Exhibit 10.6
LEASE
KNOW YE THIS LEASE, made as of the first day of February, 1986, between XXXXXX
COMPANY, a limited partnership organized and existing under the laws of the
State of Connecticut and having its principal office and place of business at 00
Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx, 00000 hereinafter called "Lessor" and X.
XXXXXXXX & CO. OF CONN. INC., a Connecticut corporation which corporation is a
Subsidiary of NATIONAL PATENT DEVELOPMENT CORPORATION, a Delaware corporation
having an office and principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 10 152, hereinafterter called "Lessee";
WITNESSETH:
IN CONSIDERATION of the mutual terms and conditions herein, the parties
mutually agree as follows:
(1) DEFINITION OF CERTAIN TERMS
For the purposes of this lease, and unless otherwise provided,
the terms listed below have and shall be construed and interpreted to have the
following meanings:
(a)"Gross Area"or"Gross Rentable Area"shall mean the area of an
entire structure or structures, and all component parts thereof, measured to and
from the exterior of outside walls and to and from the center line of party
walls, as the case may be. In computing Gross Area there shall be no exclusion
by reason of stairs, partitions, halls, or interior construction or equipment.
(b) The term "Lessor". shall mean and refer to the owner of the
fee estate as to the premises demised herein whosoever such owner may be from
time to time or to the person or entity named as Lessor above or its successors
or assigns, as the case may be; and upon any conveyance or transfer of the
interest of such person or entity as Lessor, such person or entity shall be
thereupon released and discharged from any and all liability under this lease or
otherwise to Lessee, and any and all others whomsoever, provided, however, the
new owner assumes hereunder.
(c) A pro rata share" or "pro rata" or "proportionate share"
shall mean a fraction having as numerator the Gross Rentable Area of the
dernised premises, which is 79,506 square feet and as its denominator the Gross
Rentable Area of the entire building of which said premises forms a part which
is 178,916 square feet. Commencing on the ate (the "Additional Space Date")
which is the later to occur of March 1, 1987 or the date the additional space is
available for occupancy, a "pro rata share" or , pro rata" or "proportionate
share" shall mean a fraction having as its numerator the Gross Rentable Area of
the demised premises, which is 105,000 square feet and as it denominator the
Gross Rentable Area of the entire building of which said premises forms a part
which is 178,916 square feet. The additional space shall be deemed available for
occupancy on such date as the space is tendered to Lessee vacant, broom clean
and free of the personal property, equipment and claims of third parties and
Lesson and at Lessee's option, Lessor shall either remove the existing wall
separating the additional space from the existing demised premises or construct
up to their standing door openings in such existing demising wall. If the Lessee
requests Lessor to remove such wall, each party shall pay one-half the cost of
said removal.
(2) GRANT OF LEASE
(a) Lessor hereby lease and demises to Lessee, and Lessee hereby
rents and takes from Lessor, approximately 79,506 square feet of Gross Rentable
Area, consisting of 79,506 square feet of sprinklered warehouse space located at
81Alumni Drive, in the Town of Newington, County of Hartford, and State of
Connecticut, together with the right to us the employee parking area, which
space is more specifically delineated in Exhibit A annexed hereto and
incorporated herein, hereinafter referred to as the "demised premises".
Commencing on the AdditionalSpace Date, the "demised premises" shall increased
by the addition thereto of approximately 25,494 square feet of gross rentable
area, consisting of 25,494 square feet of sprinklered warehouse space located at
00 Xxxxxx Xxxxx, xx xxx xxxx xx Xxxxxxxxx, Xxxxxx of Hartford, and State of
Connecticut, which space is more specifically delineated in Exhibit A annexed
hereto and incorporated herein, and as used in this lease shall thereafter
consist of 105,000 square feet of space located at 00 Xxxxxx Xxxxx, Xxxxxxxxxxx
cut.
(b) Lessor hereby grants to Lessee the right to use in common
with other lessees of said building the means of vehicle and pedestrian
ingress and egress to and from the demised premises; all subject to any
reasonable and non discriminatory written rules and/or regulations of Lessor
now or hereinafter in effect as to the same, provided, however, that no such
rules and/or regulations shall increase Lessee's cost of doing business at the
dernised premises and to the extent such rules and/or regulations conflict
with the terms of this Lease, the terms of this ease shall control.
(c) TO HAVE AND TO HOLD the same for the term set forth in
paragraph 3 of this lease upon the terms and conditions set forth in this
instrument, which is hereinafter referred to as the "Lease"; and Lessee hereby
expressly covenants and agrees to fully and timely keep, perform, and observe
all the terms and conditions of this Lease on its part to be kept, performed,
and observed.
(d) Lessor represents and warrants that Lessor is the fee owner
of the demised premises and all improvements located thereon, and has full right
and authority to lease the demised premises to Lessee on the terms and
conditions set forth herein.
(3) TERM
The term of this Lease shall commence March 1, 1986, and shall
terminate on February 28, 1996, unless sooner terminated as hereinafter
provided.
(4) ANNUAL RENT
(a) In consideration of the premises demised herein, commencing on
March 1, 1986, Lessee shall pay an annual rent to Lessor for the term March 1,
1986, to February 28, 1987, at an annual rate of Two and 851100 Dollars ($2.85)
per square foot or Two Hundred Twenty-Six Thousand Five Hundred Ninety.-Two and
10/100 Dollars ($226,592.10) per annum, payable in successive equal monthly
installments of Eighteen Thousand Eight Hundred Eighty-Two and 68/100 Dollars
($18,882-68) per month on the first day of each month in advance, without
offset, deduction, demand, or abatement whatsoever, in lawful money of the
United States which is legal tender for payment of all public or private debts
at the time, and paid to Lessor, c/o Xxxxxx Xxxxxx, 00 Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, or to such other payee and at such other address as Lessor
may from time to time designate by written notice to the Lessee prior to any
such payment. The Lessee Lessor concurrently with the execution of this Lease
the first month's amount of Eighteen Thousand Eight Hundred Eighty-Two and 6
($18,882.68).
(b) In consideration of the premises demised herein, commencing the
Additional Space Date, Lessee shall pay an annual rent to Lessor March 1, 1987,
to February 28, 1991, at an annual rate of Two and ($2.85) per square foot or
Two Hundred Ninety-Nine Thousand Two and 00/100 Dollars ($299,250.00) per annum,
payable in successive installments of Twenty-Four Thousand Nine Hundred
Thirty-Seven Dollars ($24,937.50) per month on the first day of each month in
advance offset, deduction, demand, or abatement whatsoever, in lawful money
States which is legal tender for payment of all public or private debt and paid
to Lessor, x/x Xxxxxx Xxxxxx, 00 Close Road, Greenwich 06830, or to such other
payee and at such other address as Lessor may time designate by written notice
to the Lessee prior to any such payment however, that in the event that the
Additional Space Date has no March 1, 1987, Lessee shall pay the same rent as
set forth in Section Lease until the occurrence of the Additional Space Date at
which time set forth hereinbefore in this Section (4)(b) shall be paid.
(c) In consideration of the premises demised herein, co March 1, 199 1,
Lessee shall pay an annual rent to Lessor for the term March 1, 1991 to February
28, 1996, (Provided the Additional Space Date has theretofore at an annual rate
of Three and 051100 Dollars ($3.05) per square foot or Three Hundred Twenty
Thousand Two Hundred Fifty and 00/100 Dollars ($320,250.00) per annum, payable
in successive equal monthly installments of Twenty-Six Hundred Eighty-Seven and
50/100 Dollars ($26,687.50) per month on the each month in advance, without
offset, deduction, demand, or abetement whatsoever, in lawful money of the
United States which is legal tender for payment of all public or private debts
at the time, and paid to Lessor, x/x Xxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, or to such other payee and address as Lessor may from time to time
designate by written notice prior to any such payment, provided, however, that
in the event that the Additional Space Date has not occurred by Xxxxx 0, 0000,
Xxxxxx shall pay an annual rent for the term March 1, 199 1, to February 28,
1996 at an annual rate of Three and 051100 Dollars ($3.05) per square foot or
Two Hundred Forty-Two Thousand Four Hundred Ninety-Three and 30/100
($242,493.30) per annum, payable in successive equal monthly installments of
Twenty Thousand Two Hundred Seven and 78/100 ($20,207.78) per month on the first
day of each month in advance and in accordance with the applicable terms of this
Section (4)(b) until the occurrence of the Additional Space Date at which time
the rental first set forth in this Section (4)(c) shall be paid.
(5) NET LEASE
Except as expressly otherwise provided herein, this is a
net-net-net Lease, and Lessee shall also bear, pay, and satisfy any and all
costs and expenses whatsoever, ordinary or extraordinary, with respect to the
dernised premises as defined in paragraph 2 (a) herein and/or use or occupancy
of the same, as items of additional rent.
(6) USE OF THE DEMISED PREMISES
Throughout the term of this Lease and any renewal hereof, Lessee
and its permitted subtenants and assigns may use and occupy the dernised
premises for warehousing, office and distribution purposes and purposes
incidental thereto and for no other business or other purpose without Lessor's
prior written consent, which consent shall not be unreasonably withheld. Lessee
shall neither use nor suffer the use of all or any part of the demised premises
for any illegal or immoral use, or in any manner which in whole or in part is in
violation of any local, state, or federal law, ordinance, regulation, or other
governmental authority now or hereafter made.
(7) SAVING CLAUSE
Nothing in this Lease shall create or be construed to create a partnership
between Lessee and Lessor, or make them joint venturers, or bind or make Lessor
in any way liable or responsible for any acts, omissions, negligence, debts or
obligations of Lessee. In the event this Lease is terminated by Lessor because
of Lessee's default or abandonment of this Lease, the demised premises, or the
business conducted therein, Lessee shall be and remain liable for any and all
defaults and deficiencies in payment of the annual rent, additional rent, and
any and all othersums described by this instrument as payable by Lessee during
all of any portion of the scheduled term of the Lease. Lessor shall have the
duty and obligation to mitigate damages in a commercially reasonably manner in
the event of said default or abandonment by Lessee.
(8) MAINTENANCE OF THE DEMISED PREMISES
Throughout the term of this Lease and any renewal hereof, the
parties hereto, as designated, shall do and perform each and all of the
following:
(a) Lessee shall maintain and keep in good repair, good working
order and free of litter and refuse the interior of the dernised premises and
make any and all repairs and. replacements thereto as and when required, to
anything exclusively serving the demised premises, be they interior structural
or non-structural, ordinary or extraordinary, foreseeable or unforseeable,
including but not limited to any and all furnishings, fixtures, leasehold
improvements, exterior entrances, windows, electrical wiring, lighting fixtures,
heating or plumbing fixtures and systems, pipes, air conditioning or heating
systems; keep unclogged and in good repair all drains, traps and sewer pipes and
maintain and leave same in good working order, subject to ordinary wear and tear
and damage by fire or other casualty. Lessor represents that as of the
commencement date of this Lease the demised premises and the fixtures and
equipment serving the same will be in good working order.
(b) Lessor will make repairs to the roof, the exterior of the
dernised premises and the Building and all other necessary repairs that Lessee
is not required to make pursuant to the terms of this Lease when necessary after
receipt of written notice from Lessee specifying the need therefor. Lessee shall
pay for its proportionate share of the cost of illumination of the exterior of
the demised premises; its proportionate share of the cost of maintenance of
gardening and landscaping; its proportionate share of the cost of removal of
snow, ice, dirt, and refuse, striping, repair and/or replacement of all
blacktopping relating to the parking lot and pedestrian walks; water and sewer
rents; the cost of supplying -any additional gas service to the demised
premises; any cost incurred in adding to or increasing the water pressure for
the sprinkler system; its proportionate share of the cost of maintenance of the
sprinkler alarm system; maintenance, insurance on, and repair of the railroad
spur located to the rear of the dernised premises in the event that said spur is
connected to the main rail track for use if Lessee requires such use; its
proportionate share of the cost of liability and hazard insurance premiums; its
proportionate share of the cost of wages, payroll expenses, worker's
compensation insurance, fidelity bonding, and unemployment taxes of labor used
to perform the functions described herein and for direct supervision thereof;
its proportionate share of the cost of fees for licenses and permits, if any;
its proportionate share of the cost of supplies; utility services and charges;
repair, maintenance, operation, replacement, and debt service of any equipment
used in operation and maintenance of the demised premises; and other costs and
expenses. Except for those affirmative undertakings by Lessor as are
specifically set forth in this Lease, Lessee accepts the dernised premises "as
is"; provided however, nothing contained in this Lease shall reduce Lessor's
obligations to complete the work set forth in Schedule B hereto. Lessee may, at
its option and upon written notice to Lessor, erect antennae on that portion of
the roof covering the dernised premises. In the event that Lessee exercises that
option, Lessee shall upon the exercise of said option and thereafter for the
term of this lease and any renewal hereof, bear full responsibility for the
maintenance of the roof for the entire building of which the demised premises
are a part.
(c) All maintenance and repairs performed by Lessee shall be
done timely and diligently, using materials of equal or better quality than
original construction, and in a good and workmanlike manner, without demand as
and when such work is required or forthwith upon demand of Lessor, whichever
first occurs. If Lessee fails or refuses to do any or all of its maintenance and
repair work and do it in the manner, time, and quality designated, Lessor, in
the exercise of reasonable discretion may, at Lessee's cost and expense, enter
upon the dernised premises and do any portion or all of such work, or require
Lessee to do the same by appropriate actions or proceedings, and Lessee shall
promptly and fully reimburse and pay to Lessor its attorneys' fees and its
entire out-of-pocket costs and expenses with respect to the same, within fifteen
(15) days next following Lessor's demand for the same.
(9) LESSEE'S ALTERATIONS
Lessee may make non-structural additions and alterations
within the interior of the dernised premises, but shall make no structural
alterations nor any exterior additions or alterations without the prior written
consent of the Lessor which consent shall not be unreasonably withheld, however,
when Lessor gives its prior written consent, it shall also notify Lessee if
Lessor desires that the alterations or additions be removed by Lessee at the
expiration or any earlier termination of this lease and any renewal hereof,
whichever first occurs. As to any and all such work for which Lessor's prior
written consent was required and which consent was specifically conditioned on
restoration, Lessee shall promptly restore the demised premises to its original
configuration (or such configuration as may be agreed to by Lessor) at Lessor's
request whenever any such alteration or addition made by Lessee shall no longer
be used or at the expiration or any earlier termination of this Lease and any
renewal hereof, whichever first occurs. All work, alterations, and additions
referred to herein (hereinafter "the work") shall be subject to the following
terms and conditions:
(i) All work shall be performed in a good and workmanlike
manner, at the cost and expense of the Lessee which shall be timely and fully
paid and satisfied, and all structural alterations or exterior additions or
alterations shall be of materials of a grade and quality reasonably
satisfactory to Lessor, at the cost and expense of the Lessee which shall be
timely and fully paid and satisfied.
(ii) Prior to commencement of the work, Lessee shall comply with
any and all rules and regulations of all applicable governmental and other
authorities, including but not limited to zoning, building, and environmental
authorities; obtain any and all licenses and permits required; and comply with
any and all applicable rules and regulations of all local, state, or national
fire underwriter authorities, and obtain any and all approvals required by such
authorities with respect to the work.
(iii) The premises shall be kept free and clear of any and all
liens and encumbrances with respect to the work, whether for labor or
materials, and Lessee shall pay, bond, or vacate each and all of the same
within twenty (20) days next following any notice of filing or levying of any
such lien or encumbrance.
(iv) Any and all increases in insurance premiums, taxes, or
other costs or expenses relating to the dernised premises by reason of the work,
shall be timely and fully paid and satisfied by Lessee throughout the term of
this Lease and any renewal hereof.
(v) No work shall create a hazard, jeopardy or risk to the
building or the demised premises during the performance of the work or after the
completion of the work.
(iv) Any and all structural additions and alterations to the
demised premises shall be made only upon Lessor's prior written consent, in a
manner and upon terms and conditions reasonably acceptable to Lessor, and the
work shall be performed by contractors or subcontractors first approved by
Lessor, which approval shall not be unreasonably withheld. Title to such
structural additions and alterations shall automatically vest in the Lessor
upon the making of the same without payment from Lessor and be subject and
subordinate to any and all encumbrances incurred by Lessor as to the demised
premises, and shall at the option of Lessor upon expiration or any earlier
termination of the Lease and any renewal hereof, whichever is last to occur,
either remain upon and be surrendered with the demised premises as a part
thereof at such time, or as to any and all work for which Lessor's prior
written consent was required and which approval was specifically conditioned
on restoration, be removed from the demised premises by Lessee and the demised
premises restored by Lessee to the condition existing next prior to the making
of the same.
(10) LESSOR'S ALTERATIONS AND IMPROVEMENTS
(a) Lessor hereby agrees to provide, at its cost and expense, on
or before April 1, 1986, the improvements to the demised premises in accordance
with the description of the improvements to be made set forth on Exhibit B
annexed hereto, incorporated herein and made a part hereof. Included in Lessor's
alterations is a wall to be erected separating Lessee from Roytype, another
tenant of Lessor in the building of which the demised premises are a part.
Lessee agrees to pay for one quarter of the cost (not to exceed $20,000) of the
erecting of said wall and Lessor will pay for three-quarters (3/4) of the cost
of the erection of the wall. For purposes of this Lease the term "cost of the
erecting of said wall" shall mean the actual aggregate third party cost and
expense of erecting the required demising wall in compliance with governmental
requirements. If during the term of this Lease and any renewal hereof, any
governmental authority requires that certain additional improvements be made to
the demised premises because of the nature of the materials Lessee is storing on
the demised premises, Lessee agrees that it will pay one-half (1/2) of the cost
of such improvements and Lessor agrees that it will pay one-half (1/2) of the
cost of such improvements. Lessee further agrees that the payment of its cost of
the erecting of said wall shall be made ten days after bills have been submitted
to Lessee by Lessor. Lessee agrees that in the event that Lessor is unable to
complete the improvements on the date set forth in this paragraph, that any
claims that Lessee may assert are limited to claims for monetary damages (and
rights of self help) and nothing herein can be construed as providing to Lessee
a right to terminate this lease based upon Lessors' failure to complete the
improvements in accordance with this Paragraph 10a.
(b) Lessor hereby reserves the right at any time to enter upon
demised premises (subject to the provisions of Section 22 hereof) and make
alterations or additions thereat or to any or all of the site improvements,
buildings, improvements, or personality comprising a part thereof; but in no
event shall the Gross Rentable Area of the demised premises under this Lease be
diminished by Lessor to less than that demised at the time of execution of this
Lease, and in no event shall any change or alteration in the demised premises
interfere with any permitted use of the demised premises by Lessee.
11) SIGNS
Lessee will not place, maintain, display, or mount at, on, or
about the outside of the building or any exterior door, wall, window, or portion
of the demised premises, nor suffer the same to be done, any sign, awning or
canopy, advertising display, decoration, lettering or advertising matter, or
other thing of any kind, without the expressed written permission of Lessor
which will not be unreasonably withheld. Lessee hereby unconditionally and
irrevocably authorizes Lessor to enter upon the demised premises at Lessee's
expense and without liability or penalty. And to remove anything in violation of
the provisions of this paragraph.
12) UTILITIES
(a) Lessor shall furnish, install, hook up, and be responsible
for metering. Lessee shall promptly pay its pro rata share of all bills, costs,
expenses, charges, assessments, meter charges, fuel adjustments, penalties, and
interest as to the same as or when the same become due or payable, including but
not limited to heat, oil, water and sewer, hot water, gas, electricity, air
conditioning, telephone, garbage disposal, fire hydrant maintenance charge and
any and all other services or utilities supplied to or consumed at or in the
demised premises throughout the term of this Lease and any renewal hereof
whether or not measured by meter; and in the event said costs, charges, and
expenses shall not be paid when due, Lessor shall have the right, without any
obligation, to advance and pay the same for Lessee, and such amounts shall be
paid and reimbursed to Lessor by Lessee within fifteen (15) days next following
Lessor's demand therefor, and be deemed and be additional rent under this Lease.
For purposes of this clause in computing the proration of all of said costs,
charges and expenses, except oil, the formula to be used shall be a fraction in
which the numerator is the square footage leased to Lessee herein and the
denominator shall be the total square footage of the building. For purposes of
this clause in computing the proration for oil expenses, the cost to Lessee
shall be an adjustment that equitably reflects Lessee's fair share of said oil
expenses.
(b) Lessor shall be entitled to install in or through the
demised premises, (subject to the provisions of Section 22 hereof) and the Lot,
and/or the building in which the demised premises are located, and repair,
maintain, and replace pipes, conduits, wires, and other utility lines serving
other tenants of the building in which the demised premises are located.
(13) DEFAULT BY LESSEE
In the event Lessee defaults in the full and timely payment of
any or all sums payable under the Lease whether as annual rent, additional
rent, utilities or service charges premiums or expenses, real estate taxes, or
any other sum whatsoever, and said default continues for fifteen (15) days
after written notice; or in the event Lessee defaults in the full and timely
performance of any and all terms and conditions of this Lease apart from a
default in the full and timely payment of any or all sums due under this
Lease, and if such default shall continue for fifteen (15) days after written
notice, and in the event said default cannot with due diligence be cured
within said fifteen (15) day period and the continuance of which for the
period required for cure will not subject Lessor to the risk of criminal
liability or termination of any lease or foreclosure of any mortgage, Lessee
shall not be in default under this Lease if Lessee commences such cure within
said fifteen (15) day period and thereafter diligently prosecutes such cure to
completion; or in the event Lessee vacates the demised premises or abandons
the demised premises of this Lease or any of its obligations hereunder or
removes a substantial portion or all of its fixtures or furnishings from the
demised premises; or if Lessee does anything constituting a default under the
section of this Lease relating to Lessee's Bankruptcy, then in any or all such
events Lessor shall be entitled to exercise any and all remedies under this
Lease and/or those available at law and/or equity with respect to such default
or defaults, and those remedies shall include and not be limited to the
following:
(a) Any and all other remedies available in the State of
Connecticut at law and/or equity to recover possession of the demised
premises, remove Lessee and its personality therefrom, and recover damages
from Lessee as to the balance of the Lease term described in the Lease; and/or
(b) Whether as agent for the Lessee or for Lessor's own account,
the right in its discretion (but not the obligation) to enter in and upon the
demised premises and clean up, repair, remodel, and do or make *any and all
other commercially reasonable preparation of the demised premises for
rerental, advertise for and obtain a tenant for the same whether directly or
through brokers or otherwise, and rerent the demised premises on the same or
other terms and/or other terms and/or conditions as contained in the Lease;
and, if as agent for the Lessee, then to recover from Lessee any and all costs
and expenses of the foregoing and/or any deficiency in annual rent, additional
rent, and other sums payable under the Lease by Lessee had Lessee duly and
timely performed all terms and conditions of the Lease on its part to be
performed throughout the entire term of the Lease; and, if for Lessor's own
account, then to recover any and all costs and expenses of the foregoing;
and/or
(c) To terminate the Lease by an additional written notice of no
less than five (5) days to Lessee to that effect (sent registered or certified
mail) in the event any or all of the above-described defaults are not fully
remedied within any grace period (if any) expressly provided above, and, if no
time is so provided, then to terminate the Lease by such notice upon the
issuance of the notice; and to recover from Lessee any and all damages to which
Lessor would be entitled at law and/or equity under the laws of the State of
Connecticut; and/or
(d) To seek and obtain any and all provisional remedies,
ancillary remedies, and/or equitable relief by summary proceedings and/or
actions at law and/or equity to restrain or enjoin Lessee from any threatened,
anticipated, committed, existing, continuing, or repeated breach or breaches of
the Lease, and/or to require Lessee to perform or specifically perform any and
all terms or conditions of the Lease on Lessee's part to be performed, and/or in
aid of any other remedy sought by Lessor under this Lease or at law and/or
equity and at the option of Lessor, to take physical possession of any and all
property, equipment, goods, supplies, raw materials and inventory of Lessee
located on the demised premises to satisfy any judgment Lessor might obtain
against Lessee for any default set forth herein; and/or
(e) To recover any and-all damages from Lessee to which Lessor
shall be entitled with respect to any breach or breaches of the Lease by
Lessee and/or termination of the Lease and/or of Lessee's occupancy and/or
possession of the demised premises by reason of Lessee's breach or breaches
thereof, together with interest at the maximum legal rate allowed by law in
the State of Connecticut, any and all costs, expenses, statutory costs, and
other sums allowed by such law, and reasonable attorneys' fees with respect to
any and all such events, remedies, actions, litigations, and/or appeals;
and/or
(f) To recover from Lessee the difference, if any, at the time of
a termination of the Lease between the amount of rents and other sums payable
under the Lease for the remainder of the stated term as compared to the
reasonable rental value at that time of the demised premises, if less, for the
remainder of the stated term; provided, however, Lessor has made an effort to
mitigate damages in a commercially reasonable manner; and/or
(g) To perform any and all of the terms and conditions of this
Lease on Lessee's part to be performed at Lessee's cost and expense, and enter
upon the demised premises for such purpose, if so required, to perform the same
(except for payment of annual rent) in the event Lessee fails or refuses to
perform the same within ten (10) days next following written notice from Lessor
to Lessee demanding the same; provided that in the event physical damage is
immediately threatened to the demised premises as from flood, fire, gas leak,
water leak, pipe bursting, or the like, no notice or demand by Lessor is
required, and Lessee shall fully reimburse and pay to Lessor any and all costs
and/or expenses incurred by Lessor as to such selfhelp together with any and all
attorneys' fees and/or costs of litigation required to enforce Lessor's rights
hereunder.
(h) The remedies set forth in this Lease are cumulative and not
exclusive and are in addition to and not in substitution for any remedies
available at law or equity.
(14) BANKRUPTCY
At any time during the term of this Lease, whether prior to or
after Lessee takes occupancy or possession of the demised premises, or' before
or after the date of commencement of rent, in the event Lessee files or suffers
the filing of any writ or petition or proceedings in bankruptcy, for
Reorganization, for an Arrangement, for an assignment for the benefit of
creditors, or for the appointment of any receiver or trustee, under any federal
or state law or other governmental authority or makes or suffers any transfer,
assignment, conveyance, sale, pledge, or disposition of all or a substantial
portion of its furnishings or fixtures; or removes or transfers a substantial
portion or all of its furnishings or fixtures from the demised premises; or in
the event of any levy, execution, or foreclosure upon, at, or with respect to
the estate, property, personality, rights or interest of Lessee in, under, or to
this Lease and/or the demised premises; each and all of such events or
occurrences shall constitute and shall be deemed to constitute a material and
substantial default in the Lease by Lessee, and this Lease shall at the option
of Lessor (exercised in its discretion) be terminated and cancelled by reason of
such default or defaults, and Lessor shall be entitled to exercise any and all
remedies at law and equity and/or under this Lease with respect thereto and, in
addition thereto and not in substitution thereof, also be entitled to exercise
any or all of the remedies elsewhere described under this Lease as to a default
by Lessee.
(15) INSURANCE
(a) At its own cost and expense, Lessee shall obtain and
maintain throughout the term of this Lease and any renewal hereof the
following insurance coverage:
(i) Comprehensive general liability insurance insuring Lessor and Lessee
against injury to persons or property occurring in or about the demised
premises, or arising out of ownership, maintenance, use, or occupancy
thereof, with minimum limits of at least $1,000,000 for any one event and
$500,000 for injury to any one individual, and property damage insurance
with minimum limits of at least $500,000, each to be written on an
occurrence basis.
(ii) All risk insurance including and not limited to fire, extended
coverage, vandalism and maliciou's mischief insurance, covering all of the
Lessor's building and improvements and any and all of the Lessee's
improvements, equipment, trade fixtures, tools, inventory, and personal
property in, at, or about the demised premises, in the full amount of the
replacement cost of any and all of the same. Lessor agrees that it will
reimburse to Lessee a pro rata share of Lessee's cost for such insurance
coverage on Lessor's building and improvements as and when billed for the
same, which billing will furnish reasonable detail as to the forms of
coverage carried and the costs and expenses as to the same, and set forth a
calculation of Lessor's pro rata share of such costs and expenses. For
purposes of this insurance
cost reimbursement, Lessor's pro rata share shall equal 100% less Lessee's
pro rata share expressed as a percentage.
(iii) Worker's Compensation Coverage and all other insurance coverages for
employees, agents, servants, and others at or about the demised premises in
compliance with any and all applicable governmental authorities.
(b) Lessee shall not use, keep, sell, or offer for sale at the demised
premises any article or substance, nor do or permit anything to be done,
which shall increase insurance premiums with respect to all or any part of
the demised premises or the building of which they are a part.
(c) All insurance to be procured by Lessee under this Lease shall be
obtained from financially responsible companies licensed to do business in
Connecticut and rated at least A+ Class XV in Best's Insurance Guide (as
amended to date), and the content of the policies and companies from which
the same are obtained shall be subject to Lessor's prior approval exercised
in its discretion with obligation. Any and all such policies shall be in
the names of Lessor, Lessee, and mortgagees as to the property and/or
improvements, as their respective interests may appear, and the policies
shall be non-cancellable as to Lessor, and mortgagees by reason of any act
or omission as negligence of Lessee, and in no event shall any such
policies be cancelled or cancellable for any reason without at least ten
(10) days prior written notice to Lessor from the insurer. Binders for any
and all coverages to be obtained by Lessee shall be delivered to Lessor
upon Lessee's execution of this Lease, and the original policies and any
endorsements thereof or certificates of insurance or blanket policies with
detailed coverages shall be promptly delivered to Lessor thereafter, with
renewals in each instance delivered to Lessor within twenty (20) days next
prior to expiration of such coverage. In the event Lessee fails or refuses
to obtain and maintain any or all of the foregoing coverages, or in the
event Lessor in its discretion elects to obtain and maintain any or all
such coverages at Lessee's expense, Lessor may obtain any or all such
coverages and Lessee shall promptly and fully reimburse Lessor for any and
all premiums, costs, and expenses paid or incurred by Lessor in that regard
within five (5) days next following issuance of Lessor's invoice to Lessee
for the same. Any policy which does not name Lessor as an insured shall
contain an express waiver of subrogation against Lessor, its officers,
employees, agents, and other representatives. Lessee hereby releases Lessor
of and from any and all liability for any cause or thing to the extent of
any insurance coverage which Lessee is required to maintain under this
Lease and for any event or less not covered by such coverage.
(d) Lessor shall also be entitled at any time and from time to time to
elect to carry insurance coverage upon the demised premises and/or the
building, improvements, in addition to and apart from any insurance
coverages carried or required to be carried by Lessee as to such property,
and Lessee shall contribute to Lessor as additional rent under this Lease a
pro rata share of any and all costs and expenses of such coverages so
carried by Lessor as and when billed for the same, which billing will
furnish reasonable detail as to the forms of coverage carried and the costs
and expenses as to the same, and set forth a calculation of Lessee's pro
rata share of such costs and expenses.
(e) Lessor and Lessee and all parties claiming under them hereby mutually
release and discharge each other from all liability, whether for negligence
or otherwise, in connection with loss covered by any insurance policies
which the releasor carries with respect to the building, demised premises
or any interest or property therein or thereon (whether or not such
insurance is required to be carried under this Lease), but only to the
extent that such loss is collected under said insurance policies. Such
release is also conditioned upon the inclusion in the policy or policies of
a provision whereby any such release shall not adversely affect said
policies or prejudice any right of the releasor to recover thereunder. Each
party agrees that its insurance policies will include such a provision so
long as the same shall be obtainable without extra cost, or if extra cost
shall be charged therefor, so long as the Lessee shall pay such extra cost.
(16) NOTICES
All notices to be given hereunder shall be in writing and delivered by
registered or certified mail, addressed to the Lessor in care of Xxxxxx
Xxxxxx, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 and in care of Xxxxxx
Xxxxxx, 00 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, and to the Lessee, at
the demised premises with a copy to Attention: General Counsel, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or to such other address as such party
shall from time to time designate by written notice to the other sent
registered or certified mail. Notices will be deemed properly given upon
receipt.
(17) CONDEMNATION
(a) If, prior to commencement of rent or otherwise, the entire parcel of
which the demised premises are a part shall be taken under any condemnation
or eminent domain proceedings (each such occurrence being hereinafter
referred to as a "Taking") by any governmental authority during the term
hereof, or in the event twenty-five percent (25%) or more of the demised
premises is taken in any such proceedings and the remaining portion shall
not be suitable or adequate (in the reasonable opinion of the Lessee
exercised in good faith) for the uses described in this Lease, and Lessee
notifies Lessor of such determination within thirty (30) days next
following the taking of physical possession of such portion of the demised
premises by the governmental authority or the date upon which title vests
in the Taking authority, whichever is first to occur, then in any such
event this Lease and the term hereof shall terminate as of the date
physical possession of the property is taken by the Taking authority, and
Lessee shall be liable for the payment of 'rent and performance of the
other terms and conditions of this Lease on Lessee's part to be performed
only up to the date of such termination, and any rent paid in advance for
periods following such date shall be apportioned and promptly refunded to
Lessee.
(b) If less than the entire parcel of which the demised premises are a
part, or less than twenty-five percent (25%) of the demised premises, shall
be acquired or taken by condemnation or eminent domain as aforesaid, or if
the mortgagee of the property taken shall not make the proceeds of any
awards or payable as to the Taking available for restoration and repair of
vie balance of the property, or in the event the Taking occurs within the
last twenty-four (24) months of the Lease term (or of a renewal term, if
any), Lessor shall be entitled to terminate this Lease without liability by
reason of such Taking. If Lessor does not so terminate this Lease, this
Lease shall not cease and terminate and Lessor shall rebuild and restore
the demised premises as nearly as possible to the condition existing next
preceding such Taking, with due allowance for the portion so taken; Lessee
shall promptly restore or repair any improvements made by it in the demised
premises; and this Lease shall be and remain in full force and effect and
be unaffected by the Taking, except that from the date possession of the
taken portion of the demised premises is acquired by the Taking authority
the rate of rent under the Lease shall be diminished by a percentage equal
to the 'percentage of the demised premises so taken. The restoration or
repair work to be done by Lessee shall be done subject to any and all terms
and conditions elsewhere set forth in this Lease governing alterations or
work on Lessee's part to be performed.
(c) Lessor will seek to have any mortgagee of the building housing the
demised premises provide for application of the proceeds of any Taking
awards to restoration, repair, and reconstruction of the portion of such
property remaining after the Taking. Notwithstanding the amount of the
land, building, or improvements taken by condemnation or eminent domain or
the termination or continuance of this Lease with respect thereto, Lessee
shall not participate or share in any recovery, award, or damages payable
or paid as to such Taking, nor have or assert any right, claim, or cause of
action against Lessor, or mortgagee of the dernised premises or the
governmental authority making such Taking whether for the loss of, or
diminution in value of the unexpired term of this Lease, or as to the
Taking of any such land, building, and/or improvements or otherwise; and
Lessee for itself and its successors and assigns hereby waives, surrenders,
and releases to Lessor any and all claims or rights to claim or receive all
or any portion of any and all recovery, awards, and/or damages as to such
Taking. In the event this Lease is terminated or terminates by reason of
such Taking, the provisions of the Lease applicable upon expiration of the
Lease shall govern the parties.
(d) If permitted by statute, Lessee may assert a separate and independent
claim for and recover from the Taking authority, but not from Lessor any
compensation as may be separately awarded or recoverable by Lessee in its
own name and right for any damage to Lessee's portable fixtures and
equipment, or on account of any expenses which it shall incur in removing
its merchandise, furnishings, and equipment from the demised premises, but
in no event shall any such claims or recoveries be claimed or asserted in
the event the same would, may, or shall diminish, offset, or bar any
damages, recovery, or award to Lessor or the fee owner of the demised
premises.
18) HAZARD LOSS OR DAMAGE
(a) Lessor shall not be liable for any loss, theft, or damage to property
of Lessee or others located on, at, or about the demised premises, nor for
any injury or damage to persons or property resulting from any event,
hazard, or Act of God including but not limited to fire, explosion, falling
plaster, steam, gas, electricity, water, rain, snow or leaks of any natural
or manufactured substance from any part of the demised premises or from the
pipes, appliances, or plumbing or from the roof, street or sub-surface or
from any other place or by any other damage or cause of whatsoever nature,
nor for any personal injury or property damage caused by other lessees or
persons in or about the demised premises, or caused during construction of
any private, public, or quasi-public work. All personal property or
improvements of Lessee at or about the demised premises shall be installed,
used, or enjoyed at the risk of Lessee, and Lessee shall defend, indemnify
and hold Lessor harmless from any and all claims and/or causes of action
pertaining to or arising out of damage to the same, including but not
limited to subrogation claims by Lessee's insurance carrier. Lessee shall
give immediate notice to Lessor, promptly confirmed in writing, of any and
all of the following occurring at or with respect to the demised premises;
fires, other casualties, accidents, or vandalism; and any disrepair,
removal, damage, or defects as to any fixtures, equipment, or improvements
in or about such property. In the event the repair or reconstruction of the
demised premises, in the estimation of an independent contractor selected
by the Lessor and reasonably satisfactory to the Leasee, shall require more
than 120 days to complete or, if estimated to take less than 120 days,
actually takes more than 150 days to complete Leasee shall have the right
to terminate this Lease on ten days prior written notice to Lessor.
(b) Lessor will seek to have the first mortgage of the demised premises, if
any, provide for application of hazard insurance loss proceeds to the
repair or reconstruction of the demised premises upon any hazard loss.
Subject to the mortgagee (if any) at the demised premises making the hazard
loss insurance proceeds available for restoration and to Lessor's receipt
of such proceeds for that purpose, the Lessor shall repair, reconstruct, or
cause to be repaired or reconstructed, such damage or destruction.
Notwithstanding the foregoing, in the event such hazard loss occurs within
the last twenty-four (24) months of the term of the Lease, or within the
last twenty-four (24) months of the Renewal Term (if any) of the Lease, or
if the said mortgagee shall not make the insurance loss proceeds available
for repair or restoration, Lessor shall not be required to repair or
reconstruct the demised premises and shall notify Lessee within thirty (30)
days next following such hazard loss, of its election in this respect;
provided, however, in order for Lessor to effectively exercise its election
not to restore the demised premises after such casualty, Lessor must also
elect not to restore any other premises in the Building similarly affected
by the casualty.
In the event the damage or destruction to the demised premises shall be
restored by Lessor, this Lease shall not terminate, however, there shall be
an equitable abatement of rent and other sums payable under the Lease.
Lessee shall, at its cost and expense, restore, repair, and replace any
improvements in the demised premises made by Lessee as nearly as possible
to the condition existing next prior to such damage or destruction, using
materials of an equal or better quality than the original, and also restore
and repair, or replace, any of its equipment, fixtures, or furnishings
damaged or destroyed by the casualty occurrence. Such restoration and
repairs shall be commenced by Lessee promptly, be prosecuted with diligence
and continuously until completed, and be performed in a good and
workmanlike manner and in compliance with all applicable fire underwriting
and governmental authorities, and subject to the provisions of this Lease
relating to any work or alterations by Lessee. Any restoration and repairs
required or undertaken (whether or not required) by Lessor after a casualty
shall be prosecuted with diligence and continuously until completed and be
performed in a good and workmanlike manner and in compliance with all
applicable fire underwriting and governmental authorities.
If Lessor elects not to repair or reconstruct the damage or destruction to
the demised premises, Lessee shall be entitled to terminate this Lease as
of the date of said hazard loss without liability on the part of either
party herein, and any rent paid in advance by Lessee to Lessor for periods
after the date of such cancellation shall be pro rated to the date of such
termination of the Lease and an appropriate refund thereof (if any) made by
Lessor to Lessee. Upon such termination, this Lease and the term hereof
shall cease and come to an end and Lessee shall fully pay and satisfy to
Lessor any and all rent and other sums payable by Lessee under the Lease up
to the date of such termination and promptly vacate and surrender the
demised premises to Lessor.
(19) EXPIRATION OR TERMINATION
Upon the expiration date or any earlier termination of this Lease and any
renewal hereof, whichever last occurs, Lessee shall at its own expense
promptly surrender and deliver the demised premises to Lessor broom clean,
in good order and good repair (normal wear and tear by the elements
excepted), removing all of its personal property and leasehold
improvements, and also removing any alterations, installations, work, or
additions to the premises as required Lessor's prior written consent and
which consent was specifically conditioned on restoration and are requested
by Lessor; and Lessee shall forthwith fully repair and restore the demised
premises with respect to any damage therein or thereat whether resulting
from removal of Lessee's personality or improvements or its use or
occupancy or otherwise; fully pay and satisfy any and all costs and
expenses for any damage caused by any such removal. and fully pay any and
all sums to Lessor remaining to be paid by Lessee under the terms of this
Lease. Notwithstanding the foregoing provisions, if Lessee shall fail or
refuse to promptly do or perform any or all of the foregoing, Lessor shall
be entitled at its option in its discretion to enter upon the demised
premises by force or otherwise without liability to Lessee, and to effect
such removal and/or repairs for and at the expense of Lessee, and Lessee
shall fully pay and satisfy any and all costs, expenses, and attorneys'
fees of Lessor as to the same and as to recovery of such sum from Lessee,
and Lessee hereby waives demand and notice of every kind and description
whatsoever with respect to Lessor obtaining possession of said premises. If
Lessee remains in possession of the demised premises or any part thereof
after the described date of expiration of the term of the Lease or any
subsequent renewal or extension thereof, or after five (5) days next
following any earlier termination of the Lease by Lessor, Lessor may
exercise any remedies available at law or equity as to such holding over,
and/or any or all of the remedies set forth in this Lease as to Lessee's
defaults. Notwithstanding expiration or termination of the Lease, and prior
thereto throughout the term of the Lease and any renewal or extension
thereof, Lessee shall defend, hold harmless, and indemnify Lessor against
any and all claims, causes of action, damages, judgments, losses,
liability, costs, expenses, attorneys' fees, and penalties arising from or
out of any act, event, damage, omission, destruction, loss, injury,
negligence, or occurrence in, at, or about the demised premises, or the use
or occupancy of Lessee of all or any part thereof, or occasioned wholly or
in part by any act, omission, or negligence of Lessee, its agents,
contractors, invitees, guests, employees, servants, lessees,
concessionaires, or others under its direction or control, or with' respect
to this Lease; the negligent acts of Lessor, Lessor's agents, servants
and/or employees are expressly excluded from Lessee's obligations pursuant
to this paragraph. Lessee shall also pay to and reimburse Lessor as to any
and all costs, expenses, and attorneys' fees that may be incurred or paid
by Lessor in enforcing any terms or conditions of this Lease. Nothing
herein shall preclude Lessee from seeking indemnity from other tenants of
Lessor. In connection with any indemnity by Lessee hereunder, Lessor agrees
to give Lessee prompt notice of any claim upon which any indemnity may be
based and Lessee may defend said claim by counsel of Lessee's choice and
Lessor shall not settle such claim without prior written consent of Lessee,
which prior written consent shall not be unreasonably withheld. Lessor
agrees that Lessor will exercise all indemnity rights available to Lessor
pursuant to other leases relating to the building. Lessor agrees that
Lessee's obligations to indemnify Lessor pursuant to this paragraph (19)
shall only be exercised to the extent insurance coverage is not available.
(20) ASSIGNMENT AND SUBLETTING
Lessee may not assign this Lease in whole or part or sublet a portion or
all of the demised premises, without Lessor's prior written consent, which
consent shall not be unreasonably withheld. In the event of any assignment
or subletting, any rental or additional rental that is in excess of the
aggregate of (a) the amounts due from Lessee to Lessor hereunder and (b)
costs and expenses incurred by Lessee in connection with the consummation
of any such assignment or subletting, shall be paid to Lessor when they are
paid to Lessee. Any attempt to assign or sublet in contravention of the
terms herein shall be void and without force or binding effect and
constitute a material breach of the Lease. Nothing herein shall prevent the
Lessee from assigning this Lease in whole or in part or subletting all or
any part of the demised premises without the prior consent of Lessor to
subsidiaries and affiliates of Lessee or Guarantor, expressly provided,
however, that Lessee and the Guarantor shall continue to be obligated under
this Lease and the Guaranty annexed hereto. For purposes of this paragraph,
a consolidation or merger by Lessee or the sale of all or substantially all
of the assets of Lessee shall not be construed as an assignment and shall
not require Lessor's consent or otherwise be subject to the provisions of
this Section 20. Commencing on the Additional Space Date, Lessee shall have
the right to sublet up to, but not exceeding, in the aggregate, the same
25,494 square feet, of the demised premises, which will become subject to
the terms of this Lease on the Additional Space Date as set forth in
Section 2 of this Lease, without Lessor's prior written consent and without
being required to pay to Lessor any excess rental pursuant to the second
sentence of this Section 20.
(21) PAYMENT OF TAXES
(a) By "real estate taxes" the parties to this Lease mean any and all real
estate taxes, charges, and assessments, extraordinary as well as ordinary,
levied, imposed, or assessed during the term of this Lease by governmental
authorities upon or attributable to the demised premises and any and all
personality installed in or about the same by Lessor and Lessee.
(b) Commencing on March 1, 1986, for the term March 1, 1986 to February 28,
1987, Lessee shall pay to Lessor the real estate taxes imposed as to the
entire demised premises as shown on Exhibit A, as and when billed by
Lessor; and all such sums on Lessee's part to be paid hereunder shall be
deemed and be additional rent, and be payable within ten (10) days next
following Lessor's billing of the same. Lessee's payment of taxes shall be
calculated according to the ratio borne by the Gross Rentable Area of
Lessee's demised premises to the Gross Rentable Area of the entire building
of which the demised premises form a part. Lessee agrees that it is
responsible for the payment of 44.44 per cent of such taxes. In the event
the Lessor shall desire to contest the validity or amount of any such tax,
the Lessor may defer payment thereof as long as the validity or amount
thereof shall be contested by the Lessor in good faith and by proper
proceedings. The Lessor may also make payments under protest or take such
other steps with regard to said tax as will not prejudice its opportunity
to successfully contest the validity or amount thereof. The Lessee agrees
to render the Lessor full assistance timely and without expense to the
Lessor in contesting the validity or amount of any such tax, including but
not limited to joining in and signing any protest or pleading which the
Lessor may deem it advisable to file, provided, Lessor will not incur any
expenses on behalf of Lessee without Lessee's prior approval. Should any
rebate be made on account of any tax, a portion of which has been paid by
the Lessee to the Lessor hereunder, the Lessor shall refund to the Lessee a
proportionate share of such rebate to the extent of the amount paid by the
Lessee to the Lessor, less any and all legal fees, costs, and expenses
incurred by Lessor in such contest and/or in obtaining such rebate, said
proportionate share to be computed in the same manner in which the Lessee's
payments to the Lessor hereunder are computed. 1% 1 1917 and for the
remainder of the term
(c) Commencing on the Additional Space Date, and for the remainder of this
Lease, Lessee shall pay to Lessor the real estate taxes imposed as to the
entire demised premises, as and when billed by Lessor; provided, however,
in the event that the Additional Space Date has not occurred by March 1,
19876, Leasee shall pay the real estate taxes as set forth in Section 21(b)
of this Lease until the occurrence of the time the real estate taxes as set
forth in this Section 21(c) shall be paid. and all such sums on Lessee's
part to be paid hereunder shall be deemed and be additional rent, and be
payable within ten (10) days next following Lessor's billing of the same.
Lessee's payment of taxes shall be calculated according to the ratio borne
by the Gross Rentable Area of Lessee's demised premises to the Gross Re
table Area of the entire building of which the demised premises form a
part. Lessee agrees that it is responsible for the payment of 58.69 per
cent of such taxes. In the event the Lessor shall desire to contest the
validity or amount of any Such tax, the Lessor may defer payment thereof as
long as the validity or amount hereof shall be contested by the Lessor in
good faith and by proper proceedings. The Lessor may also make payments
under protest or take such other steps with regard to said tax as will not
prejudice its opportunity to successfully contest the validity or amount
thereof. The Lessee agrees to render the Lessor full assistance timely and
without expense to the Lessor in contesting the validity or amount of any
such tax, including but not limited to joining in and signing any protest
or pleading which the Lessor may deem it advisable to file, provided,
Lessor wilI not incur any expenses on behalf of Lessee without Lessee's
prior approval. Should any rebate be made on account of any tax, a portion
of which has been paid by the Lessee to the Lessor hereunder, the Lessor
shall refund to the Lessee a proportionate share of such rebate to the
extent of amount paid by the Lessee to the Lessor, less any and all legal
fees, costs, and expenses incurred by Lessor in such contest and/or in
obtaining such rebate, said proportionate share to be computed in the same
manner in which the Lessee payments to the Lessor hereunder are computed.
(d) Lessee shall promptly pay directly to the applicable government;
authorities, and prior to any interest or penalties accruing or being due
as to. Such taxes, any and all taxes with re respect to any and all
property, or improvement additions or alterations, real or personal, which
at any time are made, installed, situated by Lessee or anyone on its behalf
in, at, on, or about the demised premises including but not limited to
Lessee's alterations, installations, additions' improvements, fixtures, and
personal property (whether or not title to same shall have vested in Lessor
by reason of any provision of this Lease), and also pay any and all taxes
with respect to its Lease and/or leasehold estate and any sales taxes or
the like on any rents or other sums payable by Lessee under the Lease.
(e) If at any time after the date of this Lease the methods of taxation of
real estate prevailing at the date of this Lease shall be altered and there
shall be levied, assessed, or imposed in substitution in whole or in part
for or in addition to the present general real estate ,axes, a capital levy
tax, or a tax upon revenues or rents derived from real estate, or a
corporation franchise tax, or any other tax howsoever denominated by
whatsoever authority (including but not limited to any municipal, county,
state, or federal authority) which shall be measured or based in whole or
in part upon the value of the property or by the revenues or rents derived
therefrom, then all such taxes shall be deemed to be included in the term
"taxes" or "real estate taxes" for the purposes of this Lease and Lessee's
obligation to pay real estate taxes hereunder. For purposes of this
paragraph, the real estate containing the building of which the demised
premises are a part, shall be treated as the sole real estate asset of
Lessor.
(f) No capital levy tax, income tax, gross receipts tax, franchise tax or
inheritance tax shall be deemed a "real estate tax" for any purpose
hereunder.
(22) RIGHT OF ENTRY
Lessor and its successors, assigns, agents, and designees shall have the
right to enter into and upon the demised premises upon reasonable notice to
Lessee at all times during business hours for the purpose of examining or
determining whether Lessee is performing or abiding by the Lease. With
respect to emergencies, Lessor shall also and in addition thereto have the
right to enter the demised premises at any time whether or not Lessee be
present or open for business or the time be during Lessee's business hours.
Except in case of emergencies, Lessor shall give Lessee reasonable notice
of its intent to enter in and upon the demised premises; the entry shall be
at a reasonable time; Lessee shall have the right to have its
representative accompany Lessor; any work performed by Lessor shall be in a
good workmanlike manner with minimal interference to Lessee's business;
Lessor shall not cause any diminution of the area of the demised premises;
and Lessor, after performance of its work, shall restore the demised
premises to a tenantable condition. Lessor shall also have the right within
six (6) months before the expiration of the said term and any renewal
hereof to affix to any part of the damaged premises, or to post or erect
thereat, a notice offering said premises for rent, and to keep the same so
affixed, posted, or erected without obstruction, interference, removal, or
defacement.
(23) SUBORDINATION, ESTOPPEL AND ATTORNMENT This Lease shall be subject to
any and all recorded easements, rights of way, encumbrances, or
restrictions, granted or accepted by Lessor, Lessee agrees that Lessor may
at any time and from time to time borrow any sum of money, and/or in whole
or in part repay, extend, increase, renew, or modify such borrowings on
such terms and in such amounts as Lessor may deem proper, and secure the
same by one or more mortgages, ground leases, underlying leases, and/or
sale-leasebacks as to all or any portion of the demised premises, and at
Lessor's option, exercised in its discretion without obligation, this Lease
shall be subject and subordinate to any or all of the same and to any or
all renewals, modifications, replacements, and extensions of the same.
Lessor shall give Lessee written notice of its exercise or exercises of
such option to have this Lease subordinated, and no further notice,
consent, or instrument shall be required to bind Lessee as to such
subordination; however, at the request of Lessor and without charge or
penalty, Lessee shall execute and deliver to Lessor or its designee within
five (5) days next following Lessor's submission to Lessee of the same, any
and all instruments, agreements, or certificates to evidence such
subordination, and Lessee hereby unconditionally and irrevocably designates
and appoints Lessor as its attorney-in-fact to execute and deliver any such
instruments for an on behalf of Lessee in the fails or refuses to do so
within such time.Lessee's subordination is conditioned upon Lessee's
receipt of a non-disturbance agreement. Lessee shall also furnish during
the term of the lease any and all financial statements of Lessee requested
by the holder of any mortgage or mortgages covering the demised premises,
Lessee shall attorn to the new owner or assignee .upon such event and
accept and acknowledge such person firm, or entity as the Lessor under this
Lease; and Lessee shall, without charge or penalty and within ten (10) days
after any request by the Lessor, prepare, execute, acknowledge, and deliver
to Lessor or its designee an instrument in a form requested, including but
not limited to the following:
(a) the date of this Lease, the date when the term of this Lease commenced,
and the date when rent commenced to accrue hereunder;
(b) that this Lease is unmodified, not amended, and in full force and
effect; or, if there have been any amendments or modifications, that the
Lease is in full force and effect as so amended or modified and stating the
amendments or modifications and the dates thereof;
(c) based on Lessee's actual knowledge whether or not there are then
existing any setoffs or defenses against the enforcement of any of the
terms and/or conditions of the Lease and any amendments or modifications
hereof on the part of Lessee to be performed, and, if so, specifying the
same;
(d) the dates, if any, to which the annual rent, additional rent,
and other sums on Lessee's part to be paid hereunder have been paid and/or paid
in advance;
(e) the date of expiration of the Lease term;
(f) the rate of rent then payable under this Lease; and
(g) that, if true at the time of the request, Lessee accepts the demised
premises and any and all improvements in the condition then existing as
being complete and in accordance with Lessee's agreements as to the same
and in accordance with the Lease, and that Lessee waives any and all claims
or causes of action at, to Like same as against Lessor, the fee owner
thereof, and such new owner or assignee. Lessor agrees that Lessor shall,
without charge or penalty and within ten (10) after any request by the
Lessee, prepares execute, acknowledge and deliver to Lessee or its designee
an instrument in form similar to that required to be delivered by Lessee to
Lessor or its designee with respect to the matters set forth in (a) through
(g) above.
(24) NO BROKERS
Lessee represents and warrants that no brokers were retained, used, or
referred to with respect to this Lease and/or leasing, except for Xxxxxx &
Xxxxxx Realtors and that no claims based upon the acts of Lessee or
Lessee's agents for brokerage commissions or finder's fees are valid or
warranted with respect to or in connection with this Lease, except for the
claim of Xxxxxx & Xxxxxx Realtors and that it shall defend, indemnify, and
hold Lessor harmless from any and all costs, claims or causes of action for
such commissions or fees made by anyone other than Xxxxxx & Xxxxxx
Realtors. Lessor shall pay any brokerage fee which may be due to Xxxxxx &
Xxxxxx Realtors.
(25) WAIVER
No waiver by either party to this Lease as to any occurrence or of any
condition or term of the Lease shall be effective unless it is in writing
and signed by the waiving xxxxxxxx or of any other condition or xxxx.xxxxx,
nor shall it constitute a waiver by such party as to any repetition of such
occurrence or as to any other oc
(26) MECHANICS' LIENS
Notice is hereby given that Lessor shall not be liable for any work or
materials furnished to Lessee on credit and no mechanics' or other. lien
for any such .work or material shall attach to or affect Lessor's interest
in the demised premises. In the event any lien shall at any time or times
be filed or levied against the demised premises as to any work, labor, or
materials supplied to Lessee or anybody claiming through Lessee, Lessee
shall bond, pay, or vacate the same within twenty (20) days next following
such filing or levying of the same.
(27) ADDITIONAL PREMISES
Lessee agrees that commencing on the Additional Space Date, the additional
premises described in Exhibit C annexed hereto, incorporated herein and
made a part hereof, shall be rented to Lessee and included in the damaged
premises of this Lease subject to each and every term and condition of this
Lease.
(28) EXCULPATION
Neither Lessor nor any officer, director, shareholder, general partner,
limited partner, affiliate, subsidiary, corporate parent, employee, agent,
successor, or assign of Lessor shall at any time or times have any personal
liability for or under this Lease, and in the event of any default by
Lessor in the performance or observance of any of the terms or conditions
of this Lease on Lessor's part to be performed, Lessee shall only be
entitled to assert any claim or cause of action as to such default or
defaults against the building of which the demised($37,765.36) premises
form a part and to recover or realize any remedy, if successful, only in
rem against such real property.
(29) SECURITY DEPOSIT
Lessee shall deposit with Lessor, concurrently with the execution of this
Lease, the sum of Thirty-Seven Thousand Seven Hundred 51xty-Five and 36/100
Dollars ($37,765.36) to be held in an interest bearing account with
interest payable to the Lessee annually and applied by Lessor as security
for the full and timely performance and observance of any and all of the
terms and conditions of the Lease on Lessee's part to be performed and
observed. Lessor in its discretion and from time to time and at any time
shall be entitled to apply any portion or all of said security to
reimbursement or satisfaction of any and all defaults in Lessee's
performance and observance of the Lease and/or any and all damages, losses,
attorneys' fees, costs or expenses incurred or to be incurred by Lessor as
to any default or defaults in the Lease by Lessee, including those not
remedied by Lessee within the period, if any, expressly provided in the
Lease for such remedial action. Upon Lessor's giving Lessee notice of any
such application of the security, Lessee shall within five (5) days
thereafter pay to Lessor a sum sufficient to restore the amount of such
security de deposit to a total sum of Thirty-Seven Thousand Seven Hundred
Sixty-Five and 36/100 Dollars ($37,765.36). On or before March 1, 1991,
and/or in the event that Lessee shall lease the additional premises, as the
case may be, Lessee shall pay to Lessor a sum sufficient that will, when
added to the security then being held by Lessor, equal two (2) months of
the rental due during the term and/or for the additional premises so
leased. Within fifteen (15) days next following
expiration of the term of this Lease, Lessor shall refund to Lessee any
balance of the security remaining on deposit with Lessor which has not been
applied to reimbursement or satisfaction of the foregoing items, and Lessor
shall have no further liability with respect to such security.
If Lessor shall cease to be the landlord of the demised premises, Lessor
may deliver the balance of the security then on deposit with Lessor to its
successorin-interest to such premises; and upon such delivery and written
notice to Lessee giving the name and mailing address of such
successor-in-interest, Lessor shall have no further liability with respect
to such security.
(30) SECURITY SHACK
Lessee understands that until February 28, 1987, Roytype, another tenant in
the Lessor's building of which the demised premises are a part, will at
Roytype's sole cost and expense retain and maintain the existing security
shack on the exterior grounds. Lessee further understands that Roytype is
entitled to check in and out at the security shack all trucks going to or
from the loading docks, including docks used by Lessee. Nothing herein
shall prevent Lessee from having access at all times to its loading docks.
Furthermore, nothing herein shall prevent Lessee from operating said
security shack when Roytype is not operating it or for Lessee to have keys
to the gates and the security shack. Lessor further agrees that reasonable
safety rules will be enforced.
(31) RENEWAL OPTION
If this lease shall be in full force and effect and Lessee shall not be in
material default beyond any applicable grace period provided herein for the
cure thereof of any of the covenants and provisions hereof, Lessee shall
have the right to extend the term of this lease for one (1) period of five
(5) years commencing on the termination date of this lease, provided that
it shall give Lessor written advance notice of its election to so extend
said term at least twelve (12) months prior to the expiration of the
original term of this lease. If Lessee shall have exercised the option, as
aforementioned, the term of this lease shall be extended for said
additional period upon all of the same terms, provisions and conditions as
are contained in this lease except as hereinafter provided. Commencing on
March 1, 1997, and terminating on February 28, 2002, (provided the
Additional Space Date has theretofore occurred, Lessee shall pay an annual
rent to Lessor throughout said extended term at an annual rate of Three and
751100 Dollars ($3.75) per square foot or Three Hundred Ninety-Three
Thousand Seven Hundred Fifty and 00/100 Dollars ($393,751.00) per annum,
payable in successive monthly installments of Thirty-Two Thousand Eight
Hundred Twelve and 501100 Dollars ($32,812.50) per month, without offset,
deduction, demand, or abatement whatsoever, in lawful money of the United
States which is legal tender for payment of all public or private debts at
the time, and paid to Lessor, c/o Xxxxxx Xxxxxx, 00 Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, or to such other payee and at such other address as
Lessor may from time to time designate by written notice to the Lessee
prior to any such payment.
(32) MISCELLANEOUS
(a) The captions of this Lease and any table of contents or index set forth
as part of the Lease are for convenience and reference only and shall not
be deemed or construed to bind, modify, increase, or decrease the terms and
conditions of this Lease, or any interpretation or construction thereof.
Any reference in the Lease to the singular or to any gender shall similarly
apply to the plural or to every other gender if and when the sense
requires.
(b) The terms and conditions contained in this Lease shall apply to and be
binding upon the parties herein and their respective successors and
assigns, except as expressly otherwise provided.
(c) This Lease shall be governed by the law of the State of Connecticut and
shall be deemed to have been made, executed, delivered, and accepted by the
respective parties in that State.
(d) In the event any portion of this Lease is determined by applicable
governmental authorities to be against public policy and void, or otherwise
unenforceable or invalid, Lessor shall be entitled to cancel the Lease
within sixty (60) days next following such determination by written notice
to that effect hand delivered or sent to Lessee by Lessor by certified or
registered mail, and the parties herein shall thereupon be governed by the
provisions of the Lease relating to surrender of the demised premises upon
expiration. If Lessor does not elect to terminate the Lease, the terms and
conditions of the Lease, except for the express provisions declared void,
shall continue to govern the parties.
(e) Lessee shall not record this Lease, and at the request of either party,
Lessor and Lessee shall execute, acknowledge, deliver, exchange, and record
at Lessee's expense a Notice of Lease or other short-form instrument
permitted under applicable state law and prepared by Lessor.
(f) This Lease and any and all exhibits and riders attached hereto and made
a part of this Lease constitute the entire agreement of the parties
concerning this Lease, and any and all other or prior agreements,
representations, or warranties are hereby terminated, cancelled, and agreed
to be void and of no force or effect. No change, amendment, deletion, or
addition to this Lease shall be effective unless in writing and signed by
the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed, delivered, acknowledged, and exchanged by their respective duly
authorized officers or representatives and their respective seals, if any,
to be affixed hereto by order of their respective Boards of Directors, if
any, the day and year first above written.
Signed, Sealed and Delivered in the Presence of` LESSOR:
XXXXXX COMPANY, acting herein by
MARKAN SIXTY-NINE CORPORATION,
Genera artner
By
Xxxxxx Xxxxxx
Its President
LESSEE:
X. XXXXXXXX & CO. OF CONN. INC.,
a Subsidiary of
NATIONAL PATENT DEVELOPMENT
CORPORATION
Its Vice President
STATE OF NEW YORK
ss.
COUNTY OF NEW YORK
On this 18th day of February, 1986, before me, _____________________.
the undersigned officer, personally appeared XXXXXX XXXXXX, who acknowledged
himself to be the President of MARKAN SIXTY-NINE CORPORATION, General Partner
of XXXXXX COMPANY and that he as such President, being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by
signing the name of the corporation by himself as President.
In Witness Whereof, I hereunto et my hand and official seal.
Notary Public
My commission expires
STATE OF
SS.
COUNTY OF
On this 18th day of February 1986, before me, the undersigned
officer, personally appeared Xxxxxxxx X. Xxxxxx, who acknowledged himself to be
the Vice President of E. RABINOWE& CO. OF CONN. INC., a subsidiary of NATIONAL
PATENT CORPORATION, a corporation, and that he as such being authorized so to
do, executed the foregoing instrument for the purposes therein contained, by
signing the name of the corporation by himself as Vice President.
In Witness Whereof, I hereunto set my hand and official seal.
Notary Public y commission expires
GUARANTY
FOR VALUE RECEIVED, The undersigned NATIONAL PATENT DEVELOPMENT
CORPORATION (hereinafter designated as "Guarantor"), hereby unconditionally
guarantees to Lessor, its successors and assigns, the full and prompt
performance and observance by Lessee and its successors or assigns of all the
terms and conditions in the lease dated February 1, 1986, (hereinafter the
"Lease"), between XXXXXX COMPANY, as Lessor, and X. XXXXXXXX & CO. OF CONN.
INC., a Connecticut corporation, which corporation is a subsidiary of NATIONAL
PATENT DEVELOPMENT CORPORATION, as Lessee, on the part of the Lessee thereunder
to be performed or observed, and if at any time default shall be made by said
Lessee or its successors or assigns in the full and prompt performance or
observance of any of the terms or conditions of said Lease on Lessee's part to
be performed or observed, Guarantor will thereupon perform and observe the same,
as the case may be, in place and stead of Lessee, without demand or notice. No
waiver, modification, amendment, extension of time, indulgence, forebearance,
release, or discharge granted or permitted by Lessor as to any of the terms or
conditions of said Lease shall release or modify the obligations of Guarantor
hereunder, nor shall Lessor be required to give any notice thereof to Guarantor.
The liability and obligation of the Guarantor hereunder to Lessor and
its successors and assigns shall not be diminished, released, or in any way
affected by: (a) the release or discharge of Lessee in any creditors',
receivership, bankruptcy, insolvency, or other proceedings; (b) the impairment,
limitation or modification of the liability of Lessee or its estate in
bankruptcy; (c) the existence or exercise of any remedy for enforcement of
Lessee's liability under the Lease; (d) the limitation or discharge of Lessee's
liability under the Lease by reason of the operation of any present or future
provisions of any Bankruptcy Statute of the United States of America or any
Rules with respect thereto of any state law and/or statute or any decision of
any court, and/or or the rejection or disattirmance of the Lease in any such
proceedings; (e) any assignment or transfer of the Lease by Lessee; (f) any
disability or other defense of Lessee; or (g) the release from any cause
whatsoever of the liability of Lessee under the Lease.
Until all the covenants and conditions of the Lease on Lessee's part to
be performed and observed are fully performed and observed, Guarantor
subordinates any liability or indebtedness of Lessee now or hereafter held by
Guarantor to the obligations of Lessee under said Lease.
This Guaranty shall apply to the said Lease and to any and all renewals
or extensions thereof.
Guarantor hereby appoints the Secretary of the State of Connecticut as
agent to accept service of process in any suit against it for alleged breach of
this Guaranty and Guarantor hereby submits to the jurisdiction of the courts of
the State of Connecticut and the United States of America for the purpose of any
such suit.
This instrument may not be changed, modified, discharged or terminated
orally or in any manner other than by an agreement in writing signed by
Guarantor and the Lessor.
IN WITNESS WHEREOF, the Guarantor has executed this instrument or caused
this instrument to be executed by its duly authorized officer this first day of
February, 1986.
Signed, Sealed and Delivered in the Presence of
GUARANTOR:
NATIONAL PATENT DEVELOPMENT
CORPORATION
BY
Its President
STATE OF
ss.
COUNTY F
On this the 18th day of February, 1986, before me , ____the
undersigned officer, personally appeared Xxxxxx X. Xxxxxxx, who acknowledged
himself to be the President of NATIONAL PATENT DEVELOPMENT CORPORATION, a
corporation, and that he as such Presidnet , being authorized so to do, executed
the foregoing instrument for the purposes therein contained, by signing the name
of the corporation by himself as President.
In Witness Whereof, I hereunto se my hand and official seal.
Comissioner of the Superior Court
Notary Public
My commission expires
FIVE
STAR.
GROUP
Distributors of home decorating. hardware and finishing products
July 25, 1994
Xx. Xxxxxx Xxxxxx
General Partner
Xxxxxx Company
00 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Re: X. Xxxxxxxx & Co.
Dear Xx. Xxxxxx:
The Purpose of this letter is to set-forth the terms of an amendment to
the Lease, dated February 1, 1986, as amended on October 5, 1989, between Xxxxxx
Company and X. Xxxxxxxx & Co. (the "Lease") with respect to the renewal option.
All terms, provisions and conditions contained in the Lease shall remain the
same, except as hereinafter provided.
1. Lessee is Five Star Group, Inc. ("Five Star"). On December 31, 0000, X.
Xxxxxxxx & Xx. xx Xxxxxxxxxxx, Inc. merged into Five Star Group, Inc. X.
Xxxxxxxx is now a division, not a subsidiary, of Five Star Group, Inc.
2. Paragraph 32 - Renewal Option shall be replaced in its entirety by the
following:
If this lease shall be in full force and effect and Lessee shall not be in
material default beyond any applicable grace period provided herein for the
cure thereof of any of the covenants and provisions hereof, Renewal Option
shall be amended in the following manner: Lessee shall have the right to
extend the terms of the lease for two periods commencing on June 1, 1994.
The first. period will commence on June 1, 1994 and terminate on February
28, 2001 (eighty-one months). Lessee shall pay an annual rent to Lessor
throughout the first extended term at an annual rate of ($3.40) per square
foot, (111,700 square feet) or Three Hundred Seventy-Nine Thousand Seven
Hundred Eighty and 00/100 dollars ($379,780) per annum, payable in
successive monthly installments of Thirty-One Thousand Six Hundred
Forty-Eight and 33/100 dollars ($31,648.33) per month. The second period
will commence on March 1, 2001 and terminate on February 28, 2006 (sixty
months), provided that Lessee shall give Lessor written advance notice of
its election to so extend said term for the second period at least six (6)
months prior to March 1, 2001. If Lessee shall have exercised the renewal
option for the second period, the term of this lease shall be extended for
said additional period upon all of the same terms, provisions and
conditions as are contained in this lease. Lessee shall pay an annual rent
to Lessor throughout the second extended term at an annual rate of ($3.75)
per square foot (111,700) or Four Hundred Eighteen Thousand Eight Hundred
Seventy-Five and 00/100 dollars ($418,875) per annum, payable in successive
monthly installments of Thirty-Four Thousand Nine Hundred Six and 25/100
dollars ($34,906.25) per month.
If you are in agreement with the foregoing, please sign the duplicate copy
of this letter.
ACCEPTED AND AGREED:
XXXXXX COMPANY FIVE STAR GROUP, INC.
By: By:
Title:- Title:
