Exhibit 10.5
AMENDMENT NO. 1. TO LEASE
THIS AMENDMENT NO. 1 TO LEASE is made and entered into as of the 1st day of
June, 1998 between Landlord and Tenant named below:
LANDLORD XXX Xxxxxx Road, LLC
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
TENANT: CiDRA Corporation
00 Xxxxxx Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
BUILDING: 00 Xxxxxx Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
WHEREAS, Landlord and Tenant entered into a lease dated March 11, 1998 (the
"Lease") pursuant to which Tenant leased from Landlord approximately 89,776
rentable square feet of floor area in the Building (the "Premises"); and
WHEREAS, Landlord and Tenant wish to execute an amendment of the Lease
stating, among other things, the increase in Basic Rent as provided for in
Paragraph 3 of the Lease.
NOW, THEREFORE, the parties to this Amendment No. 1 to Lease, in
consideration of the covenants hereinafter contained and the sum of One Dollar
($1.00) to each party paid by the other, the receipt of which is hereby
acknowledged, do covenant and agree as follows:
1. Capitalized terms used but not defined herein shall have the meaning
ascribed to each in the Lease.
2. Commencing as of June 1, 1998, Basic Rent shall be increased by the sum
of Six Hundred Sixty-Nine and Fifty-Nine One-Hundredths ($669.59) Dollars per
month. Exhibit C attached to the Lease is hereby deleted and replaced with
Exhibit C attached to this Lease Amendment.
3. Landlord and Tenant represent and warrant to the other that each has
full authority to enter into this Amendment No. 1 to Lease and further agree to
hold harmless, defend, and indemnify the other from any loss, costs (including
reasonable attorneys' fees), damages, or claim arising from any lack of such
authority.
4. As modified herein, the Lease is hereby ratified and confirmed and
shall remain in full force and effect. Any conflict between this Amendment No. 1
and the Lease shall be resolved in favor of this Amendment No. 1.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Amendment No. 1 to
Lease as of the day and year first above written.
Signed, Sealed, and Delivered
in the Presence of: XXX XXXXXX ROAD, LLC
By: Winstanley Enterprises, Inc.
Its Manager
/s/ Xxxxxxx Xxxxx By: /s/ Xxxx X. Xxxxxxxxxx
------------------ ----------------------
Its President
Duly Authorized
/s/ Xxxx Xxxxxxxxx
------------------
CiDRA CORPORATION
/s/ Signature illegible
-----------------------
By: /s/ F. Xxxxx Xxxxxx
-------------------
Its President
/s/ Xxxxx X. X'Xxxx Duly Authorized
-------------------
2
COMMENCEMENT DATE AGREEMENT
AGREEMENT made this day of April, 1998 by and between XXX XXXXXX ROAD,
LLC, a Delaware limited liability company having an address at 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx ("Landlord") and CIDRA CORPORATION, a Delaware
corporation having an address at 00 Xxxxxx Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxxx,
Xxxxxxxxxxx ("Tenant").
WITNESSETH
WHEREAS Landlord and Tenant entered into a certain lease dated March
11, 1998 (the "Lease") pursuant to which Tenant leased from Landlord
approximately 89,776 rentable square feet of floor area in the premises known as
00 Xxxxxx Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx (the "Premises")
(capitalized terms used but not defined herein shall have the meaning ascribed
to each in the Lease); and
WHEREAS the Term of the lease was to commence on the date that
Landlord's Work was Substantially Complete such date being the Term Commencement
Date, and
WHEREAS, Landlord and Tenant agree that Landlord's Work has been
Substantially Completed and desire to set the Term Commencement Date.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
hereinafter set forth, the parties hereto agrees as follows:
1. Landlord and Tenant agree that the Term Commencement Date is April
13,1998. The Lease shall expire on April 30, 2005, unless the Term is otherwise
extended or earlier terminated as set forth in the Lease.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the day and year first above written.
Signed, Sealed, and Delivered
in the Presence of: XXX XXXXXX ROAD, LLC
By: Winstanley Enterprises, Inc.
Its Manager
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxxxx
-------------------- -------------------
Xxxx Xxxxxxxxxx
Its Treasurer
/s/ Signature Illegible
------------------------
CiDRA Corporation
/s/ Signature Illegible By: /s/ F. Xxxxx Xxxxxx
------------------------ F. Xxxxx Xxxxxx
Its President
/s/ Signature Illegible
------------------------
3
NOTICE OF LEASE
THIS NOTICE OF LEASE is made as of the 11th day of March, 1998, by and
between XXX XXXXXX ROAD, LLC, having an address at 000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 ("Landlord"), and CiDRA CORPORATION. having an address at 00
Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000 ("Tenant").
WITNESSETH
1. Landlord, in consideration of the rents and upon the terms,
conditions, covenants and agreements set forth in that certain Lease by and
between Landlord and Tenant dated March. 11, 1998 (the "Lease"), has leased to
Tenant certain premises comprising 89,776 rentable square feet and located at 00
Xxxxxx Xxxxxxxxxx Xxxx Xxxxx in Wallingford, Connecticut, being more
particularly described in Exhibit A-1 attached hereto and made a part hereof
(the "Premises") and being located on land described in Exhibit A hereto.
2. The Lease is for a term of seven (7) years commencing on the date on
which the Landlord has substantially completed certain work in the Premises as
described in Section 3 of the Lease (the "Term Commencement Date") and ending on
unless earlier extended or terminated in accordance with the terms of the Lease,
the seventh anniversary of the last day of the month in which the Term
Commencement Date occurs.
3. The address of Landlord is 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000.
4. The address of Tenant is 00 Xxxxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxx 00000.
5. The Lease contains rights to extend the original term for one (1)
additional term of five (5) years.
6. The Lease does not contain an option or a right of first refusal
to purchase.
7. The Lease is on file at the office of Tenant at the address
specified above.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Notice of Lease
on or as of the date first above written.
WITNESSES: LANDLORD:
XXX XXXXXX ROAD, LLC
/s/ Xxxxxxx X. Xxxxx By: Xxxx X. Xxxxxxxxxx
------------------
Printed Name: Xxxx X. Xxxxxxxxxx
------------------
Title: Manager
-------
/s/ Signature Illegible
------------------------
/s/ Signature Illegible
------------------------ TENANT
CiDRA CORPORATION
/s/ Signature Illegible By: /s/ F. Xxxxx Xxxxxx
------------------------ -------------------
Printed Name: F. Xxxxx Xxxxxx
---------------
Title: President and CEO
-----------------
5
COMMONWEALTH OF MASSACHUSETTS )
)
COUNTY OF MIDDLESEX ) ss:
This instrument was acknowledged before me this 14th day of April, 1998 by
Xxxx X. Xxxxxxxxxx, Manager of XXX Xxxxxx Road, LLC, a Delaware limited
liability company, on behalf of said limited liability company.
/s/ Signature Illegible
-----------------------
Commissioner of Superior Court
Notary Public
My Commission Expires Nov. 8, 0000
XXXXXXXXXXXX XX XXXXXXXXXXX )
)
COUNTY OF NEW HAVEN ) ss: Wallingford
This instrument was acknowledged before me this 13th day of April, 1998 by
Xxxxx Xxxxxx, President & CEO of CiDRA Corporation, a Delaware limited liability
company, on behalf of said limited liability company.
/s/ Xxxxx X. X'Xxxx
-------------------
Commissioner of Superior Court
Notary Public
My Commission Expires June 30, 2001
Xxxxx X. X'Xxxx
Notary Public
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SCHEDULE A - DESCRIPTION
All that certain piece or parcel of land, with the buildings and improvements
thereon and appurtenances thereto, situated on the easterly side of Xxxxxx Park
Road North in the Town of Wallingford, County of New Haven and State of
Connecticut, shown on a survey entitled: "Survey Plan Showing Property Of
Dataproducts New England, Incorporated And Xxxxxx, Incorporated Xxxxxx Xxxx Xxxx
Xxxxx Xxxxxxxxxxx, Xxxxxxxxxxx Date: Xxxxx 00, 0000 Xxxxx: l"=50' Revisions:
Feb. 4, 1992 Update Survey & Long Form Cert." by Xxxxx XxXxxxxx / Xxxx Xxxxxx &
Associates, Inc. Civil Engineers Planners Surveyors Old Saybrook, Connecticut,
Sheet 1 of 1 Job No. 76829, which map was filed February 14, 1992 at 2:55 P.M.
as Map No. _____ in the Office of the Wallingford Town Clerk, and being more
particularly bounded and described as follows:
Beginning at a point at the northwesterly corner of the herein described
parcel, which point is marked by an iron pipe on the easterly line of Xxxxxx
Park Road North, a distance of 5.75 feet north of a concrete monument;
thence running the following courses and distances:
S72(degree)46'23"E along the southerly line of property now or formerly of
D & F Associates, 608.06 feet to a point ;
N17(degree)13'37"E along the easterly line of said D&F Associates, a
distance of 290.00 feet to a point;
S58(degree)38'42"E along the southerly line of property now or formerly of
Xxxxxxx Xxxxxxxxxx as distance of 420.67 feet to a point;
S22(degree)06'19"W, along the westerly line of property now or formerly of
Xxxxxxxx Industries, Inc., a distance of 674.45 feet to a point;
S20(degree)39'46"W along the westerly line of property now or formerly
of Precision Products, Inc. a distance of 357.30 feet to a point on the
northerly line of Enterprise Road;
thence running along the northerly line of Enterprise Road in the line
of a curve to the left having a radius of 878.55 feet, an arc length of 48.53
feet to a point;
thence continuing along the northerly line of Xxxxxxxxxx Xxxx
X00(xxxxxx)00'00"X a distance of 747.80 feet to a point marked by a concrete
monument near the intersection of Xxxxxxxxxx Xxxx xxx Xxxxxx Xxxx Xxxx Xxxxx;
thence running along the line of a curve to the right having a radius
of 25.00 feet, an arc length of 38.12 feet to a concrete monument near said
intersection;
thence running in a northerly direction along the easterly line of Xxxxxx
Park Road North, along the line of a curve to the left having a radius of
2035.27 feet, an arc length of 223.86 feet to a point marked by a concrete
monument;
thence continuing along the easterly line of Xxxxxx Xxxx Xxxx Xxxxx
X00(xxxxxx)00'00"X, a distance of 595.10 feet to a point marked by a concrete
monument;
thence continuing along the easterly line of Xxxxxx Park Road North
following the line of a curve to the right, having a radius of 416.41 feet an
arc length of 5.75 feet to the point of beginning.
Said parcel contains ** acres, more or less, or 853,025 square feet,
more or less.
** approximately 19
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Schedule A
(continued)
1. Taxes to the Town of Wallingford on the Grand List of October 1, 1996, not
yet due and payable.
2. Water and sewer use charges to the Town of Wallingford Water and Sewer
Division, the payments of which are current.
3. Declaration of Restrictive Covenants made by Xxxxxxx Xxxxxxxxxx acting
therein by F.I.P. Corporation dated June 18, 1975 and recorded June 19, 1975 in
Volume 429, Page 372 of the Wallingford Land Records; and re-recorded September
7, 1977 in Volume 458, Page 551 of said Land Records.
4. Declaration of Restrictive Covenants made by Xxxxxxx Xxxxxxxxxx dated
November 8, 1978 and recorded November 9, 1978 in Volume 477, Page 678 of the
Wallingford Land Records.
5. Storm water drainage easement reserved by Xxxxxxx Xxxxxxxxxx in a Warranty
Deed to F.I.P. Corporation dated December 7, 1979 and recorded December 7, 1979
in Volume 493, Page 608 of the Wallingford Land Records.
6. Declaration of Restrictive Covenants, F.I.P. Corporation, Trustee dated June
18, 1975 and recorded June 19, 1975 in Volume 429, Page 372 , and as re-recorded
on September 7, 1977 in Volume 458, Page 551 of the Wallingford Land Records.
7. Drainage easement with rights to drain along land n/f Xxxxxxx Xxxxxxxxxx;
Storm water drainage system and yard drain from Enterprise Road; 60, 50 and 30-
foot building setback line; possible underground utility easements not of
recorded from Xxxxxx Park Road North, encroachment of driveways, curbing and
landscaping onto Xxxxxx Park Road North and Enterprise Road and notes as shown
and set forth on the map set forth in Schedule A-4 hereof.
8. Terms and conditions of a Notice of Lease by and between XXX Xxxxxx Road, LLC
(the landlord), and DNE Systems, Inc. (the tenant) dated June 23, 1997 and
recorded June _____, 1997 at _______.m. of said Land Records.
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EXHIBIT A-1
Floor Plan Premises
9
LEASE
1. Identifications.
This LEASE made as of March 11, 1998 by and between XXX Xxxxxx Road, LLC, a
Delaware limited liability company (the "Landlord"), having an address at 000
Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 and CiDRA Corporation, a Delaware
corporation (the "Tenant"), having an address at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxx 00000.
2. Lease: The Premises.
In consideration of the Basic Rent, Additional Rent, and other payments and
covenants of the Tenant hereinafter set forth, and upon the following terms and
conditions, the Landlord hereby leases to the Tenant and the Tenant hereby
leases from the Landlord approximately 89,776 rentable square feet of floor area
(said area having been previously measured in accordance with prevailing BOMA
standards), located as shown on the floor plan attached hereto as Exhibit A-1
(the "Premises"), in that certain building (the "Building") situated on that
certain parcel of land (the "Property") known as and numbered 00 Xxxxxx
Xxxxxxxxxx Xxxx Xxxxx, in the Town of Wallingford, County of New Haven, State of
Connecticut, as more particularly described in Exhibit A attached hereto. The
Premises are leased together with rights, in common with the Landlord and all
others (including any other tenant or tenants of the Building or the property,
claiming under the Landlord or otherwise) from time to time lawfully entitled
thereto, to use the driveways, walkways, parking area and other common areas of
the Property for their intended purposes. Tenant shall have the right to use a
pro-rata share (based on the percentage of space Tenant occupies at the
Building) of the number of parking spaces at the Property, provided that spaces
shall not be designated as exclusive or reserved for Tenant's use.
3. Construction by Landlord.
The Landlord shall complete, at the Tenant's cost and expense as set forth
herein, certain work in the Premises as set forth, in general terms, in Exhibit
B attached hereto (the "Work"). The Work will be performed in accordance with
final plans and specifications prepared by or on behalf of Tenant and approved
by Landlord (the "Tenant Work Plans"). Landlord shall not unreasonably withhold
its consent of Tenant's Work Plans. Landlord shall approve or deny Tenant's Work
Plans within five (5) business days after submission of the same to Landlord. If
Landlord disapproves Tenant's Work Plans, the notice shall state the reasons
therefor. Tenant shall be entitled to an allowance from the Landlord in the
amount of $210,000 toward the cost of the Work (the "Allowance"). The Tenant may
request an increase in the Allowance of up to $40,000 (the "Additional
Allowance") by giving written notice of said request to the Landlord within
three (3) business days from the date Landlord approves Tenant's Work Plans. In
such event, Basic Rent as provided in Paragraph 6 hereof, shall be increased so
as to reimburse the Landlord for the amount the Additional Allowance by
amortizing the Additional Allowance over the initial Term at a 10% interest
rate, and adding the resulting amount to Basic Rent. Upon the Landlord's
receipt of said request, it shall prepare and deliver to the Tenant an amendment
to this Lease reflecting the Basic Rent increased as aforesaid, and the Tenant
shall promptly execute and return said amendment to the Landlord. The Tenant
shall not unreasonably withhold or delay
10
approval of any changes or amendments to the Work or to Tenant's Work Plan which
the Landlord may from time to time propose or require to cause the Work to
comply with applicable building code requirements, provided, however, that the
Tenant need not approve any such proposed change or amendment which will
materially adversely affect the value or quality or the Tenant's anticipated use
of the Premises.
The Landlord shall exercise all commercially reasonable efforts to
substantially complete the Work by that date which is thirty (30) days after
approval by Landlord of Tenant's Work Plans, as such date shall be automatically
extended for the periods of (i) any delays caused by the Tenant's changes to
Tenant's Work Plans, any delays in the Tenant's approval of amendments to the
Work, and any other delays which are the responsibility of the Tenant (any and
all such delays being referred to as "Tenant Delays"); and (ii) any delays which
result from strikes, inability to obtain materials (or substitutes acceptable to
the Tenant at comparable cost), fire or other casualty and from any causes
beyond the commercially reasonable control of the Landlord. If the Work is not
Substantially Complete by the date that is ninety (90) days following Landlord's
`approval of Tenant's Work Plans, as a result of delays caused solely and
directly by the acts or omissions of Landlord, its contractors, agents or
employees, then this Lease shall not be affected thereby but, in such case,
Tenant's obligation to pay Basic Rent as of the date Basic Rent commences
pursuant to Paragraph 6 hereof, shall xxxxx in the amount of one day's Basic
Rent for every day of delay beyond the aforesaid ninety (90) day period. If the
Commencement Date has not occurred within one (1) year of the date of this
Lease, the Lease shall terminate without further action of either party.
The Work shall be deemed to be "Substantially Complete" when the same is
complete in accordance with Tenant's Work Plans and the other provisions hereof
evidenced by delivery to Tenant of a temporary certificate of occupancy and a
certification from the Landlord's architect, except only for items of work
specified in a so-called "punch list" signed by the Landlord and the Tenant
containing items which would customarily be classified as "punch list" items,
the delayed completion of which will not substantially interfere with the
Tenant's use of the Premises as contemplated hereby.
The Tenant shall reimburse the Landlord, within thirty (30) days after
receipt of itemized invoices from the Landlord for, (i) all costs in excess of
the Allowance associated with change orders approved by the Tenant (Tenant
agrees that it will obtain an estimate of the costs of the change order before
approving the same), and (ii) the cost of any Work in excess of the Allowance.
All such costs shall be reimbursed at the Landlord's cost plus one percent (1%)
for administrative services, three percent (3%) for overhead and three percent
(3%) for general conditions.
Tenant represents that Tenant has inspected the Premises and the Building
and is thoroughly acquainted with their condition and takes the premises "as
is," subject to the completion of the Work and the taking of possession of the
Premises by Tenant shall be conclusive evidence that the Premises and the
Building were in good and satisfactory condition at the time possession was
taken by Tenant, subject, however, to the completion of the Work.
Notwithstanding the foregoing, Landlord represents that the heating, ventilating
and air conditioning, electrical, plumbing and mechanical systems will be in
good working order as of
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the date of Substantial Completion, as defined below. Neither Landlord nor
Landlord's agents have made any representations or promises with respect to the
condition of the Building, the Premises, the Property, or any other matter or
thing affecting or related to the Building or the Premises, except as herein
expressly set forth, and no rights, easements or licenses are acquired by Tenant
by implication or otherwise except as expressly set forth in this Lease. The
Tenant shall have the right to perform work in the Premises during the period
the Landlord is performing the Work provided it is at the Tenant's sole risk and
expense, and provided there is no interference with the Work.
4. Term.
The Term of this Lease shall commence on the date the Landlord's Work is
Substantially Complete (the "Term Commencement Date") and shall expire, unless
earlier extended or terminated in accordance with the terms hereof; at midnight
on the seventh (7th) anniversary of the last day of the month in which the Term
Commencement Date occurs. The parties shall execute a commencement date
agreement at such time as the applicable date is known.
5. Use of the Premises; Licenses and Permits.
The Tenant shall use the Premises only for research and development, light
manufacturing, (including, without limitation, the manufacture of fiber optic
sensing systems), warehouse, accessory office and cafeteria (for use solely by
employees of Tenant) uses to the extent now and hereafter from time to time
permitted under applicable laws, by-laws, ordinances, codes, rules, regulations,
orders and other lawful requirements of governmental bodies having jurisdiction.
Except for building permits and other permits or approvals required to complete
the Work (which permits and approvals shall be obtained by Landlord, at Tenant's
expense), the Tenant, its subtenants, licensees, invitees and any other users of
the Premises shall apply in their own names for and obtain at their own expense
any and all licenses, permits and other approvals which may be required from
such governmental bodies in connection with any particular use of the Premises
during the Term
6. Basic Rent; Additional Rent.
The Tenant shall pay Basic Rent to the Landlord at an annual rate pursuant
to Exhibit C annexed hereto and made a part hereof. Basic Rent shall be payable
in advance on the first day of each month in equal installments to the Landlord
at the address set forth above or such other address as the Landlord may
thereafter specify by notice to the Tenant, without counterclaim, set off,
deduction or defense and, except as otherwise expressly provided herein, without
abatement.
This Lease is intended by the parties hereto to be a so-called "net" lease
and, to the end that the Basic Rent shall be received by the Landlord net of all
costs and expenses related to the Property, the Building and the Premises,
except as expressly set forth herein, the Tenant agrees to pay, in addition to
the Tenant's obligations with respect to real estate taxes, insurance premiums,
management fees, utilities costs, costs of repairs and maintenance and other
costs which are specifically set forth herein, to the Landlord upon demand as
Additional Rent, in the same manner as Basic Rent, any and all charges, costs,
expenses, and obligations of every kind
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and nature whatever as the Landlord may from time to time actually incur in good
faith with regard to the Premises or the operation or maintenance thereof,
except as otherwise expressly agreed in this Lease, including, without limiting
the generality of the foregoing, reasonable attorneys' fees incurred by the
Landlord in connection with any amendments to, consents under and subleases and
assignments of this Lease requested by the Tenant and in connection with the
enforcement of rights and pursuit of the remedies of the Landlord under this
Lease (whether during or after the expiration or termination of the Term of this
Lease) and 5 8.20% or such other percentage as the rentable square footage of
the Premises bears to the rentable square footage of the Building (currently
measured at 154,255 square feet) from time to time ("Tenant's Percentage") of
Common Expenses as hereinafter defined. "Common Expenses" shall mean any and all
charges, costs and expenses of every kind and nature whatever, which the
Landlord may from time to time actually incur and the reasonable value, based on
competitive rates, of any materials and services which the Landlord may provide
in good faith with respect to the ownership, operation and maintenance of the
Building and the Property, including, without limitation, (i) making repairs to
and undertaking maintenance of the Building and the Property, including all
alterations and improvements to the common areas of the Property; (ii) providing
utilities, including heat, water, sewer, electricity, air conditioning and
ventilation to the Building and to the common areas of the Property including
taxes on such utilities; (iii) providing daily cleaning and rubbish removal;
(iv) providing watering, landscaping and lawn care for the Property; (v)
sanding, plowing and removal of snow and ice from driveways, walkways and
parking areas; (vi) premiums paid and deductibles assessed with respect to
insurance carried with respect to damage or loss to the Building or the
Property, public liability and other insurance that may be carried by Landlord
and/or its affiliates to protect its or their interests and legal liabilities in
connection with the Building and/or the Property; (vii) reasonable
administrative and management costs of the Landlord including management fees
which fees will be in accordance with fees customarily charged in the
Wallingford, Connecticut area; and (viii) the cost of any capital repairs or
replacements made to the Property of the Building and of any machinery or
equipment installed in the Building which are made or become operational, as the
case may be, after the Term Commencement Date to properly maintain the Building
and the Property to a standard equivalent to its current condition provided that
such cost shall be reasonably amortized over the useful life with interest on
the unamortized amount at a rate of interest reasonably determined by Landlord.
Notwithstanding the foregoing, the Tenant's responsibility for Tenant's
Percentage of capital repairs or replacements shall be limited to those (x)
required by governmental authorities; (y) which if made would reduce operational
expenses and (z) related to the parking lot. Landlord agrees that if either or
both boilers which serve the Building are at the end of its and/or their useful
life or otherwise need to be replaced, such expense(s) shall not be the
responsibility of the Tenant. Landlord further agrees that such capital repairs
and replacements shall be amortized over the useful life of the applicable item
in accordance with generally accepted real estate accounting principles.
The Tenant shall prepay to the Landlord monthly as Additional Rent, in the
same manner as Basic Rent, one-twelfth (1/12) of the total of all such amounts
as the Landlord may from time to time reasonably estimate will be payable
annually by the Tenant under this Lease with respect to Common Expenses, which
prepayments the Landlord agrees shall be applied, without interest, to such
amounts as actually become payable. Within sixty (60) days after the end of each
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calendar year, the Landlord shall certify to Tenant the actual amounts payable
for the preceding year, and appropriate adjustments of any overpayments and
underpayments shall be made.
If any payment of Basic Rent or Additional Rent is not paid to the Landlord
when due or within any applicable grace period, then at the Landlord's option,
without notice and in addition to all other remedies hereunder, the Tenant shall
pay upon demand to the Landlord as Additional Rent interest thereon at an annual
rate equal to the corporate rate of the BankBoston from time to time in effect
plus four percent (4%), such interest to be computed from the date such Basic
Rent or Additional Rent was originally due through the date when paid in full.
7. Taxes.
The Tenant shall prepay to the Landlord monthly, as Additional Rent, in the
same manner as Basic Rent, one-twelfth (1/12) the total of all such amounts as
the Landlord may from time to time reasonably estimate will be payable annually
by the Tenant with respect to the Tenant's Percentage of any and all real estate
taxes, betterment's and special assessments or amounts in lieu or in the nature
thereof and any other taxes, levies, water rents, sewer use charges and other
excises, franchises, imposts and charges, general and special (and the entire
amount of any interest, penalties and costs attributable to delayed payment of
the Tenant's portion thereof where such delay is the fault of the Tenant) of
whatever name and nature, and whether or not now within the contemplation of the
parties hereto, which may now or hereafter be levied, assessed or imposed by the
United States of America, the State of Connecticut, the Town of Wallingford or
any other authority, or become a lien, upon all or any part of the Property, the
Building, the Premises, the use or occupation thereof; or upon the Landlord and
the Tenant in respect thereof; or upon the basis of rentals thereof or therefrom
(except for the Landlord's income, estate, gift or transfer taxes), or upon the
estate hereby created, or upon the Landlord by reason of ownership of the
reversion (collectively, "Taxes") the Landlord shall pay special assessments
over the longest period permitted by applicable law. Landlord agrees that such
prepayments shall be applied, without interest to such amounts as actually
become payable. As soon as any such amounts so payable are actually determined,
appropriate adjustments of any overpayments and underpayments shall be made.
Subject to the rights of any Mortgagee, the Landlord may, at its own
initiative or upon a the request of the Tenant or any other tenant or tenants of
the Building, use reasonable efforts to obtain an abatement of or to contest or
review by legal proceedings or otherwise any such tax, levy, charge or
assessment. If Tenant has requested Landlord to undertake a review or contest of
such taxes, levies, charges or assessments, and Landlord has declined to do so,
then subject to the rights of any Mortgagee, the Tenant may require Landlord to
undertake such contest or review. In either event the Tenant and such other
tenants shall pay such tax, levy, charge or assessment (under protest, if
necessary). The Tenant shall pay as Additional Rent the Tenant's Percentage of
(i) any such tax, levy, charge or assessment that may be determined to be due
and (ii) any and all costs or expenses (including reasonable attorneys' fees)
the Landlord may incur in connection with any such proceedings and, in addition,
if the Tenant has required the Landlord to undertake such contest or review and
no refund or abatement is realized, Tenant shall pay one hundred percent of the
costs and expenses (including reasonable attorneys' fees) that Landlord incurred
in such proceedings. The Tenant shall be entitled to share in accordance with
the Tenant's
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Percentage in any refund or abatement, net of such costs and expenses, which may
be made of any tax, levy, charge or assessment in the same proportion that the
same was paid by the Tenant or with the Tenant's funds.
8. Insurance; Waivers of Subrogation.
The Tenant shall, at its own cost and expense, obtain and throughout the
Term shall maintain, with companies qualified to do business in Connecticut and
acceptable to any Mortgagees and reasonably acceptable to the Landlord, for the
benefit as additional insureds of the Landlord and any Mortgagees as their
respective interests may appear, comprehensive general liability insurance (with
contractual liability rider) against claims for bodily injury, death or property
damage occurring to, upon or about the Premises in limits of $5,000,000 for
bodily injury or death and property damage occurring to, upon or about the
Premises. The risk of loss to all contents of, and personal property and trade
fixtures located in, the Premises is upon the Tenant, and the Landlord shall
have no liability with respect thereto.
The Landlord and the Tenant each hereby release the other from any
liability for any loss or damage to the Building, the Premises or other property
and for injury to or death of persons occurring on the Property or in the
Building or the Premises or in any manner growing out of or connected with the
Tenant's use and occupation of the Premises, the Building or the Property or the
condition thereof, whether or not caused by the negligence or other fault of the
Landlord, the Tenant or their respective agents, employees, subtenants,
licensees, invitees or assignees; provided, however, that this release (i) shall
apply notwithstanding the indemnities set forth in Paragraph 14, but only to the
extent that such loss or damage to the Building or other property or injury to
or death of persons is covered by insurance which protects the Landlord or the
Tenant or both of them as the case may be; (ii) shall not be construed to impose
any other or greater liability upon either the Landlord or the Tenant than would
have existed in the absence hereof; and (iii) shall be in effect only to the
extent and so long as the applicable insurance policies provide that this
release shall not affect the right of the insureds to recover under such
policies, which clauses shall be obtained by the parties hereto whenever
available.
9. Utilities and Services.
The Tenant shall be responsible for the cost of all utilities, including
without limitation for the electric, water, sewer, and all utility costs which
are delivered to or consumed at the Premises, which costs shall be paid by the
Tenant as Additional Rent. However, the Tenant shall not be required to pay for
the installation of submeters unless the Tenant requests same.
The Landlord shall not be required to provide heat, air conditioning, or
ventilation to the Premises if any action of the Tenant, Act of God, or other
unforeseen circumstances makes it impossible for the Landlord reasonably to do
so. Further, Landlord shall not be liable for the interruption, curtailment,
stoppage or suspension of services and utilities when necessary by reason of
accident or emergency or suspension of utility services or when necessary for
repairs, alterations, replacements or improvements desirable or necessary in the
reasonable judgment of Landlord or for any cause beyond the control of Landlord.
In the event of any such interruption, curtailment, stoppage or suspension,
there shall be no diminution or abatement of rent, additional
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rent or other charges due from Tenant to Landlord hereunder, Tenant's
obligations hereunder shall not be affected or reduced, and Landlord shall have
no responsibility or liability for any such interruption, curtailment, stoppage
or suspension. Notwithstanding the foregoing, in those instances in which
Landlord has control over the repair, alteration, replacement or improvement,
Landlord shall use commercially reasonable efforts to minimize any interference
with Tenant's use of the Premises during normal business hours when any such
repairs, replacements, alterations or improvements are made.
The Tenant shall provide customary cleaning and rubbish removal service to
the Premises on each business day as required.
10. Repairs.
From and after the commencement of and during the Term, the Tenant shall,
at its own cost and expense: (i) make interior non-structural repairs,
replacements and renewals necessary to keep the Premises in as good condition,
order and repair as the same are at the commencement of the Term or thereafter
may be put, reasonable wear and use and damage by fire or other casualty only
excepted (it being understood, however, that the foregoing exception for
reasonable wear and use shall not relieve the Tenant from the obligation to keep
the Premises in good order, repair and condition), (ii) make all other repairs,
replacements and renewals which are required due to the negligence or misconduct
of the Tenant (except that Tenant's costs to make the repairs shall be reduced
by the amount of any insurance proceeds received by Landlord to cover the costs
of any such repair or replacement), and (iii) keep and maintain all portions of
the Premises in a clean and orderly condition, free of accumulation of dirt,
rubbish, and other debris. All repair, replacement and usage costs incurred in
connection with the operation of the heating, ventilation and air conditioning
exclusively servicing the Premises shall be the responsibility of the Tenant.
Tenant shall, at Tenant's expense, maintain service contract(s) for such systems
and, on request of Landlord, provide a copy of such contract(s) and evidence of
payment therefor.
From and after the commencement of and during the Term, the Landlord shall
make all necessary repairs, replacements and renewals, interior and exterior,
structural and non-structural, to: keep the roof of the Building free of leaks
and to maintain the foundation, floor slabs and other structural supports of the
Building in good and sound condition, except for maintenance and repairs
occasioned by the acts or negligence of the Tenant or its agents excepted unless
such acts or negligence are covered by the release provided in Paragraph 8
hereof; keep the Building and all electrical, mechanical, heating, ventilating
and air conditioning, plumbing and other building systems and the parking areas,
sprinklers and other improvements on the Property in as good condition, order
and repair as the same are at the commencement of the Term or thereafter may be
put, damage by fire or other casualty only excepted. The costs and expenses of
Landlord's repairs, replacements and renewals shall be considered Common
Expenses under Paragraph 6 hereof.
11. Compliance with Laws and Regulations.
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Landlord represents to Tenant that the Premises are located in an
Industrial Expansion IX zone according to the Wallingford Zoning Regulations, as
in effect as of September 29, 1985, as amended through March 15, 1997. Attached
hereto as Exhibit D is a copy of (S)4.9 of the Wallingford Zoning Regulations,
as amended, which section defines the uses permitted in such zone.
The Tenant agrees that its obligations to make payment of the Basic Rent,
Additional Rent and all other charges on its part to be paid, and to perform all
of the covenants and agreements on its part to be performed during the Term
hereunder shall not, except as herein set forth in the event of condemnation by
public authority, be affected by any present or future law, by-law, ordinance,
code, rule, regulation, order or other lawful requirement regulating or
affecting the use which may be made of the Premises.
During the Term the Tenant shall comply, at its own cost and expense, with:
all applicable laws, by-laws, ordinances, codes, rules, regulations, orders, and
other lawful requirements of the governmental bodies having jurisdiction, which
are applicable to, or by reason of; the Tenant's particular use of the Premises
or the fixtures and equipment therein and thereon; the orders, rules and
regulations of the National Board of Fire Underwriters, or any other body
hereafter constituted exercising similar functions, which may be applicable to
the Premises, the fixtures and equipment therein or thereon or the use thereof;
and the requirements of all policies of public liability, fire and all other
types of insurance at any time in force with respect to the Premises, the
Building or the Property and the fixtures and equipment therein and thereon. If
compliance as aforesaid does not relate to the Tenant's particular use of the
Premises, but relates to the Building generally, the Landlord shall be
responsible therefor.
12. Alterations by Tenant and Signage.
The Tenant shall erect no signs and shall make no alterations, additions or
improvements in or to any portion of the Premises or any portion of the Building
or the Property without the Landlord's prior written consent and without first
providing the Landlord with (i) suitable assurance of the Tenant's obligation to
complete the same at no expense to the Landlord and without any mechanics' or
materialmen's lien upon the Property and (ii) evidence that the Tenant and its
contractors have obtained insurance, including worker's compensation insurance,
satisfactory to the Landlord. The Landlord agrees that its consent shall not be
unreasonably withheld for interior, non-structural alterations, additions and
improvements to the Premises consistent with the use of the Premises as
contemplated hereby; any such consents to interior, non-structural alterations,
additions and improvements may, if the Landlord so advises the Tenant as part of
or by notice at the time of any such consent, be conditioned upon the Tenant's
being obligated to remove the same at the expiration or termination of this
Lease and to restore the Premises to their condition prior to such alterations,
additions and improvements. Notwithstanding the foregoing, Tenant may perform,
at its sole cost and expense, interior, non-structural alterations without
Landlord's consent provided that (i) such alterations do not affect any fixed
wall; (ii) the cost of such alterations performed at any one time shall not
exceed $50,000; (iii) all work is performed in compliance with applicable
building codes and other applicable laws, rules and regulations; (iv) Tenant and
its contractors obtain necessary insurance (including worker's compensation
insurance) and (v) Tenant shall discharge, with diligence and
17
dispatch, all notices of violations arising from the performance of such
alterations and any and all mechanics' and/or materialmen's liens filed against
the Property.
Landlord consents to Tenant placing a sign at the entrance pylon, provided
(i) the size, style, color and location shall be approved by Landlord and (ii)
all signage shall be in compliance with applicable zoning regulations.
13. Landlord's Access.
The Tenant agrees to permit the Landlord and any Mortgagee and their
authorized representatives to enter the Premises: (i) on twenty-four (24) hours
notice, at all reasonable times during usual business hours for the purposes of
inspecting the same, exercising such other rights as it or they may have
hereunder or under any mortgages and exhibiting the same to other prospective
tenants, purchasers or mortgagees; and (ii) without prior notice, at any time in
the event of emergency. Landlord agrees to use commercially reasonable efforts
to minimize any interference with Tenant's use of the Premises during normal
business hours when and as such entries are made.
14. Indemnities and Liability.
The Tenant agrees to protect, defend (with counsel approved by the
Landlord), indemnify and save the Landlord harmless from and against any and all
claims and liabilities arising: (i) from the conduct or management of or from
any work or thing whatsoever done in or about the Premises during the Term and
from any condition existing, or any injury to or death of persons or damage to
property occurring or resulting from an occurrence, during the Term in or about
the Premises, unless caused by the Landlord's negligent act or failure to act;
and (ii) from any breach or default on the part of the Tenant in the performance
of any covenant or agreement on the part of the Tenant to be performed pursuant
to the terms of this Lease or from any negligent act or omission on the part of
the Tenant or any of its agents, employees, subtenants, licensees, invitees or
assignees related to or arising from the use and occupancy of the Premises. The
Tenant further agrees to indemnify the Landlord from and against all reasonable
costs, expenses (including reasonable attorneys' fees) and other liabilities
incurred in connection with any such indemnified claim or action or proceeding
brought thereon, any and all of which, if reasonably suffered, paid or incurred
by the Landlord, the Tenant shall pay promptly upon demand to the Landlord as
Additional Rent.
Except for the negligence or willful misconduct of the Landlord, neither
Landlord, nor any agent or employee of Landlord, shall be liable for (a) loss of
or damage to any property of Tenant, or of any other person, entrusted to any of
Landlord's agents or employees, (b) loss of or damage to any property of Tenant
or of any other person by theft or otherwise, (c) any injury or damage to any
person or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, dust, water or snow, or leaks from any part of the Building or from
the pipes, appliances or plumbing system, or from the roof; street or subsurface
or any other place or by dampness, or from any other cause whatsoever, (d) any
such damage caused by other occupants or persons in the Building or by
construction of any private, public or quasi-public work, or (e) any latent
defect in the Premises or the Building.
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15. Casualty Damage.
Except as provided below, in the event of partial or total destruction of
the Premises during the Term by fire or other casualty, the Landlord shall, as
promptly as practicable after receipt of any insurance proceeds available as a
result of such casualty, repair, reconstruct or replace the portions of the
Premises destroyed as nearly as possible to their condition prior to such
destruction, except that in no event shall the Landlord be obligated to expend
more for such repair, reconstruction or replacement than the amounts of any such
insurance proceeds actually received. Commencing on the date of such casualty
and during the period of such repair, reconstruction and replacement there shall
be an equitable abatement of Basic Rent hereunder from the date of such casualty
until the date the affected areas of the Premises have been repaired or
reconstructed (as shall be evidenced by the delivery to Tenant of a temporary
certificate of occupancy or by a certificate from Landlord's construction
manager) in proportion to the loss of usable floor area in the Premises, but
only to the extent such abatement is covered by lost rentals insurance for the
benefit of the Landlord, as required by Paragraph 8 hereof or otherwise.
Notwithstanding the foregoing, in the event the Landlord's reconstruction has
not been substantially completed within six (6) months after the date of such
casualty, and the Landlord has not provided reasonably adequate substitute space
in New Haven County, at comparable rent, for the Tenant until said
reconstruction has been substantially completed, the Tenant may terminate this
Lease within thirty (30) days after the expiration of said six (6) month period
on thirty (30) days prior written notice, which shall not be effective if the
Landlord substantially completes said reconstruction before the expiration of
said notice period.
If the Building is so extensively destroyed by fire or other casualty that
an independent engineer or architect certifies that the Premises cannot
reasonably be expected to be susceptible of repair, reconstruction or
replacement within a period of twelve (12) months from the date work were to
commence thereon, or if any damage results from causes or risks not required to
be insured against by the Landlord hereunder or if any Mortgagee refuses to make
such net proceeds available for such repair, reconstruction or replacement, the
Landlord may terminate this Lease by giving written notice to the Tenant within
ninety (90) days after the date of such destruction. Provided further, that if,
despite diligent efforts, the Landlord has been unable to restore the Premises
to their condition prior to such destruction within twelve (12) months following
the date of such casualty, the Landlord may terminate this Lease by written
notice to the Tenant. In the event of any such notice of termination, this Lease
shall terminate as of; and Basic Rent and Additional Rent shall be appropriately
apportioned through and abated from and after, the date of such notice of
termination.
16. Condemnation.
If more than ten percent (10%) of the usable floor area of the Premises, or
more than twenty-five percent (25%) of the parking area available for use by the
Tenant shall be taken by eminent domain or appropriated by public authority, and
the Landlord has not provided a reasonably adequate replacement therefor, or if
the Tenant shall be deprived of all suitable vehicular or pedestrian access to
the Premises or the Property by virtue of such a taking or appropriation, the
Landlord or the Tenant may terminate this Lease by giving written notice to
19
the other within thirty (30) days after such taking or appropriation. In the
event of such a termination, this Lease shall terminate as of the date the
Tenant must surrender possession or, if later, the date the Tenant actually
surrenders possession, and the Basic Rent and Additional Rent reserved shall be
apportioned and paid to and as of such date.
If all or any part of the Premises is taken or appropriated by public
authority as aforesaid and this Lease is not terminated as set forth above, the
Landlord shall, subject to the rights of any Mortgagees, apply any such damages
and compensation awarded (net of the costs and expenses, including reasonable
attorneys' fees, incurred by the Landlord in obtaining the same) to secure and
close so much of the Premises as remain and shall restore the Building to an
architectural whole and in compliance with applicable laws, including zoning
laws, except that in no event shall the Landlord be obligated to expend more for
such replacement than the net amount of any such damages, compensation or award
which the Landlord may have received as damages in respect of the Building and
any other improvements situated on the Property as they existed immediately
prior to such taking or appropriation; in such event there shall be an equitable
abatement of Basic Rent in proportion to the loss of usable floor area in the
Premises after giving effect to such restoration, from and after the date the
Tenant must surrender possession or, if later, the date the Tenant actually
surrenders possession.
The Landlord hereby reserves, and the Tenant hereby assigns to the
Landlord, any and all interest in and claims to the entirety of any damages or
other compensation by way of damages which may be awarded in connection with any
such taking or appropriation, except so much of such damages or award as is
specifically and separately awarded to the Tenant and expressly attributable to
trade fixtures or moving expenses of the Tenant.
17. Landlord's Covenant of Quiet Enjoyment; Title.
The Landlord covenants that the Tenant, upon paying the Basic Rent and
Additional Rent provided for hereunder and performing and observing all of the
other covenants and provisions hereof, may peaceably and quietly hold and enjoy
the Premises for the Term as aforesaid, subject, however, to all of the terms
and provisions of this Lease and to the title matters set forth or referred to
in Exhibit A attached hereto.
18. Tenant's Obligation to Quit.
The Tenant shall, upon expiration of the Term or other termination of this
Lease, leave and peaceably and quietly surrender and deliver to the Landlord the
Premises and any replacements or renewals thereof broom clean and in the order,
condition and repair required by Paragraph 10 hereof and the other provisions of
this Lease, except, however, that the Tenant shall first remove any trade
fixtures and equipment and any alterations, additions and improvements which the
Landlord has identified for removal within thirty (30) days after its final
approval of the Tenant's "build-out" plans, and has required be removed pursuant
to the terms of Paragraph 12 hereof, restoring the Premises in each case to
their condition prior to the installation of such fixtures or the undertaking of
such alterations, additions or improvements, as the case may be. If the Tenant
shall fail timely to surrender the Premises, Tenant shall pay, in addition to
all costs and damages suffered or incurred by Landlord, Basic Rent at a rate
equal to
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2 times the rate of Basic Rent in effect immediately prior thereto until the
Premises are surrendered by the Tenant and delivered to the Landlord in
accordance with this Paragraph 18.
If the Tenant shall fail so to remove its fixtures, equipment, alterations,
additions and improvements, within 10 days after notice, they shall be deemed
abandoned by the Tenant and the Landlord may remove and dispose of the same at
the Tenant's expense which shall be paid as Additional Rent. The provisions of
this Paragraph 18 shall expressly survive the termination or expiration of this
Lease.
19. Transfers of Tenant's Interest.
The Tenant shall not assign or sublease or otherwise encumber all or any
part of its interest in this Lease, the Premises, or the estate hereby created,
without in each case first obtaining the prior written consent of the Landlord,
such approval not to be unreasonably withheld or delayed. In all events, the
Landlord may condition the consent to any sublease or assignment upon the
Tenant's agreeing to pay to the Landlord fifty percent (50%) of the
consideration received by the Tenant for any such assignment and fifty percent
(50%) of the amount (reduced by the reasonable costs incurred by the Tenant in
subleasing all or any part of the Premises) by which any rentals and other
amounts from time to time payable to or for the Tenant under any subleases
exceed the Basic Rent and Additional Rent from time to time payable hereunder
and upon the sublessee's or assignee's agreement to obtain the consent of the
Landlord to any future or further sublease or assignment of its interest under
this Lease. Notwithstanding the foregoing, during the first year of the Term of
this Lease, Landlord agrees that Tenant may retain one hundred percent (100%) of
the amount by which rentals or other amounts payable to or for Tenant under any
sublease exceed the Basic Rent and Additional Rent payable hereunder for the
same period. Any attempted assignment or subletting without the consent of the
Landlord as contemplated hereby shall be void. Any change in ownership or power
to vote of a majority, of the outstanding stock of the Tenant from the owners of
such stock or those controlling the power to vote of such stock shall constitute
an assignment for purposes of this Lease. The provisions of the preceding
sentence, however, shall not be applicable if control of any corporate entity
changes as a result of a public offering.
In all events the Tenant originally named herein and any guarantor of the
obligations of the Tenant under this Lease shall, except to the extent of so
much of the Premises as the Landlord elects to lease directly to any proposed
sublease or assignee as above provided, remain primarily and jointly and
severally liable for, and any sublessee or assignee shall in writing assume, the
obligations of the Tenant under this Lease.
The Tenant shall give the Landlord at least 30 days' prior written notice
of its desire to assign or sublet, which notice shall include reliable
information indicating that the proposed assignee or subtenant is reputable,
financially responsible and the business in which the proposed assignee or
subtenant shall be engaged.
If Tenant shall give Landlord notice of a desire to assign this Lease, or
to sublet the entirety of the Premises, Landlord shall be entitled to recapture
the Premises or cancel this Lease on 30 days' prior written notice thereof, and
this Lease shall come to an end on the date in such
21
notice specified, with the same force and effect as is such date were the date
herein specified for the expiration hereof; ad the Basic Rent, and Additional
Rent shall be apportioned and adjusted as of the effective date of such
cancellation
Whenever Tenant shall claim, under this Section or any other part of
this Lease, that Landlord has violated a requirement that it not unreasonably
withheld or delayed its consent to some request of Tenant, Tenant shall have no
claim for damages by reason of such alleged withholding or delay, and Tenant's
sole remedies therefore shall be a right to compel arbitration of the matter in
dispute or to obtain specific performance or injunction, but in any event
without recovery of damages.
The Tenant shall reimburse the Landlord as Additional Rent, upon
demand, for any costs that may be incurred by the Landlord in connection with
any proposed assignment or sublease and any request for consent thereto,
including without limitation the costs of making investigations as to the
acceptability of any proposed assignee or subtenant, and attorneys' fees. Said
costs shall not exceed $500.00 with respect to each proposed assignment or
sublease. Notwithstanding the foregoing, in the event Tenant desires to sublet a
portion of the Premises prior to the commencement of the Term (or within one
month thereafter), Tenant shall not be required to reimburse Landlord for the
foregoing costs.
20. Transfers of Landlord's Interest.
The Landlord shall have the right from time to time to sell or mortgage its
interest in the Property, the Building and the Premises, to assign its interest
in this Lease, or to assign from time to time the whole or any portion of the
Basic Rent, Additional Rent or other sums and charges at any time paid or
payable hereunder by the Tenant to the Landlord, to any Mortgagees or other
transferees designated by the Landlord in duly recorded instruments, and in any
such case the Tenant shall pay the Basic Rent, Additional Rent and such other
sums and charges so assigned, subject to the terms of the Lease, upon demand to
such Mortgagees and other transferees at the addresses mentioned in and in
accordance with the terms of such instruments. In the event Landlord shall sell
or transfer the Property prior to Substantial Completion of the Work, Landlord
shall obtain from such purchaser or transferee (other than any Mortgagee) an
assumption of the obligation of Landlord under this Lease with respect to the
payment of the Allowance and performance of the Work.
21. Mortgagees' Rights.
The Tenant hereby agrees that this Lease is and shall be subject and
subordinate to any mortgage (and to any amendments, extensions, increases,
refinancings or restructurings thereof) of the Property, the Building or the
Premises, whether or not such mortgage is filed subsequent to the execution,
delivery or the recording of this Lease or any notice hereof (the holder from
time to time of any such mortgage being in this Lease sometimes called the
"Mortgagee"). Landlord shall endeavor to obtain a subordination, non-disturbance
and attornment agreement from the holder of any existing mortgage, in form and
substance reasonably satisfactory to Tenant and Mortgagee. The foregoing
subordination shall be self-operative and automatically effective as to any
mortgage filed subsequent to the execution and delivery hereof only if either
22
the Mortgagee agrees in writing or such mortgage provides that, for so long as
there exists no default under this Lease by the Tenant, the Mortgagee will not,
in foreclosing against or taking possession of the Premises or otherwise
exercising its rights under such mortgage, disturb the Tenant's possession of
the Premises hereunder, or words of similar import (the "nondisturbance
agreement"). The Tenant hereby agrees to execute, acknowledge and deliver in
recordable form such instruments in form reasonably satisfactory to Tenant and
such Mortgagee confirming and evidencing the foregoing subordination as the
Landlord or any such Mortgagee may from time to time reasonably require. In
addition, the Tenant shall have no obligations hereunder until the Landlord
delivers to the Tenant a nondisturbance agreement duly executed by any existing
mortgagee.
Provided that the Tenant has been provided with notice of such
mortgage and appropriate addresses to which notice should be sent, no notice
from the Tenant of any default by the Landlord in its obligations shall be
valid, and the Tenant shall not attempt to terminate this Lease, withhold Basic
Rent or Additional Rent or exercise any other remedy which may arise under law
by reason of any such default (it being understood that no such remedy exists,
or is implied by reason of this provision, under this Lease), unless the Tenant
first gives such notice to any Mortgagees and provides such Mortgagees with
sixty (60) days after such notice to cure such default, or if such default is
not reasonably susceptible of cure by Mortgagees (as in the case of the need to
obtain possession of or right of entry into or upon the Premises) in sixty (60)
days, with such longer period of time as is reasonably necessary to cure such
default, provided efforts to effectuate such cure are commenced within sixty
(60) days and thereafter prosecuted to completion with reasonable diligence. The
Tenant shall and does hereby agree, upon default by the Landlord under any
mortgage, to attorn to and recognize the Mortgagee or anyone else claiming under
such mortgage, including a purchaser at a foreclosure sale, at its request as
successor to the interest of the Landlord under this Lease, to execute,
acknowledge and deliver such evidence of this attornment, which shall
nevertheless be self-operative and automatically effective, as the Mortgagee or
such successor may request and to make payments of Basic Rent and Additional
Rent hereunder directly to the Mortgagee or any such successor, as the case may
be, upon request. Any Mortgagee may, at any time, by giving written notice to,
and without any further consent from, the Tenant, subordinate its mortgage to
this Lease, and thereupon the interest of the Tenant under this Lease shall
automatically be deemed to be prior to the lien of such mortgage without regard
to the relative dates of execution, delivery or filing thereof or otherwise.
22. Tenant's Default: Landlord's Remedies.
If the Tenant shall default in the payment when due of any Basic Rent
or Additional Rent, and such default has not been cured within ten (10) days
after written notice from the Landlord, or if the Tenant shall default in the
timely performance or observance of any of the other covenants contained in
these presents and on the Tenant's part to be performed or observed, and such
default has not been cured within thirty (30) days after written notice from the
Landlord (provided that if a cure can not be effectuated within such thirty (30)
days, then so long as Tenant has commenced to cure and continues to diligently
pursue completion of such cure, then Tenant shall be permitted a reasonable
time, not to exceed sixty (60) days, as shall be determined by Landlord in the
exercise of its reasonable discretion, within which to complete the
23
cure prior to a default being deemed to have occurred), or if the estate hereby
created shall be taken on execution, or by other process of law, or if the
Tenant shall be involved in financial difficulties as evidenced
(1) by its commencement of a voluntary case under Title 11 of the United
States Code as from time to time in effect, or by its authorizing, by
appropriate proceedings of trustees or other governing body the
commencement of such a voluntary case,
(2) by its filing an answer or other pleading admitting or failing to deny
the material allegations of a petition filed against it commencing an
involuntary case under said Title 11, or seeking, consenting to or
acquiescing in the relief therein provided, or by its failing to
controvert timely the material allegations of any such petition,
(3) by the entry of an order for relief in any involuntary case commenced,
under said Title 11,
(4) by its seeking relief as a `debtor under any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the
rights of creditors, or by its consenting to or acquiescing in such
relief;
(5) by the entry of an order by a court of competent jurisdiction (i)
finding it to be bankrupt or insolvent, (ii) ordering or approving its
liquidation, reorganization or any modification or alteration of the
rights of its creditors, or (iii) assuming custody of; or appointing a
receiver or other custodian for, all or a substantial part of its
property, or
(6) by its making an assignment for the benefit of; or entering into a
composition with, its creditors, or appointing or consenting to the
appointment of a receiver or other custodian for all or a substantial
part of its property;
then and in any of said cases, the Landlord may, to the extent permitted by law,
immediately or at any time thereafter and without demand or notice, terminate
this Lease and enter into and upon the Premises, or any part thereof in the name
of the whole, and repossess the same as of the Landlord's former estate, and
expel the Tenant and those claiming through or under the Tenant and remove its
effects without being deemed guilty of any manner of trespass, and without
prejudice to any remedies which might otherwise be used for arrears of rent or
preceding breach of covenant.
No termination or repossession provided for in this Paragraph 22 shall
relieve the Tenant or any guarantor of the obligations of the Tenant under this
Lease of its liabilities and obligations under this Lease, all of which shall
survive any such termination or repossession. In the event of any such
termination or repossession, the Tenant shall pay to the Landlord either (i) in
advance on the first day of each month, for what would have been the entire
balance of the Term,
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one-twelfth (1/12) (and a pro rata portion thereof for any fraction of a month)
of the annual Basic Rent, Additional Rent and all other amounts for which the
Tenant is obligated hereunder, less, in each case, the actual net receipts by
the Landlord by reason of any reletting of the Premises after deducting the
Landlord's reasonable expenses in connection with such reletting, including,
without limitation, removal, storage and repair costs and reasonable brokers'
and attorneys' fees, or (ii) upon demand and at the option of the Landlord
exercisable by the Landlord's giving notice to the Tenant within thirty (30)
days after any such termination, the present value (computed at a capitalization
rate based upon the so-called "Prime Rate" then in effect at The First National
Bank of Boston) of the amount by which the payments of Basic Rent and Additional
Rent reasonably estimated to be payable for the balance of the Term after the
date of the exercise of said option would exceed the payments reasonably
estimated to be the fair rental value of the Premises on the terms and
conditions of this Lease over such period, determined as of such date, less
reletting costs.
Without thereby affecting any other right or remedy of the Landlord
hereunder, the Landlord may, at its option, cure for the Tenant's account any
default by the Tenant hereunder which remains uncured after said thirty (30)
days' notice of default from the Landlord to the Tenant, and the cost to the
Landlord of such cure shall be deemed to be Additional Rent and shall be paid to
the Landlord by the Tenant with the installment of Basic Rent next accruing.
23. Landlord's Default; Tenant's Remedies.
If the Landlord shall default in the performance of any of its
obligations hereunder, and has not cured same within thirty (30) days after
written notice from the Tenant, or within a reasonable time if more than thirty
(30) days is required to effect a cure, the Tenant may, subject to the rights of
any mortgagee as provided in Paragraph 21 hereof, exercise self-help to cure
said default, and provided the Landlord is not in good faith contesting said
default, withhold the cost of effecting said cure from Basic Rent.
24. Remedies Cumulative; Waivers.
The specific remedies to which the Landlord may resort under the terms
of this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which the Landlord may be lawfully entitled in
any provision of this Lease or otherwise. The failure of the Landlord or the
Tenant to insist in any one or more cases upon the strict performance of any of
the covenants of this Lease, or to exercise any option herein contained, shall
not be construed as a waiver or relinquishment for the future of such covenant
or option. A receipt by the Landlord, or payment by the Tenant, of Basic Rent or
Additional Rent with knowledge of the breach of any covenant hereof shall not be
deemed a waiver of such breach, and no waiver, change, modification or discharge
by the Landlord of any provision in this Lease shall be deemed to have been made
or shall be effective unless expressed in writing and signed by an authorized
representative of the Landlord or the Tenant as appropriate. In addition to the
other remedies in this Lease provided, the Landlord shall be entitled to the
restraint by injunction of the covenants, conditions or provisions of this
Lease, or to a decree compelling performance of or compliance with any of such
covenants, conditions or provisions.
25
25. Extensions of the Term; Brokers.
The Tenant shall have the right, at its sole option, to extend the Term of
this Lease for actual occupancy by the Tenant named herein only for one (1)
additional extension period of five (5) years; by giving notice thereof to the
Landlord at least six (6) months and not more than fifteen (15) months prior to
the expiration of the initial seven (7) year Term. Such extension shall be
exercisable only if at the time of exercise and as of the commencement of the
Extension Period there exists no default on the part of the Tenant under this
Lease. The word "Term" as used elsewhere in this Lease shall, unless otherwise
expressly provided herein, include the initial seven (7) year Term and such
extension period if the Tenant shall have given timely and proper notice of
exercise.
The annual rate of Basic Rent payable during such five (5) year extension
shall be payable at the fixed schedule stated in Exhibit C.
The Tenant warrants and represents that it has not dealt with any broker in
connection with the Premises or this Lease except the OR & L and CB/Whittier
Partners (the "Brokers") as the sole brokers in this transaction. All commission
payments will be the responsibility of the Landlord. The Tenant and Landlord
hereby indemnifies and holds the other harmless from and against any liability
for commissions due any broker or finder other than the Brokers whom the Tenant
or Landlord, as applicable, has dealt in connection with this Lease.
26. Notices.
Any notices, approvals, specifications, or consents required or
permitted hereunder shall be in writing and mailed, postage prepaid, by
registered or certified mail, return receipt requested, if to the Landlord or
the Tenant at the addresses set forth herein, and if to any Mortgagee at such
address as it may specify by such notice to the Landlord and the Tenant, or at
such other address as any of them may from time to time specify by like notice
to the others. Any such notice shall be deemed given when mailed, except that if
any time period commences hereunder with notice, such time period shall be
deemed to commence when such notice is delivered or, if earlier, when postal
records indicate delivery was first attempted.
27. Estoppel Certificates.
The Landlord and the Tenant hereby agree from time to time, after prior
written notice from the other or any Mortgagee, to execute, acknowledge and
deliver, within 10 business days, without charge, to the other party, the
Mortgagee or any other person designated by the other party, a statement in
writing certifying: that this Lease is unmodified and in full force and effect
(or if there have been modifications, identifying the same by the date thereof
and specifying the nature thereof); that to the knowledge of such party there
exist no defaults (or if there be any defaults, specifying the same); the amount
of the Basic Rent, the dates to which the Basic Rent, Additional Rent and other
sums and charges payable hereunder have been paid; and that such party to its
knowledge has no claims against the other party hereunder except for the
continuing obligations under this Lease (or if such party has any such claims,
specifying the same).
26
28. Bind and Inure; Limited Liability of Landlord.
All of the covenants, agreements, stipulations, provisions, conditions and
obligations herein expressed and set forth shall be considered as running with
the land and shall extend to, bind and inure to the benefit of the Landlord and
the Tenant, which terms as used in this Lease shall include their respective
successors and assigns where the context hereof so admits.
The Landlord shall not have any individual or personal liability for the
fulfillment of the covenants, agreements and obligations of the Landlord
hereunder, the Tenant's recourse and the Landlord's liability hereunder being
limited to the Property and the Building. The term "Landlord" as used in this
Lease shall refer only to the owner or owners from time to time of the Property
or the Building, it being understood that no such owner shall have any liability
hereunder for matters arising from and after the date such owner ceases to have
any interest in the Property or the Building.
29. Environmental Compliance.
Tenant hereby covenants to Landlord that: (a) Tenant shall (i) comply
with all Laws applicable to the discharge, generation, manufacturing, removal,
transportation, treatment, storage, disposal and handling of Hazardous Materials
or Wastes as apply to the activities of the Tenant, its directors, officers,
employees, agents, contractors, subcontractors, licensees, invitees, successors
and assigns at the Property, (ii) remove any Hazardous Materials or Wastes
unlawfully used or otherwise discharged or disposed of which results from the
Tenant's occupancy or placed therein by the Tenant immediately upon discovery of
same in accordance with all applicable Laws and orders of governmental
authorities having jurisdiction, (iii) pay or cause to be paid all costs
associated with such removal including remediation and restoration of the
Premises, and (iv) indemnify Landlord from and against all losses, claims and
costs arising out of the migration of Hazardous Materials or Wastes from or
through the Premises into or onto or under other portions of the Building or the
Property or other properties; (b) Tenant shall keep the Property free of any
lien imposed pursuant to any applicable Law in connection with the existence of
Hazardous Materials or Wastes in or on the Premises; (c) Tenant shall not
install or permit to be installed or to exist in the Premises any asbestos,
asbestos-containing materials, urea formaldehyde insulation or any other
chemical or substance which is unlawful or unlawfully used and has been
determined to be a hazard to health and environment; (d) Tenant shall not cause
or permit to exist, as a result of an intentional or unintentional act or
omission on the part of Tenant or any occupant of the Premises, a releasing,
spilling, leaking, pumping, emitting, pouring, discharging, emptying or dumping
of any Hazardous Materials or Wastes onto the Premises; (e) Tenant shall
identify on Exhibit C all Hazardous Materials or Wastes currently used by Tenant
and shall notify Landlord of any changes or addition to the Hazardous Materials
or Wastes so used; (f) Tenant shall give all notifications and prepare all
reports required by Laws or any other law with respect to Hazardous Materials or
Wastes existing on, released from or emitted from the Premises (and shall give
copies of all such notifications and reports to Landlord); (g) Tenant shall
promptly notify Landlord in writing of any unlawful release, spill, leak,
emittance, pouring, discharging, emptying or dumping of Hazardous Materials or
Wastes in or on the Premises; (h) Tenant shall pay for periodic environmental
monitoring by Landlord of Tenant's space as well as subsurface testing paid as
additional rent if the Landlord reasonably
27
believes a Hazardous Waste problem exists or if any problem previously existed
so long as such testing determines that unlawful Hazardous Waste exists; and (i)
Tenant shall promptly notify Landlord in writing of any summons, citation,
directive, notice, letter or other communication, written or oral, from any
local, state or federal governmental agency, or of any claim or threat of claim
known to Tenant, made by any third party relating to the presence or releasing,
spilling, leaking, pumping, emitting, pouring, discharging, emptying or dumping
of any Hazardous Materials or Wastes onto the Premises.
The term "Hazardous Materials or Wastes" shall mean any hazardous or
toxic materials, pollutants, chemicals, or contaminants, including without
limitation asbestos, asbestos-containing materials, urea formaldehyde foam
insulation, polychlorinated biphenyls (PCBS) and petroleum products as defined,
determined or identified as such in any Laws, as hereinafter defined. The term
"Laws" means any federal, state, county, municipal or local laws, rules or
regulations (whether now existing or hereinafter enacted or promulgated)
including, without limitation, the Clean Water Act, 33 U.S.C. (S) 1251 et seq.
(1972), the Clean Air Act, 42 U.S.C. (S) 7401 et seq. (1970), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Subsection 1802, and The Resource Conservation and Recovery Act, 42
U.S.C. Subsection 6901 et seg., any similar state laws, as well as any judicial
or administrative interpretation thereof; including any judicial or
administrative orders or judgments.
Tenant hereby agrees to defend, indemnify and hold harmless Landlord,
its employees, agents, contractors, subcontractors, licensees, invitees,
successors and assigns from and against any and all claims, losses, damages,
liabilities, judgements, costs and expenses (including, without limitation,
attorneys' fees and costs incurred in the investigation, defense and settlement
of claims or remediation of contamination) incurred by such indemnified parties
as a result of or in connection with the presence at or removal of Hazardous
Materials or Wastes from the Premises resulting from the Tenant's occupancy or
as a result of or in connection with activities prohibited under this Paragraph
28. Tenant shall bear, pay and discharge, as and when the same become due and
payable, any and all such judgments or claims for damages, penalties or
otherwise against such indemnified parties, shall hold such indemnified parties
harmless against all claims, losses, damages, liabilities, costs and expenses,
and shall assume the burden and expense of defending all suits, administrative
proceedings, and negotiations of any description with any and all persons,
political subdivisions or government agencies arising out of any of the
occurrences set forth in this Paragraph 28. The provisions of this Paragraph
shall survive termination of this Lease.
30. Pre-Judgment Remedy, Redemption, Counterclaim and Jury Trial.
Tenant, for itself and for all persons claiming through or under it,
hereby acknowledges that this Lease constitutes a commercial transaction as such
term is used and defined in Chapter 903 of the Connecticut General Statutes, and
hereby expressly waives any and all rights which are or may be conferred upon
Tenant by said Act to any notice or hearing prior to a prejudgment remedy, and
by any present or future law to redeem the Premises, or to any new trial in any
action or ejection under any provisions of law, after reentry thereupon, or upon
any part thereof; by Landlord, or after any warrant to dispossess or judgment in
ejection. If Landlord shall acquire
28
possession of the Premises by summary proceedings, or in any other lawful manner
without judicial proceedings, it shall be deemed a reentry within the meaning of
that word as used in this Lease. In the event that Landlord commences any
summary proceedings or action for nonpayment of rent or other charges provided
for in this Lease, Tenant shall not interpose any non-compulsory counterclaim of
any nature or description in any such proceeding or action. Tenant and Landlord
both waive a trial by jury of any or all issues arising in any action or
proceeding between the parties hereto or their successors, under or connected
with this Lease, or any of its provisions.
31. Recording.
Tenant shall not record this Lease but Landlord and Tenant will, at the
request of the other, execute a memorandum or notice thereof in recordable form
satisfactory to both Landlord and Tenant specifying the date of commencement and
expiration of the term of this Lease and other information required by statute
Either Landlord or Tenant may then record said memorandum or notice of lease
32. Force Majeure.
Landlord shall be excused for the period of any delay in the performance of
any obligations hereunder, when prevented from so doing by cause or causes
beyond Landlord's control which shall include, without limitation, all labor
disputes, civil common, war, war-like operations, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations or
controls, inability to obtain any material, services or financing or through
Acts of God. Tenant shall similarly be excused for delay in the performance of
obligations hereunder provided:
(a) Nothing contained in this Paragraph or elsewhere in this Lease
shall be deemed to excuse or permit any delay in the payment of any sums of
money required hereunder, or any delay in the cure of any default which may be
cured by the payment of money;
(b) No reliance by Tenant upon this Paragraph shall limit or restrict
in any way Landlord's right of self-help as provided in this Lease; and
Neither the Landlord nor the Tenant shall be entitled to rely upon this
Paragraph unless it shall advise the other in writing, of the existence of any
force majeure preventing the performance of an obligation within five (5) days
after the commencement of the force majeure
33. Captions.
The captions for the numbered Paragraphs of this Lease are provided
for reference only and they do not constitute a part of this agreement or any
indication of the intentions of the parties hereto.
34. Integration.
29
The parties acknowledge that all prior written and oral agreements
between them and all prior representations made by either party to the other
have been incorporated in this instrument or otherwise satisfied prior to the
execution hereof.
35. Severability; Choice of Law.
If any provision of this Lease shall be declared to be void or
unenforceable either by law or by a Court of competent jurisdiction, the
validity or enforceability of remaining provisions shall not thereby be
affected.
This Lease is made under, and shall be construed in accordance with,
the laws of the State of Connecticut.
36. Security Deposit
On or before the Term Commencement Date, Tenant shall deposit with
Landlord the sum of Thirty-Eight Thousand Forty-Four and 53/100 Dollars
($38,044.53) plus the sum of $210,000.00 (the "Security Deposit"), and which
Landlord shall be entitled to continue to hold as security for the faithful
performance and observance by Tenant of the terms, provisions, and conditions of
this Lease. Provided that Tenant is not in default beyond any applicable notice
and cure period, then (i) as of March 1, 2000 the amount of the Security Deposit
shall be reduced to Ninety Thousand and 00/100 Dollars ($90,000.00) and (ii) as
of March 1, 2001 and thereafter throughout the remainder of the Term, the amount
of the Security Deposit shall be reduced to equal an amount equal to 1/12 of the
then applicable annual Basic Rent. In lieu of cash, Tenant may provide Landlord
with a clean, unconditional, irrevocable, assignable letter of credit, (the
"Letter of Credit") for all or a portion of the amount of the Security Deposit.
In the event Tenant furnishes the Letter of Credit, the Letter of Credit shall
be on the following terms and conditions: (i) issued by a commercial bank
acceptable to Landlord; (ii) having a term which shall hive an expiration date
not sooner than the date of April 30, 2005 (the "Expiration Date") (provided
that if a Letter of Credit is provided for all or part of the Security Deposit
during the extension period, the "Expiration Date" shall be March 31, 2010),
however, if the Letter of Credit has an earlier expiration date, it shall
contain a so-called "evergreen clause"; (iii) available for negotiation by
draft(s) at sight accompanied by a statement signed by Xxxx Xxxxxxxxxx, Xxxxx
Xxxxxxxxxx or Xxxxxx Xxxxxxxxxx on behalf of Landlord stating that the amount of
the draw represents funds due to Landlord (or its successors and assigns) due to
the failure of Tenant to pay rent and/or additional rent when due or otherwise
perform its obligations under this Lease and (iv) be otherwise on terms and
conditions satisfactory to Landlord. It is agreed that in the event Tenant
defaults beyond any applicable notice and cure period in respect of any of the
terms, provisions, covenants, and conditions of this Lease, including, but not
limited to, the payment of rent and additional rent, Landlord may draw upon the
Letter of Credit or upon the funds held on account as the Security Deposit to
the extent required for the payment of any rent and additional rent or any other
sum as to which Tenant is in default or for any sum which Landlord may expend or
may be required to expend by reason of Tenant's default (beyond applicable
notice and cure periods) in respect of any of the terms, provisions, covenants,
and conditions of this Lease, including, but not limited to, any damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. In the event that Tenant shall fully
30
and faithfully comply with all of the terms, provisions, covenants, and
conditions of this Lease, the Letter of Credit and/or funds on deposit with
Landlord shall be returned to Tenant within sixty (60) days after the Expiration
Date and after delivery of entire possession of the Premises to Landlord. Tenant
further covenants that it will not assign or encumber or attempt to assign or
encumber the Letter of Credit or any funds on deposit and that neither Landlord
nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance. In the event
Landlord draws upon the Letter of Credit or on funds on deposit as the Security
Deposit, Tenant shall provide a new irrevocable letter of credit that expires on
or after the Expiration Date or with cash in the amount of the amount so drawn
within seven (7) days after Landlord notifies Tenant of the draw or withdrawal
so that at all times the total amount of Letters of Credit and/or funds in the
account held by Landlord shall be equal to the aggregate Security Deposit.
In the event of a sale or leasing of the Building, or of the portion
of the Building in which the Premises are located, and provided the vendee or
lessee assumes the obligations of the Landlord under this Lease, Landlord shall
have the right to transfer the Security Deposit to the vendee or lessee and
Landlord shall thereupon be released by Tenant from all liability for the return
of the Security Deposit, and Tenant agrees to look solely to the new landlord
for the return of the Security Deposit so transferred by Landlord to the new
landlord and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the Security Deposit to a new landlord.
Tenant further agrees that it will not assign or encumber or attempt
to assign or encumber the moneys constituting the Security Deposit and that
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance or attempted assignment or encumbrance.
37. Right of First Offer to Lease.
(a) In the event of an early termination of the Lease between Landlord and
DNE Systems, Inc. for space that is adjacent to the Premises (the "DNE Space")
then before entering into a lease for all or any portion of the DNE Space,
during the initial Term of this Lease, and provided that Tenant is not then in
default under this Lease, Landlord will notify Tenant of the monthly rent and
rental increases ("rental terms") on which it would be willing to lease the DNE
Space to Tenant.
If within five (5) days after receipt of Landlord' notice, Tenant agrees in
writing to lease the DNE Space, Landlord and Tenant will execute a lease or an
amendment to this Lease for the DNE Space within ten (10) days after Landlord's
receipt of Tenant's notice of intent to lease on the same terms and conditions
as this Lease, except for the rental terms, and other matters dependent upon the
size of the premises, such as Tenant's share of the Operating Expenses and
security deposit. However, in no event shall Landlord have any obligation to
perform any work or improvement to the DNE Space and Tenant shall accept said
space in "as is" condition. If Tenant does not deliver its notice of intent to
lease the DNE Space within such five (5) day period, or if Landlord and Tenant
do not enter into a fully executed lease or amendment to this Lease for the DNE
Space within such ten (10) day period, then this right of first offer to lease
the
31
DNE Space shall lapse and be of no further effect and Landlord shall have
the right to lease the DNE Space to a third party on the same or any other terms
and conditions, whether or not such terms and conditions are more or less
favorable than those offered to Tenant. This right of first offer to lease the
DNE Space is personal to the Tenant named herein and is not transferable.
(b) Time is of the essence of the provisions of this paragraph.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in quadruplicate under seal as of the date first above written.
Signed, Sealed, and Delivered Landlord
in the Presence of: XXX XXXXXX ROAD, LLC
By: Winstanley Enterprises, Inc. Its
Manager
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxxxx
-------------------- -------------------
Xxxx Xxxxxxxxxx
Its Manager and Treasurer
/s/ Signature Illegible
-----------------------
CiDRA CORPORATION
/s/ Signature Illegible
-----------------------
By: /s/ F. Xxxxx Xxxxxx
-------------------
F. Xxxxx Xxxxxx
/s/ Signature Illegible Its President and CEO
----------------------- 3/11/98
32
SCHEDULE A - DESCRIPTION
All that certain piece or parcel of land, with the buildings and improvements
thereon and appurtenances thereto, situated on the easterly side of Xxxxxx Park
Road North in the Town of Wallingford, County of New Haven and State of
Connecticut, shown on a survey entitled: "Survey Plan Showing Property Of
Dataproducts New England, Incorporated And Xxxxxx, Incorporated Xxxxxx Xxxx Xxxx
Xxxxx Xxxxxxxxxxx, Xxxxxxxxxxx Date: Xxxxx 00, 0000 Xxxxx: l"=50' Revisions:
Feb. 4, 1992 Update Survey & Long Form Cert." by Xxxxx XxXxxxxx / Xxxx Xxxxxx &
Associates, Inc. Civil Engineers Planners Surveyors Old Saybrook, Connecticut,
Sheet 1 of 1 Job No. 76829, which map was filed February 14, 1992 at 2:55 P.M.
as Map No. _____ in the Office of the Wallingford Town Clerk, and being more
particularly bounded and described as follows:
Beginning at a point at the northwesterly corner of the herein described
parcel, which point is marked by an iron pipe on the easterly line of Xxxxxx
Park Road North, a distance of 5.75 feet north of a concrete monument;
thence running the following courses and distances:
S72(degree)46'23"E along the southerly line of property now or formerly of
D & F Associates, 608.06 feet to a point;
N17(degree)13'37"E along the easterly line of said D&F Associates, a
distance of 290.00 feet to a point;
S58(degree)38'42"E along the southerly line of property now or formerly of
Xxxxxxx Xxxxxxxxxx as distance of 420.67 feet to a point;
S22(degree)06'19"W, along the westerly line of property now or formerly of
Xxxxxxxx Industries, Inc., a distance of 674.45 feet to a point;
S20(degree)39'46"W along the westerly line of property now or formerly of
Precision Products, Inc. a distance of 357.30 feet to a point on the northerly
line of Enterprise Road;
thence running along the northerly line of Enterprise Road in the line
of a curve to the left having a radius of 878.55 feet, an arc length of 48.53
feet to a point;
thence continuing along the northerly line of Xxxxxxxxxx Xxxx
X00(xxxxxx)00'00"X a distance of 747.80 feet to a point marked by a concrete
monument near the intersection of Xxxxxxxxxx Xxxx xxx Xxxxxx Xxxx Xxxx Xxxxx;
thence running along the line of a curve to the right having a radius
of 25.00 feet, an arc length of 38.12 feet to a concrete monument near said
intersection;
thence running in a northerly direction along the easterly line of
Xxxxxx Park Road North, along the line of a curve to the left having a radius of
2035.27 feet, an arc length of 223.86 feet to a point marked by a concrete
monument;
thence continuing along the easterly line of Xxxxxx Xxxx Xxxx Xxxxx
X00(xxxxxx)00'00"X, a distance of 595.10 feet to a point marked by a concrete
monument;
thence continuing along the easterly line of Xxxxxx Park Road North
following the line of a curve to the right, having a radius of 416.41 feet an
arc length of 5.75 feet to the point of beginning.
Said parcel contains ** acres, more or less, or 853,025 square feet,
more or less.
** approximately 19
33
Schedule A
(continued)
1. Taxes to the Town. of Wallingford on the Grand List of October 1, 1996, not
yet due and payable.
2. Water and sewer use charges to the Town of Wallingford Water and Sewer
Division, the payments of which are current.
3. Declaration of Restrictive Covenants made by Xxxxxxx Xxxxxxxxxx acting
therein by F.I.P. Corporation dated June 18, 1975 and recorded June 19, 1975 in
Volume 429, Page 372 of the Wallingford Land Records; and re-recorded September
7, 1977 in Volume 458, Page 551 of said Land Records.
4. Declaration of Restrictive Covenants made by Xxxxxxx Xxxxxxxxxx dated
November 8, 1978 and recorded November 9, 1978 in Volume 477, Page 678 of the
Wallingford Land Records.
5. Storm water drainage easement reserved by Xxxxxxx Xxxxxxxxxx in a Warranty
Deed to F.I.P. Corporation dated December 7, 1979 and recorded December 7, 1979
in Volume 493, Page 608 of the Wallingford Land Records.
6. Declaration of Restrictive Covenants, F.I.P. Corporation, Trustee dated
June 18, 1975 and recorded June 19, 1975 in Volume 429, Page 372 , and as re-
recorded on September 7, 1977 in Volume 458, Page 551 of the Wallingford Land
Records.
7. Drainage easement with rights to drain along land n/f Xxxxxxx Xxxxxxxxxx;
Storm water drainage system and yard drain from Enterprise Road; 60, 50 and 30-
foot building setback line; possible underground utility easements not of
recorded from Xxxxxx Park Road North, encroachment of driveways, curbing and
landscaping onto Xxxxxx Park Road North and Enterprise Road and notes as shown
and set forth on the map set forth in Schedule A-4 hereof.
8. Terms and conditions of a Notice of Lease by and between XXX Xxxxxx
Road, LLC (the landlord), and DNE Systems, Inc. (the tenant) dated June 23, 1997
and recorded June _____, 1997 at _______.m. of said Land Records.
34
EXHIBIT C
CIDRA CORPORATION
Lease Dated_______________
Rentable Square Feet: 89,776
Basic Rent: Annual Monthly
----------- ------ -------
Months 1-4 -- $26,161.87
Months 5-12 $456,534.40 $38,044.53
Year 2 $520,700.80 $43,391.73
Years 3-4: $561,100.00 $46,758.33
Years 5-6 $583,544.00 $48,628.67
Year 7: $605,988.00 $50,499.00
Option Period
-------------
Year 8: $628,432.00 $52,369.33
Years 9-10: $650,876.00 $54,239.67
Years 11-12: $673,320.00 $56,110.00
35
EXHIBIT D
(S)4.9 INDUSTRIAL EXPANSION (IX) DISTRICT
A. Purpose -- To allow intensive commercial and light industrial uses, with
high performance standards for noise, odors, etc., in locations on or near major
streets.
3. The following uses are permitted subject to Site Plan Approval in
accordance with Article VII
1. Public utility facilities, buildings and storage yards. 10/2/94
2. Shops for custom work, repairing and fabricating.
3. Offices, wholesale sales offices and sample rooms, printing and publishing.
4. Fabricating and manufacturing or industrial or research operations riot
otherwise prohibited and which will not constitute a public hazard or emit an
acute obnoxious odor.
5. Storage and warehousing except as specified in Section 4.8.B.9, 4.8.B.l0.g
and 4.8.B.10.h. 9/19/93
6. Agriculture, farming, forestry, truck or nursery gardening, including
greenhouses; keeping of livestock and poultry.
7. Hotel, conference center or combination thereof containing not fewer than
150 sleeping rooms, provided that lot area of such facility shall not be less
than five acres and be equal to the area requirement contained in Section
4.5.B.8.
8. Governmental buildings, facilities and uses.
9. Educational, religious or philanthropic use by a non-profit corporation or
governmental 10/2/94 unit, excluding, however, correctional institutions.10/2/94
10. Outpatient Medical Treatment Facility. 10/2/94
11. Elderly Day Care Centers. 3/19/95
12. Telecommunication towers, subject to the requirements and procedures listed
in Section 6.5 5/18/97
C. The following permitted uses require approval of a Special Permit in
accordance with Section 7.5:
1. Helipads, with the following provisions: 8/22/95
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a. that the location is such that no undue nuisance or danger
therefrom will affect any neighboring property, and
b. that the site provides adequate room for landing and take-off.
2. Uses generating one hundred (100) peak hour vehicle trips or more
using the standards set forth in the most recent edition of Trip Generation,
ITS, or a more accurate source, if available, subject to the following:
4/16/94 8/10/96
a. Submission of a traffic impact analysis containing present
roadway conditions, existing roadway capacity, existing and projected
traffic volumes (ADT, Peak A.M. and Peak P.M.), existing and projected
volume capacity ratios, existing and projected levels of service,
existing and proposed night lines, site generated traffic and traffic
distributions, and traffic accident experience.
b. A traffic impact analysis will be required: 5/17/88
1. For an addition to an existing use, which use is now under the
provisions of this section, and
2. When an addition to an existing use brings that use under the
provisions of this section.
3. The traffic impact analysis shall cover the entire use, not
merely the addition.
c. No traffic impact analysis or Special Permit will be required for
an addition to an existing Special Permit use if the addition
generates twenty-five (25) peak hour vehicle trips or less. This
provision shall be permitted to be used one time over the life of the
use on a specific site.
d. In all cases in which the Commission feels that a peer review of
the applicant's traffic impact analysis is warranted, the applicant
shall be required to reimburse the Town for the cost of the peer
review. This payment shall be made to the Town prior to the decision
by the Commission or the application.
3. Adaptive Re-use to Multi-Family as per Section 6.16. 9/l9/92
4. Excavation and filling of land as per Section 6.10. 9/19/92
5. Auto Auctions, subject to: 1/14/96
a. Contain not fewer than 35 acres.
b. Have constructed thereon building(s) dedicated exclusively to the
wholesale facility containing not fewer than 25,000 square feet.
c. Contain open space of not less than 30 percent of the entire site,
in a natural state and/or landscaped, as determined by the Commission,
in accordance with the standards as set out in Section 6.14 herein.
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6. Structure or rooftop antennas and towers, subject to the requirements
and procedures listed in Section 6.25. 5/18/97
D. The following permitted uses require a Special Exception from the ZBA:
1. Child day care centers.
2. Group day care homes.
3. Satellite receiving dishes or dish-type antennae in excess of two
feet in diameter subject to the following conditions: 11/19/95
a. Shall not be located, between any Street line and the building to
which it is accessory.
b. If roof mounted, shall not exceed a height of 15 feet.
c. Shall be properly screened and/or landscaped.
E. The following accessory uses are permitted:
1. Uses and structures accessory to a permitted use.
2. Signs in accordance with Section 6 9
3. Off-street parking and loading in accordance with Section 6.11.
The Commission may waive up to 25 percent of the required parking area if the
applicant demonstrates that such a waiver is warranted, providing that an area
equal to the space required for such parking shall be reserved at the site in
conformance with the requirements of this chapter.
4. Retail operations which are obviously secondary to, but integrated
with, the main use on the premises, provided that the retail operation shall not
utilize more than 3,000 square feet or 10 percent of the GFA of the principal
use, whichever is smaller.
5. Ancillary food service and recreation facilities for the use of
employees or clientele of uses in Section 4.9.B
6. Accessory buildings as per Section 6.2B. 9/19/92
7. Outside storage as per Section 6.12. 9/19/92
8. Satellite receiving dishes of two feet or less in diameter not
located within a required front yard for a principal structure. 11/19/95
F. Special Requirements:
1. A description of the proposed operations in sufficient detail for
a determination of whether or not they are permitted in the district.
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2. Any use within the IX District shall be established, operated and
maintained in such a manner as to provide that each use shall be a good neighbor
and in no way detract or limit the intended development of the area.
8/22/95
G. The following uses are permitted subject to approval of a Zoning Permit
1. Structure or rooftop mounted antennas, subject to the requirements
and procedures listed in Section 6.25. 5/18/97
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