or
modifications of this Lease or sublettings without notice to Tenant and Tenant
shall not be relieved of liability under this Lease.
(g) Tenant shall pay to Landlord upon demand all costs,
including reasonable legal fees, which Landlord shall incur in reviewing any
proposed assignment or subletting; however, Landlord will provide an estimate of
costs beforehand and Tenant may decline to have Landlord review or ask Landlord
to review and pay such amounts as are due.
19. Casualty. If the Building is damaged by fire or other casualty, and
(i) the insurance proceeds received by Landlord on account of such damage are
sufficient to pay for the necessary repairs, (ii) Landlord's Mortgagee permits
Landlord to utilize the insurance proceeds to repair such damage, and (iii) the
Building can be fully repaired within one hundred thirty-five (135) days after
such casualty occurred, this Lease shall remain in effect and Landlord shall
repair the damage as soon as reasonably possible. If any of the foregoing
conditions requiring Landlord to repair the Building is not met, Landlord may
elect either to (i) terminate this Lease; or (ii) repair the damage as soon as
reasonably possible, in which event this Lease shall remain in full force
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and effect (but Tenant shall then have the right to terminate this Lease if the
Building cannot be fully repaired within six (6) months after such casualty
occurred). Landlord shall notify Tenant, in writing, of its election within
thirty (30) days after Landlord receives notice of the occurrence of the
casualty. Tenant's notification, if any, shall be required within ten (10) days
thereafter. The Monthly Base Rent and other charges will be abated
proportionately during any period in which, by reason of any damage or
destruction not occasioned by the negligence or willful misconduct of Tenant or
Tenant's employees or invitees, there is a substantial interference with the
operation of the business of Tenant. Such abatement will be proportional to the
measure of business in the Premises which Tenant may be required to discontinue.
The abatement will continue for the period commencing with such destruction or
damage and ending with the completion by the Landlord of such work, repair, or
reconstruction as Landlord is obligated to do. Tenant waives the protection of
any law which grants a tenant the right to terminate a lease in the event of the
destruction of a leased property, and agrees that the provisions of this
paragraph shall govern in the event of any destruction of the Building. Landlord
shall not be required to repair improvements or alterations to the Property made
by Tenant.
20. Condemnation. If more than twenty-five (25%) percent of the Land
and/or Building shall be taken under the power of eminent domain or sold under
the threat thereof ("Condemnation") and Tenant's use of the Property is
materially adversely affected in the reasonable opinion of Tenant, this Lease
shall terminate on the date on which title to the Property or portion thereof
shall vest in the condemning authority. If this Lease shall remain in effect as
to the portion of the Property not taken, Landlord shall restore the
improvements of the Property not taken as nearly as reasonably practicable to
their condition prior to the Condemnation, and the Fixed Rent and Additional
Rent shall be reduced proportionately in accordance with the reduction in the
square foot area of the Building following the Condemnation. Landlord shall be
entitled to receive the entire award in any Condemnation proceeding relating to
the Property, except that Tenant may assert a separate claim to an award for its
moving expenses and for fixtures and personal property installed by Tenant at
its expense. It is understood that Tenant shall have no claim against Landlord
for the value of the unexpired Term of this Lease or any options granted under
this lease. Landlord shall not be required to restore improvements or
alterations to the Property made by Tenant.
21. Surrender of Property. Upon termination of the Lease, Tenant shall
surrender the Property to Landlord, broom clean, and in good order and
condition, except for ordinary wear and tear, and damage by casualty which
Tenant was not obligated to remedy under Section 19. Tenant shall remove its
machinery, equipment and personal property and repair any damage to the Property
caused by such removal. Tenant shall not remove any power wiring or power
panels, lighting or lighting fixtures, wall coverings, blinds or other window
coverings, carpets or other floor coverings, heaters or air conditioners or
fencing or gates, except if installed by Tenant and required by Landlord to be
removed from the Property. All personal property of Tenant remaining on the
Property after Tenant's removal shall be deemed abandoned and at Landlord's
election may either be retained by Landlord or may be removed from the property
at Tenant's expense.
22. Holdover. In the event Tenant remains in possession of the Property
after the expiration of the Term of this Lease (the "Holdover Period"), in
addition to any damages to which Landlord may be entitled or other remedies
Landlord may have by law, Tenant shall pay to Landlord a rental for the Holdover
Period at the rate of one hundred fifty (150%) percent the sum of (i) the annual
rent payable during the last lease year of the Term, plus (ii) all items of
additional rent and other charges with respect to the Property payable by Tenant
during the last lease year of the Term. Nothing herein contained shall be deemed
to give Tenant any right to remain in possession of the Property after the
expiration of the Term of this lease. The sum due to Landlord hereunder shall be
payable by Tenant upon demand. Prior to asserting a claim for damages due to a
lost or delayed prospective tenant, Landlord must provide evidence of any claim
against Tenant for missed rent or other damages from a lost prospective tenant
due to holdover of Tenant.
23. Events of Default; Remedies. (a) Tenant shall be in default upon
the occurrence of one or more of the following events (an "Event of Default")'
(i) Tenant fails to pay rent or any other sum of money required to be paid by
Tenant hereunder within five (5) days of the date
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when due; however, Tenant shall be entitled to pay within five (5) days written
notice from Landlord on two (2) occasions per year and not be in default; (ii)
Tenant fails to perform any of Tenant's non-monetary obligations under this
Lease for a period of thirty (30) days after written notice thereof from
Landlord. If Tenant is diligently pursuing to cure any non-monetary default and
such default cannot be effected within thirty (30) days, then Tenant will be
allowed additional time as required to effect such cure; (iii) Tenant abandons
the Property for thirty (30) days or more; or (iv) Tenant makes an assignment
for the benefit of creditors, or if a petition for adjudication of bankruptcy or
for reorganization is filed by or against Tenant and is not dismissed within
thirty (30) days, or if a receiver or trustee is appointed for a substantial
part of Tenant's property and such appointment is not vacated within thirty (30)
days.
(b) On the occurrence of an Event of Default, without limiting
any other fight or remedy Landlord may have, Landlord may give written notice to
Tenant of its intention to take the following actions on the earliest date
permitted by law or any later date specified in such notice:
(i) Terminate this Lease and Tenant's right to
possession of the Property by any lawful means, or, without terminating this
Lease, take possession of the Property. In any such event Tenant shall
immediately surrender possession of the Property to Landlord and shall remain
liable to Landlord as follows. At its option, Landlord may occupy the Property
or cause the Property to be redecorated, altered, divided, consolidated with
other adjoining property, or otherwise prepared for reletting, and may relet the
Property or any part thereof for a term or terms to expire prior to, at the same
time or subsequent to the original Expiration Date, and receive the rent
therefor, applying the sums received first to the payment of such expenses as
Landlord may have incurred in connection with the recovery of possession, and
restoring the Property to the condition in which Tenant was obligated to
maintain the Property under this Lease, to brokerage and attorneys' fees, and
then to the payment of damages in amounts equal to the rent hereunder and to the
cost and expense of performance of the other covenants of Tenant under this
Lease. Tenant agrees to pay to Landlord damages equal to the rent and other sums
payable by Tenant under this Lease, reduced by the net proceeds of the
reletting, if any, as ascertained from time to time. In reletting the Property,
Landlord may grant rent concessions, and Tenant shall not be entitled to any
credit therefor. Tenant shall not be entitled to any surplus resulting from any
reletting. If Landlord elects to occupy the Property or any part thereof, there
shall be allowed against Tenant's obligation for rent during the period of
Landlord's occupancy, the reasonable value of such occupancy, not to exceed in
any event the rent payable hereunder for such portion of the Property. Such
occupancy shall not be construed as a release of Tenant's liability hereunder.
In all respects hereto, the Landlord has an affirmative duty to mitigate its
damages by attempting to relet the Property.
(ii) Permit Tenant to remain in possession of the
Property, in which event this Lease shall continue in effect. Landlord shall be
entitled to enforce all of Landlord's rights and remedies under this Lease,
including the right to receive the rent as it becomes due under this lease.
(iii) Pursue any other remedy now or hereafter
available under the laws of the jurisdiction in which the Property is located.
(c) The remedies available to Landlord herein specified are
not intended to be exclusive and prevent Landlord from exercising any other
remedy or means of redress to which Landlord may be lawfully entitled. In
addition to other remedies provided in this Lease, Landlord shall be entitled to
restraint by injunction of any violation or threatened violation by Tenant of
any of the provisions of this Lease. Landlord's exercise of any fight or remedy
shall not prevent Landlord from exercising any other fight or remedy.
(d) Tenant, for itself and any person claiming through or
under Tenant, waives any equity or fight of redemption provided by any law.
24. Service Fee; Interest. (a) Tenant's failure to pay rent promptly or
make other payments required under this Lease may cause Landlord to incur
unanticipated costs, which are impractical to ascertain. Therefore, if Landlord
does not receive full payment of Fixed Rent,
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additional rent or other sums due from Tenant to Landlord within five (5) days
after it becomes due, Tenant shall pay Landlord as additional rent a service fee
equal to five (5%) percent of the overdue amount; however, Tenant will be
allowed one (1) written notice of delinquency per year without imposition of the
service fee, providing Tenant pays all amounts due with three (3) days of
receipt of Landlord's notice. This service fee shall be in addition to
reasonable legal fees and costs incurred by Landlord in enforcing this Lease in
the event of default.
(b) Any amount owed by Tenant to Landlord which is not paid
when due shall bear interest at the rate per annum of three (3%) percent in
excess of the then prime rate of CitiBank, N.A., of New York, New York ("Default
Interest") from the date of default in payment of such amount. The payment of
Default Interest on such amounts shall not extend the due date of any amount
owed. If the interest rate specified in this Lease shall exceed the rate
permitted by law, the Default Interest shall be deemed to be the maximum legal
interest rate permitted by law.
25. Indemnification by Tenant. Tenant shall indemnify and hold harmless
Landlord from and against all liability, claims or costs including reasonable
legal fees, arising from (i) Tenant's use of the Property; (ii) any breach of
this Lease by Tenant; (iii) any other act or omission of Tenant; or (iv) any
injury including claims for death to person or damage to property Occurring on
or about the Property, except for acts of gross negligence by Landlord. Tenant
shall defend Landlord against any such claim of a third party, with counsel
reasonably acceptable to Landlord or, at Landlord's election, Tenant shall
reimburse Landlord for reasonable legal fees incurred by Landlord's employment
of its own counsel.
26. Landlord's Right to Cure Tenant's Default. If Tenant fails to make
any payment or perform any act on its part to be made or performed, then
Landlord, without waiving or releasing Tenant from such obligation, may, but
shall not be obligated to, make such payment or perform such act on Tenant's
part, and the costs incurred by Landlord in connection with such payment or
performance, together with Default Interest thereon, shall be paid on demand by
Tenant to Landlord as additional rent.
27. Waiver of Liability. Landlord shall not be liable for any injury or
damage to the business, equipment, merchandise or other property of Tenant or
any of Tenant's employees or invitees or any other person on or about the
Property, resulting from any cause, including, but not limited to: (i) fire,
steam, electricity, water, gas or rain; (ii) leakage, obstruction or other
defects of pipes, sprinklers, wires, plumbing, air conditioning, boilers or
lighting fixtures; or (iii) condition of the Property. The preceding excludes
any acts of gross negligence by Landlord.
28. Force Majeure. If either party is unable to perform any of its
obligations due to events beyond such party's reasonable control, the time
provided to such party for performing such obligations shall be extended by a
period of time equal to the duration of such events, and the other party shall
not be entitled to any claim against such party by reason thereof. Events beyond
a party's reasonable control include, but are not limited to, acts of God, war,
civil commotion, labor disputes, strikes, casualty, weather conditions, labor or
material shortages, or government regulation or restriction. Nothing herein
shall delay or affect Tenant's obligation to pay Fixed Rent, real property
impositions or other items of additional rent payable by Tenant under this Lease
as the same becomes due.
29. Notice of Landlord's Default. Tenant shall give written notice of
any failure by Landlord to perform any of its obligations under this Lease to
Landlord and any ground lessor or Landlord's Mortgagee whose name and address
have been furnished to Tenant. Landlord shall not be in default under this Lease
unless Landlord (or such ground lessor or Landlord's Mortgagee) fails to cure
such non-performance within thirty (30) days after receipt of Tenant's notice.
If more than thirty (30) days are required to cure such non-performance,
Landlord shall not be in default if such cure is commenced within such thirty
(30) day period and thereafter diligently pursued to completion. If Landlord
shall be in default as aforesaid, Tenant's only right or remedy shall be to
perform such work or take such action as shall be reasonably necessary to cure
or correct such default. In no event shall Tenant have the right to terminate
this Lease by reason of any such default, and in no event shall Tenant have the
fight to deduct from Fixed Rent or additional rent any amounts expended by
Tenant pursuant to this Section.
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30. Landlord's Liability Limited. (a) There shall be no personal
liability of the Landlord or any partner, stockholder, officer, director or
other principal of Landlord in connection with this Lease. Tenant agrees to look
solely to the interest of Landlord in the Property for the collection of any
judgment or other judicial process requiring the payment of money by Landlord in
the event of any default or breach by Landlord with respect to this Lease or in
any way relating to the Property. No other assets of landlord or any principal
of Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Tenant's remedies.
(b) The term "Landlord" as used in this lease means only the
owner or mortgagee in possession for the time being of the Property or the owner
of a lease thereof so that, in the event of any sale of the Property, or an
assignment or transfer of such lease, or an assignment of this Lease, Landlord
shall be, and hereby is, entirely freed, relieved and released of all
obligations of Landlord hereunder, and it shall be deemed, without further
agreement between the parties and such purchaser(s) or assignee(s) that the
purchaser or assignee has agreed to perform all of the obligations of Landlord
hereunder. This provision shall relate only to obligations which arise after the
date of such transfer and do not relieve Landlord for liability for obligations
arising prior to such transfer.
31. Estoppel Statement; Financial Statement. (a) Upon Landlord's
request, Tenant shall execute, acknowledge and deliver to Landlord a written
statement certifying: (i) the Commencement Date; (ii) the Expiration Date; (iii)
that this Lease is in full force and effect and unmodified (or if modified,
stating the modifications); (iv) the last date of payment of the Fixed Rent and
other charges and the time period covered by each payment; (v) that Landlord is
not in default under this Lease (or, if Landlord is claimed to be in default,
stating the nature of the default); and (vi) such other matters as may be
reasonably required by Landlord or any Landlord's Mortgagee. Tenant shall
deliver such statement to Landlord within ten (10) days after Landlord's written
request. Any such statement may be given to and relied upon by any prospective
purchaser or encumbrancer of the Property.
(b) Within ten (10) days after Landlord's request, Tenant
shall deliver to Landlord such financial statements as are reasonably required
to verify the net worth of Tenant. Any such statement may be given by Landlord
to any Landlord's Mortgagee or prospective encumbrancer of the Property, but
otherwise shall be kept confidential by Landlord. Tenant represents to Landlord
that each such financial statement is a true and accurate statement as of the
date of such statement.
32. Quiet Enjoyment. Landlord covenants that as long as Tenant pays the
Fixed Rent and additional rent and performs its other obligations under this
Lease, Tenant shall peaceably and quietly have, hold and enjoy the Property for
the Term provided by this Lease, subject to the provisions of this Lease, any
mortgage or other agreements to which this Lease is subordinate.
33. Subordination; Attornment. (a) This Lease is subject and
subordinate to any mortgage and related documents or liens which may now or
hereafter encumber the Property, and any renewals, modifications,
consolidations, replacements or extensions thereof.
(b) If Landlord's interest in the Property is acquired by
Landlord's Mortgagee, or purchaser at a foreclosure sale, Tenant shall attom to
the transferee of or successor to Landlord's interest in the Property and
recognize such transferee or successor as landlord under this Lease. Such
transferee or successor shall not be liable for any act or omission of any prior
landlord, or be subject to any offsets or defenses which Tenant might have
against any prior landlord, or be bound by any Fixed Rent which Tenant might
have paid for more than the current month to any prior landlord, or be liable
for any security deposit under this lease unless actually transferred to such
transferee or successor.
(c) Tenant agrees that this Lease shall be modified in
accordance with the reasonable request of any institutional Landlord's
Mortgagee, provided no such modification adversely affects the business terms,
or operation of Tenant's business, of this lease.
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(d) The foregoing provisions shall be self-operative and no
further instrument or act on the part of Tenant shall be necessary to effect the
same, so long as Tenant is provided with a non-disturbance agreement. Tenant
shall nevertheless sign and deliver any document necessary or appropriate to
evidence the subordination, attornment or agreement above provided, providing
Tenant is provided with a non-disturbance agreement, acceptable to Tenant,
granting Tenant the right to have, hold and enjoy the Property for the Term (so
long as Tenant pays the Fixed and Additional Rent and performs its other
obligations under this Lease).
34. Brokerage. Each party represents to the other that it did not deal
with any real estate broker in connection with this Lease, other than the real
estate broker (if any) whose identity is set forth in Section l(h). The
commission of such broker (if any) shall be paid by the party as set forth in
Section l(h). Each party shall indemnify and hold the other harmless from any
claim for a commission or other fee made by any broker with whom the
indemnifying party has dealt, other than the broker identified in Section l(h).
35. Notices. All notices in connection with this Lease or the Property
shall be in writing and shall be personally delivered or sent by certified mail,
return receipt requested, postage prepaid or by overnight carrier which obtains
delivery receipts (e.g. Federal Express). Notices to Landlord shall be delivered
to the address specified in Section l(b). Notices to Tenant shall be delivered
to the address specified in Section l(c). All notices shall be effective upon
the earlier of delivery or attempted delivery in accordance with this provision.
Either party may change its notice address upon written notice to the other
party given in accordance with this provision.
36. Memorandum of Lease. Tenant shall not record this lease. However,
either Landlord or Tenant may require that a memorandum of this Lease executed
by both parties be recorded. Such memorandum shall include such portions of this
lease as either party may reasonably require, but shall not specify the amount
of Fixed rent payable hereunder.
37. Miscellaneous. (a) The failure of either party to insist on strict
performance of any provision of this Lease, or to exercise any right contained
herein, shall not be construed as a waiver of such provision or right in any
other instance. All amendments to this lease shall be in writing and signed by
both parties.
(b) The captions in this lease are intended to assist the
parties in reading this Lease and are not a part of the provisions of this
Lease. Whenever required by the context of this lease, the singular shall
include the plural and the plural shall include the singular. The masculine,
feminine and neuter genders shall each include the other.
(c) Landlord and Tenant hereby waive trial by jury in any
legal proceeding brought by either of them against the other with respect to any
matters arising out of or in any way connected with this Lease or the Property.
(d) The laws of the state in which the Property is located
shall govern this Lease.
(e) If Tenant is a corporation or partnership, each person
signing this lease on behalf of Tenant represents that he has full authority to
do so and that this Lease binds the corporation or partnership, as the case may
be.
(f) This Lease shall be binding upon, and inure to the benefit
of, Landlord and Tenant and their respective heirs, executors, administrators,
successors (by operation of law or otherwise) and assigns, subject, however, to
the limitations on Tenant's right to assign and sublet as set forth in Section
18 hereof.
(g) The submission of this lease to Tenant shall not be deemed
to be an offer and shall not bind either party until duly executed by Landlord
and Tenant.
(h) This Lease may be executed in counterparts, and, when all
counterpart documents are executed, the counterparts shall constitute a single
binding instrument.
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(i) A determination by a court of competent jurisdiction that
any provision of this Lease or any part thereof is illegal or unenforceable
shall not invalidate the remainder of this Lease or such provision, which shall
continue to be in effect.
(j) Waiver of Jury Trial. Landlord and Tenant by this Section
38 waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties to this Lease against the other on any matters whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Premises, or any other
claims (including without limitation claims for personal injury or property
damage), and any emergency statutory or any other statutory remedy.
The riders enumerated in Section l(i) are attached hereto and make a
part of this Lease as fully as if set forth herein at length. The Terms used in
the rider have the same meanings as set forth in the Lease. The provisions of a
rider shall prevail over any provisions of the Lease which are inconsistent or
conflict with the provisions of the rider.
IN WITNESS WHEREOF, the parties hereby have duly executed this Lease as
of the date set forth in Section l(a).
WITNESS: LANDLORD:
PYRAMID CONSTRUCTION COMPANY
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ------------------------------
ATTEST: TENANT:
MAGNETEC CORP.
By: /s/ By: /s/ Xxxxxxx X. Xxxx
-------------------------- ------------------------------
Executive Vice President
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LOAN PROGRESS CHART
Showing dollar balance remaining on a $1,000 loan.. ... 9-1/4%
ORIGINAL TERM IN YEARS
AGE OF LOAN 20
----------- --
10 715
11 670
12 620
13 565
14 505
15 439
16 366
17 287
18 200
19 105
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OPTION TO RENEW #1
The tenant shall have the option to renew this lease for an additional
five (5) year period, commencing April 1, 2008 and terminating March 31, 2013 at
the following rental rate:
YEAR MONTHLY INSTALLMENT ANNUAL RATE
---- ------------------- -----------
04/01/08-03/31/09 $ 34,302.92 $ 411,635.00
04/01/09-03/31/10 $ 34,388.25 $ 412,659.00
04/01/10-03/31/11 $ 37,601.50 $ 451,218.00
04/01/11-03/31/12 $ 37,690.25 $ 452,283.00
04/01/12-03/31/13 $ 37,780.83 $ 453,370.00
In order for the Tenant to renew the Lease for an additional five (5)
years, Tenant must provide written notice to the Landlord of the Tenant's intent
to exercise the option to renew the Lease at least six (6) months prior to the
expiration of the original Lease.
Upon Landlord's receipt of that written notice, the Lease will be
renewed for an additional five (5) years as set forth above, provided and on
condition that the Tenant has performed all the terms, conditions and covenants
stated in the Lease provisions during the Lease term, and is not in default of
any of the provisions of the Lease at the time the notice of intent to exercise
the option is given.
All other terms and conditions of the Lease shall remain the same and
in full force and effect.
20
OPTION TO RENEW #2
The tenant shall have the option to renew this lease for an additional
five (5) year period, commencing April 1, 2013 and terminating March 31, 2018 at
the following rental rate:
YEAR MONTHLY INSTALLMENT ANNUAL RATE
---- ------------------- -----------
04/01/13-03/31/14 $ 37,881.50 $ 454,578.00
04/01/14-03/31/15 $ 37,959.00 $ 455,508.00
04/01/15-03/31/16 $ 41,515.17 $ 498,182.00
04/01/16-03/31/17 $ 41,613.17 $ 499,358.00
04/01/17-03/31/18 $ 41,713.17 $ 500,558.00
In order for the Tenant to renew the Lease for an additional five (5)
years, Tenant must provide written notice to the Landlord of the Tenant's intent
to exercise the option to renew the Lease at least six (6) months prior to the
expiration of the original Lease.
Upon Landlord's receipt of that written notice, the Lease will be
renewed for an additional five (5) years as set forth above, provided and on
condition that the Tenant has performed all the terms, conditions and covenants
stated in the Lease provisions during the Lease term, and is not in default of
any of the provisions of the Lease at the time the notice of intent to exercise
the option is given.
All other terms and conditions of the Lease shall remain the same and
in full force and effect.
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EXHIBIT A, B and C
MAGNETEC ADDITION 1997
COMPLETE SET OF CONSTRUCTION DOCUMENTS
Drawings and Specifications entitled "MAGNETEC BUILDING-ADDITION, WALLINGFORD,
CT" by Dyami Architects, dated June 24, 1997:
EXHIBIT A Site Plan
T- 1 Title, General Notes
01-AB1 Building Architectural and Demolition Plan
01-AAl Architectural Plan
01-AA2 Reflected Ceiling Plan
01-AA3 Electric & Telephone Plan
01-AA4 Finish Plan
01-AA5 Roof Plan
IE-1 Interior Elevation
EEl Exterior Elevation
DT1 Details Plan
DT2 Details Plan
DT3 Details Plan
S1 Foundation Plan (Revised 7/15/97)
S3 Structural Plan (Revised 7/15/97)
E-1 Power Plan
E-2 Lighting Plan
M-1 HVAC Plan
P-1 Plumbing Plan
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GUARANTY OF LEASE
LANDLORD: PYRAMID CONSTRUCTION COMPANY
TENANT: MAGNETEC CORP.
LEASE: AT COMPLETION- MARCH 31, 2008
GUARANTOR: TRANSACT TECHNOLOGIES, INC.
DATE: July 31, 1997
The Tenant wishes to enter into the Lease dated July 30, 1997, with
the-Landlord. 'The Landlord is unwilling to enter into the Lease unless the
Guarantor assures Landlord of the full performance of the Tenant's obligations
under the Lease. The Guarantor is willing to do so.
Accordingly, in order to induce Landlord to enter into the Lease with
the Tenant, and for good and valuable consideration, whose receipt and adequacy
are acknowledged by Guarantor
1. The Guarantor unconditionally guarantees to the Landlord, and the
successors and assigns of the Landlord, the Tenant's full and punctual
performance of its obligations under the Lease. If Tenant defaults, Landlord
will notify Guarantor at TransAct Technologies, Inc., 0 Xxxxx Xxxx, Xxxxxxxxxxx,
XX 00000. If Tenant defaults in the performance of its obligations under the
Lease, upon the Landlord's request, the Guarantor will perform the Tenant's
obligations under the Lease.
2. Any act of the Landlord, or the successors or assigns of the
Landlord, consisting of a waiver of any of the terms or conditions of the Lease,
or the giving of any consent to any matter related to or thing relating to the
Lease, or the granting of any indulgences or extensions of time to the Tenant,
may be done without notice to the Guarantor and without affecting the
obligations of the Guarantor under this Guaranty.
3. The obligations of the Guarantor under this Guaranty will not be
released by the Landlord's receipt, application, or release of security given
for the performance of the Tenant's obligations under the Lease, nor by any
modification of the Lease. In case of any such modification, the liability of
the Guarantor will be deemed modified in accordance with the terms of any such
modification.
4. The liability of the Guarantor under this Guaranty will not be
affected by (a) the release or discharge of the Tenant from its obligations
under the Lease in any creditors' receivership, bankruptcy, or other
proceedings, or the commencement or pendency of the liability of the Tenant or
the estate of the Tenant in bankruptcy, or any remedy for the enforcement of the
Tenant's liability under the Lease, resulting from the operation of any present
or future bankruptcy code or other statute, or from the decision in any court;
(c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the
assignment or transfer of the Tenant; or (f) the cessation from any cause (other
than full performance of all Tenant's obligations under the Lease) whatsoever of
the liability of the Tenant under the Lease.
5. Until all of the Tenant's obligations under the Lease are fully
performed, the Guarantor; (a) waives any right of subrogation against the Tenant
by reason of any payment or acts of performance by the Guarantor, in compliance
with the obligations of the Guarantor under this Guaranty; and (c) subordinates
any liability or indebtedness of the Tenant held by the Guarantor to the
obligations of the Tenant to the Landlord under the Lease.
6. This Guaranty will apply to the Lease, any extension or renewal of
the Lease, and any holdover term following the term, or any such extension or
renewal.
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7. This Guaranty may not be changed, modified, discharged, or
terminated orally or in any manner other than by an agreement in writing signed
by the Guarantor and the Landlord.
8. The Guarantor is primarily obligated under the Lease. Landlord may,
at its option, proceed against the Guarantor without proceeding against the
Tenant or anyone else obligated under the Lease.
9. The Guarantor will pay on demand the reasonable attorneys' fees and
costs incurred by the Landlord, or its successors and assigns, in connection
with the enforcement of this Guaranty.
10. The Guarantor irrevocably appoints the Tenant as its agent for
service of process related to this Guaranty.
The Guarantor has executed this Guaranty as of the date written above.
ATTEST: GUARANTOR: TRANSACT TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. XxXxxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------- -----------------------------
Executive Vice President and CFO
