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Exhibit 10.15
SUBLEASE AGREEMENT
SUBLEASE, effective as of February 1, 1984, between ORIEL CORPORATION,
having an address at 000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxx
(hereinafter called the "Lessee") and OSBROOK ASSOCIATES LIMITED PARTNERSHIP,
having an address at 000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxx
(hereinafter collectively called the "Lessor").
PREFACE
A lease was executed on and as of November 1 , 1975, between
Bardford-Connecticut Associates (together with its successors and assigns,
hereinafter the "Original Lessor"), as lessor, and Xxxxxxxxxxx-Xxxxxxx, Inc.
("KBI"), as lessee, by the terms of which certain real property located at 000
Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxx, more fully described in Schedule A
hereto was leased to KBI for a term of 20 years, commencing on November 1, 1975
and ending on November 30, 1995, subject to certain renewal options (Notice of
said lease was recorded at Volume 503, page 14 of the Stratford Land Records in
the County of Fairfield and State of Connecticut) (the "Lease").
An assignment of the Lease from KBI to Oriel Corporation was executed on
February 21, 1983 to take effect on May 1, 1983 at 12:01 a.m. (said assignment
was recorded at Volume 578, page 611 of the Stratford Land Records). Oriel
Corporation in turn subleased a portion of the real property described on
Schedule A hereto to KBI pursuant to a Sublease Agreement dated as of May 1,
1983 (the "Original Sublease").
Oriel Corporation reassigned the Lease to Xxxxx Xxxxxxx, Xx. and Xxxxxx
X. Xxxxxxx pursuant to, a Reassignment of Lease dated September 30, 1983
recorded at Volume 586, page 401 (the "Reassignment"). Xxxxx and Xxxxxx Xxxxxxx
assigned their interest in the Lease to the Lessor as a contribution to capital
by Assignment dated January 6, 1984 recorded in the Stratford
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Land Records at Volume 589, page 672.
Lessor has acquired the fee interest in the Property by deed dated
January 9, 1984 from Xxxxx-Bridge Associates recorded in the Stratford Land
Records at Volume 589, page 669.
LEASE TERMS
WHEREAS, Lessor now desires to sublease the Property (as hereinafter
defined) to the extent set forth herein, and Lessee desires to accept the
sublease thereof;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein expressed, and subject to the provision of the Original Sublease:
ARTICLE I
DEMISE OF PREMISES
In consideration of the rents and covenants herein stipulated to be paid
and performed, Lessor hereby demises and lets to Lessee, and Lessee hereby
accepts the demise and lets from Lessor, for the respective terms hereinafter
described, the premises consisting of (i) the parcel of land described in
Schedule A hereto, (ii) all improvements constructed and to be constructed on
said parcel and (iii) all easements, rights and appurtenances relating to said
parcel upon the terms and conditions hereinafter specified (such premises being
herein called the "Property").
ARTICLE II
CERTAIN DEFINITIONS; SUBLEASE MAY BE CONVERTED
The term "Mortgage", "Mortgagee" and "Note" shall have the respective
meanings set forth in the Lease (as defined above). In the event that the Note
is paid in full and the Mortgage is discharged and Lessor is then the fee owner
at such time, the interests of Osbrook Associates as lessor and lessee under
said Lease shall be deemed to have merged, the Lease to have terminated
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and the provisions in this Sublease requiring Lessee to comply with the terms of
the Mortgage and the Lease shall no longer apply and, at such time, this
Sublease shall be deemed to be a lease directly from the Lessor as fee owner.
ARTICLE III
TITLE AND CONDITION
The Property is demised and sublet subject to (a) the rights of any
parties in possession thereof, including KBI under the original Sublease, and
the existing state of the title thereof as of the commencement of the term of
this Sublease, (b) any state of facts which an accurate survey or physical
inspection thereof might show, and (c) all zoning regulations, restrictions,
rules and ordinances, building restrictions and other laws and regulations now
in effect or hereafter adopted by any governmental authority having
jurisdiction. The buildings, structures and other improvements located on the
Property are subleased to and accepted by Lessee in their present condition,
without representation or warranty by Lessor.
ARTICLE IV
USE OF PROPERTY; QUIET ENJOYMENT
4.1. Lessee may occupy and use the Property for any lawful purpose.
4.2. If and so long as there shall be no default under this Sublease
and Lessee shall observe and perform all covenants, agreements and obligations
required by it to be observed and performed hereunder, Lessor warrants peaceful
and quiet occupation and enjoyment of the Property by Lessee; provided, that
Lessor, Original Lessor and their respective agents may enter upon and examine
the Property at reasonable times. Any failure by Lessor to comply with the
foregoing covenant shall not give Lessee any right to cancel or terminate this
Sublease, or to
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xxxxx, reduce or make deduction from or offset against any Basic Rent, as
hereinafter defined, or additional rent or other sums payable under this
Sublease, or to fail to perform or observe any other covenants, agreements or
obligations of Lessee hereunder.
ARTICLE V
TERM OF LEASE; RENEWAL
5.1 The initial term of the Sublease shall begin on February 1, 1984
and, unless extended as provided in this Article V or in Article XII, shall end
at midnight on January 31, 1998 or shall end on the date upon which said term
may be canceled or terminated pursuant to any of the conditions or covenants of
this Sublease or pursuant to law. The 14 year term of this Sublease for the
period February 1, 1984 through January 31, 1998, unless extended as provided in
Article XII shall be known as the "Unmodified Primary Term".
5.2. Provided this Sublease shall be in full force and effect, Lessee
shall have the right and option to extend this Sublease for two consecutive
extended terms of five years (the "Extended Terms") unless and until this
Sublease shall be sooner terminated pursuant to the terms of this Sublease. The
first such Extended Term shall commence on the day immediately following the
date on which the Primary Unmodified Term shall end, or in the event that the
term of the Sublease is extended pursuant to Article XII, on the day immediately
following the date of expiration of such extended term. The first Extended Term
shall end at midnight of the day immediately preceding the fifth anniversary of
the commencement of the first Extended Term. The second Extended Term shall
commence on the day immediately following the date the first Extended Term
expires and shall end on midnight on the day immediately preceding the fifth
anniversary of the commencement of the second Extended Term. LESSEE SHALL
EXERCISE EACH SUCH
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OPTION TO EXTEND THIS SUBLEASE BY GIVING NOTICE IN WRITING TO LESSOR AT LEAST
180 DAYS PRIOR TO THE END OF THE TERM OF THIS SUBLEASE THEN IN EFFECT provided,
however, that if the fair rental value has not yet been established pursuant to
Section 6.2 hereof, Lessee shall have one additional month to give notice of its
intent to exercise the option. Notwithstanding the foregoing, Lessee shall not
forfeit its option to extend this Sublease by failure to give notice within the
specified time period(s) unless Lessor has given written notice of not less than
thirty (30) days and not greater than sixty (60) days that Lessee must make an
election whether or not to extend this Sublease. If Lessor has not given such
notice at least thirty days before the expiration of the term then in effect and
Lessee has not notified Lessor whether or not Lessee elects to extend the term,
then if Lessee has not removed itself from the Property by the end of such term
then in effect, this Sublease shall automatically be extended for an Extended
Term as though Lessee had given timely notice of its election to extend the
term. If Lessor gives timely notice (at least thirty days before the expiration
of the term then in effect) to Lessee as required by this Section 5.2 and Lessee
does not notify Lessor of its election to extend the term within the later of
(a) thirty days of such notice from Lessor or (b) the time period specified
above in this Section 5.2 for Lessee to give notice, then this Sublease shall
automatically terminate at the end of the term of this Sublease then in effect
and Lessee shall have no further option to extend this Sublease. If Lessee does
give timely written notice to Lessor that Lessee elects to extend the term of
this Sublease, such notice shall automatically extend this Sublease for an
Extended Term and no instrument of renewal need be executed. Except as provided
in this Section 5.2 Lessee's holding over after the expiration of the term shall
not act to extend the term of this Sublease.
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ARTICLE VI
RENT
6.1. BASIC RENT. Lessee covenants to pay to Lessor, as installments of
rent for the Property during the Primary Unmodified Term of this Sublease (the
"Basic Rent"):
(a) FOR THE PERIOD COMMENCING FEBRUARY 1, 1984 AND ENDING
JANUARY 31, 1989: the sum of $350,000.04 per annum payable in
equal monthly installments of $29,166.67 commencing on February 1,
1984 and payable on the lst day of each month thereafter;
(b) FOR THE PERIOD COMMENCING FEBRUARY 1, 1989 AND ENDING
JANUARY 31, 1994: subject to the "Cap" as defined in Section 6.2,
the greater of 350,000.04 per annum or the "fair rental value" of
the Property to be determined as provided in Section 6.2 below,
such greater amount to be payable in equal monthly installments
commencing on February 1, 1989 and payable on the lst day of each
month thereafter;
(c) FOR THE PERIOD COMMENCING FEBRUARY 1, 1994 AND ENDING
JANUARY 31, 1998: subject to the "Cap" as defined in Section 6.2,
the greater of $350,000.04 per annum or the "fair rental value" of
the property to be determined as provided in paragraph 6.2 below,
such greater amount to be payable in equal monthly installments
commencing on February 1, 1994 and payable on the lst day of each
month thereafter.
6.2. FAIR RENTAL VALUE; CAP ON RENT. The "fair rental value" as
referenced in Sections 6.1(b) and 6.1(c) of this Sublease shall be the fair
rental value of the Property as determined
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December 1988 and December 1994 respectively (not including any net additions of
building or parking space paid for by Lessee, if any, subsequent to the
commencement of this Sublease). If the Lessor and Lessee are unable to agree as
to the fair rental value at such time(s) and if the Lessor claims the fair
rental value exceeds $350,000.04 per annum, then the Lessor and the Lessee shall
each appoint one licensed real estate appraiser who shall jointly attempt to
determine and agree upon the fair rental value. If they are unable to agree and
one of them has determined that the fair rental value exceeds $350,000.04 per
annum then (a) the fair rental value shall be the average of the two appraisals
if the difference between them is not greater than five percent of the lower
appraisal or (b) if the appraisals are not within said five percent of one
another then the appraisers shall together select a third licensed appraiser who
shall make a determination of fair rental value after reviewing the reports of
the first two appraisers and after doing such independent research as he deems
appropriate. The value determined by the third appraiser shall control if it
falls between the values set by the other two appointed appraisers and if not,
whichever value determined by the first two appraisers is closest in amount to
the third appraisal shall control. Each party shall pay the cost of its
appraiser and the parties shall share equally the cost of the third appraiser.
Notwithstanding the foregoing provisions of this Section 6.2, the Basic rent
shall not exceed a certain limit (the "Cap") which shall be determined as
follows: The Cap for the five year period of this Sublease commencing February
1, 1989 shall be the initial amount of annual Basic Rent ($350,000.04) (the
"Initial Rent") increased as of December 1, 1988 by the percentage increase in
the Consumer Price Index as published by the U.S. Department of Labor for the
New York area (the "Index") from February 1, 1984 through December 1, 1988. The
Cap for the four year period of this Sublease commencing February 1, 1994 shall
be the
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Initial Rent increased as of December 1, 1993 by the percentage increase in the
Index from February 1, 1984 through December 1, 1993. Under no circumstances
shall the Cap apply to reduce the rent below the Initial Rent.
6.3. ADDITIONAL RENT. During the term of this Sublease, including
during the period of any renewals or extensions, Lessee covenants to pay and
discharge when the same shall become due, as additional rent, all other amounts
which Lessee assumes or agrees to pay or discharge pursuant to this Sublease,
together with every fine, penalty, interest and cost which may be added for
non-payment or late payment thereof. Lessee shall also pay to Lessor, on demand,
as additional rent, interest at the rate of 13-3/4% per annum on all overdue
installments of Basic Rent and on all overdue amounts of additional rent
relating to obligations which Lessor shall have paid on behalf of Lessee, in
either case, from the due date thereof until paid in full.
6.4. RENT DURING RENEWAL PERIOD. In the event that the Lessee exercises
its option to extend this Sublease pursuant to Article V the Basic Rent for
such renewal period(s) shall be the "fair rental value" of the property
(excluding any net additions of building or parking space paid for by Lessee).
Fair rental value for each of the five year extensions shall be determined as
of seven months before the commencement of each such renewal period (in order
to allow Lessee sufficient time to elect to renew this Sublease) in the same
manner as provided in Section 6.2 except that no maximum or cap shall be placed
on the fair rental value. In addition to the Basic Rent, Lessee shall pay and
does covenant to pay all additional rent required to be paid by the terms of
this Sublease.
6.5. WHERE RENT TO BE PAID. Lessee agrees to pay the installments of
rent provided for in Sections 6.1, 6.2 and 6.4 and as may be provided pursuant
to Article XII of this Sublease at
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Lessor's address at 000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxx or at such
other place within the continental United States or to such other person as
Lessor from time to time may designate to Lessee in writing, in lawful money of
the United States of America.
ARTICLE VII
NET LEASE; NON-TERMINABILITY
7.1. This is a net lease, and Lessee shall pay all costs, taxes,
assessments and other expenses of every character, foreseen or unforeseen, for
the payment of which Lessor or Lessee is or shall become liable by reason of its
estate or interest in the Property, or which are connected with or arise out of
the possession, use, occupancy, maintenance, repair or rebuilding of the
Property or any portion thereof including, without limitation, those
specifically referred to in this Sublease. Notwithstanding the foregoing Lessee
shall not be made liable by this Section for any personal injury or property
damage caused by Lessor in carrying out its responsibilities under Articles 12,
13 or 14 herein. Further, this Section 7.1 shall not apply so as to make Lessee
liable for any breaches of the terms of this Sublease by Lessor. Basic Rent,
additional rent and all other sums payable hereunder by Lessee shall be paid
without notice or demand, and without setoff, counterclaim, abatement,
suspension, deduction or defense. Lessee shall not be obligated by this Sublease
to pay the organizational expenses or general management expenses of the Lessor
nor to pay the cost of title insurance procured to benefit the Lessor or any
mortgagee from whom Lessor shall borrow money. Lessee shall also not be required
to pay the cost of any conveyance taxes or recording fees in connection with the
transfer of title from Xxxxx-Bridge Associates to Lessor.
7.2. Lessee agrees that it will remain obligated under this Sublease in
accordance with its terms, and that it will not take any action to terminate,
rescind or avoid this Sublease,
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notwithstanding (i) the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding-up or other proceeding affecting
Original Lessor or Lessor or any assignee of Original Lessor or by any court in
any such proceeding, (ii) any action with respect to the Lease or this Sublease
which may be taken by any trustee or receiver of Original Lessor or Lessor or of
any assignee of Original Lessor or Lessor in any such proceeding or by any court
in any such proceeding or (iii) any default under or proceeding to enforce the
Mortgage.
7.3. Lessee waives all rights which may now or hereafter be conferred
by law (i) to quit, terminate or surrender this Sublease or the Property or any
part thereof or (ii) to any abatement, suspension, deferment or reduction of the
Basic Rent, additional rent or any other sums payable under this Sublease,
except as otherwise expressly provided herein.
ARTICLE VIII
TAXES AND ASSESSMENTS; COMPLIANCE WITH LAW
8.1. Lessee shall pay, when due: (i) all taxes, assessments (including
assessments for benefits from public works or improvements, whether or not begun
or completed prior to the commencement of the term of this Sublease and whether
or not to be completed within said term), levies, fees, water and sewer rents
and charges, and all other governmental charges, general and special, ordinary
and extraordinary, and whether or not the same shall have been within the
express contemplation of the parties hereto, together with any interest and
penalties thereon, which are, at any time, imposed or levied upon or assessed
against Original Lessor or Lessor or the Property or any party thereof, or any
Basic Rent, any additional rent reserved or payable hereunder or any other sums
payable by Lessee hereunder, or upon this Sublease or the leasehold estate
hereby created or which arises in respect of the operation, possession,
occupancy or use
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thereof, or upon the gross receipts from the Property or from the earnings
arising from the use or occupancy thereof, or which arise in respect of the use
or occupancy of the Property or any part thereof, or the lien of or interest of
the Mortgagee, or of any holder of the Note, in the Property, and all sales and
use taxes which may be levied or assessed against or payable by Original Lessor
or Lessor or Lessee on account of the acquisition, leasing or use of the
Property or any portion thereof and (ii) all charges for water, gas, light,
heat, telephone, electricity, power and other utility and communications
services rendered or used on or about the Property. Notwithstanding the
foregoing provisions of this Section 8.1, Lessee shall not be required to pay
any franchise, corporate, estate, inheritance, succession, transfer, income,
profits or revenue taxes of original Lessor or Lessor (other than any gross
receipts or similar taxes imposed or levied upon, assessed against or measured
by the Basic Rent, additional rent or any other sums payable by Lessee
hereunder) unless any such tax, assessment, charge or levy is imposed or levied
upon or assessed against Original Lessor or Lessor in substitution for, in place
of or as a supplement to any other tax, assessment, charge or levy referred to
in this Section 8.1.
8.2 Lessee shall, at its expense, comply with, and shall cause the
Property to comply with, all governmental statutes, laws, rules, orders,
regulations and ordinances affecting the Property or any part thereof, or the
use thereof, including those which require the making of any structural,
unforeseen or extraordinary changes, whether or not any of the same, which may
hereafter be enacted, involve a change of policy on the part of the governmental
body enacting the same. Notwithstanding the foregoing provisions of this Section
8.2; Lessor shall initially have the responsibility to cause any repairs or
restorations of the Property required to be -performed by Lessor under Articles
XIII or XIV, or improvements which Lessor agrees to make pursuant to
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Article XII, to comply with all applicable governmental statutes, laws, rules,
order and regulations and thereafter such responsibility shall shift to Lessee.
Less-ee shall, at its expense, comply with the requirements of all policies of
insurance which at any time may be in force with respect to the Property and
with the provisions of all contracts, agreements and restrictions affecting the
Property or any part thereof or the ownership, occupancy or use thereof.
ARTICLE IX
LIENS
Lessee shall remove and discharge promptly, at its expense, all liens,
encumbrances and charges on the Property or any interest therein which arise out
of the ownership, possession, use,, occupancy, maintenance, repair or rebuilding
of the Property or by reason of labor or materials furnished or claimed to have
been furnished to Lessee at Lessee's request, but excluding Permitted Exceptions
as defined in the Mortgage. This Article IX shall not apply to repairs or
restorations by Lessor pursuant to Articles XIII or XIV or to repairs made by
Lessor on behalf of Lessee pursuant to Article XI which repairs Lessee claims
were not necessary or if necessary, were excessive and unreasonable. Disputes
between Lessor and Lessee concerning such liens may be submitted by Lessor or
Lessee to commercial arbitration.
ARTICLE X
INDEMNIFICATION
Lessee shall pay, and shall and does hereby indemnify, protect and hold
Lessor harmless from and against, any and all liabilities, losses, damages,
costs, expenses (including all reasonable attorney's fees and expenses of
Lessor), causes of action, suits, claims, demands or judgments of any nature
whatsoever arising from (i) Lessee's use of the Property, (ii) any injury to, or
the death
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of, any person, or any damage to property on the Property or upon adjoining
sidewalks, streets or ways, or in any manner growing out of or connected with
the use, non-use, condition or occupation of the Property or any part thereof or
resulting from the conditions thereof or of adjoining sidewalks, streets or
ways, except such indemnification shall not apply when such injuries occur in
connection with repairs or restoration ,being made by Lessor pursuant to Article
XIII or XIV, or in connection with the making of any improvements by Lessor
which Lessor agrees to make pursuant to Article XII, (iii) the violation by
Lessee of any agreement or condition of this Sublease, (iv) any contest
permitted by Article XVII and (v) the violation by Lessee of any contract or
agreement to which Lessee is a party, or any restriction, statute, law,
ordinance or regulation, in each case affecting the Property or any part
thereof, or the ownership, occupancy or use thereof.
ARTICLE XI
MAINTENANCE AND REPAIR
11.1. Lessee shall, at its expense, keep and maintain the Property in
good repair and condition, except that in no event shall Lessee be obligated to
make those major repairs or restorations which would otherwise be Lessor's
obligation under Article XIII or XIV provided Lessee has given reasonable notice
to Lessor that Lessor is responsible for such repairs or restorations under
Article XIII or XIV. It is the intent of this Article that Lessee will be
responsible for and paying for general maintenance and ordinary repairs (such as
repairing roof leaks, broken windows, furnace repairs, etc.). Lessor shall only
be responsible for causing repairs or restorations to be made involving
significant damage to the Property but not for ultimately bearing the cost of
such repairs or restorations. Lessor's direct cost, as incurred, in making such
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repairs or restorations not covered by insurance, shall be paid by Lessee within
30 days after demand is made by Lessor in writing, which demand shall include
reasonable itemization of such costs. Disputes over the reasonableness of such
expenses may be submitted to commercial arbitration. In the event damage occurs
to the Property which Lessee believes should be the responsibility of Lessor to
repair pursuant to Articles XIII or XIV Lessee shall promptly notify Lessor and
if Lessor and Lessee cannot agree who is responsible for making such repair it
shall initially be Lessee's responsibility to make the repairs at least as
necessary to prevent further damage to the premises or injury to others and then
the dispute may be resolved by commercial arbitration (except that in no event
shall the ultimate cost of such repairs or restoration be shifted to Lessor). If
Lessor claims that Lessee is not properly maintaining the Property or is not
making repairs which are the obligation of Lessee and Lessee disputes the claim,
Lessor shall have no right to make such repairs on behalf of Lessee unless
emergency repairs must be made to protect the Property from additional damage or
to protect the persons therein from harm. Disputes as to whether necessary
repairs are being made by the appropriate party in a timely fashion may be
submitted by either party to commercial arbitration and the rights of the
parties decided therein.
ARTICLE XII
ALTERATIONS AND CONDITIONS; PURCHASE BY LESSEE
EXTENSION OF LEASE TERM
12.1. LESSEE IMPROVEMENTS. Lessee may, at its expense and with the
consent of Lessor which consent shall not be unreasonably withheld or delayed,
make additions to and alterations of the improvements to the Property, and make
substitutions and replacements therefor, provided, that (i) the market value and
fair rental value of the Property shall not thereby be lessened, (ii) the
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foregoing actions shall be performed in a good and workmanlike manner, (iii)
such additions, alterations, substitutions and replacements shall be
expeditiously completed in compliance with all laws, ordinances, orders, rules,
regulations and requirements applicable thereto and (iv) the character and
useful life of the Property shall not be diminished. All work done in connection
with each such addition, alteration, substitution or replacement shall comply
with the requirements of any insurance policy required to be maintained by
Lessee hereunder and with the orders, rules and regulations of the National Fire
Protection Association, or any other body exercising similar functions. Lessee
shall promptly pay all costs and expenses of each such addition, alteration,
substitution or replacement and shall discharge all liens filed against the
Property arising out of the same. Lessee shall procure and pay for all permits
and licenses required in connection with any such addition, alteration,
substitution or replacement.
12.2. LESSEE IMPROVEMENTS. Lessee may, at its expense and with the
consent of Lessor which consent shall not unreasonably be withheld or delayed,
(i) construct upon the Property any additional buildings, structures or other
improvements and (ii) install, assemble or place upon the Property any items of
machinery, equipment, personal property or trade fixtures used or useful in
Lessee's business, in each case upon compliance with all the terms and
conditions set forth in Section 12.1. All such buildings, structures and other
improvements shall be subject to the Lease (if still in effect), this Sublease
and to the lien of the Mortgage (if still in effect) and any subsequent
mortgage. Such machinery, equipment, personal property or trade fixtures shall
be and remain the property of Lessee. Lessee may remove the same from the
Property at any time prior to the expiration or earlier termination of this
Sublease, provided that Lessee shall be required to repair any damage to the
Property resulting from such removal. Any buildings,
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structures and other improvements which, under the laws of the state of
Connecticut, become a part of the realty when constructed, shall remain the
property of Original Lessor.
12.3. IMPROVEMENTS REQUESTED BY LESSEE; EXTENSION OF LEASE; PURCHASE
OPTION. Lessee may at any time during the first twelve years of the term of this
Sublease request Lessor to construct at Lessor's expense additional improvements
or additions to the improvements on the Property provided that the additions to
improvements or additional improvements shall add, net, at least 10,000 square
feet of floor space and provided that such additions or improvements as proposed
would comply with all laws including zoning laws and other applicable
regulations and provided that the market value and fair rental -value of the
Property would not be lessened by such additional improvements or additions. At
the time of making such request Lessee shall provide Lessor with, at Lessee's
expense, preliminary drawings of the proposed additions or additional
improvements prepared by an architect together with a reasonably detailed
estimate of the cost of construction from a reputable builder or architect. Such
request by Lessee shall also include an agreement by Lessee to execute and
deliver (i) an amendment to this Sublease so that the remaining term would be
fifteen years (in addition to Lessee's option to extend the Sublease for two
consecutive five year terms provided in Article V) from the date a preliminary
certificate of use and occupancy is issued for the addition or additional
improvement and which would increase the Basic Rent by an amount at least
sufficient to pay when due all interest and principal on any indebtedness of
Lessor issued to pay the cost of such additional improvement or addition. Lessor
may, even before Lessor and Lessee discuss the terms on which such construction
would proceed, refuse to agree to construct the additions or additional
improvements and in such case then Lessee may, at its option, purchase the
Property in the manner provided in this Section 12.3.
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If Lessor does not initially refuse to agree to Lessee's request for such
construction by Lessor, then it shall be Lessee's obligation (if Lessee desires
to proceed with its request) to locate, at its expense but with Lessor's
cooperation, a reputable lender(s) willing to provide non-recourse financing,
(both construction loan and permanent loan financing), for at least 85% of the
cost of the proposed construction on a loan to be one hundred percent (100%)
amortized over a term not to exceed fifteen years. Upon receipt by Lessor of the
request from Lessee in compliance with this Section 12.3 and of a commitment
letter(s) from the proposed lender(s) satisfying the requirements of this
Section 12.3, Lessor shall enter into good faith negotiations with Lessee with
respect to the increase in rent, which increase in all events must be sufficient
to finance such construction and which is fair and reasonable in the light of
then existing conditions and with respect to any other amendments reasonably
necessary in connection with the proposed construction. If Lessor and Lessee are
able to agree on the terms of such amendments to this Sublease, and provided
Lessor can obtain any consents required from any holder of a mortgage on the
Property, then such amendments to the Sublease shall be made , including the
extension of the term and Lessor shall proceed' with the construction on the
terms agreed to by Lessor and Lessee. if Lessor and Lessee cannot agree on such
terms within 60 days after Lessor's receipt of the lender commitments) or if
Lessor otherwise refuses to. construct such additions or additional improvements
(unless due to the refusal of a holder of a mortgage on the property to allow
such construction), Lessee may, at its option if the Lessee shall not then be in
default under this Sublease, give notice to Lessor of Lessee's election to
terminate this Sublease at a date occurring at least 90 days after such notice
is given and to purchase the Property on said date from Lessor at a price to be
determined in accord with Section 12.4.
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12.4. PURCHASE PRICE. If the Lessee gives notice of its election to
terminate this Sublease and to purchase the Property as provided in paragraph
12.3 Lessor shall enter into good faith negotiations with Lessee, within 20 days
of receipt of such notice, with respect to the purchase price to be paid by
Lessee for the Property and Lessee shall continue to pay all rent, as before,
until the date of closing. If they cannot agree within 45 days of the date
Lessor received Lessee's notice of intent to terminate and purchase, the
purchase price shall be the fair market value of the Property, not including any
improvements made at Lessee's expense, determined as follows: Lessor and Lessee
shall each appoint one licensed real estate appraiser who shall jointly attempt
to determine and agree upon such fair market value of the Property. If they are
unable to agree then each appraiser shall set one value and the purchase price
shall be the average of the two appraisals if the difference between them is not
greater than five percent of the lower appraisal. If the appraisals are not
within said five percent of one another then the two appraisers shall together
select a third licensed appraiser who shall make a determination of fair market
value after reviewing the reports of the first two appraisers and after doing
such independent research as he deems appropriate. The value determined by the
third appraiser shall control if it falls between the values set by the other
two appointed appraisers and, if not, whichever value determined by the first
two appraisers is closest in amount to the third appraisal shall control. If a
determination of the purchase price is made by appraisers (i.e. other than by
Lessor and Lessee agreement) Lessee shall have the option within 15 days of the
date on which Lessee is notified of such determination to reimburse Lessor for
its share of the costs of the appraiser(s) and to revoke its notice of
termination and intent to purchase and, in such case this Sublease shall
continue in effect as though Lessee had not requested Lessor to construct
additions to the Property. Such notice of
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revocation shall be in writing and shall include Lessee's agreement to pay the
Lessor's appraisal expenses. In the event that the Lessor and Lessee agree on
the purchase price or if the purchase price is set by appraisals and Lessee
fails to timely revoke its notice of termination and intent to purchase, then
the Lessee shall purchase, and the Lessor shall transfer the property in
accordance with Section 12.5 hereof on the date specified by Lessee in its
notice of intent to terminate the Sublease and to purchase the Property.
12.5. PROCEDURE UPON PURCHASE. In the event of a purchase of the
Property by Lessee pursuant to Section 12.3 hereof, Lessor shall not be
obligated to give any better title thereto than existed at the commencement of
the term of this Sublease, and Lessee shall accept such title free, however, of
any mortgages unless Lessee elects to take subject to such mortgages. On the
date of purchase of the Property by Lessee pursuant to Section 12.3, Lessee
shall pay to Lessor, by certified or cashiers check at such place as Lessor
shall designate in the State of Connecticut, the purchase price therefor
together with all Basic Rent, additional rent and other sums then due and
payable under this Sublease, and Lessor shall thereupon deliver to Lessee an
appropriate deed which shall transfer at least the title described in this
Section 12.5. There shall be no proration of taxes, assessments or utility costs
or other expenses which otherwise would be the obligation of Lessee under this
Sublease. Lessee shall pay all recording fees in connection with the transfer
and Lessor and Lessee shall equally share the cost of any state, federal or
local conveyance charges or taxes whether imposed by law on Lessor or on Lessee.
Upon completion of such purchase, but not prior thereto (regardless of the
reason for any delay or inability which may occur in consummating such purchase
and whether or not such delay or inability is due to the fault of the Lessor),
this Sublease shall terminate. In the event of the termination of this Sublease,
the
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liabilities of Lessee, actual or contingent, under this Sublease which arose
prior to such termination shall survive such termination.
ARTICLE XIII
DAMAGE OR DESTRUCTION
13.1. If the Property shall be totally, or substantially totally,
damaged or destroyed or rendered completely, or substantially completely,
untenantable on account of fire, casualty or other cause Lessee shall have the
right to terminate this Sublease upon (30) thirty days written notice by giving
notice to Lessor within sixty (60) days of the event causing such substantial or
total destruction. If Lessee terminates this Sublease pursuant to this Section,
Lessee shall have no obligation to pay for repairs pursuant to Article XI or
this Article XIII. Until the effective date of such termination, Lessee shall
continue to pay all rent and additional rent without abatement. If Lessee does
not give timely notice of its intent to terminate the Sublease pursuant to this
Section 13.1 the Sublease shall remain in full force and effect without
abatement of rent or additional rent.
13.2. If the Property or part thereof shall be partially or totally
damaged or destroyed by fire casualty or other cause, whether or not caused by
the fault or neglect of Lessee, and Lessee has not elected to terminate this
Sublease pursuant to Section 13.1 hereof, then provided the insurance proceeds
are adequate to fully cover such expense, Lessor shall promptly repair the
damage and restore, replace and rebuild the Property with reasonable dispatch
and continuity after notice to it of the damage or destruction; provided however
that Lessor shall not be required to repair or replace Lessee's property. if the
insurance proceeds are not adequate to cover such expense of repair and
rebuilding, then Lessee shall promptly pay the reasonable cost of repair and
rebuilding in excess of the insurance proceeds and Lessor may require adequate
assurances from
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Lessee that such costs will be paid before Lessor proceeds with such repair or
restoration. Provided such assurances are made, Lessor shall promptly repair the
damage as if the insurance proceeds were adequate. Except as provided in Section
13.1 hereof, the rent and additional rent shall not xxxxx or terminate by reason
of damage or destruction of the Property.
13.3. In the event insurance proceeds are not adequate to cover the cost
of restoration or repair as provided in this Article 13 and provided Lessee has
not elected to terminate this Sublease pursuant to Section 13.1 hereof, Lessor
shall notify Lessee and shall keep Lessee reasonably advised of the progress of
the repairs and restoration and the cost thereof in excess of insurance coverage
and, shall allow Lessee reasonable access to all invoices, and estimates
concerning the construction work. In the event Lessor demands payment from
Lessee pursuant to this Article 13, and Lessee disputes its obligation to pay
hereunder, for example, because the charges were excessive and unreasonable or
because the repairs exceed those necessary to reasonably restore the
improvements to their prior condition, then the dispute may be submitted to
commercial arbitration by either party.
13.4. In the event of the termination of this Sublease pursuant to the
provisions of this Article, this Sublease shall expire as fully and completely
on the date fixed in such notice of termination as if that were the date
definitely fixed for the expiration of this Sublease, but the basic rent and
additional rent shall be apportioned and shall be paid up to the date of such
damage or destruction, and any prepaid rent shall be refunded to Lessee.
13.5. No damages, compensation or claim shall be payable by Lessor for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Property. Lessor shall use its best efforts to
effect such repair or restoration required by this
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Article promptly and in such manner as not unreasonably to interfere with
Lessee's occupancy.
ARTICLE XIV
CONDEMNATION
14.1. If, during the term of this Sublease, there shall be a total
taking or "constructive total taking" (as hereinafter defined) of the fee title
to the Property in condemnation proceedings or by any right of eminent domain,
this Sublease shall terminate as of the date title vests pursuant to such taking
and the Basic Rent, additional rent and other charges payable by Lessee shall be
apportioned and paid to the date of such taking.
For the purpose of this Article XIV, the term "CONSTRUCTIVE TOTAL TAKING"
shall mean a taking of such scope that the portion of Property not taken is
insufficient to permit the restoration of the then-existing building or
improvements so as to constitute same as a complete rentable building reasonably
useful to Lessee.
14.2. In the event this Sublease shall be terminated as a result of any
such total taking or constructive total taking, the total award or awards for
said total taking, less reasonable respective fees and expenses of Lessor and
Lessee incurred in connection with the determination and collection of such
award or awards (said net amount being hereinafter referred to as the "AWARD"),
shall be apportioned and paid in the following order of priority:
(i) Lessor shall be entitled to receive, as the first and prior
share in and to the Award, but subject to the right of any fee mortgagee
to receive or share in the Award under the terms of any fee mortgage, a
sum equal to the value of the part of the Property so taken (including
the diminution in value of Lessor's interest under this Lease) as of the
date of taking, plus consequential damages, if any, to the part of the
Property not so
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taken. If the Award separately specifies the amount of such value, such
specification shall govern; otherwise, Lessor and Lessee shall agree on
such value, and, if they cannot agree, such value shall be determined by
commercial arbitration.
(ii) If any proceeds remain, Lessee shall then be entitled to
receive the value, at the time of the taking, of Lessee's leasehold
interest under this Sublease (including the value of any improvements
constructed by and at the expense of the Lessee.
(iii) Lessor shall then be entitled to receive the entire balance
of the Award.
14.3. If, during the term of this Lease, there shall be less than a
total taking or less than a constructive total taking (herein called a "PARTIAL
TAKING") of the Property in condemnation proceedings or by any right of eminent
domain, this Lease shall not terminate, and Lessee shall, subject to the
provisions of Article 14 hereof, continue to perform and observe all of the
terms, covenants and conditions of this Sublease as though such taking had not
occurred, provided, however, that the Basic Rent shall be reduced in proportion
to the percentage of the leaseable space (of the buildings other than those paid
for by Lessee, if any, pursuant to Sections 12.1 or 12.2) so taken and not
restored or replaced in the course of the work required under Section 14.4. In
such event, the Award shall be apportioned and paid in the following order of
priority:
(i) Lessor shall be entitled to receive, as a first and prior
share in and to the Award, but subject to the right of any fee mortgagee
to receive or share in the Award under the terms of any fee mortgage, a
sum equal to the value of the part of the Property so taken (.including
the diminution in value of Lessor's interest under this Lease) as of the
date of taking, plus consequential damages, if any, to the part of the
Property not so taken. If the Award separately specifies the amount of
such value, such specification shall
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govern; otherwise, Lessor and Lessee shall agree on such value, and, if
they cannot agree, such value shall be determined by commercial
arbitration.
(ii) That portion of the Award representing compensation for the
diminution in value, at the time of taking, of Lessee's leasehold
interest under this Sublease (including the value of the part of the
Building or any Improvements constructed on the Property by and at the
expense of Lessee and so taken), plus consequential damages, if any, to
Lessee's leasehold interest or to the part of the Building and any
Improvements not so taken, shall be payable to Lessee.
14.4. If, during the term of this Sublease, there shall be a partial
taking of the Property, Lessor shall promptly restore and replace that portion
of the buildings) and improvements not so taken to a complete architectural unit
or units (as the case may be) of substantially the same usefulness, design and
construction, having regard to the taking, as immediately before such taking. If
the cost of such repairs and restoration exceeds the amount of the portion of
such Award received by Lessor, the balance of such cost shall be paid solely by
Lessee. If the amount of any such Award exceeds the cost of such repairs or
restoration, a fraction, the numerator of which is the number of whole years of
the term of this Lease which shall have elapsed at the time of such taking and
the denominator of which is the entire term of this Sublease (not including any
renewal or extension thereof) of such excess shall be paid to Lessor (Lessee
hereby unconditionally and irrevocably assigning to Lessor any right, title and
interest Lessee may have in and to any such portion of the Award).
14.5. Lessee further agrees that, if the whole or any part of the
Property or of Lessee's interest under this Sublease shall be taken or condemned
by any competent authority for its or
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their temporary use or occupancy, this Sublease shall not terminate by reason
thereof and Lessee shall continue to pay, in the manner and at the times herein
specified, the full amounts of the Basic Rent, additional Rent, and any other
charges payable by Lessee hereunder, and, except only to the extent that Lessee
may be prevented from so doing pursuant to the terms of the order of the
condemning authority, to perform and observe all of the other terms, covenants,
conditions and obligations of this Sublease as though such taking had not
occurred. In the event of any such temporary taking, Lessee shall be entitled to
receive the entire amount of any Award made for such taking, whether paid by way
of damages, rent or otherwise, unless such period of temporary use or occupancy
shall extend beyond the term of this Sublease or earlier expiration or
termination of this Sublease, in which case such Award shall be apportioned
between Lessor and Lessee as of the date of such expiration or termination.
Lessee covenants that, upon the termination of any such period of temporary use
or occupancy, Lessee shall (at Lessee's sole cost and expense) restore the
Property, the Building and the Improvements, as nearly as may be reasonably
possible, to the condition in which same existed immediately prior to such
taking, provided the termination of such period occurs on or prior to the end of
the term of this Sublease or earlier expiration or termination of this Sublease.
If the Award for such temporary use is paid in a lump sum, it shall be deposited
in the joint names of Lessor and Lessee in a Connecticut lending institution and
they shall join in appropriate withdrawals from such fund. If the parties cannot
agree thereon, the selection of the lending institution shall be determined by
Lessee and the propriety of any withdrawals by commercial arbitration.
14.6. The provisions of this Article 14 shall survive the expiration or
termination of this Sublease.
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ARTICLE XV
INSURANCE; AGREEMENT NOT TO XXX FOR DAMAGES COVERED BY INSURANCE
15.1. Lessee shall maintain, at its expense, insurance on the Property
of the following character:
(i) Insurance against loss or damage by fire, lightning and
other risks from time to time included under "extended coverage"
policies, in amounts sufficient to prevent Lessor or Lessee from becoming
a co-insurer of any loss under the applicable policies, but, in any
event, in amounts not less than 100% of the full insurable value of the
Property. The term "full insurable value", as used herein, means the
actual replacement value.
(ii) General public liability insurance against claims for
bodily injury, death or property damage occurring on, in or about the
Property and the adjoining street, sidewalks and passageways, such
insurance to afford protection to Lessor of not less than 6 million
dollars with respect to bodily injury or to property damage.
(iii) Workmen's compensation insurance covering all persons
employed by Lessee in connection with any work done on or about the
Property.
(iv) Explosion insurance in respect of steam or pressure boilers
or similar apparatus located on the Property, if any, in such amount as
Lessor may reasonably request, but not less than $500,000.
(v) Flood insurance, if available and if requested by Lessor or
any holder of a mortgage on the Property, in a reasonable amount as may
be determined by Lessor or such mortgage holder to protect the Lessor and
any mortgagee from risk of loss due to flooding.
(vi) Upon reasonable notice from Lessor, such other insurance on
the Property in
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such amounts and against such other insurable hazards which at the time
is customarily maintained from time to time with respect to properties in
the vicinity of, and similar in character and occupancy to, the Property,
or as is customarily maintained from time to time by Lessee with respect
to similar properties owned by it.
15.2. Lessor may require Lessee, upon reasonable notice, to increase the
dollar amount of coverage required by Section 15.1 provided that Lessor may not
require a percentage increase in coverage in excess of the percentage rise in
the general Consumer Price Index for the United States (as published by the U.S.
Department of Labor) from the date this Sublease is executed to the date of such
demand by Lessor for an increase in the amount of coverage.
15.3. The insurance referred to in Section 15.1 shall be written by
reputable insurance companies of recognized financial standing, authorized to
conduct insurance business in the state of Connecticut and reasonably acceptable
to the Mortgagee and any subsequent or additional mortgagee, and such insurance
shall name as the insured parties thereunder, except to the extent prohibited by
law, Original Lessor, Lessor and Lessee, and any mortgagee as their respective
interests may appear. Original Lessor and Lessor shall not be required to
prosecute any claim or contest any such settlement. In such event, Lessee may
bring such prosecution or contest in the name of Original Lessor, Lessor or
Lessee or any or all of them, and Lessor will join therein at Lessee's written
request, upon the receipt by Lessor of an indemnity from Lessee against all
costs, liabilities and expenses in connection with such prosecution or contest.
15.4. Insurance claims by reason of damage to or destruction of any
portion of the Property shall be adjusted by Lessee, but Original Lessor and
Lessor shall have the right to join with Lessee in adjusting any such loss. The
entire amount of any proceeds paid pursuant to such
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claims shall be applied pursuant to Section 13 of this sublease.
15.5. Every insurance policy referred to in Section 15.1 shall bear a
first mortgagee endorsement in favor of the Mortgagee or any subsequent
mortgagee; and any loss under any such policy shall be made payable to the
Mortgagee or such subsequent mortgagee and if none, shall be payable to Lessor,
provided that any recoveries under any of said policies shall be applied by the
Mortgagee or subsequent mortgagee in the manner provided in Section 13. Every
policy which Lessee is obligated to carry under the terms of Section 15.1 shall
contain an agreement by the insurer that it will not cancel such policy except
after 10 days' prior written notice to Lessor and the Mortgagee or subsequent
mortgagee, and that any loss otherwise payable thereunder shall be payable
notwithstanding any act of negligence of Lessor or Lessee which might, absent
such agreement, result in a forfeiture of all or a part of such insurance
payment and notwithstanding (i) the occupation or use of the Property for
purposes more hazardous than permitted by the terms of such policy, (ii) any
foreclosure or other action or proceeding taken by the Mortgagee or subsequent
mortgagee pursuant to any provision of the Mortgage or subsequent mortgagee upon
the happening of an Event of Default, as defined therein or (iii) any change in
title or ownership of the Property, and that the insurance company issuing the
same shall have no right of subrogation against Lessee or Lessor.
15.6. Lessee shall deliver to Original Lessor and Lessor (with copies
thereof to the Mortgagee), promptly after the execution and delivery of this
Sublease, the original or duplicate policies, or the riders thereto, or
certificates of the insurers evidencing all the insurance which is required to
be maintained by Lessee hereunder, and Lessee shall, within 30 days prior to the
expiration of any such insurance, deliver (with copies thereof to the Mortgagee)
policies or riders
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or other certificates evidencing the renewal thereof. Should Lessee fail to
effect, maintain or renew any insurance provided for in this Article XV, or to
pay the premium therefor, or to deliver to Original Lessor or Lessor any of such
policies or certificates, then and in any of said events Lessor, at its option,
but without obligation so to do, may procure such insurance. Any sums expended
by Lessor to procure such insurance shall be additional rent hereunder and shall
be repaid by Lessee within 5 days following the date on which such expenditure
shall be made by Lessor.
15.7. Lessee shall not obtain or carry separate insurance concurrent in
form or contributing in the event of loss with that required in this Article XV
to be furnished by Lessee unless Original Lessor and Lessor are included therein
as named insureds, with loss payable as provided in this Sublease and with a
Mortgagee, or subsequent mortgagee as applicable, endorsement as provided in
Section 15.5 of the Sublease. Lessee shall immediately notify Original Lessor
and Lessor whenever any such separate insurance is obtained and shall deliver to
original Lessor and Lessor the Policies or certificates evidencing the same.
15.8. Anything contained in this Article XV to the contrary
notwithstanding, any and all insurance which Lessee is obligated to carry
pursuant to Section 15.1 may be carried under a "blanket" policy or policies
covering other properties or liabilities of Lessee, provided, that such
"blanket" policy or policies otherwise comply with the provisions of this
Article XV.
15.9. Any insurance proceeds made payable to Lessor for repairs made by
Lessee shall promptly be paid over to Lessee. Should Lessee receive any
insurance proceeds with respect to repairs made by, or to be made by, Lessor,
Lessee shall promptly pay over such proceeds to Lessor.
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15.10. Lessor and Lessee agree that neither shall xxx or make claim
against the other for damages to the extent that the damaged party is reimbursed
for such damages by insurance. This provision shall not prohibit claims which
are not covered by insurance or for damages in excess of the amount of insurance
reimbursement.
ARTICLE XVI
ASSIGNMENT AND SUBLETTING
Lessee may only assign this Sublease or sublet the Property or any
portion thereof with the consent of Lessor, which consent may not unreasonably
be withheld or delayed, and with the consent of any holder of a mortgage on the
Property if such consent is required by the terms of such mortgage.
ARTICLE XVII
PERMITTED CONTESTS
Lessee shall not be required, nor shall Lessor have the right, to pay-,
discharge or remove any tax, charge, levy, assessment or lien, or any other
imposition or encumbrance on or against the Property so long as Lessee shall, at
its cost and expense, contest the existence,, amount or validity thereof by
appropriate proceedings which shall operate to prevent the collection or
satisfaction of the tax, charge, levy, assessment or lien, or other imposition
or encumbrance so contested, and the sale of the Property or any portion thereof
to satisfy the same and which shall not affect the timely payment in full of all
Basic Rent or any use or disposition thereof by Lessor; provided, however, that
Lessee shall have given such security as may be demanded by Lessor to insure
such payment and to prevent any sale or forfeiture of the Property or any
portion thereof by reason of such nonpayment, and, provided, further, that
Lessor would not be in any danger of
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criminal liability by reason of such nonpayment.
ARTICLE XVIII
CONDITIONAL LIMITATIONS; DEFAULT PROVISIONS
18.1. Any of the following occurrences or acts shall constitute an Event
of Default under this Sublease: (i) if Lessee, at any time during the
continuance of this Sublease (and regardless of the pendency of any bankruptcy,
reorganization, receivership, insolvency or other proceedings, in law, in
equity, or before any administrative tribunal, which have or might have the
effect of preventing Lessee from complying with the terms of this Sublease),
shall (1) fail to make any payment when due of Basic Rent, additional rent or
other sum herein required to be paid by Lessee and such failure shall continue
for a period of 10 days after delivery by Lessor of written notice to Lessee
that any such payment has become due and that failure to pay within 10 days of
receipt of the notice may result in termination of this Sublease and other
liability, or (2) fail to observe or perform any other provision hereof for 15
days after Lessor shall have given to Lessee notice of such failure (provided
that, in the case of any default referred to in this clause (2) which cannot
with diligence be cured within such 15-day period, if Lessee shall proceed
promptly to cure the same and thereafter shall prosecute the curing of such
default with diligence, then, upon receipt by Lessor of a certificate from the
President or a Vice President of Lessee stating the reason that such default
cannot be cured within 15 days and stating that Lessee is proceeding with
diligence to cure such default, the time within which such failure may be cured
shall be extended for such period as may be necessary to complete the curing of
the same with diligence); or (ii) if Lessee shall file a petition in bankruptcy
or for reorganization or for an arrangement pursuant to any present or future
federal or state bankruptcy law or under any similar federal or state law, or
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shall be adjudicated a bankrupt or insolvent or shall make an assignment for the
benefit of its creditors or if a petition or answer proposing the adjudication
of Lessee as a bankrupt or its reorganization under any present or future
federal or state bankruptcy law or any similar federal or state law shall be
filed in any court and such petition or answer shall not be discharged or denied
within 90 days after the filing thereof, or (iii) if a receiver, trustee or
liquidator of Lessee or of all or substantially all of the assets of Lessee or
of the Property shall be appointed in any proceeding brought by Lessee, or if
any such receiver, trustee or liquidator shall be appointed in any proceeding
brought against Lessee and shall not be discharged within 60 days after such
appointment, or if Lessee shall consent diligence be cured within such 15-day
period, if Lessee shall proceed promptly to cure the same and thereafter shall
prosecute the curing of such default with diligence, then, upon receipt by
Lessor of a certificate from the President or a Vice President of Lessee stating
the reason that such default cannot be cured within 15 days and stating that
Lessee is proceeding with diligence to cure such default, the time within which
such failure may be cured shall be extended for such period as may be necessary
to complete the curing of the same with diligence); or (ii) if Lessee shall file
a petition in bankruptcy or for reorganization or for an arrangement pursuant to
any present or future federal or state bankruptcy law or under any similar
federal or state law, or shall be adjudicated a bankrupt or insolvent or shall
make an assignment for the benefit of its creditors or if a petition or answer
proposing the adjudication of Lessee as a bankrupt or its reorganization under
any present or future federal or state bankruptcy law or any similar federal or
state law shall be filed in any court and such petition or answer shall not be
discharged or denied within 90 days after the filing thereof, or (iii) if a
receiver, trustee or liquidator of Lessee or of all or substantially all of the
assets of Lessee or of the Property shall be
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appointed in any proceeding brought by Lessee, or if any such receiver, trustee
or liquidator shall be appointed in any proceeding brought against Lessee and
shall not be discharged within 60 days after such appointment, or if Lessee
shall consent to or acquiesce in such appointment; or (iv) if an Event of
Default (as defined in the Lease if the Lease is then in effect) shall have
happened and be continuing; or (v) if any representation or warranty of Lessee
contained herein, or in any document or certificate given in connection with the
execution hereof, shall prove to be incorrect in any material respect as of the
time when the same shall have been made.
18.2. If an Event of Default shall have happened and be continuing,
Lessor shall have the right, at its election, then or at any time thereafter
while such Event of Default shall continue, to give Lessee written notice of
Lessor's intention to terminate the term of this Sublease on a date specified in
such notice. Upon the giving of such notice, the term of this Sublease and the
estate hereby granted shall expire and terminate on such date as fully and
completely and with the same effect as if such date were the date herein before
fixed for the expiration of the term of this Sublease then in effect, and all
rights of Lessee hereunder shall expire and terminate, but Lessee shall remain
liable as hereinafter provided.
18.3. If an Event of Default shall have happened and be continuing,
Lessor shall have the immediate right, whether or not the term of this Sublease
shall have been terminated pursuant to Section 18.2, to re-enter and repossess
the Property or any part thereof by summary proceedings, ejectment or otherwise
and the right to remove all persons and property therefrom. Lessor shall be
under no liability for or by reason of any such entry, repossession or removal.
No such re-entry or taking of possession of the Property by Lessor shall be
construed as an election on Lessor's part to terminate the term of this Sublease
unless a written notice of such intention be
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given to Lessee pursuant to Section 18.2 or unless the termination of this
Sublease be decreed by a court or competent jurisdiction.
18.4. At any time or from time to time after the repossession of the
Property or any part thereof pursuant to Section 18.3, whether or not the term
of this Sublease then in effect shall have been terminated pursuant to Section
18.2, Lessor may (and shall make a good faith effort to) relet the Property or
any part thereof for the account of Lessee for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the term of this Sublease) and on such conditions (which may include
concessions or free rent) and for such uses as Lessor, in its absolute
discretion, may determine, and Lessor may collect and receive any rents payable
by reason of such reletting. Lessor shall not be responsible or liable for any
failure to relet the Property, provided there has been a good faith effort to
relet, or any part thereof or for any failure to collect any rent due upon any
such reletting.
18.5. No expiration or termination of the terms of this Sublease, by
operation of law or otherwise, and no repossession of the Property or any part
thereof and no reletting of the Property or any part thereof for the account of
Lessee in the exercise of Lessor's rights in accordance with Section 18.2 shall
relieve Lessee of its liabilities and obligations hereunder, all of which shall
survive such expiration, termination, repossession or reletting.
18.6. In the event of any expiration or termination of this Sublease or
repossession of the Property or any part thereof by reason of the occurrence of
an Event of Default, Lessee shall pay to Lessor the Basic Rent, additional rent
and other sums required to be paid by Lessee to and including the date of such
expiration, termination or repossession; and, thereafter, Lessee shall, until
the end of what would have been the term of this Sublease then in effect in the
absence of such expiration, termination or repossession, and whether or not the
Property or any party thereof shall have been relet, be liable to Lessor for,
and shall pay to Lessor, as liquidated and agreed current damages, the Basic
Rent, additional rent and other sums which would be payable under this Sublease
by Lessee in the absence of
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such expiration, termination or repossession, less the net proceeds, if any, of
any reletting effected for the account of Lessee pursuant to Section 18.2, after
deducting from such proceeds all Lessor's expenses in connection with such
reletting on the days on which the Basic Rent would have been payable under this
Sublease in the absence of such expiration, termination or repossession, and
Lessor shall be entitled to recover the same from Lessee on each such day.
18.7. At any time after such expiration or termination of this Sublease
or repossession of the Property or any part thereof by reason of the occurrence
of an Event of Default, whether or not Lessor shall have collected any current
damages pursuant to Section 18.6, Lessor shall be entitled to recover from
Lessee, and Lessee shall pay to Lessor on demand, as and for liquidated and
agreed final damages for Lessee's default and in lieu of all current damages
beyond the date of such demand (it being agreed that it would be impracticable
or extremely difficult to fix the actual damages), an amount equal to the
excess, if any, of (a) Basic Rent, additional rent and other sums which would be
payable under this Sublease for the term in effect from the date of such demand,
(or, if it be earlier, the date to which Lessee shall have satisfied in full its
obligations under Section 18.6 to pay current damages) for what would be the
then unexpired terms of this Sublease in the absence of such expiration,
termination or repossession, discounted at the rate of 13-3/4% per annum, over
(b) the then fair net rental value of the Property for the same period,
discounted at a like rate. If any statute or rule of law shall validly limit the
amount of such liquidated final
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36
damages to less than the amount above agreed upon, Lessor shall be entitled to
the maximum amount allowable under such statute or rule or law.
18.8. The words "enter", "re-enter", or "re-entry", as used in this
Article XVIII, are not restricted to their technical legal meaning.
ARTICLE XIX
ADDITIONAL RIGHTS OF LESSOR
19.1. No right or remedy herein conferred upon or reserved to Lessor is
intended to be exclusive of any other right or remedy, and each and every right
and remedy shall be cumulative and in addition to any other right or remedy
given hereunder or now or hereafter existing at law or in equity or by statute.
The failure of Lessor to insist at any time upon the strict performance of any
covenant or agreement, or to exercise any option, right, power or remedy
contained in this Sublease shall not be construed as a waiver or a
relinquishment thereof for the future. A receipt by Lessor of any Basic Rent,
any additional rent or any other sum payable hereunder, with knowledge of the
breach of any covenant or agreement contained in this Sublease, shall not be
deemed a waiver of such breach, and no waiver by Lessor of any provision of this
Sublease shall be deemed to have been made unless expressed in writing and
signed by Lessor.
19.2. In the event Lessee shall be in default in the performance of any
of its obligations under this Sublease, and such default shall cause Lessor to
be in default under the Lease, and an action shall be brought for the
enforcement of the Lease or of this Sublease in which it shall be determined
that Lessee was in default hereunder or Lessor was in default under the Lease,
Lessee shall pay to Lessor all the expenses incurred in connection therewith,
including any expenses of Original Lessor required to be paid by Lessor pursuant
to the Lease, and including reasonable
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37
attorney's fees. In the event Lessor shall, without fault on its part, be made a
party to any litigation commenced against Lessee, if Lessee, at its expense,
shall fail to provide Lessor with counsel reasonably satisfactory to Lessor,
Lessee shall pay all costs and reasonable attorney's fees incurred or paid by
Lessor in connection with such litigation.
ARTICLE XX
NOTICES, DEMANDS AND OTHER INSTRUMENTS
All notices, demands, requests, consents, approvals and other instruments
required or permitted to be given pursuant to the terms of this Sublease shall
be in writing and shall be deemed to have been properly given if sent by
registered or certified mail, postage prepaid, addressed to Lessee or Lessor, as
the case may be, at its address first above set forth or at such other address
as may be specified from time to time. Notices by Lessor to Lessee shall be
addressed specifically to an officer (by name) of the Lessee corporation and
notices by Lessee to Lessor shall be addressed specifically to a general partner
(by name) of Lessor. Notices shall be deemed received on the date of actual
receipt by the appropriate addressee.
ARTICLE XXI
NO MERGER
There shall be no merger of this Sublease or of the leasehold estate
hereby created with the fee estate in the Property or any part thereof by reason
of the fact that the same person may acquire or hold, directly or indirectly,
the Lease, this Sublease or the leasehold estate thereby or hereby created or
any interest in the Lease or this Sublease or in any such leasehold estate as
well as the fee estate in the Property or any interest in such fee estate.
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38
ARTICLE XXII
SURRENDER
Upon the expiration or earlier termination of this Sublease, Lessee shall
peaceably leave and surrender the Property to Lessor in the same condition in
which the Property was originally received from Lessor at the commencement of
this Sublease, except as repaired, rebuilt, restored, altered, or added to as
permitted or required by any provision of this Sublease and except for ordinary
wear and tear and except for repairs which Lessor is obligated to make under
Articles XIII or XIV hereof. Lessee shall remove from the Property on or prior
to such expiration or earlier termination, all property situated thereon which
is not owned by Original Lessor or Lessor, and, at its expense, shall, on or
prior to such expiration or earlier termination, repair any damage caused by
such removal. Property not so removed shall become the property of Original
Lessor which may thereafter cause such property to be removed from the Property
and disposed of.
ARTICLE XXIII
SEPARABILITY
Each and every covenant and agreement contained in this Sublease is, and
shall be construed to be, a separate and independent covenant and agreement, and
the breach of any such covenant or agreement by Lessor shall not discharge or
relieve Lessee from its obligations to perform the same. If any term or
Provision of this Sublease or the application thereof to any person or
circumstances shall to any extent be invalid and unenforceable, the remainder of
this Sublease, or the application of such term or provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Sublease shall be
valid and shall be enforced to the extent permitted by law.
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39
ARTICLE XXIV
BINDING EFFECT
All of the covenants, conditions and obligations contained in this
Sublease shall be binding upon and inure to the benefit of the respective
successors and assigns of Lessor and Lessee to the same extent as if each
successor and assign were in each case named as a party to this Sublease. This
Sublease may not be changed, modified or discharged except by a writing signed
by Lessor and Lessee.
ARTICLE XXV
HEADINGS
The headings to the various paragraphs of this Sublease have been
inserted for convenient reference only and shall not to any extent have the
effect of modifying, amending or changing the express terms and provisions of
this Sublease.
ARTICLE XXVI
GOVERNING LAW
This Sublease shall be governed by and interpreted under the law of the
State of Connecticut.
ARTICLE XXVII
SUBLEASE
This is a sublease although Lessor's interest in the premises is both as
fee owner and as assignee and tenant under the Lease, which Lease has been
assigned to Lessee and reassigned to Lessor, as set forth more fully above.
Except as otherwise provided herein, this Sublease is
39
40
expressly made subject to all the terms and conditions of the Lease while the
Lease is in effect and Lessee agrees to use the Property in accordance with the
terms of the Lease and not do or omit to do anything which will breach any of
the terms thereof.
ARTICLE XXVIII
CHANGES IN LEASE REQUIRED FOR FINANCING
If in connection with obtaining financing respecting the fee of the
Property, a lender shall request reasonable modifications or additions to this
Sublease as a condition to such financing, neither Lessor-nor Lessee will
unreasonably withhold or delay its consent thereto provided that such
modifications do not change the substantive terms of this Sublease or increase
or diminish the Basic Rent or other charge or charges or other monetary or
substantive rights of Lessor or Lessee hereunder.
ARTICLE XXIX
SUBORDINATION AND NONDISTURBANCE
29.1. This Sublease shall be subject and subordinate to all mortgages
which may now or hereafter affect the Property and to all renewals,
modification, consolidations, replacements and extensions thereof.
29.2.(a) The provisions of Section 29.1 shall be subject to the condition
that so long as no Event of Default exists as would entitle Lessor to terminate
this Sublease or dispossess Lessee, Lessee shall not be named or joined in any
action or proceeding to foreclose any such mortgage and this Sublease shall not
be terminated, nor Lessee's use, possession or enjoyment of the Property
interfered with, nor the leasehold estate or any rights of Lessee granted by the
Sublease affected in any manner; and in the event the holder of any mortgage
becomes the owner of the
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41
fee, or in the event of the sale of the Property as a result of any action or
proceeding to foreclose any such mortgage, this Sublease shall continue in full
force and effect as a direct lease between Lessee and the then owner of the fee,
upon all of the terms, covenants and conditions set forth in this sublease.
29.2.(b) The holder of any mortgage covering the Property shall have the right,
by written notice to Lessee, to elect that its mortgage shall be subordinate to
this Sublease and to record a copy of said notice in the Stratford Land Records.
29.3. The provisions of this Article shall be self-operative and no
further instrument of subordination shall be required by the holders of any
interest to which this Sublease is subordinate. Each party agrees, however.
whenever requested to do so, upon reasonable notice to it by the other, to
execute such instruments confirmatory of the provisions of this Article XXIX as
the party requesting the same may reasonably require.
29.4. Lessor agrees that within thirty (30) days after the placing of
any mortgage covering the Property, Lessor will procure and deliver to Lessee an
appropriate nondisturbance agreement from each such mortgagee.
ARTICLE XXX
ESTOPPEL CERTIFICATE
Each party agrees, at any time and from time to time, as requested by the
other, upon not less than ten (10) days prior notice, to execute and deliver
without cost or expense to the other party a statement certifying that this
Sublease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), certifying the dates to which the fixed rent and additional
rent have been paid, and stating whether or not, to the best knowledge of the
certifying party, the other party is in default
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42
in performance of any of its obligations under this Sublease, and if so,
specifying each such default of which the certifying party may have knowledge,
it being intended that any such statement delivered pursuant thereto may be
relied upon by any other person with whom the party requesting the certification
may be dealing.
ARTICLE XXXI
ARBITRATION
31.1. The parties hereto shall not have been deemed to have agreed to
determination of any dispute arising out of this Sublease by arbitration unless
determination in such manner shall have been specifically and unequivocally
provided for in this Sublease and in no other case or cases.
31.2. Every dispute between the parties which is expressly provided in
this Sublease to be determined by arbitration shall be resolved in the manner
provided in this Article.
31.3. Any party requesting arbitration shall do so by giving notice to
that effect to the other party. Any arbitration hereunder shall be conducted
before three arbitrators appointed by the American Arbitration Association in
accordance with the Commercial Arbitration Rules of said Association, as now
existing or hereafter amended, and judgment upon the award rendered by the
arbitrators may be entered in any Court having jurisdiction thereof. The
submission to arbitration, as provided in this Article, shall be a condition
precedent to the resort to litigation by either party with respect to any
controversy or claim required to be submitted to arbitration pursuant to the
provisions of this Sublease.
The venue of any such arbitration proceeding shall be Stratford,
Connecticut.
31.4. The fees and expenses of the arbitrators and all other expenses of
the arbitration
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shall be borne by the parties equally. However, each party shall bear the
expense of its own counsel, experts and presentation of proof.
IN WITNESS WHEREOF, intending to be legally bound hereby, Lessor and
Lessee have signed and sealed this instrument as of the date first written
above.
ORIEL CORPORATION
Attest:
By: /s/ Xxxxx Xxxxx
-----------------------------------
Executive Vice President
/s/ Xxxxxx X. Strikir
----------------------------------
Corporate Secretary
/s/ Xxxxxxxxx Xxxxxxxx
----------------------------------
OSBROOK ASSOCIATES
LIMITED PARTNERSHIP
witnesses /s/ Xxxx Xxxx By: /s/ Xxxxx Xxxxxxx, Xx..
------------------------ -----------------------------------
Xxxxx Xxxxxxx, Xx.
/s/ Xxxxx X. Mesgares General Partner
------------------------
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Modification
of
"SUBLEASE AGREEMENT"
and
"OPTION TO PURCHASE
and
RIGHT OF FIRST OFFER AGREEMENT"
The parties to this "Agreement" are: Osbrook Associates Limited
Partnership ("Landlord"), a Connecticut limited partnership, acting herein by
its duly-authorized general partner; and
Oriel Corporation ("Tenant"), a Connecticut corporation, acting herein by
its duly-authorized Executive Vice Presidents and Members of its Office of
President.
The Landlord and Tenant (collectively, the "Parties") intend by this
Agreement, to amend and modify the following documents, but the terms of this
Agreement shall enure to the benefit of and/or shall be binding upon any
existing mortgagee of the "Property" (as defined in the "Sublease" (as
hereinafter defined)) only when, as and if such mortgagee shall have so elected
(to have same so enure, or to so be binding, or both) in a writing recorded in
the Stratford, Connecticut, Land Records:
A. The "SUBLEASE AGREEMENT" between the Parties, "effective as of
February 1, 1984", a notice of which is believed to have been recorded in the
Stratford, Connecticut, Land Records (the "Sublease"); and
B. The "OPTION TO PURCHASE and RIGHT OF FIRST OFFER AGREEMENT"
between the parties, "made and entered into this 22nd day of May, 1987:, which
is believed to have been recorded in said Stratford Land Records (the "Option").
In consideration of the covenants and agreements of the Parties set forth
in this Agreement, the Parties agree as follows:
1. The Sublease is amended as follows:
a. subsection 6.1 (b) is amended to add, at the end thereof,
the following:
"Notwithstanding the foregoing portions of this subsection
(b), the Basic Rent for the portion of the Unmodified
Primary Term which
45
occurs between the first day of the first month which
follows the execution, by both parties, of the Agreement
adding this sentence to this Sublease (the "Modification
Date") and January 31, 1994, shall be at the annual rate of
Two Hundred and Ninety Thousand Dollars ($290,000.00),
payable in equal monthly installments commending on the
Modification Date and payable on the 1st day of each month
thereafter during the period in question";
b. subsection 6.1(c) is amended to add, at the end thereof,
the following:
"Notwithstanding the foregoing portions of this subsection
(c), so long as the named Tenant, Oriel Corporation (or its
successor, which is conducting the business operations
formerly carried on by Oriel Corporation) is occupying the
Property pursuant to this Sublease, the Basic Rent for the
portion of the Unmodified Primary Term which occurs between
February 1, 1994, and January 31, 1998, shall be at the
annual rate of: (1) Two Hundred and Ninety Thousand Dollars
($290,000.00), payable in equal monthly installments
commencing on February 1, 1994, and payable on the 1st day
of each month thereafter during the period in questions;
plus (2) one percent (1%) of the amount by which the net
sales (I.E., gross sales, less returns of items the
proceeds from the sale of which were formerly included in
gross sales for the purpose of calculating whether any
payment was due the Landlord) of Oriel Corporation (or its
successor, which is conducting the business operations
formerly carried on by Oriel Corporation) exceed
$18,000,000 during any fiscal year (of Oriel Corporation
(or its said successor)) which is included in the period in
question, or a PRO RATA portion of $18,000,000 during any
partial fiscal year (of Oriel Corporation (or its said
successor)) which is included in the period in question; as
used in this sentence, net sales shall not include those of
separate operating divisions or
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46
subsidiaries of Oriel Corporation (or its said successor),
whose primary operations are housed at locations other than
the Property, but, in connection with such net sales, Oriel
Corporation (or its said successor) shall not manipulate
the locus of gross sales or returns among locations, with
the result that payments to Landlord pursuant to this
sentence are reduced; within sixty (60) days after the end
of each such fiscal year, Oriel Corporation (or its said
successor) shall provide Landlord with a statement,
certified by an officer of Oriel Corporation (or its said
successor), setting forth the net sales for the period in
question, together with any payment to Landlord shown
thereby to be due; and Landlord and Landlord's agents, at
reasonable times and on reasonable notice, shall have
access to the books and records, on which said statement is
based, to verify the accuracy thereof.";
c. Section 6.4. is amended to add, between the second-last
sentence and the last sentence thereof, the following:
"Notwithstanding the foregoing portions of this Section
6.4, any determination of "fair rental value" shall not (x)
result in a Basic Rent which is less in amount than Three
Hundred and Fifty Thousand Dollars ($350,000) per annum
and/or (y) reduce, in any way, any of Lessee's obligations
to pay any and all additional rent required by the terms of
this Sublease."
d. Section 12.3 is amended to add, at the end thereof, the
following:
"This Section 12.3 shall not be binding upon any present or
future first mortgagee of the Property (or such mortgagee's
heirs, or successors, or assigns) which may take title to
the Property or to any party (or such party's heirs, or
successors, or assigns) whose title is derived through the
foreclosure of a first mortgage of the Property."
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47
e. Section 12.4 is amended to add, between the fifth and sixth
sentences thereof, the following:
"Notwithstanding the foregoing portions of this Section
12.4, the fair market value of the Property shall in no
event be less than all principal, interest and other sums
then due on any first mortgage encumbering the Property,
provided that said principal of said first mortgage does
not exceed (x) $2,125,460.00 plus (y) such out-of-pocket
amounts (if any) expended by Lessor in refinancing the
first mortgage encumbering the Property as of July 1,
1991."
f. The first sentence of Section 13.1 is amended to read as
follows:
"If the Property shall be totally, or substantially
totally, damaged or destroyed or rendered completely, or
substantially completely, untenantable, on account of fire,
casualty or other cause, with the result that the damage,
destruction or tenantability cannot be repaired or restored
within six (6) months after the last day of the sixty (60)
day period hereinafter mentioned in this sentence, Lessee
shall have the right to terminate this Sublease, upon
thirty (30) days' written notice, by giving notice to
Lessor within sixty (60) days of the date on which the
event causing such substantial or total destruction
occurred."
g. Section 14.2 is amended to read as follows:
"14.2. In the event this Sublease shall be terminated as a
result of any such total taking or constructive total
taking (and, for the purposes of this Sublease, a total
taking or a constructive total taking shall mean a taking
of the Property as renders the remaining portion of the
Property incapable of allowing Tenant's pre-taking use of
the Property to substantially the same extent as before the
taking), the total award or awards for said taking, less
reasonable respective fees and expenses of Lessor and
Lessee incurred in
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48
connection with the determination and collection with the
determination and collection of such award or awards (said
net amount being hereinafter referred to as the "AWARD"),
shall be apportioned and paid in the following order of
priority:
(i) Up to the full amount then due under the
mortgage held by it, any first mortgagee of the fee of the
Property shall be paid such amount of the Award as said
first mortgagee may require.
(ii) If any proceeds remain, Lessor shall then be
entitled to receive a sum equal to the difference, if any,
between the amount required by the first fee mortgagee
pursuant to subsection (i) next above and the value of the
part of the Property so taken (including the diminution in
value of Lessor's interest under this Lease) as of the date
of taking, plus consequential damages, if any, to the part
of the Property not so taken. If the Award separately
specifies the amount of such value, such specification
shall govern; otherwise, Lessor and Lessee shall agree on
such value, and, if they cannot agree, such value shall be
determined by commercial arbitration.
(iii) If any proceeds remain, Lessee shall then be
entitled to receive the value, at the time of the taking,
of Lessee's leasehold interest under this Sublease
(including the value of any improvements constructed by and
at the expense of the Lessee).
(iv) Lessor shall then be entitled to receive the
entire balance of the Award."
h. The second sentence of Section 14.3 is amended to read as
follows:
"In such event, the Award shall be apportioned and
paid in the following order of priority:
(i) Up to the full amount then due under the
mortgage held by it, any first mortgagee of the fee of the
Property shall be paid such amount of the Award as said
mortgagee may require.
(ii) If any proceeds remain, Lessor shall then be
entitled to receive a
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49
sum equal to the difference, if any, between the amount
required by the first fee mortgagee pursuant to subsection
(i) next above and the value of the part of the Property so
taken (including the diminution in value of Lessor's
interest under this Lease) as of the date of taking, plus
consequential damages, if any, to the part of the Property
not so taken. If the Award separately specifies the amount
of such value, such specification shall govern; otherwise,
Lessor and Lessee shall agree on such value, and, if they
cannot agree, such value shall be determined by commercial
arbitration.
(iii) If any proceeds remain, that portion of the
Award representing compensation for the diminution in
value, at the time of taking, of Lessee's leasehold
interest under this Sublease (including the value of the
part of the Building or any Improvements constructed on the
Property by and at the expense of Lessee and so taken),
plus consequential damages, if any, to Lessee's leasehold
interest or to the part of the Building and any
Improvements not so taken, shall be payable to Lessee.
(iv) Lessor shall then be entitled to receive the
entire balance of the Award."
(i) The second sentence of Section 14.4 is amended to read as
follows:
"If the cost of such repairs and restoration exceeds the
amount of the portion(s) of such Award received by any fee
mortgagee and/or Lessor, the balance of such cost shall be
paid solely by Lessee."
(j) Article XX is amended to add, at the end thereof, the
following:
"Notwithstanding the foregoing portions of this Article XX,
from and after July 1, 1991, the Lessor's address, unless
and until another address may be specified, shall be 00
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000."
2. The Option is amended as follows:
a. Section 3 is amended so that the fifth and sixth lines
thereof read as follows:
"in accordance with the procedures set forth in the second
through sixth sentences of paragraph 12.4 of the Sublease
Agreement (but"
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50
b. subsection 5(a) is amended to read as follows:
"if to Osbrook, at 00 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxxx Xxxxxxx, Xx.; and"
c. A new Section 9 is hereby added to the Option, following
the end of Section 8, as follows:
"Section 9. FIRST MORTGAGES.
"Provided that the principal amount of the first mortgage
in question is not in excess of "$X" (as hereinafter
defined), this Agreement shall be subject and subordinate
to all first mortgages which may now or hereafter affect
the Property and to all renewals, modifications,
consolidations, replacements and extensions thereof. If the
principal amount of any first mortgage (whether a
single-property mortgage or a so-called "blanket mortgage")
is in excess of $X, this Agreement shall not be subject or
subordinate to said mortgage, and Osbrook agrees not to
execute any such mortgage (single-property or "blanket")
for a principal amount in excess of $X without the prior,
written consent of Oriel. As used herein, "$X" shall mean
the sum of (x) $2,125,460.00 plus (y) such out-of-pocket
amounts (if any) expended by Osbrook in refinancing the
first mortgage encumbering the Property as of July 1, 1991.
The provisions of this Section shall be self-operative and
no further instrument of subordination shall be required by
the holders of any interest to which this Agreement is
subordinate. Each party agrees, however, whenever requested
to do so, upon reasonable notice to it by the other, to
execute such instruments confirmatory of the provisions of
this Section 9 as the party requesting the same may
reasonably require."
3. The Parties agree that neither this Agreement, nor anything
contained in the Sublease, or the Option, or both, shall ever (a) create a
partnership or joint venture relationship between Landlord and Tenant and/or (b)
require Landlord to refinance any mortgage encumbering the Property if (1) the
Landlord can only refinance on a so-called "recourse basis" (I.E., with
liability, for all or part of the mortgage debt, of Landlord,
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51
Landlord's partners or the successors, or heirs, of Landlord, Landlord's
partners or any of them) or (2) the debt service, following such refinancing and
in connection therewith (including, without limitation, interest on a current
basis and any required periodic repayments of part of the principal), would
exceed the Basic Rent then payable pursuant to the Sublease.
Except to the extent above amended and modified by this Agreement, the
Parties ratify, confirm and affirm the Sublease and the Option as of the dates
of their respective executions of this Agreement. This Agreement shall enure to
the benefit of and bind the parties and their respective successors and assigns.
In Witness Whereof, Landlord has hereunto caused Landlord's hand and seal
to be set on September 30, 1991, and Tenant has hereunto caused Tenant's hand
and seal to be set on September 30, 1991.
Witnesses:
Osbrook Associates
Limited Associates
/s/ Illegible by /s/ Xxxxx Xxxxxxx, Xx.,
---------------------------- ---------------------------------
Xxxxx Xxxxxxx, Xx.,
/s/ Illegible its General Partner
----------------------------
/s/ Xxxxxx X. St. Xxxx Xxxxx Corporation
----------------------------
/s/ Xxxx X. Xxxxxxx by /s/ Xxxxx X. Xxxxx
---------------------------- ---------------------------------
Xxxxx X. Xxxxx, Executive
/s/ Xxxxxx X. St. Xxxx Vice President and Member
---------------------------- of the Office of President
/s/ Xxxx X. Xxxxxxx by /s/ Xxxxxx X. Xxxxxxx
---------------------------- ---------------------------------
Xxxxxx X. Xxxxxxx,
Executive Vice President
and Member of the Office
of President
8
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STATE OF CONNECTICUT )
) ss: Stamford September 30, 1991
COUNTY OF FAIRFIELD )
Personally appeared, Osbrook Associates Limited Partnership, by Xxxxx
Xxxxxxx, Xx., its General Partner, signer and sealer of the foregoing
instrument, and acknowledged the same to be his free act and deed, and the free
act and deed of said Partnership, before me.
Notary /s/ Xxxxx Fahijco
Seal -----------------------------------
Here Notary Public
My Commission Expires: 3/31/97
STATE OF CONNECTICUT )
) ss: Stratford September 30, 1991
COUNTY OF FAIRFIELD )
Personally appeared, Oriel Corporation, by Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxx, both Executive Vice Presidents and Members of its office of President,
signers and sealers of the foregoing instrument, and acknowledged the same to be
their free act and deed, and the free act and deed of said Corporation, before
me.
Notary /s/ Xxxxxx X. St. Xxxx
Xxxx -----------------------------------
Here Notary Public
My Commission Expires: 3/31/92
9
