FIRST AMENDED AND RESTATED SUBLEASE AGREEMENT
Exhibit 10.4
FIRST AMENDED AND RESTATED SUBLEASE AGREEMENT
THIS FIRST AMENDED AND RESTATED SUBLEASE AGREEMENT (this “First Amended Sublease”) is entered
into as of October 26, 2005, between COLT’S MANUFACTURING COMPANY LLC (“Colt’s” and also referred
to herein as “Subtenant”), a Delaware limited liability company, with its principal place of
business located at 000 Xxx Xxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000, and COLT DEFENSE LLC
(“Colt Defense” and also referred to herein as “Lessee”), a Delaware limited liability company,
with its principal place of business located at 000 Xxx Xxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx
00000.
WHEREAS, Colt’s, as lessee, entered into a certain Agreement of Lease, dated as of March 22,
1990, and amended as of August 16, 1994, (the “Lease, as Amended”) with Colt Industries Inc. a/k/a
Coltec Industries Inc. (“Coltec”), as lessor, for the lease of certain premises located at 000 Xxx
Xxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000 (the “Leased Premises” as further defined below);
WHEREAS, on November 4, 2002, Colt’s assigned the Lease, as Amended, to Colt Defense and Colt
Defense, as lessee, entered into a sublease (“Sublease”), dated as of November 4, 2002, with
Colt’s, as subtenant, to sublease a portion of the Leased Premises;
WHEREAS, on the date first written above, Coltec transferred, conveyed and assigned to NPA
Hartford LLC (the “Landlord”) all legal right, title and interest to the Leased Premises and early
terminated the Lease, as Amended, which latter event triggered the Sublease to automatically early
terminate in accordance with Section 9 of the Sublease;
WHEREAS, Colt Defense entered into a certain Net Lease, on the date first written above (“Net
Lease”), with the Landlord to lease the Leased Premises;
WHEREAS, Colt Defense desires to continue to sublet to Colt’s a portion of the Leased
Premises, and Colt’s desires to sublet from Colt Defense that portion of the Leased Premises;
NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements set forth
below, the parties hereto agree as follows:
1. REVIVAL. Upon the parties’ execution and delivery of this First Amended Sublease, the
Sublease shall be revived in its entirety retroactive to its date of early termination, this First
Amended Sublease shall amend and restate the Sublease, and Colt’s shall waive notice of termination
of the Sublease.
2. PREMISES. Colt Defense, as Lessee, hereby sublets to Colt’s, as Subtenant, that interior
portion of certain buildings within the Leased Premises which consist of floor space of the Xxxxxxx
plant building, the administration building and ammunition bunker, all of the foregoing building
interior areas of which are collectively referred to herein as the “Subleased Premises,” to be
demarcated in a written plant, office and storage layout that delineates the configuration of the
Subleased Premises, together with certain surrounding common areas consisting of land and
improvements. The parties may modify such layout from time to time by mutual agreement. Colt’s
acknowledges receipt of a copy of the Net Lease, which is incorporated by reference and made a part
hereof. Colt’s further acknowledges that the Leased Premises, including the common areas, is as
described in the Net Lease, including, but not limited to, Exhibits “A” and “B” thereto.
3. TERM. The term (the “Term”) of this First Amended Sublease for the Subleased Premises shall
commence on October 26, 2005 (the “Commencement Date”) and shall expire on October 25, 2012 (the
“Expiration Date”), unless earlier terminated as provided herein. Upon the expiration or early
termination of this First Amended Sublease, Subtenant shall, at Subtenant’s sole cost and expense,
remove its property from the Subleased Premises and surrender the Subleased Premises in the same
order and condition the Subleased Premises was found in as of November 4, 2002.
4. RENT. The rent for the Term of the Sublease shall be One Hundred Sixty Thousand Seven
Hundred Forty-Six and 00/100 Dollars ($160,746.00) for each twelve (12)-month period, subject to
adjustment. Subtenant shall pay to Lessee as rent the amount of Thirteen Thousand Four Hundred and
00/100 Dollars ($13,400.00) per calendar month (the “Basic Monthly Rent”), in advance on the first
day of each month of the Term hereof. Rent for any period during the Term that is for less than one
(1) calendar month shall be a pro rata portion of the monthly installment. Rent shall be payable
without notice or demand and without deduction, offset, or abatement, in lawful money of the United
States of America to Lessee at such address and to such person as Lessee may designate in writing.
5. ADJUSTMENTS TO RENT. Lessee may charge or credit Subtenant for an amount (“Adjustment”) to
pass along any increases or decreases in charges to property insurance or property taxes assessed
on the Subleased Premises for the 12-month period immediately preceding the Commencement Date. If
Lessee desires to make an Adjustment, Lessee shall submit to Subtenant a statement of the
calculations for making such Adjustment to the Basic Monthly Rent, and Subtenant shall pay the
adjusted amount of Basic Monthly Rent in accordance with Section 3 above.
6. USE OF SUBLEASED PREMISES. Subtenant warrants and covenants that it, its employees, and
agents shall only use the Subleased Premises consistent with and as specifically described in
Article 4 of the Net Lease and shall repair and maintain the Subleased Premises in accordance with
Article 5 of the Net Lease. Further, Subtenant agrees to comply with all other applicable
provisions of the Net Lease, and shall not do anything that would constitute a violation on the
part of Lessee of any part or condition of the Net Lease, including, but not limited to, making
alterations or improvements to the buildings without the prior consent of Lessee and Landlord.
Subtenant hereby acknowledges and agrees that Landlord is a third-party beneficiary to Subtenant’s
undertakings under this Section 6.
7. SERVICES. Subtenant shall promptly report general maintenance, repair and service issues to
the Lessee in connection with the Net Lease.
8. SUBLETTING. The Subtenant shall not assign, transfer, or further sublet the Subleased
Premises or any part thereof.
9. INDEMNIFICATION. Subtenant shall indemnify, defend and hold Lessee, Landlord and any
Mortgagee (as defined in the Net Lease) harmless and assume the risk of loss for any and all Costs,
Claims and Environmental Damages (as defined in the Net Lease and including, but not limited to,
attorneys’ fees) for any bodily injury, including death, or property damage, sustained by any
person or persons which arises out of, is occasioned by or is in any way attributable to the
Subleased Premises or common areas or the use and occupancy of the Subleased Premises or common
areas, whether or not arising from the acts or omissions of Subtenant or its agents, employees,
contractors, clients, invitees or subtenants, in the same scope, manner and degree as if Subtenant
were Lessee and Lessee were a party of Landlord in Article 9 of the Net Lease.
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10. INSURANCE.
(a) Lessee shall procure and maintain throughout the Term a policy or policies of property
insurance insuring the Leased Premises for its full replacement value. Subtenant shall procure and
maintain throughout the Term at its own cost and expense a policy or policies of property insurance
for the full replacement value all of its own property, including but not limited to Subtenant’s
machinery and equipment, inventory and works in process, raw materials, trade fixtures, furniture,
signs, decorations, furnishings, and all other items of personal property of Subtenant located on
or within the Subleased Premises. Moreover, Subtenant for its operations and business on the
Subleased Premises shall procure and maintain throughout the Term at its own cost and expense a
policy or policies of liability, worker’s compensation and employer’s liability insurance at the
levels and types described in Article 10 of the Net Lease. As used in this First Amended Sublease,
“replacement value” means the cost to replace without deduction for depreciation.
(b) Notwithstanding any other provision of this First Amended Sublease to the contrary, Colt
Defense and Colt’s each hereby waives any rights of recovery against the other for injury or loss
on account of hazards covered by property insurance required to be carried under this First Amended
Sublease (whether or not self-insured) to the extent of the amount of insurance proceeds that party
would have received under that insurance if that party had maintained all insurance it is required
to maintain under this First Amended Sublease; provided, however, that this release shall not be
applicable to the portion of any damage which is not reimbursed by the damaged party’s insurer
because of the “deductible” permitted hereunder in the damaged party’s insurance coverage.
(c) All policies of property insurance required to be carried by either party for the Leased
Premises, the Subleased Premises, personal property or fixtures therein or thereon, and occurrences
on the Leased Premises or Subleased Premises shall include a clause or endorsement denying to the
insurer rights by way of subrogation against the other party to the extent rights have been waived
by the insured before the occurrence of injury or loss.
(d) Subtenant shall furnish Lessee with a certificate of insurance evidencing the issuance and
continuation of policies providing such insurance coverage on or before the commencement date of
this First Amended Sublease and at least thirty (30) days prior to the expiration date of such
policies of insurance.
11. TERMINATION. This First Amended Sublease shall automatically terminate upon the
expiration, termination or cancellation of the Not Lease, provided, however, that Lessee shall
provide timely prior notice to Subtenant of any termination or cancellation of the Net Lease, it
being understood by the Subtenant that the Net Lease expires on October 25, 2012, without any
provision for extension. Upon the expiration, termination, or cancellation of the Net Lease or this
First Amended Sublease, all obligations hereunder of the parties hereto shall be extinguished. Any
improvements remaining on the Subleased Premises upon termination shall revert to the Lessee or the
Landlord, as provided under the Net Lease and shall be free of any encumbrance at the time of such
reversion.
12. NOTICES. Except as otherwise specifically provided herein, any notice required or
permitted to be given under this First Amended Sublease shall be given in writing and shall be
deemed given (A) on the delivery date, via First Class U.S. Mail, postage prepaid; or (B) delivered
by hand, in any case addressed to the parties as follows:
To Lessee: Colt Defense LLC, 000 Xxx Xxxx Xxxxxx, Xxxx Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: President & CEO
Xxxxxxxxxxx 00000, Attention: President & CEO
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To Subtenant: Colt’s Manufacturing Company LLC, 000 Xxx Xxxx Xxxxxx,
Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: President & CEO
Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: President & CEO
or to other persons or entities as may be provided by Lessee of Subtenant, in writing and in
accordance with this paragraph.
13. APPLICABLE LAW. This First Amended Sublease shall be construed, interpreted, and governed
by the laws of the State of Connecticut.
14. BINDING AGREEMENT. This First Amended Sublease shall not be valid and binding on Landlord
and Lessee unless and until it has been completely executed by and delivered to both parties.
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IN WITNESS WHEREOF, the undersigned parties have duly executed this First Amended Sublease as
of the day and year first above written.
| LESSEE: | COLT DEFENSE LLC | |||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Title: President and Chief Executive Officer | ||||||
| Date: | October 26, 2005 | |||||
| SUBTENANT | COLT’S MANUFACTURING COMPANY LLC | |||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Title: President and Chief Executive Officer | ||||||
| Date: | October 26, 2005 | |||||
CONSENT TO THIS FIRST AMENDED AND
RESTATED SUBLEASE GIVEN THIS 26TH DAY
OF OCTOBER 2005.
RESTATED SUBLEASE GIVEN THIS 26TH DAY
OF OCTOBER 2005.
LANDLORD:
NPA HARTFORD LLC
| By: | NPA Management LLC Its Managing Member |
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Title: Authorized Member |
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