EXHIBIT 10 (a)
AGREEMENT OF LEASE
BY AND BETWEEN
FREMONT PRESTIGE PARK, LLC
(LANDLORD)
AND
FARMSTEAD TELEPHONE GROUP, INC.
(TENANT)
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INDEX TO LEASE
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ARTICLE CAPTION
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I Basic Lease Data, Exhibits and Riders
II Premises and Term
III Rent
IV Real Estate and Other Taxes
V Operating Expenses
VI Use of Premises
VII Services, Utilities and Repairs
VIII Assignment and Subletting
IX Compliance with Law, etc.
X Conditions of Premises; Maintenance
XI Landlord's Right of Entry
XII Liens
XIII Default by Tenant; Right to Terminate; Damages; Self-Help
XIV Alterations and Improvements
XV Limitation to Landlord's Liability; Tenant's Indemnity;
Insurance
XVI Damage to Premises
XVII Condemnation
XVIII Subordination
XIX Notices
XX Quiet Enjoyment
XXI Expiration
XXII Control of Park and Common Areas of Park
XXIII Security Deposit
XXIV Failure to Give Possession
XXV Fees and Expenses; Performance or Payment by Landlord
XXVI Waiver of Trial by Jury, Counterclaim and Right of Notice of
Hearing
XXVII Delivery, Recording and Execution of Lease
XXVIII Successors and Assigns
XXIX Rules and Regulations
XXX Governing Law
XXXI No Waiver
XXXII Brokerage
XXXIII Invalidity of Particular Provisions
XXXIV Estoppel Certificates
XXXV Security Agreement
XXXVI Provisions with Respect to Bankruptcy
XXXVII Hazardous Materials
XXXVIII Tenant's Right to Terminate
XXXIX Termination of Prior Lease
XL Option to Extend
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BUILDING LEASE
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THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the Parties hereinafter named, and which relates to space at 00
Xxxxxxxx Xxxx Xxxxxx, located in Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000. The
Parties to this instrument hereby agree with each other as follows:
ARTICLE I
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Basic Lease Data, Exhibits, and Riders
1.1 INTRODUCTION. The following sets forth basic data and identifying
Exhibits and Riders elsewhere hereinafter referred to in this Lease,
and where appropriate, constitute definitions of the terms
hereinafter listed.
1.2 BASIC DATA.
DATE OF EXECUTION: March 23, 2004
LANDLORD: Fremont Prestige Park, LLC
LANDLORD'S ADDRESS: Fremont Prestige Park, LLC
(For Notices) c/o Fremont Management, LLC
00 XxXxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxx, XX 00000
TENANT: Farmstead Telephone Group, Inc
TENANT'S ADDRESS: 00 Xxxxxxxx Xxxx Xxxxxx
(For Notice & Billing) Xxxx Xxxxxxxx, XX 00000
BUILDING: The Building located at 00 Xxxxxxxx Xxxx
Xxxxxx,
Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000
PREMISES: 25,051 square feet (Rentable Square
Footage) as shown on Exhibit A attached
hereto.
LEASE TERM: One Hundred Twenty Eight (128) calendar
months (plus the partial month, if any
immediately following the Commencement
Date).
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OPTION TO EXTEND: One Option to Extend for five (5) years
COMMENCEMENT: Term Commencement: May 1, 2004
Rent Commencement: May 1, 2004
MINIMUM RENT: May 1, 2004 - December 31, 2004:
--------------------------------
SF: $ 5.45
Month: 11,377.33
Year: 136,527.96
January 1, 2005 - December 31, 2009
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SF: $ 6.25
Month: 13,047.40
Year: 156,568.75
January 1, 2010 - December 31, 2014
------------------------------------
SF: $ 6.50
Month: 13,569.29
Year: 162,831.50
TENANT'S PROPORTIONATE
SHARE: 72.1%. The Building has a total of
34,760 rentable square feet.
SECURITY DEPOSIT: $11,377.33
GUARANTOR: None
BROKER: Sentry Commercial Real Estate Services,
Inc.
TENANT INSURANCE
REQUIREMENTS: Public Liability Insurance
Bodily Injury /
Property Damage: Combined Limits of at least $1,000,000
LANDLORD INSURANCE
REQUIREMENTS: General Liability Insurance in the
amount of at least $1,000,000 and
Property and Casualty Insurance for full
replacement cost.
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PERMITTED USE: The Premises shall be used and occupied
solely for warehouse, distribution,
assembly, research and development,
manufacturing and general office and
for no other use or purpose, provided,
however, if Tenant desires to use the
Premises for a use not listed above and
such proposed use is legally permissible
pursuant to applicable law and
regulation, Tenant may use the Premises
for such purpose provided such purpose
(a) is approved by Landlord, such
approval not to be unreasonably
withheld, (b) does not impose an
increased traffic burden on the office
park of which the Building is a part, an
increased maintenance burden on the
Building or an increased risk of
environmental contamination of the
Building, and (c) is not morally
objectionable (such as a massage parlor
or other similarly adult oriented
businesses open to the public).
ARTICLE II
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Premises and Terms
2.1 LOCATION OF PREMISES. Landlord hereby leases to Tenant, and Tenant
hereby accepts from Landlord, the Premises located at 00 Xxxxxxxx
Xxxx Xxxxxx, Xxxx Xxxxxxxx, XX 00000.
2.2 INITIAL TERM. The "Initial Term" of this Lease shall be one hundred
twenty eight (128) months plus that portion of the month in which the
term begins if it begins on a day other than the first day of a
month, unless sooner terminated as herein provided.
2.3 LEASE RENEWAL. In the event that Tenant fails to notify Landlord of
its intention to extend the term of said Lease within nine (9) months
("Notice Period") of the then effective Termination Date, Landlord
reserves the right to show premises for the duration of said Notice
Period during normal business hours.
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ARTICLE III
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Rent
3.1 MINIMUM RENT. Tenant agrees to pay to Landlord, at Landlord's
mailing address, or at such other place as Landlord shall from time
to time designate by notice to Tenant, monthly, in advance, on the
Rent Commencement Date, and on the first day of each and every
calendar month during the term of this Lease, a sum equal to the
Minimum Rent specified in Section 1.2 hereof. All monies payable by
Tenant to Landlord under this Lease shall be rent and payable and
recoverable as rent in a manner herein provided. Rent shall be paid
to the Landlord without any offset, withholding, reduction, prior
notice or demand. Minimum Rent for any partial month shall be paid
by Tenant to Landlord at such rate on a pro rata basis, and, if the
term of this Lease commences on a day other than the first day of a
calendar month, the Minimum Rent payment for such month shall be the
proportionate part of such monthly Minimum Rent for the partial month
from the Rent Commencement Date to the first day of the succeeding
calendar month, and the Minimum Rent for such succeeding calendar
month.
3.2 RETURNED CHECK. In the event Tenant pays any rent or other charge by
check or draft, and said check or draft is not honored by the bank on
which it is drawn, an additional charge of $50.00 shall be
immediately due and payable from Tenant to Landlord.
3.3 LATE PAYMENT. In the event that any payment of Rent is received by
Landlord more than ten (10) days after its due date, said payment
shall be subject to a charge of five percent (5%) of the amount of
said payment. The late charge provided in this Paragraph shall be in
addition to any interest or fees charged Tenant under Article XXV of
this Lease.
ARTICLE IV
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Real Estate and Other Taxes
4.1 TAXES. Shall mean all taxes, duties, assessments (general or
special) and all other charges of similar nature or any tax levied in
lieu of the foregoing (excluding any of Landlord's income taxes)
assessed, levied or imposed against the Building and the land whether
said sums are payable to the Town wherein the Premises are located or
to any other governmental, or quasi-governmental taxing authority
having jurisdiction over the Building.
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4.2 TENANT'S PROPORTIONATE SHARE. Shall mean of the Taxes and Common
Area Expenses applicable to the Building. Tenant shall pay to
Landlord Tenant's Proportionate Share as specified in Section 1.2 of
any and all Taxes due with respect to the Building and the land
appurtenant thereto. Any sum payable by Tenant for Taxes pursuant to
this Paragraph shall be deemed additional rent and shall be wholly
due and payable within ten (10) days after Landlord notified Tenant
of the sum due together with a general computation of said sum.
4.3 TAX YEAR. Shall mean the fiscal period for which taxes are levied by
a governmental authority.
ARTICLE V
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Operating Costs for the Premises and the Building
5.1 OPERATING COSTS. Landlord, at Tenant's Cost, shall be responsible
for all reasonable and customary costs in connection with the
ownership and operation of the Building, and supporting facilities of
the Building including the following:
* Repair and maintain the paving, including sidewalks and
parking areas common to the Building of which the
Premises are part including the prompt removal of snow
and ice there from.
* Maintain the entrances, exits and areas appurtenant to
the Building in a clean and orderly condition
* Maintain the roof
* Maintain the landscaping surrounding the building
including maintaining the shrubbery thereon and mowing of
grass thereon
* Maintain property and casualty insurance on the Premises
* Maintain all heating and air conditioning equipment
* Maintain fire sprinkler system
* Manage the building
In lieu of Tenant paying for the actual costs incurred for these
Operating Costs or the Tenant's allocated portion of certain
portfolio costs such as HVAC contracts, property and casualty
insurance policies, landscaping contracts and snow removal contracts,
Tenant shall pay Landlord in full satisfaction of such Operating
Costs, the following fixed amounts payable monthly as Additional
Rent:
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Calendar Year Annual Amount Monthly Amount
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2004 $33,944.80 $2,828.73
2005 $30,662.42 $2,555.20
2006 $31,275.67 $2,606.31
2007 $31,901.19 $2,658.43
2008 $32,539.21 $2,711.60
2009 $33,189.99 $2,765.83
2010 $33,853.79 $2,821.15
2011 $34,530.87 $2,877.57
2012 $35,221.49 $2,935.12
2013 $35,925.92 $2,993.83
2014 $36,644.44 $3,053.70
2015 $37,377.32 $3,114.78
2016 $38,124.87 $3,177.07
2017 $38,887.37 $3,240.61
2018 $39,665.11 $3,305.43
2019 $40,458.42 $3,371.53
Note: Years 2015 - 2019 represent the Tenant's Option to Extend.
The fixed operating cost reimbursement is not intended to include
costs that directly relate to the Tenant's business and use of the
premises. Tenant is responsible for paying the cost of all
utilities, including water and power, heating, lighting, air
conditioning and ventilating and rubbish removal of Tenant's leased
premises as noted in Article VII. Tenant is responsible for paying
the cost of Property Taxes as noted in Article IV. Tenant is
responsible for the cost of maintenance and repairs related to damage
or neglect to the building caused by Tenant as noted in Article VII.
ARTICLE VI
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Use of the Premises
6.1 USE OF THE PREMISES. The Premises shall be used and occupied for the
purpose specified in Section 1.2, and for no other use or purpose
whatsoever, and under the trade name contained in said Section 1.2.
The use of the Premises must be in compliance with rules and
regulations promulgated for the Park by Landlord which are now or
hereafter in effect and of which Tenant has notice and Tenant's
business and operations within the Premises must be in compliance
with all applicable laws, ordinances and regulations of all
governmental or quasi-governmental authorities and of all insurance
companies insuring the Premises, or the Park, or any portion thereof.
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In this connection, it is understood that Tenant shall not be
permitted to engage in any business activities outside of the
Premises or in the common areas of the Park, without the written
permission of Landlord and that all signs outside of the Premises and
all displays which are visible outside of the Premises, shall be
subject to the approval of Landlord. While parking in the Park shall
be non-exclusive, it is understood that Tenant shall have the primary
right to use the parking spaces specifically described on Exhibit A-1
attached hereto, provided, however, the Landlord shall have no
responsibility to police said parking spaces or remove any cars
wrongfully parked in Tenant's primary parking area. It is understood
that Tenant shall not be permitted to use any areas adjacent to the
Premises, or any areas designated for parking purposes, for the
storage of any materials used in connection with Tenant's business.
Any unauthorized use of the Premises or areas adjacent to the
Premises or areas designated for parking shall constitute a default
by Tenant under the terms of this Lease, if not cured by Tenant
within thirty (30) days after receipt of a written notice from the
Landlord.
ARTICLE VII
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Services, Utilities and Repairs
7.1 SERVICES, UTILITIES AND REPAIRS. Landlord shall initially provide
systems to maintain the heat and cooling in the Premises. Landlord
at its sole cost and expense shall be responsible for maintaining and
keeping the exterior walls, structural framework and foundation of
the Building in good repair, except to the extent that any need for
any repair or maintenance of such exterior walls, structural
framework or foundation of the Building is caused by the intentional
act or negligence of the Tenant or any of the Tenant's employees,
agents, invitees or licensees.
Tenant shall, at its expense, pay for all utilities, including heat,
water, gas, and electricity used by Tenant on the Premises.
Tenant shall maintain and repair at its expense, all portions of the
Premises, other than those which Landlord is obligated to maintain or
repair as set forth above or elsewhere in this Lease, including but
not limited to plate and window glass both affecting the interior of
the Premises and the exterior of the Building relating to the
Premises; Tenant shall also maintain and repair any obligations that
Landlord is obligated to maintain and to repair as set forth above,
when then same is necessary because of the act or neglect of Tenant
or its agents, servants, or invitees. Tenant, at its cost, shall
keep the areas and walkways appurtenant to the Premises free and
clear of rubbish and debris and shall store its refuse and rubbish in
receptacles of Tenant's, which are approved by Landlord and in areas
to be designated by, and in accordance with, schedules to be
established by Landlord.
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ARTICLE VIII
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Assignment and Subletting
8.1 PROCEDURE.
a. Subject to Section 8.4 below, Tenant will not, by operation of law or
otherwise, assign, mortgage or encumber this Lease, nor sublet or
permit the Premises or any part thereof to be used by another,
without Landlord's prior expressed written consent in each instance.
The consent by Landlord to any assignment or subletting shall not in
any manner be construed to relieve Tenant from obtaining Landlord's
expressed written consent to any other or further assignment or
subletting nor shall any such consent by Landlord serve to relieve or
release Tenant from its obligations to fully and faithfully observe
and perform all of the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed.
b. If Tenant shall desire to assign or to sublet the Premises, Tenant
shall give notice thereof to Landlord. Upon receipt of such notice,
Landlord shall have the following option to be exercised within
thirty (30) days from receipt of Tenant's notice.
In the event Tenant's notice is of Tenant's desire to make an
assignment (other than an assignment under Section 8.4 for which
Landlord consent is not required) or a subletting of all or
substantially all of the Premises, Landlord shall have the option to
cancel and terminate this Lease as of the date proposed by Tenant for
such assignment or subletting, which option shall be exercised within
the aforesaid thirty (30) day period and on which date the term of
this Lease shall cease and expire with the same force and effect as
if such date were originally provided herein as the expiration of the
term hereof.
c. Tenant shall submit to Landlord in writing (i) the name of the
proposed assignee or subtenant; (ii) the terms and conditions of the
proposed assignment or subletting; (iii) the nature and character of
the business and credit of the proposed assignee or subtenant, and
any other information reasonably requested by the Landlord.
If Landlord shall not exercise its foregoing option within the time
set forth, its consent to any such proposed assignment or subletting
shall not be unreasonably withheld or unduly delayed, provided,
however, that Landlord may withhold consent thereto if in the
exercise of its sole judgment it determines that:
1. The financial condition or general reputation of the proposed
assignee or subtenant is not consistent with the extent of the
obligation undertaken by the proposed assignment or sublease.
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2. The proposed use of the Premises is not appropriate for the
Building or in keeping with the character of the existing
tenancies or permitted by the Tenant's Lease (but the foregoing
shall not be deemed to enlarge the purposes for which the
Premises are permitted to be used as set forth in this Lease).
3. The nature of the occupancy of the proposed assignee or
subtenant will cause an excessive density of employees or
traffic or make excessive demands on the Building's services or
facilities or in any way will lessen the character of the
Building.
4. The Tenant proposes to assign or sublet to one who at the time
is a tenant or occupant of the Building or a tenant or occupant
of any other building owned by Landlord or any affiliate of
Landlord and located on Prestige Park Road or Prestige Park
Circle, East Hartford, Connecticut.
d. As a condition of Landlord's consent to any assignment or subletting,
each assignee of this Lease shall assume in writing all of the terms,
covenants and conditions of this Lease on the part of Tenant
hereunder to be performed and observed and an original or duplicate
original of the instrument of assignment and assumption or of the
sublease agreement shall be delivered to Landlord within five (5)
days following the making thereof. Any instrument of sublease shall
specifically state that such sublease is subject to all of the terms,
covenants and conditions of this Lease.
If Tenant shall duly comply with all of the foregoing then, as
aforesaid, Landlord shall not unreasonably withhold or unduly delay
its consent to such assignment or subletting, provided further,
however, and on condition that at the time of requesting Landlord's
consent Tenant shall pay to Landlord the sum of $100.00 as a
processing fee for each assignment and/or subletting.
e. If this Lease shall be assigned, or if the Premises or any part
thereof be sublet or occupied by any person or persons other than
Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, subtenant or occupant and apply the net amount collected
(which may be treated by Landlord as rent or as use and occupancy) to
the rent herein reserved and no such assignment, subletting,
occupancy or collection of rent shall be deemed a waiver of the
covenants in this Article, nor shall it be deemed acceptance of the
assignee, subtenant or occupant as a Tenant, or a release of Tenant
from the full performance by Tenant of all the terms, conditions and
covenants of this Lease.
f. Each permitted assignee or transferee shall assume and be deemed to
have assumed this Lease and shall be and remain liable jointly and
severally with Tenant for the payment of the rent, additional rent
and adjustments of rent, and for the due performance of all the
terms, covenants, conditions and agreements herein contained on
Tenant's part to be performed for the term of this Lease. No
assignment shall be binding on Landlord unless, as hereinbefore
provided, such assignee or Tenant shall deliver to Landlord a
duplicate original of the instrument of assignment which contains a
covenant of assumption by the assignee of all of the obligations
aforesaid and shall obtain from Landlord the aforesaid
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written consent prior thereto. Any assignment, sublease or agreement
permitting the use and occupancy of the Premises to which Landlord
shall not have expressly consented in writing shall be deemed null
and void and of no force and effect.
8.2 INTENTIONALLY OMITTED.
8.3 FURTHER LIMITATIONS. In no event shall Landlord be obligated either
to consent to any proposed assignment or subletting or to elect to
terminate the Lease, if at the time of proposal of assignment or
subletting, Tenant is in default under the terms and conditions of
this Lease.
8.4 EXCLUSIONS. Subject to the terms and conditions set forth below in
this paragraph, a sale of the majority of Tenant's stock shall be
deemed an assignment for purposes of this Lease. Notwithstanding
anything to the contrary or which could be construed to the contrary
contained in this Article VIII, Tenant may, without Landlord's
consent (and without regard to Section 8.1(b), 8.2, or the fee
referred to in Section 8.1(d) being applicable) assign this Lease to
(a) any corporation or entity which shall own or control a majority
of the issued and outstanding voting stock of Tenant, or (b) any
corporation or entity whose issued and outstanding capital stock
shall be owned by the same shareholders who own or control the issued
and outstanding capital stock of Tenant and/or Tenant's parent, or
(c) any corporation or entity into which Tenant may merge or to whom
it may sell all or substantially all of its assets, or which may
result in the consolidation of Tenant with any other corporation or
entity, or (d) any corporation or entity which is owned or controlled
by Tenant or owned or controlled by a corporation or entity that also
owns or controls Tenant, provided in all cases that the financial
strength and net worth of the resulting or successor corporation or
entity [under 8.4(a), (b), (c) and (d)] is at least equal to that of
Tenant at the time of such assignment, sale, merger or consolidation.
ARTICLE IX
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Compliance with Law, Etc.
9.1 COMPLIANCE WITH LAW, ETC. Tenant shall throughout the term of this
Lease, at its sole expense, promptly comply with all present and
future laws and regulations of all federal, state and municipal
governments and appropriate departments, commissions, boards, and
officers thereof, and the orders and regulations of the National
Board of Fire Underwriters, or any policies of insurance affecting
the same of which Tenant has notice, or any other body now or
hereafter exercising similar functions, which may be applicable to
Tenant's use of the Premises and shall hold Landlord harmless from
any fine, penalty or other charge that may be imposed as a result of
any such noncompliance. If Landlord
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is required to comply with any of the foregoing whether or not Tenant
was a tenant in the Premises, then the cost of such compliance shall
be borne by Landlord. Tenant shall not intentionally create any
situation in which Landlord shall be obligated to incur compliance
costs nor shall Tenant or Tenant's employees intentionally notify any
regulatory bodies or other municipal officials regarding the Premises
so as to instigate an investigation of the Premises. Any increase in
Landlord insurance premiums caused by Tenant, or its use of the
premises, or normal rate increases shall be paid by Tenant to
Landlord upon demand as additional rent hereunder.
ARTICLE X
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Conditions of Premises; Maintenance
10.1 CONDITIONS OF PREMISES; MAINTENANCE. Unless the Landlord shall have
agreed to perform certain work for Tenant, as hereinafter set forth
(hereinafter defined as the "Landlord's Work"), Tenant hereby accepts
the Premises and the Building (or if the work is to be performed,
then Tenant accepts the Premises and the Building subject to the
completion of the Landlord's Work) "as is" and in its present
condition.
10.2 LANDLORD'S WORK. Landlord agrees to perform and complete the
improvements to the Premises described in Exhibit B attached hereto.
Said Landlord's Work shall be performed at Landlord's expense and
completed within ninety (90) days of the Term Commencement Date
hereof.
10.2.1 SIGNAGE. The existing sign for the Tenant shall remain in its
current location. Tenant acknowledges and agrees that the Landlord
shall have the right to add to the bottom third of the sign lettering
and signage for the occupant(s) of the 9,709 square foot leased area
which is part of the Building. Tenant shall not make any alterations
or improvements to the pylon sign without the reasonable written
consent of Landlord. Any approved alteration or improvement shall be
done by contractors reasonably approved by Landlord and in a good and
workmanlike manner. Tenant shall obtain all necessary permits and,
at Landlord's option, shall submit to Landlord architectural
renderings and insurance and lien waivers to Landlord reasonably
required by Landlord. Upon the making of such alterations or
improvements the same shall become the property of Landlord;
provided, however, that, at its option, Landlord may, on the
termination of this Lease require that Tenant remove the same at no
expense to Landlord and repair any damage caused by such removal.
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ARTICLE XI
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Landlord's Right of Entry
11.1 LANDLORD'S RIGHT OF ENTRY. Landlord shall have the right with prior
notice to Tenant (telephonic or written) to enter upon the Premises
from time to time in order to inspect the same and to perform any
work therein as Landlord deems necessary, including without
limitation, maintenance, repairs and replacements therein which
Landlord deems appropriate, or for the purpose of showing the
Premises to prospective purchasers, lessees or mortgagees, but this
right shall be exercised in such manner as not to unreasonably
interfere with Tenant's use and enjoyment of the Premises.
ARTICLE XII
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Liens
12.1 LIENS. Tenant will not permit any lien for money claimed against or
owing by Tenant to be placed against the Premises during the term
hereof and should any such lien be recorded, Tenant, will within
fifteen (15) days after such lien is recorded, pay and discharge
same. Should any such lien be recorded and not be released or
discharged, Landlord may, at Landlord's option (but without
obligation so to pay or discharge such lien), pay and discharge any
such lien, at the cost and expense of Tenant.
ARTICLE XIII
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Default by Tenant; Right to Terminate; Damages, Self Help
13.1 DEFAULT BY TENANT; RIGHT TO TERMINATE; DAMAGES; SELF HELP. If Tenant
shall fail to pay any rent payable pursuant to Article III hereof
within ten (10) days after the due date thereof, or additional rent
payable pursuant to Article IV and Article V hereof or make any other
payments when the same are due and payable under the terms of this
Lease; or if for a period of twenty (20) days after notice thereof
has been given to Tenant by Landlord, Tenant shall fail to cure any
noncompliance by Tenant with any duty or obligation imposed upon it
by this Lease or any rule or regulation of Landlord (or if such cure
cannot be reasonably completed within twenty (20) days Tenant shall
not have made reasonable progress towards effecting a cure); or if
Tenant shall abandon the Premises or if the Tenant shall be
insolvent, or there shall be filed by or against Tenant, or any
guarantor of Tenant's obligations hereunder, a petition in bankruptcy
or insolvency or for reorganization, dissolution, liquidation or for
the appointment of a receiver or trustee of all or a portion of
Tenant's, or such guarantor's, property and, in the case of an
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involuntary bankruptcy, the same is not discharged within thirty (30)
days thereafter or if Tenant or such guarantor makes an assignment
for the benefit of creditors or enters into an arrangement or admits
its inability to pay its debts as they become due; then and in any
such event Landlord shall have the right, at Landlord's option, to
immediately issue a notice to quit and again have, repossess, and
enjoy the same as if this Lease had not been made, and thereupon this
Lease shall terminate without prejudice, however, to the right of
Landlord to recover from Tenant all rent due and unpaid up to the
time of such re-entry; and, further upon such re-entry all payments
of Minimum Rent for the balance of the term of this Lease shall
become due and payable, at the option of Landlord, or Landlord's
successors and assigns, without any obligation of Landlord to Tenant
whatsoever to mitigate damages except as may be required by
applicable Connecticut law; upon demand by Landlord, or Landlord's
successors or assigns, Tenant shall surrender to them complete and
peaceable possession of the Premises, and Landlord may, without
waiving or postponing any other rights given it by law in such cases,
re-let said Premises, or any part thereof, on such terms as Landlord,
or its successors, deems best, and apply the proceeds of such
reletting, less costs and expenses of Landlord in reletting towards
such costs, and hold Tenant responsible for the difference in such
net proceeds received by Landlord and the rental that would have been
paid by Tenant hereunder. Expenses of Landlord in reletting shall
include attorney's fees actually paid in obtaining and reletting the
Premises and all broker's, finder's and similar fees incurred in the
course of reletting and all costs of renovating and redecorating the
same.
Without such re-entry as provided in this paragraph, Landlord may
recover possession thereof in any manner permitted by law, including
summary process; it being understood that no demand for rent and no
re-entry for condition broken, as at common law, shall be necessary
to enable Landlord to recover such possession.
ARTICLE XIV
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Alterations and Improvements
14.1 ALTERATIONS AND IMPROVEMENTS. Tenant shall not make any alterations
or improvements in or to the Premises without the written consent of
Landlord, provided, however, Tenant may make alterations to the
Premises in amounts less than $5,000 upon prior written notice to
Landlord. Notice must provide specific detail as to the budget and
scope of work and must also include copies of insurance certificates,
licenses for contractors, and any and all approved building permits
required. At the time Landlord receives such notice or a request for
consent to any improvements in excess of $5,000, Landlord shall
inform Tenant in writing whether or not such particular improvements
are to be removed at the termination of this Lease or are to remain
in the Premises. If required by Landlord, such improvements or
alterations shall be performed by Landlord,
15
at the cost of Tenant, provided that such cost is competitive. Any
approved alteration or improvement shall be done by contractors
approved by Landlord (such approval not to be unreasonably withheld)
and in a good and workmanlike manner and in a manner so that the
structural integrity of the Building shall not be impaired. Tenant
shall obtain all necessary permits and, at Landlord's option, shall
submit to Landlord architectural renderings and insurance and lien
waivers to Landlord required by Landlord. Upon the making of such
alterations or improvements the same shall become the property of
Landlord; provided, however, that, at its option, Landlord may, on
the termination of this Lease require that Tenant remove the same at
no expense to Landlord and repair any damage caused by such removal
and that the Premises shall be left by Tenant in the condition that
the Premises were in at the commencement of the term of this Lease,
ordinary wear and tear excepted. Tenant shall comply with all
governmental requirements; including but not limited to building,
electrical and plumbing codes. All work performed shall be done in
such a manner as not to disturb or disrupt the operation of the Park
or of any other occupants in the Park. Following completion of any
changes, additions or improvements, Tenant shall furnish Landlord
with current "as-built" drawings and specifications for the Premises
reflecting such changes, additions or improvements made to the
Premises. Any increase in the Real Estate Taxes or insurance
premiums on the Park attributable to such change, addition or
improvements shall be paid by Tenant.
ARTICLE XV
----------
Limitation on Landlord's Liability; Tenant's indemnity; Insurance
15.1 LIMITATION ON LANDLORD'S LIABILITY; TENANT'S INDEMNITY; INSURANCE.
Tenant shall look solely to Landlord's then equity interest in the
Building at the time owned and for the security deposit, for recovery
of any judgment from Landlord; it being agreed that neither Landlord
(original or successor), nor any partner (general or limited),
associate, executor, participant, principal, agent, employee,
executor, or other fiduciary, beneficiary, officer, or other person
or entity in or of any partnership, association, joint venture,
corporation or other entity, Trust, or Estate from time to time
owning Landlord's interest in this Lease, shall ever be personally
liable for any such judgment, or for the payment of any monetary
obligation to Tenant (it being agreed by Tenant that such exoneration
from personal liability is and shall be absolute and complete with no
exception whatsoever).
With respect to any services to be furnished or obligations to be
performed by Landlord to Tenant, Landlord shall never be responsible
for failure to furnish or perform the same when (and the time for
performance of the same shall be extended for such period as Landlord
is) prevented from doing so by strike, lockout, breakdown, accident,
order or regulation of or by any governmental authority, or failure
of supply, of inability to obtain
16
supplies, parts or employees necessary to furnish such services, or
because of war or other emergency, or for any cause beyond Landlord's
reasonable control, or for any cause due to any act or omission of
Tenant, Tenant's invitees, customers, servants, agents, employees,
licensees or any person claiming by, through or under Tenant.
Except as otherwise specifically provided herein or as required by
law, Landlord shall not be responsible for the loss of or damage to
property or death or injury to persons, occurring in or about the
Premises, or the Building regardless of the cause thereof, including,
without limitation, any loss or damage caused by: (a) any repairs or
alterations, (b) any existing or future condition, defect, matter or
thing in the Premises or the property of which the Premises are a
part, whether caused by Tenant or by Tenant's guests, its agents,
employees or by others, or (c) defective electric wiring, or the
breaking, bursting, stoppage or leaking of any part of the Premises
or the Building, including the plumbing, air conditioning, heating,
fire control sprinkler systems, roof, or gas, sewer or pipes. In no
event shall either party ever be liable to the other for any
indirect, special, or consequential damages by reason of breach or
default of the terms of this Lease or otherwise.
To the maximum extent this Agreement may be made effective, Tenant
agrees to indemnify and save Landlord harmless from and against all
claims of whatever nature arising in or about the Premises from any
intentional act or omission of Tenant, or Tenant's servants or
employees, occurring after the commencement of this Lease term and
until the end of this Lease term and thereafter, so long as Tenant is
in occupancy of any part of the Premises. This indemnity and hold
harmless Agreement shall include indemnity against all costs,
expenses and liabilities occurred in or in connection with any such
claim or proceeding brought thereon, and the defense thereof with
counsel acceptable to Landlord. Landlord agrees to seek compensation
first from the insurance policies described in the immediately
subsequent sentence prior to seeking compensation from Tenant
pursuant to this paragraph.
Tenant agrees to maintain in full force throughout the term of this
Lease, and thereafter so long as Tenant is in occupancy of any part
of the Premises, a policy of public liability and property damage
insurance under which Landlord (and such other directors or partners
thereof as specified by Landlord by notice to Tenant from time to
time) and Tenant are named as insured, and under which the insurer
agrees to indemnify and hold Landlord and those in privity of estate
with Landlord, harmless from and against all cost, expense and/or
liability arising out of or based upon any and all claims, accidents,
injuries and damages mentioned in this section, in the broadest form
of such coverage from time to time available in the State of
Connecticut. Each such policy shall contain full waiver of the right
of subrogation of such insurance company against Landlord and its
officers, directors and partners and those in privity with Landlord
and its officers, directors and partners and shall be non-cancelable
and non-amendable with respect to Landlord and
17
Landlord's designees without ten (10) days prior notice to Landlord;
a duplicate original or certificate thereof shall be delivered to
Landlord. The minimum limits of liability of such insurance shall be
as specified in Article I. Such insurance shall be increased from
time to time as required by Landlord.
ARTICLE XVI
-----------
Damage to Premises
16.1 DAMAGE TO PREMISES. In the event of substantial damage to the
Premises or any portion of the Building which Landlord deems material
by fire, the elements, or other casualty which renders all or
substantially all of the Premises untenantable, Landlord shall have
the option, exercisable within ninety (90) days after such damage, to
terminate this Lease or, if the damage is to the Premises, to repair
the Premises. If such damage is not the fault of Tenant, its agents,
employees or invitees and the same renders the Premises untenantable
in whole or in such part that it is impracticable to conduct Tenant's
business therein, the rent shall xxxxx until the damages have been
repaired, based on the proportion that the unoccupied portion of the
Premises bears to the total Premises. If the damage to the Premises
is not repaired by Landlord within a reasonable time, or in any event
within one hundred twenty (120) days after such casualty, Tenant
shall have the right to terminate this Lease forthwith by giving the
Landlord notice of such termination no later than twenty (20) days
after such one hundred twenty (120) day period has elapsed. Said one
hundred twenty (120) day period shall be extended by any period of
time lost as a result of delays caused by reasons beyond Landlord's
control, including but not limited to, strike, lockouts, war,
unavailability of materials, prevailing weather conditions and
actions of Tenant. Landlord shall have a notice period of thirty
(30) days to determine if said premises can not be repaired within
said one hundred twenty (120) day period. If the Landlord provides
written notice that the repairs can not be made within said one
hundred twenty (120) day period, Tenant shall have the right to
terminate this Lease forthwith by giving the Landlord notice of such
termination no later than twenty (20) days after such thirty (30)
day notice period has elapsed. Said thirty (30) day notice period
shall be extended by any period of time lost as a result of delays
caused by reasons beyond Landlord's control, including but not
limited to, strike, lockouts, war, unavailability of materials,
prevailing weather conditions and actions of Tenant.
18
ARTICLE XVII
------------
Condemnation
17.1 CONDEMNATION. If a substantial and material part of the Premises are
taken in condemnation proceedings or by any right of eminent domain
for public or quasi-public use, or if all of the Premises are taken
either party may terminate the Lease. Such right of termination
shall be effectuated by giving notice from one party to the other.
Landlord alone, and not Tenant, shall have the right to participate
in and receive damages and/or compensation for any such taking and
Tenant will not bring any action or seek to recover damages for such
taking and Tenant hereby grants to Landlord all of the Tenant's
rights, if any, to such damages and covenants to execute and deliver
such further instruments of assignment thereof as the Lessor may from
time to time request.
ARTICLE XVIII
-------------
Subordination
18.1 SUBORDINATION. This Lease is and shall be subordinate to any
mortgage or mortgages now or hereafter encumbering the Premises or
the Building or any portion therefor interest therein, without the
necessity of any further document, provided that all such mortgages
shall contain provisions to the effect that so long as Tenant is not
in default under this Lease, no foreclosure of the lien of said
mortgage or any other proceeding in respect thereof shall divest,
impair, modify, abrogate or otherwise adversely affect any right of
Tenant in, to oir under this Lease. Landlord agrees to use
commercially reasonable efforts to obtain the standard form of
subordination, attornment and non-disturbance agreement from its
current Lender. Tenant agrees to execute and deliver any further
documents or instruments which may be required from time to time to
further effectuate said subordination and to attorn to the holder of
any such mortgage if the holder subsequently becomes the owner of the
Premises, if such mortgagee shall require such attornment, upon
demand of Landlord and hereby grants to Landlord a power of attorney,
which power is coupled with an interest, to execute any such
instrument on Tenant's behalf.
19
ARTICLE XIX
-----------
Notices
19.1 NOTICES. Whenever, by the terms of this Lease, notice shall or may
be given either to Landlord or to Tenant, such notice shall be in
writing, and shall be personally delivered or mailed by registered or
certified mail, postage prepaid.
If intended for Landlord, addressed to Landlord at the address set
forth elsewhere in this Lease, or to such other address or addresses
as may from time to time hereafter be designated in writing by
Landlord or Landlord's agent.
If intended for Tenant, addressed to Tenant at the address or
addresses as may from time to time hereafter be designated by Tenant
in writing, or at the address specified in this Lease or at the
Premises.
In the event the notice mailed with sufficient postage as above
provided shall not be received upon attempted delivery thereof to the
proper address and shall be returned by the Postal Service to the
sender because of a refusal of receipt, the absence of a person to
receive, or otherwise, the time of the giving of such notice shall be
the time of such attempted delivery.
ARTICLE XX
----------
Quiet Enjoyment
20.1 QUIET ENJOYMENT. Upon compliance with the terms and conditions of
this Lease, Tenant may peaceably and quietly have, hold and enjoy the
Premises for the term of this Lease and any extension of said term
provided for herein.
ARTICLE XXI
-----------
Expiration
21.1 EXPIRATION. At the expiration of the term of this Lease or any
extension thereof, Tenant will quit and surrender the Premises in as
good a state and condition as reasonable use and wear thereof will
permit, damage by the elements, fire and other casualty not caused by
the act or neglect of Tenant or its agents, employees or invitees
excepted. Any holding over by Tenant shall not operate, except by
written agreement, to extend or renew this Lease, and no tenancy of
any duration shall be created thereby, provided, however, if
20
Tenant does hold over, without creating any additional estate in
Tenant, the Minimum Rent payable pursuant to Article III hereof shall
be (i) on a month to month basis at the Minimum Rent in effect at the
termination of the Lease if the holding over is mutually agreed to;
or (ii) 200% of the Minimum rent in effect in the event Landlord has
not consented to such holding over, during the period of such holding
over.
ARTICLE XXII
------------
Control of Park and Common Areas of Park
22.1 CONTROL OF BUILDING AND PARK. All automobile parking areas,
driveways, walkways, entrances and exits thereto, and other
facilities furnished by Landlord in the Park on which the Premises
are located shall at all times be subject to the exclusive control
and management of Landlord, and Landlord shall have the right from
time to time to establish, modify and enforce reasonable rules and
regulations with respect to all facilities and areas mentioned in
this paragraph. Landlord shall have the right to allocate parking by
tenants, their officers, agents and employees to employee parking
areas; to change traffic patterns, parking spaces and entrances and
exits to the Park; to build, remove or modify existing buildings and
structures in the Park; to close all or any portion of the parking
areas or facilities in order to make repairs or improvements, for
construction or maintenance purposes and to protect against adverse
possession; to discourage non-customer parking; to tow and impound,
at Tenant's expense, any improperly parked cars belonging to Tenant,
or Tenant's officers, employees, agents or business invitees; and to
do and perform such other acts in and to said area and improvements
as, in the use of good business judgment, Landlord shall determine to
be advisable. Landlord will operate and maintain the common
facilities of the Park and keep the same lighted after dark in such
manner as Landlord, in its judgment, shall determine from time to
time. Without limiting the scope of such discretion, Landlord shall
have the full right and authority to employ all personnel and to make
all rules and regulations pertaining to and necessary for the proper
operation and maintenance of the common areas and facilities of the
Park so long as it does not materially and continuously interfere
with the Tenant's day to day business operations.
ARTICLE XXIII
-------------
Security Deposit
23.1 SECURITY DEPOSIT. Tenant has deposited with Landlord the sum
specified in Section 1.2, if any, as security for the faithful
performance and observance by Tenant of the terms of this Lease. In
the event Tenant defaults under this Lease, Landlord may use,
21
apply or retain the whole or any part of the security so deposited to
the extent required for the payment of any Minimum Rent and
additional rent or any sum as Landlord may expend or may be required
to expend by reason of Tenant's default under this Lease, including,
without limitation, any damages or deficiency in the reletting of the
Premises, whether such damage or deficiency accrued before or after
summary proceedings or other re-entry by Landlord. If a part or all
of the security deposit shall be applied as herein provided and this
Lease shall not terminate then Tenant shall deposit with Landlord
such additional sum necessary to bring the security deposit to its
original amount. In the event that Tenant shall fully and faithfully
comply with all of the terms of this Lease, the security (without
interest or earnings thereon) shall be returned to Tenant after the
date fixed at the end of this Lease and delivery of the Premises or
the Landlord may transfer the security to such transferee and the
Landlord shall thereupon be relieved from all further liability for
the return of such security; Tenant shall not assign or encumber such
security deposit.
ARTICLE XXIV
------------
Failure to Give Possession
24.1 FAILURE TO GIVE POSSESSION. If Landlord is unable to give possession
of the Premises on the date of commencement of the term hereof,
because of the holding over or retention of possession of any lessee,
or other occupant, or Landlord has not completed the Work, Landlord
shall not be subject to any liability for failure to give possession
on such date and the validity of this Lease shall not be impaired nor
shall the same be construed to extend the term of this Lease, but the
rent payable hereunder shall be abated (provided Tenant is not
responsible for the inability to obtain possession) until Landlord
shall have given Tenant written notice that the Premises are
substantially ready for Tenant's occupancy, whereupon such abatement
shall cease.
ARTICLE XXV
-----------
Fees and Expenses; Performance or Payment by Landlord
25.1 FEES AND EXPENSES; PERFORMANCE OR PAYMENT BY LANDLORD. If Tenant
shall default in the observance or performance of any term on
Tenant's part to be observed or performed hereunder, then, Landlord
may immediately, or at any time thereafter, and, unless otherwise
provided herein, without notice, perform the same for the account of
Tenant. If Tenant fails to make any payment of Minimum Rent, or
additional rent hereunder when due or Landlord makes any expenditures
or incurs any
22
obligations for the payment of money in connection with a default of
Tenant hereunder or Landlord performs any obligations to be performed
hereunder by Tenant and not so performed by Tenant, including,
without limitation, the payment of reasonable attorneys' fees, in
instituting, prosecuting or defending any action or proceeding, such
unpaid rent, and sums paid or obligations incurred shall be due, with
interest at the rate of ten percent (10%) per annum from the date
that such rent was due or, Landlord cured a default of Tenant
hereunder, or from the date of such payment by Landlord (or the date
such obligation is incurred by Landlord) to the date of payment by
Tenant, and shall be paid by Tenant to Landlord within ten (10) days
of rendition of any xxxx or statement to Tenant therefor. If either
Landlord or Tenant brings forth a lawsuit against the other and there
is a substantially prevailing party, such party shall be reimbursed
by the other party for its reasonable attorneys' fees. If there is
no substantially prevailing party, each party shall be responsible
for its own attorneys' fees.
ARTICLE XXVI
------------
Waiver of Trial by Jury, Counterclaim and Right to Notice of
Hearing
26.1 WAIVER OF TRIAL BY JURY. The Parties hereto hereby waive trial by
jury in any action, proceeding or counterclaim brought by either of
the parties hereto against the other on any matters arising out of or
connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises and any emergency,
statutory or other remedy.
ARTICLE XXVII
-------------
Delivery, Recording and Execution of Lease
27.1 DELIVERY OF LEASE. No rights are to be conferred upon Tenant until
this Lease has been signed by Landlord, and an executed copy of the
Lease has been delivered to Tenant. Employees or agents of Landlord
have no authority to make or agree to make a Lease or any other
agreement or undertaking in connection herewith. The submission of
this document for examination and negotiation does not constitute an
offer to Lease, or a reservation of, or option for, the Premises, and
this document shall become effective and binding only upon the
execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings
between Landlord and Tenant, or any agent or other representative
thereof, are incorporated herein and no prior representations,
understandings or agreements from one party to the other shall be
binding upon the parties. The terms hereof may be modified or
altered only by written
23
agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of
the provisions hereof.
27.2 RECORDING. Tenant shall not record this Lease, and any such
recording will be a default hereunder, and at the sole option and
election of Landlord, any such recording shall automatically give
Landlord the right to terminate this Lease by written notice to
Tenant effective as of the date of such recording. Each party shall,
on the request of the other, execute a so-called Notice of Lease or
short form Lease in recordable form and complying with applicable law
and reasonably satisfactory to Landlord's attorneys. In no event
shall such document set forth the rental or other charges payable by
Tenant under this Lease; and any such document shall expressly state
that it is executed pursuant to the provisions contained in this
Lease, and is not intended to vary the terms and conditions of this
Lease.
27.3 EXECUTION OF LEASE. The person signing this Lease on behalf of
Landlord and Tenant certifies that he has full authority to execute
the same on behalf of such party and that this Lease has been duly
authorized, executed and delivered by that party and is binding upon
that party in accordance with its terms.
ARTICLE XXVIII
--------------
Successors and Assigns
28.1 SUCCESSORS AND ASSIGNS. Subject to the terms hereof, all of the
terms of this Lease shall inure to the benefit of and be binding upon
the respective heirs, executors, administrators, successors (and to
the extent permitted hereunder) and assigns of the Parties hereto.
ARTICLE XXIX
------------
Rules and Regulations
29.1 RULES AND REGULATIONS. The rules and regulations appended to this
Lease, if any, are hereby made a part of this Lease, and Tenant
agrees to comply with and observe the same. Tenant's failure to keep
and observe said rules and regulations shall constitute a default
under the terms of this Lease to the extent that it constitutes a
material breach which is not cured by Tenant after thirty (30) days
written notice from Landlord. Landlord reserves the right, from time
to time, to adopt or amend or supplement said rules and regulations
and to reasonably adopt and promulgate additional rules and
regulations applicable to the Premises and to the Park. Notice of
such additional rules and regulations, and amendments and
supplements, if any, shall be given to Tenant, and Tenant agrees
thereupon to comply
24
with and observe all such rules and regulations, and amendments
thereto and supplements thereof, provided the same shall be
reasonable and shall apply uniformly to all tenants of Landlord.
ARTICLE XXX
-----------
Governing Law
30.1 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the State wherein the Premises
are located, as said laws may exist from time to time.
ARTICLE XXXI
------------
No Waiver
31.1 NO WAIVER. No provisions of this Lease shall be deemed to have been
waived by a party unless such waiver is in writing signed by such
party. A party's waiver of a breach of any term or condition of this
Lease shall not prevent a subsequent act, which would have originally
constituted a breach, from having the effect of any original breach.
Landlord's receipt of rent with knowledge of a breach by Tenant of
any term or condition of this Lease shall not be deemed a waiver of
such breach. Landlord's failure to enforce against Tenant or any
other Tenant of the Building any of the rules and regulations made by
Landlord shall not be deemed a waiver of such rules or regulations.
Landlord shall not be required to enforce any such rules against
Tenant or any other occupant of the Building but Landlord may assign
to any other such occupant its right to enforce such rules against
Tenant. No act or thing done by Landlord, its agents or employees
during the Lease term shall be deemed an acceptance of a surrender of
the Premises and no agreement to accept a surrender of the Premises
shall be valid unless in writing signed by Landlord. The delivery of
keys to any of Landlord's agents or employees shall not operate as a
termination of this Lease or a surrender of the Premises. No payment
by Tenant, or receipt by Landlord, of a lesser amount than the rent
due shall be deemed to be other than on account and as allocated in
Landlord's sole discretion, nor shall any enforcement or statement on
any check or any letter accompanying or payment as rent be deemed an
accord and satisfaction and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy available to Landlord.
25
ARTICLE XXXII
-------------
Brokerage
32.1 BROKERAGE. Tenant warrants and represents that Tenant has not dealt
with any broker, except as noted in Article 1.2, who shall be paid
pursuant to a separate agreement in connection with the consummation
of this Lease; and in the event of any brokerage claims against
Landlord predicated upon prior dealings with the Tenant named herein,
Tenant agrees to hold harmless, defend and indemnify Landlord against
any such claim.
ARTICLE XXXIII
--------------
Invalidity of Particular Provisions
33.1 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of
this Lease, or the application thereof to any person or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law, provided, however, this Lease shall be
deemed modified to the extent possible, to reflect the overall intent
of this Lease.
ARTICLE XXXIV
-------------
Estoppel Certificates
34.1 ESTOPPEL CERTIFICATES. Tenant or Landlord shall, without charge, at
any time from time to time within fifteen (15) days after written
request by Tenant or Landlord, certify by written instrument, (in
recordable form if requested) duly executed, acknowledged and
delivered to Tenant or Landlord, or to any mortgagee or proposed
mortgagee, or any purchaser or proposed purchaser, or to any other
entity reasonably specified by Tenant or Landlord:
a. The Term Commencement Date, the Rent Commencement Date, the
original expiration date, the present expiration date, and the
existence, number, and term of any Option periods.
b. Whether or not Tenant or Landlord is in default, in any way, in
the performance of any of the covenants, conditions and
agreements to be performed by Tenant or Landlord in accordance
with this Lease and if there is any such default, specifying
the nature of same.
26
c. What the amount of rent is pursuant to the terms of this Lease,
and the dates, if any, to which the Rental and other charges
hereunder have been paid in advance.
d. That this Lease is unmodified and in full force and effect, or
in the event that there have been modifications, that the same
is in full force and effect as modified and setting forth the
modifications.
e. Whether or not there are then any existing claims, setoffs or
defenses against the enforcement of any of the agreements,
terms, covenants or conditions hereof upon the part of Tenant
or Landlord to be performed or complied with, and if so,
specifying the same.
f. The status of any other matter relative to this Lease or the
relation of the Parties.
ARTICLE XXXV
------------
Security Agreement
35.1 SECURITY AGREEMENT. Intentionally Omitted.
ARTICLE XXXVI
-------------
Provisions with Respect to Bankruptcy
36.1 BANKRUPTCY CODE ASSIGNMENTS. If the Lease is assigned to any person
or entity pursuant to the provisions of the Bankruptcy Code, 11
U.S.C. s 191 et seq., or otherwise, as now existing or hereafter
amended (the "Bankruptcy Code"), any and all monies or other
considerations payable or otherwise to be delivered in connection
with such assignment shall be paid or delivered to Landlord, shall be
and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the estate of Tenant within the
meaning of the Bankruptcy Code. Any and all monies or other
considerations constituting Landlord's property under the preceding
sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and be promptly paid to or turned over to
Landlord.
36.2 LANDLORD'S RIGHT OF FIRST REFUSAL. If Tenant or the trustee assumes
this Lease and proposes to assign the same pursuant to the provisions
of the Bankruptcy Code to any person or entity who shall have made a
bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant or the trustee, then notice of such proposed
assignment, setting forth (i) the name and address of such person,
(ii) all of the terms and conditions of such offer, and (iii) the
adequate assurance to be provided Landlord to assure such person's
future performance under the Lease shall be given to Landlord by
27
Tenant or the trustee no later than twenty (20) days after receipt by
Tenant or the trustee, but in any event no later than ten (10) days
prior to the date that Tenant or the trustee shall make application
to a court of competent jurisdiction for authority and approval to
enter into such assignment and assumption, and Landlord shall
thereupon have the prior right and option, to be exercised by notice
to Tenant or the trustee given at any time prior to the effective
date of such proposed assignment, to accept an assignment of this
Lease upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made by such person,
less any brokerage commissions and any costs and expenses of
preparing the Premises for the new tenant which may be payable out of
the consideration to be paid by such person for the assignment of
this Lease.
36.3 ASSIGNEE'S LIABILITY. Any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code shall be
deemed without further act or deed to have assumed all of the
obligations arising under this Lease on and after the date of such
assignment. Any such assignee shall upon demand execute and deliver
to Landlord an instrument confirming such assumption.
36.4 ITEMS INCLUDED IN RENT. Notwithstanding anything in this Lease to
the contrary, all amounts payable by Tenant to or on behalf of
Landlord under this Lease, whether or not expressly denominated as
rent, including, without limitation, the applicable Annual Minimum
Rent and additional rent, shall constitute rent for the purpose of
Section 502(b)(6) of the Bankruptcy Code.
ARTICLE XXXVII
--------------
Hazardous Materials
37.1 HAZARDOUS MATERIALS. Tenant (nor Tenant's agents, servants,
employees, contractors, subtenants, assignees, invitees or guests)
shall not (either with or without negligence) cause or permit the
escape, disposal or release of any biologically or chemically active
or other hazardous substances, or materials. Tenant shall not allow
the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the
industry for the storage and use of such substances or materials, nor
allow to be brought into the Premises any such materials or
substances except to use in the ordinary course of Tenant's business,
and then only after written notice is given to Landlord of the
identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., any
applicable state or local laws and the regulations adopted under
these acts. If any lender or governmental agency shall ever require
testing to ascertain whether or not there has been release of
hazardous materials
28
due to acts of Tenant, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if
such requirement applies to the Premises. In addition, Tenant shall
execute affidavits, representations and the like from time to time at
Landlord's request concerning Tenant's best knowledge and belief
regarding the presence of hazardous substances or materials on the
Premises. In all events, Tenant shall indemnify Landlord in the
manner elsewhere provided in this Lease from any release of hazardous
materials on the Premises occurring while Tenant is in possession or
elsewhere if caused by Tenant or persons acting under Tenant. The
within covenants shall survive the expiration or earlier termination
of the lease term.
ARTICLE XXXVIII
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Tenant's Right to Terminate
38.1 TENANT'S RIGHT TO TERMINATE. Provided Tenant is not in default of
this Lease on the applicable notice date (the "Notice Date") or on
the purported termination date (the "Termination Date"), Tenant
shall have a one time right to terminate this Lease upon nine (9)
months advance written notice to Landlord, provided, however, that
(a) the Termination Date shall not be effective prior to December 31,
2009 and (b) Tenant shall be responsible for Minimum Rent, Tenant's
Proportionate Share of Taxes, Common Area Expenses and Operating
Costs and any and all other Tenant obligations due under the Lease
through and including the effective Termination Date.
ARTICLE XXXIX
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Termination of Prior Leases
39.1 TERMINATION OF PRIOR LEASES. Provided this Lease actually commences,
the prior Leases between the Parties dated November 5, 1996 (as
amended by First Amendment of Lease dated June 30, 1999) hereinafter
referred to as the "Prior Lease," shall terminate and come to an end
as if said date were the date originally specified in said Lease for
the end of the Term thereof, and Landlord and Tenant herby mutually
release each other from any and all claims one against the other
arising out of the said Lease except for claims or causes of action
as may arise from facts occurring subsequent to the execution of this
agreement and except for the following obligations which shall
survive the termination of the Lease and the mutual releases
contained herein:
(i) Tenant shall pay to Landlord all items of Minimum Rent,
Tenant's Proportionate Share of Taxes, Insurance, Common
Area Expenses and Operating Costs accruing or due under
the Prior Lease up to midnight on the day immediately
prior to the commencement date of this Lease,
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prorated where appropriate.
(ii) Tenant shall vacate 9,709 square feet of space (the
"Recapture Space") as outlined on Exhibit C attached
hereto and deliver possession to Landlord prior to May 1,
2004. Tenant shall remove all furniture, repair all
damage to the Recapture Space, and deliver the Recapture
Space in broom clean condition.
ARTICLE XL
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Option to Extend
40.1 OPTION TO EXTEND. Provided the Tenant has performed all its
obligations hereunder and has not been in default, Tenant shall have
one (1) option to extend the Term of this Lease for a further period
of five (5) years and no months provided, however, that Tenant shall
give Landlord notice of its intention to extend not less than nine
(9) months prior to the expiration of the original Term of this
Lease. Said notice shall be effective only if given in the timely
manner described (time being of the essence in relation to said
notice) and provided Tenant is not in default under the Lease on the
date of the notice nor on the date the original Term of the Lease is
scheduled to expire. Such extended term shall be subject to all of
the agreements, covenants and conditions set forth in this Lease
except for (i) the Minimum Rent payable pursuant to Article III
hereof which shall be as set forth hereinafter, and except for (ii)
further Options to Extend, as to which there shall be none. It is
agreed and understood that the annual Minimum Rent for the extended
period shall be equal to $7.00/PSF NNN, $175,357 per year, $14,613.08
per month, as of the commencement date of the extended term hereof.
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IN WITNESS WHEREOF, the Parties hereto have set their hands and seals
in three (3) counterpart copies, each of which counterpart copy shall be
deemed an original for all purposes, as of the date and year first above
written.
WITNESSES: LANDLORD:
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FREMONT PRESTIGE PARK, LLC
BY:/s/Xxxxxxxx Xxxxxx
--------------------------- ---------------------------------
Xxxxxxxx Xxxxxx
Its Managing Member
TENANT:
FARMSTEAD TELEPHONE GROUP, INC.
BY:/s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------- ---------------------------------
Xxxxxx Xxxxxx
Its President
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