Exhibit 10.08
AGREEMENT OF LEASE
BETWEEN
XXXXXXX X. XXXXXX, XXXX XXXXX AND XXXX XXXXX
("LESSOR")
AND
ADVANCED TECHNOLOGY MATERIALS, INC.
("LESSEE")
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For Premises Located At:
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Dated: November __, 2000
Table of Contents
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Page
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1. DEFINITIONS..........................................................1
2. PREMISES.............................................................3
3. USE AND COMPLIANCE...................................................3
4. ENVIRONMENTAL PROVISIONS.............................................4
5. FIXED RENT...........................................................6
6. REAL ESTATE TAXES....................................................6
7. INSURANCE AND INDEMNITY..............................................8
8. LESSOR'S RIGHT OF ENTRY..............................................9
9. REPAIRS AND MAINTENANCE..............................................9
10. ALTERATIONS.........................................................10
11. DAMAGE AND DESTRUCTION..............................................11
12. SIGNS...............................................................12
13. UTILITIES...........................................................12
14. EMINENT DOMAIN......................................................13
15. ASSIGNMENT AND SUBLETTING...........................................14
16. LESSEE'S DEFAULT, REMEDIES..........................................14
17. WAIVER OF SUMMARY PROCESS...........................................16
18. HOLDING OVER........................................................16
19. LESSEE'S PERSONALTY.................................................16
20. NOTICE..............................................................16
21. SECURITY DEPOSIT....................................................17
22. BROKERAGE...........................................................17
23. RENEWAL TERMS.......................................................17
24. END OF TERM.........................................................18
25. WAIVER..............................................................18
26. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE.......................18
27. ESTOPPEL CERTIFICATE................................................19
28. NOTICE OF LEASE.....................................................19
29. DEFINITION OF LESSOR................................................19
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30. LIMITATION ON LIABILITY.............................................19
31. TERMS AND HEADINGS..................................................20
32. INVALIDITY..........................................................20
33. LESSOR'S SIGNS......................................................20
34. QUIET ENJOYMENT.....................................................20
35. LESSOR'S DEFAULT....................................................20
36. ATTORNEY'S FEES.....................................................21
37. ACCORD AND SATISFACTION.............................................21
38. BINDING EFFECT......................................................21
39. ENTIRE AGREEMENT AND GOVERNING LAW..................................21
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THIS AGREEMENT OF LEASE (this "Lease") made as of the ____ day of
November, 2000, by and between XXXXXXX X. XXXXXX, XXXX XXXXX and XXXX XXXXX,
individuals, with an office address c/o M&M Realty, Commerce Park, X.X. Xxx 000,
0 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (together, the "Lessor") and
ADVANCED TECHNOLOGY MATERIALS, INC., a corporation organized and existing under
the laws of the State of Delaware with an office address at 0 Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxx 00000 (the "Lessee").
W I T N E S S E T H A S F O L L O W S:
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1. DEFINITIONS.
1.1. As used in this Lease, the following words and phrases shall have the
meaning indicated:
(a) "Additional Rent": All amounts payable by Lessee to Lessor under
this Lease other than Fixed Rent, whether or not expressly stated to constitute
Additional Rent.
(b) "Affiliate(s)": As to any Person, any other person which Controls
or is under common Control with, or is Controlled by such Person.
(c) "Building": That building containing approximately 31,300 rentable
square feet and known as 0 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000.
(d) "Business Day": Any day other than:
(i) A Saturday or Sunday; or
(ii) A federal or state holiday.
(e) "Commencement Date": The first (1st) day of January, 2001.
(f) "Control(s)(led)": The direct or indirect ownership of more than
fifty (50%) percent of all the voting stack of a corporation or more than fifty
(50%) percent of the legal and equitable interests in any other type of business
entity.
(g) "Fee Mortgagee": Any holder of a loan secured by a mortgage on, or
deed of trust with respect to, Lessor's fee simple interest in the Building
and/or the Premises or any part thereof, now or hereafter existing.
(h) "Fixed Rent": The annual rent described in Section 5 of this
Lease.
(i) "Governmental Entity": Any federal, state, county, village,
township or local government or quasi-government agency, department, office,
board or bureau having jurisdiction over the Premises or any portion thereof.
(j) "Initial Term": A period commencing on the Commencement Date and
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ending on the 30th day of June, 2006.
(k) "Laws": All laws, statutes, ordinances, rules, regulations,
orders, restrictions and other requirements of any Governmental Entities,
present or future, having jurisdiction over or affecting the Premises or the
terms and conditions of this Lease, including, (without limitation), the
Americans with Disabilities Act, as the same may be amended from time to time.
(l) "Lease Year":
(i) The twelve (12) month period commencing on the Commencement
Date; and
(ii) Each twelve (12) month period commencing on each anniversary
of the Commencement Date.
(m) "Lessee's Personalty": Those items of Lessee's personal property
now or hereafter situated at the Premises and more particularly described in
Section 19 below.
(n) "permits": All licenses, permits and other written authorizations
necessary to permit the construction, development, ownership, use and occupancy
of the Premises in full compliance with the Laws.
(o) "Person": A natural person, a partnership, a corporation or any
other form of business or legal association or entity.
(p) "Premises": The Building and the real property upon which the
Building is situated, together with any other improvements constructed thereon,
which real property is more particularly described in Exhibit A attached hereto
and made a part hereof.
(q) "Real Estate Taxes": All taxes, assessments, water and sewer
rents, and other charges levied upon the ownership of the Premises by any public
or quasi-public authority having jurisdiction. Subject to Section 6.5 below,
Real Estate Taxes shall not include any inheritance, estate, succession,
transfer, gift, franchise, corporation, income or profit tax, or capital levy or
taxes, license fees or other charges on the Rent received by Lessor.
(r) "Renewal Option": Lessee's option to lease the Premises for the
Renewal Terms, as described in Section 23 below.
(s) "Renewal Term": Two (2) further consecutive terms of five (5)
years each following the Initial Term in the event that Lessee shall exercise
either or both Renewal Options.
(t) "Rent": The Fixed Rent and the Additional Rent together.
Certain other words and phrases are defined elsewhere in this Lease, and are
indicated by the use
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of initial capital letters.
2. PREMISES.
2.1. In consideration of the Rent hereby reserved and the covenants herein
contained and on the part of Lessee to be paid, performed and observed, and
expressly subject to the provisions of Section 2.5 below, Lessor does hereby
demise and lease unto Lessee, and Lessee hereby hires from Lessor, the Premises,
for the Initial Term, unless sooner terminated pursuant to any provision of this
Lease or pursuant to law.
2.2. It is agreed, stipulated and understood that subject to Section 2.3
below, Lessee hereby accepts the Premises absolutely and irrevocably in an "as
is" and "with all faults" condition, and Lessee hereby expressly warrants and
stipulates that except as may be hereinafter set out, neither Lessor, nor any
agent or employee of Lessor has made any representation or warranty of any
description whatsoever with respect to the Premises or any matters or
circumstances related to or affecting the same.
2.3. After the Commencement Date, Lessee shall, at Lessee's sole cost and
expense, (except as specified below) perform and complete in a good and
workmanlike manner, the fit up work necessary to adapt the Premises to Tenant's
use as depicted in certain plans to be prepared for Lessee by Xxxxxxx Xxxxx,
Architect (the "Lessee's Work"). All of Lessee's Work shall be performed at
Lessee's sole cost and expense but Lessor shall provide an allowance of a
maximum of up to $100,000.00 ("Lessor's Allowance") toward the cost of
renovations to the facility prior to occupancy.
3. USE AND COMPLIANCE.
3.1. Lessee may use the Premises for general office use. Lessee shall not
permit, allow or cause any obnoxious, disturbing or offensive odors, fumes, gas,
noise, or any smoke, dust, steam or vapors, or allow excessive sound or
vibration, to originate in or to be emitted from the Building and Lessee shall
not use the Premises in any other manner which has the effect of causing a
nuisance to other occupants of the business park in which the Premises are
situated (the "Park") or which would materially detract from the value or
character of the Premises or the Park.
3.2. Lessor shall, at Lessor's sole cost and expense, be responsible for
ensuring that the Building and the Premises are as of the Commencement Date and
at all times thereafter during the Initial Term and the Renewal Term (if
appropriate) in full compliance with all Laws, provided that Lessor shall not be
responsible for the following, which shall be the responsibility of Lessee, at
Lessee's sole cost and expense:
(a) ensuring that the Premises and the Building remain in compliance
with all Laws where the need for such compliance arises as a result of Lessee's
particular use of the Premises, whether or not such use shall be herein
permitted;
(b) ensuring that all Alterations (as hereinafter defined) and all
Lessee's Work
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(insofar as may be appropriate) are in compliance with all applicable Laws;
(c) ensuring that the roof of the Building remains in compliance with
all applicable Laws, provided that Lessor hereby represents and warrants that as
of the Commencement Date (or upon the completion of the roof, if later) the roof
shall be in compliance with all applicable Laws; and
(d) ensuring that all interior structural walls or any other such item
for which Lessee is responsible pursuant to the provision of Section 9.2 below
remain in compliance with all applicable Laws.
Notwithstanding any of the foregoing, it is agreed and understood that nothing
contained in this Section 3.2 shall modify in any way whatever the respective
obligations of Lessor and Lessee with respect to repair and maintenance of the
Premises pursuant to the provisions of Section 9 below.
4. EnVIRONMENTAL PROVISIONS.
4.1. Without prejudice to the generality of Section 3 above, it is agreed
and understood that Lessee shall comply with any and all present and future
environmental laws, ordinances, rules, codes, regulations and standards
applicable to the Premises and the business conducted therein by Lessee. In
particular (but without limitation) Lessee shall obtain and maintain any and all
permits, licenses, certificates or other authorizations now or hereafter
necessary, lawful and/or proper in order to conduct such business. Copies of all
such permits, licenses, certificates and authorizations shall be delivered to
Lessor at or prior to the execution of this Lease, and Lessor shall be supplied
with copies of all renewals thereof.
(a) The term "Hazardous Substances" as used in this Lease, shall
include, without limitation, flammables, explosives, radioactive materials,
asbestos, polychlorinated biphenyls (PCB's), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous waste, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any Governmental Entity.
(b) Lessee shall not cause or permit to occur:
(i) Any violation of any Laws, related to environmental
conditions on, under, or about the Premises arising from Lessee's use
or occupancy of the Premises, including, but not limited to, soil and
ground water conditions; or
(ii) Any violation of any Laws, related to the use, generation,
release, manufacture, refining, production, processing, storage or
disposal of any Hazardous Substance on, under, or about the Premises,
or the transportation to or from the Premises of any Hazardous
Substance, arising from Lessee's use or occupancy of the Premises.
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(c) Lessee, at Lessee's sole cast and expense, shall comply with all
Laws regulating the use, generation, storage, transportation or disposal of
Hazardous Substances and Lessee shall, at Lessee's own expense, make all
submissions to, provide all information required by, and comply with all
requirements of all Governmental Entities under any and all such environmental
Laws.
(d) Should any Governmental Entity or other competent body demand that
a cleanup plan be prepared and that a cleanup be undertaken because of any
deposit, spill, discharge or other release of Hazardous Substances occurring
during the term of this Lease, at or from the Premises which arises at any time
from Lessee's use of occupancy of the Premises, then Lessee shall, at Lessee's
own expense, prepare and submit the required plans and all related bonds and
other financial assurances, and Lessee shall carry out all such cleanup plans.
(e) At any time during the Initial Term or the Renewal Terms (as
appropriate) Lessee shall, if so requested by Lessor, within thirty (30) days of
such written request or immediately after such request if in Lessor's opinion an
emergency exists, provide all requested information, in writing, regarding the
generation, use, storage, release, discharge, spillage, loss, seepage or
emanation of any Hazardous Substances from or on the Premises. Further, upon
five (5) days written notice to Lessee (except in case of emergency where no
notice shall be required) Lessor may enter onto the Premises and cause to be
conducted and completed, by engineers, consultants, and others selected by
Lessor, such investigations, studies, sampling and testing of the condition of
the Premises as Lessor in its sole discretion shall deem appropriate. Lessee
agrees to cooperate with Lessor, and all persons retained by Lessor to conduct
such investigations and to provide them with all requested access to the
Premises. In the event that such investigation reveals the presence of any
Hazardous Substances in contravention of any environmental Laws, arising out of
Lessee's use or occupancy of the Premises, Lessor shall have the option of
terminating this Lease, unless the same are removed and disposed of in
compliance with all applicable environmental Laws within ninety (90) days of
Lessee receiving notice thereof. If Lessor elects not to terminate this Lease,
Lessee at Lessee's sole cost and expense, shall immediately take all actions
necessary to comply with any such environmental Laws. No such investigation,
termination or other action by Lessor and no attempts by Lessor to mitigate
damages shall constitute a waiver of any of Lessee's obligations hereunder.
Notwithstanding the foregoing, Lessor may request such information and enter
upon the Premises no more often than twice in any Lease Year, unless Lessor has
reasonable grounds to believe that Hazardous Substances are present thereat, in
contravention of such environmental Laws.
(f) Lessee agrees to indemnify, hold harmless and reimburse Lessor and
Lessor's officers, directors, beneficiaries, shareholders, partners, agents and
employees, if any, against, from and for any losses, claims, demands, damages,
suits, actions, judgments, fines, penalties, liabilities (joint or several),
costs and expenses (including, without limitation, fees and expenses of legal
counsel for Lessor, consultant fees and expenses of investigation and laboratory
costs) to which Lessor may be subjected, or which Lessor may pay, incur or
sustain, in consequence of (i) any presence, discharge, spillage, uncontrolled
loss, seepage, emanation or filtration of any Hazardous Substances upon or from
the Premises occurring hereafter or directly or indirectly caused by events or
actions occurring during the Initial Term and (if appropriate) the Renewal Term
arising from Lessee's use or occupancy of the Premises; (ii) the violation, by
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Lessee of any environmental Laws; (iii) any personal injury (including wrongful
death) or damage to property (whether real or personal) caused, directly or
indirectly, by an occurrence described in (1) or (ii) above; and (iv) any breach
of any representation or warranty contained in this Section 4.2.
(g) Lessor agrees to indemnify, hold harmless and reimburse Lessee and
Lessee's officers, directors, beneficiaries, shareholders, partners, agents and
employees, if any, against, from and for any losses, claims, demands, damages,
suits, actions, judgments, fines, penalties, liabilities (joint or several)
costs and expenses (including, without limitation, fees and expenses, of legal
counsel for Lessee, consultant fees and expenses of investigation and laboratory
costs) to which Lessee may be subjected, or which Lessee may pay, incur or
sustain, in consequence of any presence, discharge, spillage, uncontrolled loss,
seepage, emanation or filtration of any Hazardous Substances at the Premises
which occurs as a result of the willfulness or negligence of Lessor or of
Lessor's agents or employees, or which occurred at any time prior to Lessee's
use or occupancy of the Premises.
5. FIXED RENT.
5.1. During the Initial Term, commencing November 15, 2000, Lessee shall
pay as Fixed Rent, by way of checks made out to the order of Lessor (or as
Lessor shall direct) and mailed to Lessor at Lessor's above-referenced office
address (or to such person or address as may otherwise from time to time be
directed by Lessor in writing) the annual sum of TWO HUNDRED ELEVEN THOUSAND TWO
HUNDRED SEVENTY FIVE AND 00/100 ($211,275.00) DOLLARS, payable in advance on the
first Business Day of each month, in equal monthly installments of SEVENTEEN
THOUSAND SIX HUNDRED SIX AND 25/100 ($17,606.25) DOLLARS prorated for any
partial month during the Initial Term.
5.2. In the event that Lessee shall exercise the first Renewal Option
pursuant to Section 23 below, then during the first Renewal Terra commencing
July 1, 2006, Lessee shall pay as Fixed Rent, by way of checks made out to the
order of Lessor (or as Lessor shall direct) and mailed to Lessor at Lessor's
above-referenced office address (or to such person or address as may otherwise
from time to time be directed by Lessor in writing) the annual sum of TWO
HUNDRED SEVENTEEN THOUSAND SIX HUNDRED-THIRTEEN AND 25/100 ($217,613.25)
DOLLARS, payable in advance on the first Business Day of each month, in equal
monthly installments of EIGHTEEN THOUSAND ONE HUNDRED-THIRTY FOUR AND 44/100
($18,134.44) DOLLARS.
5.3. In the event that Lessee shall exercise the second Renewal Option
pursuant to Section 23 below, then during the second Renewal Term commencing
July 1, 2011, Lessee shall pay as Fixed Rent, by way of checks made out to the
order of Lessor (or as Lessor shall direct) and mailed to Lessor at Lessor's
above-referenced office address (or to such person or address as may otherwise
from time to time be directed by Lessor in writing) the annual sum of TWO
HUNDRED TWENTY-FOUR THOUSAND ONE HUNDRED FORTY-ONE AND 65/100 ($224,141.65.00)
DOLLARS, payable in advance on the first Business Day of each month, in equal
monthly installments of EIGHTEEN THOUSAND SIX HUNDRED SEVENTY-EIGHT
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AND 47/100 ($18,678.47) DOLLARS.
6. REAL ESTATE TAXES.
6.1. Lessee shall be responsible for the payment of all Real Estate Taxes
and from and after the Commencement Date, Lessee, following receipt from Lessor
of Real Estate Tax xxxx(s) with respect to the Premises, shall promptly pay the
same directly to the appropriate Governmental Entity, as Additional Rent
hereunder. Appropriate apportionments shall be made as of the Commencement Date,
and on the termination of the Initial Term (or upon the termination of the
Renewal Term, if appropriate) between Real Estate Taxes payable by Lessee
hereunder, and Real Estate Taxes payable by Lessor.
6.2. Notwithstanding anything contained in Section 6.1 above, it is agreed
and understood that in lieu of paying Real Estate Taxes directly, Lessee will
make a monthly escrow payment to Lessor with respect to Real Estate Taxes, in
the event that such an escrow is required of Lessor by any Fee Mortgagee, such
monthly escrow payment to be in the amount required by any such Fee Mortgagee
(but not to exceed one-twelfth (1/12th) of the estimated Real Estate Taxes, plus
any initial payment required in order to fund such escrow), provided however,
that in such event, Lessor shall maintain such tax escrow payments in an
interest bearing account, and all interest earned shall be accounted for and
paid to Lessee on a quarterly basis. It is agreed and understood that Lessor
shall use all reasonable efforts to resist the imposition of any such tax escrow
by any existing or future Fee Mortgagee.
6.3. Lessee shall also pay:
(a) All taxes which may be levied, imposed or assessed against
Lessee's Personalty and/or any leasehold improvements made by or on behalf of
Lessee following the Commencement Date, Lessee's leasehold interest, Lessee's
right to occupy the Building and/or the Premises and any other taxes incident to
the operation of Lessee's business therein; and
(b) Any business license fees required for the operation of Lessee's
business.
6.4. Provided that Lessee shall pay seventy-five (75%) percent of the amount of
any Real Estate Taxes which Lessee proposes to dispute, or such other percentage
as may from time to time be required pursuant to the provisions of C.G.S.
Section 12-53(d) or any successor thereto, Lessee may contest the validity or
amount (including the assessed valuation of the Premises) of any Real Estate
Taxes payable by Lessee hereunder. In the event of any such contest, the payment
of the remaining part of the Real Estate Taxes may be deferred during the
pendency of the same, provided the same is diligently prosecuted, and Lessor
agrees, without cost or expense to Lessor, to join such contest and provide
reasonable assistance to Lessee upon Lessee's request, provided that Lessee
shall be entitled to receive the full amount of any refund applicable to any
period of occupancy by Lessee. Nothing herein contained, however, shall be
construed so as to allow such items to remain unpaid for such length of time as
would permit the Premises, or any part thereof, to be sold by any Governmental
Entity for non-payment of Real Estate Taxes. Within thirty (30) days after the
due and payable amount of the contested Real Estate Taxes is determined by a
final, unappealable judgment, Lessee shall pay the amount so
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determined, together with any penalties, interest and expenses payable
therewith.
6.5. In the event that at any time during the Initial Term, or any Renewal
Term (if appropriate) the present method of taxation or assessment shall be so
changed that the whole or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on real estate and the
improvements thereon shall be discontinued and as a substitute therefor, or in
lieu thereof, or as an addition thereto, taxes, assessments, levies, impositions
or charges shall be levied, assessed and/or imposed wholly or partially as a
capital levy or otherwise upon the rents received from such real estate and the
improvements thereon, then such substitute or additional taxes, assessments,
levies, impositions or charges, to the extent so levied, assessed or imposed,
shall be payable by Lessee, as if the same were expressly defined as the Real
Estate Taxes hereunder.
7. INSURANCE AND INDEMNIty.
7.1. Throughout the Initial Term and the Renewal Terms (if appropriate)
Lessee shall, at Lessee's sole cost and expense, maintain or cause to be
maintained such insurance coverages as Lessor from time to time shall reasonably
request and which are generally consistent with insurance coverages required of
other tenants in similar buildings and businesses in the Danbury area, and
initially Lessee shall maintain the following coverages in the following amounts
(the "Required Insurance"):
(a) "All Risk" insurance coverage, on a full replacement cost basis,
covering the Building and all other buildings, improvements (including any plate
glass) and fixtures now or hereafter constituting part of the Premises (but not
including any improvements made by Lessee) other than the Lessee's Work written
in favor of Lessor and all Fee Mortgagees of which Lessee has notice, as their
interests may appear, with Lessor named as loss payee;
(b) Commercial general liability insurance (broad form) with respect
to the Premises and the conduct and operation of business thereat, on an
"occurrence coverage" basis with Lessor and all Fee Mortgagees of which Lessee
has notice, named as additional insureds, with limits of not less than FOUR
MILLION AND 00/100 ($4,000,000.00) DOLLARS combined single limit for any one
occurrence of bodily injury, personal injury or death to any number of persons
and for property damage, which coverage may be placed in any combination of
primary and umbrella and/or excess policies;
(c) Fire and extended coverage insurance with respect to any
Alterations made by Lessee, Lessee's Personalty and any such other items
belonging to and situated in the Building, in amounts equal to the full
replacement value thereof, naming Lessee as the sole loss payee;
(d) Any other insurance required for compliance with any applicable
Laws.
7.2. Lessee shall deliver to Lessor binders or certificates evidencing the
required insurance at least ten (10) Business Days prior to the Commencement
Date. Lessee shall procure and pay for renewals of the required insurance before
the expiration thereof, and Lessee shall
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deliver to Lessor binders or certificates evidencing such renewal within thirty
(30) days of the expiration of any existing policy. All such policies shall be
issued by companies approved by Lessor (which approval shall not be unreasonably
withheld or delayed) and licensed to do business in the State of Connecticut,
and shall contain a provision whereby the same cannot be changed, cancelled or
not renewed (including, without limitation, for nonpayment of premium) unless
Lessor and all Fee Mortgagees of which Lessee has notice, are given at least
thirty (30) days' prior written notice of such change, cancellation or
non-renewal. All such policies shall be written on an "occurrence coverage"
basis.
7.3. Lessee hereby covenants and agrees, to indemnify and hold harmless
Lessor and all Fee Mortgagees from and against any and all loss, cost, liability
and/or expense (including attorneys fees) that may arise from the date hereof up
to the termination of this Lease, howsoever and whensoever determined; on
account of or arising out of negligent or intentional act or omission of Lessee
or of Lessee's agents, contractors, servants, employees or invitees on or about
the Premises.
8. LESSOR'S RIGHT OF ENTRY.
8.1. Lessor, all Fee Mortgagees, and their respective agents and
representatives, at all reasonable times and upon written notice in advance
(except in, cases of emergency) may enter the Premises for the purpose of (i)
inspection thereof; (ii) making such repairs, replacements, alterations or
additions to the Premises as Lessor may be required or permitted to carry out
under this Lease; (iii) exhibiting the Premises to prospective lenders and
purchasers; or (iv) exhibiting the Premises to prospective tenants, purchasers
or other persons within the last ninety (90) days of the Initial Term or the
last exercised Renewal Term (if appropriate) in each case without imposing any
extra obligation or obligations upon Lessor, provided that Lessor shall be
accompanied by an agent of Lessee at all times (except in cases of emergency),
and shall not damage the Premises or unreasonably interfere with the Lessee's
use and enjoyment of the Premises.
9. REPAIRS AND MAINTENANCE.
9.1. From and after the Commencement Date, Lessor, at Lessor's sole cost
and expense, shall repair, maintain and keep in good condition the footing,
foundations and structural walls of the Building, but not including the roof of
the Building and further excepting any structural repairs or maintenance
required as a result of the negligence of Lessee, or of Lessee's agents,
contractors, servants, employees or invitees on or about the Premises, or which
otherwise arises as a result of Lessee's use of the Premises whether or not
permitted hereunder.
9.2. From and after the Commencement Date, Lessee, at Lessee's sole cost
and expense, shall repair, maintain and keep in good condition the roof of the
Building and the roof structure following completion of the same by Lessor
(subject to Lessor's responsibilities contained in Section 9.1 above) and the
interior of the Building which shall include all systems and equipment within
the Building including (but not limited to) repair and maintenance of all
elevators, HVAC systems, boilers, mechanical systems, electrical systems,
sprinklers, security systems, plumbing systems and associated equipment within
the Building, and Lessee shall also
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be responsible for any repairs or maintenance which would otherwise be the
responsibility of Lessor pursuant to Section 9.1 above, but the need for which
arises as a result of Lessee's activities as therein more particularly
described. Notwithstanding the foregoing, Lessee shall not be responsible for
any such repairs and maintenance, the need for which arises as a result of the
negligence of Lessor or of Lessor's agents, contractors, servants, employees or
invitees.
9.3. Lessee shall at all times keep the hallways and entrances to the
Building free and clear of debris, and shall also provide for interior
janitorial service (including carpet maintenance), interior painting (and
re-painting, where necessary), replacement of lighting ballasts and bulbs, and
interior and exterior window cleaning.
9.4. Lessee shall, at Lessee's sole cost and expense, repair and maintain,
in a manner consistent with comparable first-class office space in Fairfield
County, Connecticut, the parking area, access roads, sidewalks, lawns and
planting areas at the Premises, which maintenance shall include (as necessary,
desirable and/or appropriate) the mowing, landscaping, plowing, sanding and
sweeping thereof. With respect to the access roads that do not form a part of
the Premises but are within the Park, Lessor shall maintain the same in a manner
consistent with that of comparable business parks, including paving, sanding and
plowing the same, and Lessee shall pay Lessee's pro rata share of the cost
thereof to Lessor, as reasonably determined by Lessor.
9.5. Lessee shall not permit, allow or cause any act or deed to be
performed or any practice to be adopted or followed on the Premises and/or
within the Building which shall cause or be likely to cause injury or damage to
any person or to the Premises or to any part thereof. Lessee at all times shall
keep the Premises and the Building in a neat and orderly condition and clean and
free from rubbish, dirt and other miscellaneous items. Lessee shall make
provision for adequate refuse containers to be placed upon the Premises in areas
to be designated by Lessor and shall cause the same to be emptied periodically.
Lessee shall deposit all refuse in such containers and shall keep the area
around the same reasonably neat and attractive.
10. ALTERATIONS.
10.1. Lessee shall not, without first obtaining Lessor's written consent,
make or perform, or permit the making or performance of, any alterations,
installations, improvements, additions and/or other physical changes in, to or
upon the Building, interior or exterior, or the Premises or any portion thereof
("Alterations"), provided, however, that minor items of repair, adjustment and
decoration not exceeding a cost of $30,000.00 for any one project (soft costs
and hard costs together) shall not be deemed "Alterations" for the purposes of
this Lease, but only if such minor items of repair are strictly non-structural
in nature.
10.2. Notwithstanding the obtaining of Lessor's consent to any Alterations,
all Alterations shall be made and performed at Lessee's sole cost and expense.
Further, it is agreed, stipulated and understood (i) that together with Lessee's
request for Lessor's consent to any Alterations, Lessee shall submit to Lessor
detailed plans and specifications and such other information with respect to the
proposed Alterations as Lessor shall reasonably request, (ii) that Powers
Construction Company shall be provided with reasonable opportunity to bid with
respect to carrying out of any Alterations, and (iii) that if the Alterations
are not to be carried out by
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lowers Construction Company, then Lessee shall deliver notice to Lessor of the
name and address of the proposed contractor, and if Lessor objects to such
contractor carrying out Alterations to the Premises and can show reasonable
grounds for such objection then Lessee shall not employ such contractor to carry
out the Alterations in question.
10.3. Prior to the commencement of any proposed Alterations, Lessee shall
furnish to Lessor duplicate original policies of (or Certificates of Insurance
evidencing) worker's compensation insurance covering all persons employed by
Lessee in connection with such Alterations, including those to be employed by
all contractors and subcontractors and such policies shall be issued by
companies, and shall be in form and amounts, reasonably satisfactory to Lessor
and shall be maintained by Lessee or by the applicable contractors or
subcontractors, as the case may be, until the completion of such Alterations.
Lessee shall also furnish partial waivers of mechanics liens for all work
performed and paid for in connection with such Alterations, and copies of all
necessary Permits.
10.4. In the event that any mechanics or other lien or any notice of
intention to file a lien is filed against the Premises in connection with any
Alterations, Lessee shall promptly cause the same to be discharged of record by
payment, bond, order of a court of competent jurisdiction or any other method
permitted by law, and in any event, within sixty (60) days after receiving
notice of the same. Lessee shall indemnify and save Lessor harmless from and
against all costs, liabilities, suits, penalties, claims, and demands (including
reasonable counsel fee and disbursements) in connection with the commencement
and prosecution of the foreclosure of any such mechanics or other lien. If
Lessee shall fail to comply with the foregoing provisions, Lessor shall have the
option (but not the obligation) of paying and discharging or bonding any such
lien, the cost thereof to be payable by Lessee to Lessor within ten (10) days of
receiving a xxxx therefor, as Additional Rent hereunder.
10.5. Notwithstanding Lessor's approval of plans and specifications for any
Alterations, all Alterations shall be made and performed in full compliance with
all applicable Laws then in effect and all necessary Permits, and all materials
and equipment to be incorporated in the Building as a result of any Alterations
shall be of a quality consistent with that existing at the date thereof. Lessor
shall jointly sign any application made by Lessee for any building permit
whether or not the work in question requires Lessor's consent hereunder.
10.6. Approval by Lessor of any plans, specifications or selection of
materials by Lessee in connection with any Alterations shall not constitute an
assumption of any responsibility by Lessor of any kind, including (but not
limited to) as to their accuracy or sufficiency. Lessee shall be solely
responsible for such plans, specifications and the selection of materials.
Lessee covenants and agrees to indemnify Lessor and hold Lessor harmless against
and from any and all claims, costs, suits, damages and liability whatsoever
arising out of or as a result of any Alterations performed by Lessee or by
Lessee's contractors, subcontractors, agents or employees, including reasonable
attorneys fees for the defense thereof.
10.7. All Alterations and any replacements therefor, whether temporary or
permanent in character, which are made by Lessee pursuant to the provisions of
this Section 10 (unless the same shall constitute Lessee's Personalty pursuant
to the provisions of Section 19.1 below) shall
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be the property of Lessor immediately upon the installation of the same and
shall remain upon and be surrendered with the Premises as a part thereof at the
expiration of the Initial Term or, if appropriate, the Renewal Term, without
compensation to Lessee. Notwithstanding the foregoing, at the expiration of the
Initial Tern or Renewal Term (as appropriate) Lessor shall have the option to
require Lessee, at Lessee's sole cost and expense, to restore the Premises to
their condition prior to the carrying out of such Alterations, ordinary wear and
tear excepted, provided that it is agreed and understood that this option of
Lessor shall not apply to Lessee's Initial Work or Lessee's Additional Work, and
provided further that Lessor shall only be permitted to require such restoration
in the event that Lessor made such a requirement an express condition of
Lessor's consent and such Alterations at the time such consent was granted.
11. DAMAGE AND DESTRUCTION.
11.1. In the event that the Building is damaged or destroyed by fire or
other casualty so that (i) more than one half (1/2) of the rentable square feet
of the Building is rendered untenantable, or (ii) Lessee reasonably determines
that the undamaged portion of the Building is not reasonably adequate for the
conduct of Lessee's normal business operations, then Lessor or Lessee may elect
to terminate this Lease by written notice to the other, given within sixty (60)
days after the date of such damage or destruction. Any notice given hereunder
shall specify a date for the expiration of this Lease, upon which date the
initial Term of the Renewal Term (as appropriate) shall expire and Lessee shall
quit, surrender and vacate the Premises, and this Lease shall thereupon be
rendered void and of no further effect, provided however that such expiration
shall be without prejudice to all rights,. duties and obligations arising under
this Lease prior thereto, so that all Rent as equitably adjusted, shall be paid
up to the date of expiration, and any Rent paid by Lessee on account of any
period subsequent to such date, shall be promptly returned by Lessor to Lessee.
All insurance proceeds shall be the sole and absolute property of Lessor.
11.2. In the event that neither Lessor nor Lessee shall terminate this
Lease pursuant to Section 11.1 above following any such damage or destruction,
or in the event that less than one half (1/2) of the rentable square feet of the
Building is rendered untenantable, then as promptly as possible, but in any
event within one hundred twenty (120) days of the date on which Lessor obtains
the insurance proceeds attributable thereto (the "Restoration Commencement
Date"), Lessor shall repair and restore the Building to the condition the same
was in at the date hereof (or as near as possible thereto) provided that all
such repair and restoration shall be subject to the receipt by Lessor of
sufficient insurance proceeds, it being hereby agreed and understood that Lessor
shall not have any obligation to use any monies other than said insurance
proceeds for the purpose of such repair and restoration. It is further agreed
and understood that Lessor shall not be responsible for repair or restoration of
any Alterations made by Lessee or responsible for the replacement of Lessee's
Personalty. In the event that any such repair or restoration is not completed
within one hundred twenty (120) days from the Restoration Commencement Date then
subject to any force majeure preventing the same, Lessee may elect to terminate
this Lease in the manner set out in Section 11.1 above. During any such repair
and restoration, until the same shall have been substantially completed, the
Rent payable hereunder shall be prorated, according to that proportion of the
Building which remains usable by Lessee for the conduct of
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Lessee's normal business operations.
12. SIGNS.
12.1. Lessee shall have the right, at Lessee's sole cost, to erect,
install, display and maintain in or upon the Premises, both exterior and
interior signs and lettering, provided that the design and location of the same
shall be subject to the reasonable approval of Lessor, to be granted or denied
within thirty (30) days of submission thereof to Lessor. Lessee's current sign
and lettering are hereby expressly approved by Lessor.
13. UTILITIES.
13.1. Lessee shall procure for Lessee's own account and shall pay the cost
for the use of all gas, electric, telephone, heat, air conditioning, sewer,
water and other utilities consumed in or at the Premises by Lessee during the
Initial Term and the Renewal Terms. It is agreed and understood that Lessor
shall not be responsible for any interruption in service with respect to any of
the foregoing, unless caused by the willfulness or gross negligence of Lessor.
14. EMINENT DOMAIN.
14.1. Lessor and Lessee agree that should all or substantially all (meaning
ninety (90%) percent or more) of the Building and/or the Premises be taken
(which term when used herein shall include any conveyance made in avoidance or
settlement of condemnation or eminent domain proceedings) by any Governmental
Entity whether by eminent domain or condemnation proceeds (a "Taking") then this
Lease shall cease and terminate as at the date of the Taking, and the Rent shall
be paid up to such date, and thereafter this Lease shall be null and void and of
no further effect.
14.2. Lessor and Lessee agree that in the event of a partial taking (a
"Partial Taking") of the Premises which does not constitute a Taking under
Section 14.1 above, where at least sixty (60%) percent o(pound) the Premises
(which shall include at least fifty (50%) percent of the Building) can be used
(practicably and legally) by Lessee for the same purposes as prior to the
Partial Taking, this Lease shall continue in effect as to that part of the
Premises remaining after such Partial Taking. In the event of a Partial Taking
which does not fulfil the foregoing criteria, then either party may, upon notice
to the other, delivered no later than sixty (60) days after the date on which
Lessee shall have received notice of such Partial Taking, terminate this Lease,
as of the date of such Partial Taking.
14.3. In the event of a Partial Taking which does not result in the
termination of this lease (for whatever reason) the amount of Rent payable
during the remainder of the Initial Term, or, if appropriate, the Renewal Term,
shall be prorated according to the square footage of the Building still usable
by Lessee, and Lessor shall, at Lessor's expense (but only to the extent of the
net award or other compensation available to Lessor for the improvements taken
or conveyed, after deducting all expense in connection with obtaining the same)
make all necessary alterations (subject to applicable Laws) so as to constitute
the remaining portion of the Building a complete architectural unit, consistent
with the quality and character of the same at the date
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hereof, provided that Lessor shall have no obligations with respect to any
Alterations carried out by Lessee, which shall be restored by Lessee, at
Lessee's expense.
14.4. All awards and compensation for any Taking or Partial Taking shall be
the property of Lessor, and Lessee hereby assigns to Lessor all of Lessee's
right, title and interest in and to any and all such awards and compensation,
including, without limitation, any award or compensation for the value of the
unexpired portion of the Initial Term or the Renewal Term (as appropriate).
Notwithstanding the foregoing, Lessee shall be entitled to claim, prove and
receive in the condemnation proceeding, such award or compensation as may be
allowed for Lessee's trade fixtures and for the unamortized cost (if any) of
Lessee's Personalty and for loss of business, goodwill, moving expenses,
depreciation or injury to and cost of removal of stock in trade and for the
unamortized cost of any Alterations made by Lessee, provided the same does not
reduce any award to or claim of Lessor.
14.5. 14.5. Lessor shall deliver to Lessee prompt notice of any proposed
Taking or Partial Taking.
15. ASSIGNMENT AND SUBLETTING.
15.1. Lessee shall not be permitted to assign Lessee's interest under this
Lease or any part thereof, provided, however, that a transfer of (i) a
controlling interest of the capital stock of Lessee or (ii) all or substantially
all of the assets of Lessee located at the Premises to a person or entity having
a consolidated net worth in excess of $4,000,000.00, shall not be considered an
"assignment" for the purposes of this Section 15.1 and shall not require
Lessor's consent. Lessee shall not be permitted to mortgage or otherwise
encumber Lessee's interest in the Premises, or any part thereof, without the
prior written consent of Lessor, which consent shall not be unreasonably
conditioned, withheld or delayed. Lessee may not sublet all or any part or parts
of the Premises without the prior written consent of Lessor. If Lessee shall
desire to sublet, Lessee shall first submit in writing to Lessor a notice
setting forth in reasonable detail:
(a) The identity and the address of the proposed subtenant (a
"Proposed Subtenant");
(b) The nature and character of the business of the Proposed Subtenant
and the proposed use of the Premises by the Proposed Subtenant;
(c) Banking, financial and other credit information relating to the
Proposed Subtenant, reasonably sufficient to enable Lessor to determine the
Proposed Subtenant's financial responsibilities; and
(d) The effective date of the proposed subletting.
Lessor shall only be able to take the foregoing factors into account for the
purpose of granting or withholding consent to proposed subletting, and Lessor
may not take into account the financial terms contained in any agreement made
between Lessee and a Proposed Subtenant with respect to any proposed subletting.
In the event that Lessor shall fail to respond to a proposed subletting
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within twenty (20) days of notice by Lessee, Lessor shall be deemed to have
approved the same.
15.2. Notwithstanding the provisions of Section 15.1 above, it is agreed
and understood that upon prior notification to Lessor, Lessee may sublet all or
any part of the Premises to any Affiliate.
15.3. It is agreed and understood that following any assignment or
subletting, whether or not permitted hereunder, Lessee shall remain liable for
the due performance of all of Lessee's obligations hereunder.
16. LESSEE'S DEFAULT, REMEDIES.
16.1. The happening of either one of the following events (an "Event of
Default"), shall constitute a breach of this Lease on the part of Lessee:
(a) The failure of Lessee to pay any Rent due hereunder and the
continued failure to pay the same for seven (7) days or more after the due date
thereof; and
(b) Default by Lessee in the performance of any non-monetary
obligation hereunder, and the continuance of such default for thirty (30) days
after Lessor shall have given Lessee a notice specifying the nature of the same,
provided, however, that if the curing of any such default cannot reasonably be
completed within such thirty (30) day period, no Event of Default shall be
deemed to have occurred if Lessee promptly commences to cure and correct such
default and thereafter cures the same within a reasonable time, taking into
account all relevant circumstances.
16.2. Upon the happening of any Event of Default (a) Lessor, if Lessor
shall so elect, may collect such installment of Rent hereunder as and when the
same becomes due, or (b) Lessor or any other person by Lessor's order may
re-enter the Premises without process of law and may either elect to terminate
this Lease, or not to terminate this Lease but terminate Lessee's right to
possession and occupancy, and relet the Premises, or part or parts thereof, to
any person, firm or corporation, as the agent of Lessee, for whatever rent
Lessor shall obtain, applying the monies obtained from such re-letting first to
the payment of such reasonable expenses as Lessor may incur in the re-entering
and re-letting of the Premises, or part or parts thereof, including (but not
limited to) all necessary repair work, repossession costs, brokerage
commissions, legal expenses, attorneys fees and the collection of rent
therefrom, and then to the payment of the Rent due hereunder and the fulfillment
of all other covenants of Lessee. In the event of a surplus, Lessor shall pay
such surplus monies to Lessee. In the case of a deficiency, Lessee shall pay to
Lessor an amount equal to such deficiency each month, upon demand therefor.
16.3. After an Event of Default, the acceptance of Rent or failure to
re-enter by Lessor shall not be held to be a waiver of Lessor's right to
terminate this Lease, and Lessor may re-enter and take possession of the
Premises as if no Rent had been accepted after an Event of Default. All of the
remedies given to Lessor in this Lease pursuant to an Event of Default by Lessor
are in addition to all other rights or remedies to which Lessor may be entitled
at law or in equity. All remedies shall be deemed cumulative and the election of
one shall not be deemed a waiver of
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any other or further rights or remedies.
16.4. Notwithstanding any of the foregoing, it is agreed and understood
that Lessor shall use commercially reasonable efforts to re-let the Premises to
one or more tenants upon vacation thereof by Lessee, following an Event of
Default, in order to mitigate damages. Any such re-letting shall be on
commercially reasonable terms and conditions, but Lessor shall have full right
and authority to offer such rent-free periods or other such inducements as
Lessor may reasonably consider necessary or desirable.
16.5. Without prejudice to any of Lessor's rights and remedies following an
Event of Default, as herein contained, or at law, in the event that Lessee shall
neglect or fail to perform or observe any of the non-monetary covenants on the
part of Lessee herein contained, or if Lessee shall fail to continue to
conclusion the action necessary to remedy such an Event of Default, with
diligence or dispatch, Lessor, at Lessor's option may perform the same for the
account of Lessee and all reasonable costs and expenses paid by Lessor for such
purpose shall be paid by Lessee within ten (10) Business Days after demand
therefor by Lessor, as Additional Rent hereunder.
16.6. In the event that any installment of Fixed Rent or any sum of
Additional Rent due hereunder is not paid by Lessee to Lessor upon the due date
therefor (taking into account any applicable grace period herein provided for)
then without prejudice to any and all of Lessor's rights and remedies following
such default (whether herein contained or existing at law or in equity) it is
agreed, stipulated and understood that as Additional Rent hereunder, Lessee
shall pay to Lessor a penalty in the amount of five (5%) percent of the overdue
amount, such sum to be payable together with the overdue Fixed Rent or
Additional Rent in question.
17. WAIVER OF SUMMARY PROCESS.
17.1. Whenever this Lease shall terminate, either by lapse of time or by
virtue of any of the express stipulations herein, Lessee waives any rights
Lessee may have to the receipt of any notice to quit possession, pursuant to any
relevant Laws, now or hereafter existing.
18. HOLDING OVER.
18.1. In the event that Lessee shall (with or without the written consent
of Lessor endorsed hereon or upon any duplicate hereof) at any time holdover the
Premises beyond the Initial Term, or, if appropriate, the Renewal Term, Lessee
shall hold the Premises upon the same terms and conditions and under the same
stipulations and agreements as are in this Lease contained, except that each
monthly installment of rent payable shall be one hundred fifty (150%) percent of
the amount payable by Lessee immediately prior to any such holdover, and no
holding over by Lessee shall operate to renew this Lease, or shall create any
other type of tenancy whatsoever.
19. LESSEE'S PERSONALTY.
19.1. All furniture, furnishings, trade fixtures, business machines,
communications equipment, movable partitions, and any other such property and
equipment supplied and owned
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by Lessee ("Lessee's Personalty") and installed or used by Lessee at the
Premises (whether or not attached thereto) shall remain the property of Lessee,
and shall promptly be removed upon the demand of Lessor (or at Lessee's
election) upon the termination of the Initial Term or (if appropriate) the
Renewal Term (howsoever determined) and following such removal, Lessee shall
repair any damage caused thereby, provided that "damage" shall not include
damages as a result of diminution in value resulting from such removal.
20. NOTICE.
20.1. Any and all notices called for or required by any provision of this
Lease shall be delivered to the respective parties by certified mail, return
receipt requested, at the following address:
(a) To Lessor:
c/o M&M Realty
Commerce Park
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Pullman & Xxxxxx
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxxxxx 00000-0000
(b) To Lessee:
Advanced Technology Materials, Inc.
Attention: Xxxxxx X. Xxxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Such addresses may be changed by either party by notifying the other
party in the above stipulated manner.
21. SECURITY DEPOSIT. There is no security deposit.
22. BROKERAGE.
22.1. Lessor and Lessee represent and warrant, each to the other, that they
neither consulted nor negotiated with any broker or finder with respect to the
leasing of the Premises other than Xxxx Associates and Xxxxxx X. Xxxxxx, who
co-brokered this transaction, and agree to indemnify and hold the other harmless
from any damages, costs and expenses suffered by the other by reason of any
breach of the foregoing representation. Lessor shall have no liability for
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brokerage commissions arising out of any sublease or assignments by Lessee, and
Lessee shall and does hereby indemnify Lessor and holds Lessor harmless from any
and all liabilities for brokerage commissions arising out of any such sublease
or assignment.
23. RENEWAL TERMS.
23.1. Lessee shall have the option to lease the Premises during the first
Renewal Term and during the second Renewal Term in the event that Tenant shall
have exercised the first Renewal Term, upon the following terms and conditions:
(a) That at the time of the exercise of the Renewal Option in
question, Lessee shall not be in default in the performance of any of the terms,
covenants or conditions herein contained with respect to which notice of default
has been given hereunder (where required) and which has not been remedied within
the applicable grace period;
(b) That the first Renewal Term shall be upon the same terms,
covenants and conditions as this Lease, except with respect to the amount of the
Fixed Rent which shall be that set out in Section 5.3 above;
(c) That the second Renewal Term shall be upon the same terms,
covenants and conditions as this Lease, except with respect to the amount of the
Fixed Rent which shall be that set out in Section 5.4 above;
(d) That Lessee shall exercise either Renewal Option by notifying
Lessor of Lessee's election to exercise the same at least fourteen (14) months
prior to the expiration of the Initial Term or the first Renewal Term (as
appropriate), so that upon the delivery of any such notice, this Lease shall be
deemed extended for the Renewal Term in question without execution of any
further instrument.
23.2. In addition to the Fixed Rent, Lessee shall continue to pay
Additional Rent throughout the Renewal Term in the manner provided for in this
Lease above.
24. END OF TERM
24.1. At the expiration or sooner termination of the Initial Term or
Renewal Term (as appropriate) Lessee shall quit and surrender to Lessor the
Premises, broom clean and in good order and condition, ordinary wear and tear,
condemnation, damage by casualty and damage to be repaired by Lessor excepted
and together with any and all Alterations unless Lessor shall have instructed
Lessee to remove the same, assuming Lessor shall have the authority to do so
pursuant to the provisions of Section 10.7 above. Any Lessee's Personalty
remaining on the Premises may, at the option of Lessor, be deemed to be
abandoned and thereafter may either be retained by Lessor as Lessor's personal
property or be disposed of in such manner as Lessor may deem fit. Lessee shall
reimburse Lessor for any costs incurred by Lessor for the removal and/or storage
of Lessee's Personalty.
25. WAIVER.
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25.1. The failure of Lessor to insist upon strict performance of any of the
covenants or conditions of this Lease, shall not be construed as a waiver or
relinquishment of any such covenants or conditions, but the same shall be and
remain in full force and effect.
26. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE.
26.1. This Lease shall be subject and subordinate to the lien of any
existing mortgage covering the Premises, or any part thereof, and to any future
mortgage, provided that any such future mortgage (or a subordination,
non-disturbance and attornment agreement entered into for the benefit of Lessee
from the holder thereof) shall provide that the Fee Mortgagee holding such
mortgage shall not be entitled to terminate this Lease, or in any way disturb
Lessee's use and enjoyment and will recognize Lessee's rights contained in this
Lease, where Lessee is not then in default hereunder beyond any applicable grace
period with respect to such default. Lessor shall use reasonable efforts to
obtain similar non-disturbance agreements from any existing Fee Mortgagee.
26.2. Subject to the provisions of 26.1 above, Lessee agrees that Lessee
shall attorn to and recognize any foreclosing Fee Mortgagee or other such
successor in interest to Lessor, as Lessee's landlord hereunder.
27. ESTOPPEL CERTIFICATE.
27.1. Within ten (10) days following any written request which either party
may make from time to time, the other party shall execute and deliver a
statement, certifying (i) the Commencement Date; (ii) the fact that this Lease
is unmodified and in full force and effect (or, if there have been modifications
hereto, that this Lease is in full force and effect, as modified, and stating
the date and nature of such modifications); (iii) the date to which the Rent has
been paid (iv) the fact that there are no current defaults under this Lease by
either Lessor or Lessee, except as specified in such statement, and (v) such
other matters reasonably requested. Lessor and Lessee intend, agree and
understand that any such statement delivered pursuant to this Section 27.1 may
be relied upon by any Fee Mortgagee, beneficiary, purchaser or prospective
purchaser, mortgagee or subtenant of the Premises or the Building or any
interest therein.
27.2. Either party's failure to deliver any such statement within the
period specified, after receipt of notice, shall be conclusive upon such party
that this Lease is in full force and effect without modification, that there are
no uncured defaults by the requesting party and that not more than one (1)
month's Rent has been paid in advance.
28. NOTICE OF LEASE.
28.1. Lessor and Lessee shall execute, in recordable form, a Notice of
Lease pursuant to Section 47-19 of the Connecticut General Statutes.
29. DEFINITION OF LESSOR.
29.1. The term "Lessor" as used in this Lease, so far as covenants or
obligations on the part of Lessor are concerned, shall be limited to mean and
include only the owner or owners at
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the time in question of the fee title to the Premises. In the event of any
transfer, assignment or conveyance of such title to a Person not Controlled by
Lessor or related to Lessor, Lessor herein named shall be automatically freed
and relieved from and after the date of such transfer, assignment or conveyance
of all liability with respect to the performance of any covenants or obligations
on the part of Lessor contained in this Lease thereafter to be performed (except
as may be attributable to the period preceding said conveyance, unless expressly
assumed by the transferee of any such interest) and, without further agreement,
the transferee of such title or interest shall be deemed to have assumed and
agreed to observe and perform any and all obligations of Lessor hereunder,
during such transferee's ownership of the Premises. Lessor may, at any time
during the Initial Term or the Renewal Term (if appropriate), transfer Lessor's
interest in the Premises.
30. LIMITATION ON LIABILITY.
30.1. Except as herein expressly stated to the contrary, it is hereby
understood and agreed that none of the individuals comprising Lessor shall have
any personal liability hereunder with respect to any of the covenants,
conditions or provisions of this Lease, and that in the event of a breach or
default by Lessor with respect to any of Lessor's obligations hereunder, Lessee
shall look solely to the estate and property of Lessor (or either of them) in
the Premises, for the satisfaction of Lessee's remedies, including the
collection of a judgment (or other judicial process) requiring the payment of
money by Lessor, and no other property or assets of Lessor shall be subject to
levy, execution or other enforcement procedure for the satisfaction thereof. The
provisions of this Section 30 shall apply only to the Lessor above named. The
provisions are not for the benefit of any insurance company or any other third
party.
31. TERMS AND HEADINGS.
31.1. The words "Lessor" and "Lessee" as used herein shall include the
plural as well as the singular. Words used in either gender include the other
genders. The Section headings contained in this Lease are not a part of this
Lease and shall have no effect upon the construction or interpretation of any
part of this Lease.
32. INVALIDITY.
32.1. The invalidity of any provision of this Lease shall not be deemed to
impair or affect in any manner the validity, enforceability or effect of the
remainder of this Lease, to the extent such remainder may be given effect in the
absence of said invalid provision(s), and, in such event, all of the other
provisions of this Lease shall continue in full force and effect as if such
invalid provision had never been included herein.
33. LESSOR'S SIGNS
33.1. Lessor may at any time place on or about the Premises (excluding the
Building) any "for Sale" signs, and at any time during the last one hundred
eighty (180) days of the Initial Term, or (if appropriate) the last one hundred
eighty (180) days of the Renewal Term,
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Lessor may place "for Lease" signs on or about the Premises and/or the Building.
34. QUIET ENJOYMENT.
34.1. Lessor hereby represents and warrants that Lessor owns fee simple
title to the Premises and has full authority to grant this Lease and that no
other person, firm or corporation need join in the execution of this Lease by
Lessor in order to make Lessor's execution of this Lease complete or
appropriate. Lessor further covenants that Lessee, upon paying the Rent and
faithfully performing Lessee's other obligations hereunder, shall peacefully and
quietly have, hold and enjoy the Premises throughout the Initial Terns and the
Renewal Term (if appropriate) without hinderance, ejection or molestation by any
person claiming under Lessor, subject to the terms and provisions of this Lease.
35. LESSOR'S DEFAULT.
35.1. In the event Lessor shall fail to perform or observe any term,
covenant, or condition of Lessor hereunder after thirty (30) days written notice
from Lessee of such failure or, if such failure is not capable of being cured
within such thirty (30) day period and Lessor shall fail to commence to cure the
same within such thirty (30) day period and thereafter diligently pursue such
cure to completion within a reasonable time, then Lessee shall have the right
(but not the obligation) to perform such obligation and to charge the cost
thereof to Lessor, provided that Lessee shall have the right to perform such
obligation immediately and without notice in the case of an emergency or
material interference with Lessee's ability to use the Premises. Lessee shall
submit a xxxx to Lessor for the reasonable cost of performing such work, which
amount shall be payable by Lessor within ten (10) days after receipt thereof. It
is agreed and understood that in no event shall Lessee be permitted to setoff
any such sum allegedly due to Lessee against the Rent reserve hereunder.
35.2. If Lessor rejects this Lease in bankruptcy, Lessee may, at Lessee's
option, terminate this Lease, If Lessee elects to remain in possession after
such rejection by Lessor, the rights and remedies of the parties shall be
governed by the terms and conditions of this Lease.
36. ATTORNEY'S FEES.
36.1. In any proceeding which Lessor or Lessee may prosecute to enforce
such party's rights hereunder, the unsuccessful party shall pay all costs
incurred by the prevailing party, including reasonable attorney's fees. Prior to
commencing any proceeding, the parties shall each submit to the other a final
offer of settlement. The failure of a party (as plaintiff) to submit a
settlement offer shall be deemed a demand for all of the relief requested in
such party's complaint and the failure of a party (as defendant) to submit a
responding settlement offer within ten (10) days after receipt of the settlement
offer from the plaintiff party shall be deemed a rejection of any relief for the
benefit of the plaintiff party. If the forum in which the proceeding is heard
renders a judgment at least as favorable to a party as such party's settlement
offer, then such party shall be deemed the prevailing party for the purposes of
this Section 36.1.
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37. ACCORD AND SATISFACTION.
37.1. No payment by Lessee or receipt by Lessor of a lesser amount than the
Rent payment herein stipulated shall be deemed to be other than on account of
the Rent, nor shall any endorsement or statement on any check (or contained in
any letter accompanying any check) be deemed to constitute an accord and
satisfaction, and Lessor may accept any such payment of a lesser amount without
prejudice to Lessor's right to recover the balance of the Rent or to pursue any
other remedy provided in this Lease, or available at law.
38. BINDING EFFECT.
38.1. This Lease shall inure to the benefit of Lessor and Lessee, and their
respective successors, heirs and assigns, as appropriate. Words importing the
singular number include the plural number and vice versa.
39. ENTIRE AGREEMENT AND GOVERNING LAW.
39.1. This Lease contains the entire agreement between Lessor and Lessee
and all prior negotiations and agreements are merged into this Lease. This Lease
may not be changed, modified, terminated or discharged, in whole or in part, nor
any of its provisions waived except by a written instrument which (i) expressly
refers to this Lease, and (ii) is executed by the party against whom enforcement
of such change, modification, termination, discharge or waiver is sought. All
Exhibits attached hereto or referred to herein form an integral part of this
Lease and are hereby incorporated by reference.
39.2. The laws of the State of Connecticut shall govern and control the
validity, interpretation, construction, performance and enforcement of this
Lease and shall apply to any disputes or controversies arising out of or
pertaining to this Lease.
39.3. The Lessor's obligations under this Lease are conditioned upon Lessor
entering into an acceptable Lease Termination Agreement with the current tenant
at the Premises by which the current lease of the Premises will be terminated as
of the Commencement Date.
IN WITNESS WHEREOF, Lessor and Lessee have executed and delivered this
Lease as of the day and year first above written.
Signed, sealed and delivered in the presence of:
XXXXXXX X. XXXXXX
XXXX XXXXX
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XXXX XXXXX
ADVANCED TECHNOLOGY
MATERIALS, INC.
By:
Its
Duly Authorized
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KL2:2145162.1
EXHIBIT A
PREMISES
Two (2) certain pieces or parcels of land, together with the buildings thereon,
situate in the City of Danbury, County of Fairfield and State of Connecticut,
and bounded and described as follows:
FIRST PARCEL:
-------------
A certain piece or parcel of land, situate in the City of Danbury, County of
Fairfield and State of Connecticut, and all buildings thereon standing, together
with an addition to the present building as hereafter described, known as
Parcels No. 5 and No. 5A, situated on the Westerly side of Commerce Drive in the
said Danbury, and more particularly shown and designated on a certain map
entitled:
"Map showing Parcel 5A To Be Added To Parcel 5, Commerce Park,
Danbury, Conn., Scale 1" = 100', July 27, 1968, Certified
Substantially Correct, Xxxxxxx Xxxxxx".
Together with the right to pass and xxxxxx for all purposes over the road
designated as Commerce Drive on said Map.
SECOND PARCEL:
--------------
All that certain piece or parcel of land, together with the buildings thereon,
situate on Commerce Drive in the City of Danbury, County of Fairfield and State
of Connecticut, an particularly described on a Map Plot Plan, entitled: "Map of
Land of Xxxxxxx X. Xxxxxx To Be Leased to Qualitron Corporation," Certified
Substantially Correct by Xxxxxxx Xxxxxx, C.E. & L.S., which map is filed in the
Office of the Town Clerk of said Danbury.
