EX-10.5
COMMERCIAL LEASE
BETWEEN
THERMODYNETICS, INC.
AND
TURBOTEC PRODUCTS, INC.
FOR ____________ ROAD
WINDSOR, CONNECTICUT
TABLE OF CONTENTS
ARTICLE I - REFERENCE DATA
Section 1.01 Definitions
Section 1.02 Exhibits.
ARTICLE II - LEASED PREMISES
Section 2.01 Leased Premises
Section 2.02 Exclusions from Leased Premises
Section 2.03 Hours of Operation
ARTICLE III - TERM
Section 3.01 Term
Section 3.02 Lease
ARTICLE IV - RENT AND OTHER CHARGES
Section 4.01 Yearly Fixed Rent Payments
Section 4.02 Adjusted Rent
Section 4.03 Real Estate Taxes
Section 4.04 Utilities.
Section 4.05 Common Area Maintenance Charges ("CAM Charges")
Section 4.06 Late Payments
ARTICLE V - CONSTRUCTION OF LEASED PREMISES
ARTICLE VI - USE OF LEASED PREMISES; MAINTENANCE AND REPAIR
Section 6.01 Permitted Uses
Section 6.02 Compliance with Laws
Section 6.03 Nuisance
Section 6.04 Excessive Load
Section 6.05 Maintenance and Repair
Section 6.06 Property Installed by Tenant-Turbo
Section 6.07 Signage
Section 6.07 Estoppel Certificate
ARTICLE VII - INSURANCE
Section 7.01 Insurance by Tenant-Turbo
Section 7.02 Landlord-as Additional Insured
Section 7.03 Insurance Taken Out by Landlord-TDYT
ARTICLE VIII - LANDLORD-TDYT'S ACCESS
ARTICLE IX - SURRENDER OF LEASED PREMISES
ARTICLE X - CASUALTY, EMINENT DOMAIN, ETC.
Section 10.01 Rent Abatement
Section 10.02 Assignment of Rights to Landlord
Section 10.03 Lease/Assignment
(i)
ARTICLE XI - EVENTS OF DEFAULT
Section 11.01 Events of Default
Section 11.02 Failure to Pay
Section 11.03 Failure to Comply with Covenants
Section 11.04 Suspension of Business
Section 11.05 Insolvency
Section 11.06 Writ of Attachment; Execution
Section 11.07 Transfer of Ownership
ARTICLE XII - LANDLORD-TDYT'S REMEDIES ON DEFAULT
Section 12.01 Remedies
12.01.1 Action under Law or Equity
12.01.2 Possession; Sublease
12.01.3 Termination of Lease
12.01.4 Collection of Rents
12.01.5 Alterations and Repairs
12.01.6 Liquidated Damage
Section 12.02 Remedies Cumulative
Section 12.03 Landlord-TDYT's Right to Cure Default
Section 12.04 Cost of Collection
Section 12.05 Waivers
ARTICLE XIII - ASSIGNMENT AND SUBLEASING
Section 13.01 Assignment and Subletting
Section 13.02 Limitation on Consent to Sublease
Section 13.03 Excess Rent
ARTICLE XIV - QUIET ENJOYMENT
ARTICLE XV - SUBORDINATION OF LEASE
ARTICLE XVI - WAIVER OF SUBROGATION
ARTICLE XVII - INDEMNIFICATION
Section 17.01 Indemnification by Tenant-Turbo
Section 17.02 Limitation of Liability of Landlord-TDYT
Section 17.03 Indemnification by Landlord-TDYT
ARTICLE XVIII - MISCELLANEOUS
Section 18.01 Waivers
Section 18.02 Notice of Lease
Section 18.03 Notices
Section 18.04 Bind and Inure; Limitation of Landlord-TDYT's
Liabilities
Section 18.05 Landlord-TDYT's Default
Section 18.06 Brokerage
Section 18.07 Severability
Section 18.08 Acceptance of Lesser Payments
Section 18.09 Lease Not Partnership
(ii)
Section 18.10 Captions
Section 18.11 Connecticut Law
Section 18.12 Excusable Delays
(iii)
ARTICLE I - REFERENCE DATA
Section 1.01 XXXXXXXXXXX.Xx used in this lease, the following terms
shall have the respective meanings set forth below:
EXECUTION DATE: April___, 2006
OWNER: Thermodynetics, Inc.
LANDLORD-TDYT: Thermodynetics, Inc.
LANDLORD-TDYT'S ORIGINAL ADDRESS: 000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
TENANT-TURBO: Turbotec Products, Inc.
TENANT-TURBO'S ORIGINAL ADDRESS: 000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
OCCUPANCY DATE: April 1, 2006
TERM COMMENCEMENT DATE: April 1, 2006
RENT COMMENCEMENT DATE: April 1, 2006
EXPIRATION DATE: March 31, 2011
PERMITTED USE: The Leased Premises, as defined
herein, shall only be used as a
manufacturing facility including
office use and laboratory use, all
related to Tenant-Turbo's business.
YEARLY FIXED RENT: As set forth in ss.4.01 hereof.
FIRST MONTHLY PAYMENT DUE DATE: Upon execution
PROPERTY: ____________ Road, Windsor,
Connecticut
LEASED PREMISES: Deemed approximately _______ square
feet of space within the building
located at _______ Road, Windsor,
Connecticut, as shown and further
identified on EXHIBIT A attached
hereto.
LEASED AREA: Approximately ______ square feet
BUILDING FLOOR AREA: Approximately ________ square feet
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LANDLORD-TDYT'S FISCAL YEAR: April 1 - March 31
TENANT-TURBO'S PROPORTIONATE SHARE: ______%
Section 1.02 EXHIBITS.
EXHIBIT A Leased Premises
EXHIBIT B Common Area Maintenance Charges
ARTICLE II - LEASED PREMISES
Section 2.01 LEASED PREMISES.Landlord-TDYT does hereby demise and lease
to Tenant-Turbo that certain area within the building located at __________
Road, Windsor, Connecticut, said area being shown on Exhibit A attached hereto
and consisting of approximately ___________ square feet of space to be used for
office space related to Tenant-Turbo's business (the "LEASED PREMISES").
Tenant-Turbo shall also have the right to use parking spaces, on a non-exclusive
basis, located within the parking lot on the Property, free of charge throughout
the lease term. Landlord-TDYT shall make available to Tenant-Turbo at least
_____% of the parking spaces during the term hereof; Landlord-TDYT shall reserve
for its own use at least _____ parking spaces in the front lot.
Section 2.02 EXCLUSIONS FROM LEASED PREMISES.The remainder of the
building not identified and defined as the Leased Premises is excluded from the
area leased hereunder; such area is reserved for and by Landlord-TDYT and is
referred to as the executive office area currently used by Landlord-TDYT.
Further, Landlord-TDYT reserves full right of access to all common areas.
Section 2.03 HOURS OF OPERATION.Tenant-Turbo shall have the right, but
not the obligation, to open or remain open for such hours, including Sundays and
legal holidays, as may be permitted by law. Tenant-Turbo shall be allowed access
to the Leased Premises at all times relevant hereto.
ARTICLE III - TERM
Section 3.01 TERM.Tenant-Turbo shall have and hold the Leased Premises
for the term commencing on April 1, 2006 (the, "TERM COMMENCEMENT DATE"), and
ending at midnight on March 31, 2011 (the "TERMINATION DATE"), unless sooner
terminated as herein provided.
Tenant-Turbo shall have a one time right to extend the term of this
Lease, and to have and hold the Leased Premises for one contiguous extension
term commencing on April 1, 2011 (the, "FIRST TERM EXTENSION COMMENCEMENT
DATE"), and ending at midnight on March 31, 2014 (the "FIRST EXTENSION
TERMINATION DATE"), unless sooner terminated as herein provided. This right to
extend the term of this Lease shall be exercised in writing on or before August
1, 2010 and no later than October 31, 2010.
Tenant-Turbo shall have a one time right to extend the term of this
Lease, and to have and hold the Leased Premises for a second contiguous
extension term commencing on April 1, 2014 (the, "SECOND TERM EXTENSION
COMMENCEMENT DATE"), and ending at midnight on March
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31, 2016 (the, "SECOND EXTENSION TERMINATION DATE"), unless sooner terminated as
herein provided. This right to extend the term of this Lease shall be exercised
in writing on or before August 1, 2013 and no later than October 31, 2013.
HOWEVER, any right of Tenant-Turbo to exercise any right to extend the
term of this Lease as set forth in the previous paragraphs shall not be
effective in the event: (a) Tenant-Turbo shall then not be in good standing
under this Lease, or (b) Landlord-TDYT shall have listed the Property and
building thereon for sale with any commercial real estate broker during the
extension exercise period referenced herein. Tenant-Turbo shall receive prompt
written notice of any real estate sale listing or of any serious intention on
the part of Landlord-TDYT to seek such a listing.
Section 3.02 LEASE.Landlord-TDYT and Tenant-Turbo acknowledge that the
Property, of which the Leased Premises is a part, is presently being leased by
the Tenant-Turbo, as identified in Article I hereof. In the event that this
Lease is terminated pursuant to this Section 3.02, any pre-paid rent or other
payments (including the security deposit) held on account for the Tenant-Turbo
shall be adjusted accordingly as of the date of termination and returned
forthwith to the Tenant-Turbo.
ARTICLE IV - RENT AND OTHER CHARGES
Section 4.01 YEARLY FIXED RENT PAYMENTS.Tenant-Turbo shall pay to
Landlord-TDYT Yearly Fixed Rent payable in twelve equal monthly installments
(the "Monthly Payment"), each Monthly Payment due in advance, with the first
such Monthly Payment to be made on or before the Rent Commencement Date and
subsequent Monthly Payments to be made, in advance, on or before the first (1st)
day of each month. The Monthly Payment shall be prorated for portions of a
calendar month at the beginning or end of said term. All rent and other payments
shall be made to Landlord-TDYT or to such agent and at such place as
Landlord-TDYT shall from time to time in writing designate, the Landlord-TDYT's
Original Address being now so designated. The amount of Yearly Fixed Rent and
Monthly Fixed Rent shall be as follows:
YEARLY FIXED RENT MONTHLY FIXED RENT
--------------------------------------------------------------
Year 1: $___ per square foot $_______
Year 2: $___ per square foot $_______
Year 3: $___ per square foot $_______
Year 4: $___ per square foot $_______
Year 5: $___ per square foot $_______
FIRST EXTENSION TERM:
Year 6: $___ per square foot $_______
Year 7: $___ per square foot $_______
Year 8: $___ per square foot $_______
SECOND EXTENSION TERM:
Year 9: $___ per square foot $_______
Year 10: $___ per square foot $_______
Section 4.02 ADJUSTED RENT.This Section is not applicable.
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Section 4.03 REAL ESTATE TAXES.(a) PAYMENT OF REAL ESTATE TAXES.
Tenant-Turbo shall be responsible for the payment of all real estate taxes
assessed, for the pro rata share of taxes with respect to the Leased Premises
for any portion of any municipal fiscal year coinciding with this Lease Term.
Said payment, if any is due, shall be paid to Landlord-TDYT within twenty (20)
days after the new real estate tax xxxx issued by the Town of Windsor is sent to
Tenant-Turbo.
(b) ABATEMENT OF REAL ESTATE TAXES. Landlord-TDYT shall, from
time to time, have the right, but not the obligation, to prosecute an abatement
or otherwise contest any tax for which it is obligated to pay and, to the extent
necessary and applicable, the Tenant-Turbo agrees to reasonably cooperate with
the Landlord-TDYT in its prosecution of the same. Any abatement with respect to
the Leased Premises shall be applied against the Monthly Fixed Rent.
Tenant-Turbo shall have the right, upon prior written notice, to contest or
challenge any property assessment valuation and tax, provided Landlord-TDYT does
not intend to contest or challenge any property assessment or tax, and provided
further, Tenant-Turbo shall be obligated hereunder for at least two remaining
years of Rent.
Section 4.04 UTILITIES.
(a) Subject to the limitations within this Section,
Tenant-Turbo shall be responsible for all gas and electricity costs assessed to
the Leased Premises. Landlord-TDYT may provide a separate meter for electricity
use. Otherwise each meter reading shall be pro rated by the percentage of the
square feet of space of the Leased Premises compared to the square feet of space
of the Total Building Floor Area. With respect to gas, Tenant-Turbo shall be
responsible for its proportionate share of said costs for the building and each
meter reading shall be pro rated by the percentage of the square feet of space
of the Leased Premises compared to the square feet of space of the Total
Building Floor Area. Landlord-TDYT shall provide historical costs to
Tenant-Turbo.
(b) Tenant-Turbo shall be responsible for the cost of all of
its own (i) telephone charges and, (ii) if applicable, internet, cable
television charges, and (iii) any other charges not listed in Section 4.05(a)
hereof but incurred by Tenant-Turbo for services used at the Leased Premises.
Landlord-TDYT may utilize such services at no cost during the lease term.
(c) If required services or utilities, including but not
limited to, plumbing, heating, ventilation, air conditioning and electrical
systems, are interrupted or otherwise cease to be provided (except for
circumstances outside of Landlord-TDYT's control) and any part of the Leased
Premises as a result becomes unfit for Tenant-Turbo's normal use for a period of
five (5) consecutive days, then the Rent and any other charges payable by
Tenant-Turbo shall be abated for the time period the Leased Premises are unfit
for normal use. If the Leased Premises remained unfit for thirty (30)
consecutive days, then Tenant-Turbo shall have the right to terminate the Lease.
Section 4.05 COMMON AREA MAINTENANCE CHARGES ("CAM
CHARGES").Tenant-Turbo shall pay as additional rent its proportionate share of
the CAM Charges, as set forth on Exhibit "C", to the extent that said CAM
Charges exceed the CAM Charges for the first twelve months of occupancy.
Tenant-Turbo's proportionate share shall be the product which results by
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multiplying the CAM Charges in excess of the first year CAM Charges by
Tenant-Turbo's proportionate share. If the building is not at least 95% occupied
during all or a portion of any lease year, then Landlord-TDYT shall make an
appropriate adjustment for each Lease year to determine what the Building CAM
Charges would have been for such year as if the Building had been 95% occupied,
and the amount so determined shall be deemed to be the amount of CAM Charges for
the year. Tenant-Turbo's proportionate share shall be paid in monthly
installments on or before the first day of each calendar month, in advance, in
an amount estimated by Landlord-TDYT. Tenant-Turbo, at reasonable times during
regular business hours and upon prior written notice to Landlord-TDYT and not
more than once per year, may review or audit the books and records of
Landlord-TDYT relating to CAM Charges payable by Tenant-Turbo.
Section 4.06 LATE PAYMENTS.If Tenant-Turbo fails to pay rent and such
failure continues for a period of ten (10) days from the date said rent payment
is due, or if the Tenant-Turbo fails to make any other payment(s) due under this
Lease and said failure continues for a period of ten (10) days after written
notice from Landlord-TDYT, then, notwithstanding any other remedy which
Landlord-TDYT may have hereunder, Tenant-Turbo shall have a continuing
obligation to make such payment, with interest on such payment and on any
applicable penalty for late payment a rate of interest equal to one (1%) percent
per month until paid.
ARTICLE V - CONSTRUCTION OF LEASED PREMISES
It is hereby acknowledged by Landlord-TDYT and Tenant-Turbo that the
Leased Premises shall be delivered in its "As Is" condition without any
representations or warranties by Landlord-TDYT. Tenant-Turbo may not, without
the prior written consent of Landlord-TDYT and, if required under the Lease,
(which consent by Landlord-TDYT shall not be unreasonably withheld or delayed)
make any change, alteration, addition or improvement to the Leased Premises. In
making any addition, repairs, replacements, alterations or improvements, which
are permitted by the written consent of Landlord-TDYT, and all of which
Tenant-Turbo shall do at its sole cost and expense, any and all such
construction and shall be performed in a good and first-class workmanlike manner
and, furthermore, Tenant-Turbo shall not damage the Leased Premises or
materially decrease the value of the Leased Premises. Unless otherwise agreed,
any construction or improvement shall be deemed to be a part of the Leased
Premises and shall be deemed to be the property of Landlord-TDYT. Tenant-Turbo
shall be responsible for obtaining all permits and approvals necessary to
complete any improvements and to occupy the Leased Premises. Unless otherwise
agreed to in writing at the time of approval of the improvements, at the
expiration of this Lease, improvements made by Tenant-Turbo to the Leased
Premises (other than Tenant-Turbo's personal property, trade fixtures and
equipment) shall become property of the Landlord-TDYT, unless notified in
writing by the Landlord-TDYT on or before thirty (30) days prior to the
expiration of this Lease requiring Tenant-Turbo to remove and dispose of any
such improvements, fixture or the like located thereon. All of Tenant-Turbo's
personal property and equipment shall be removed at the expiration of this
Lease.
ARTICLE VI - USE OF LEASED PREMISES; MAINTENANCE AND REPAIR
Section 6.01 PERMITTED USES.Tenant-Turbo covenants and agrees that
during the term of this Lease, the Leased Premises shall only be used as a
manufacturing facility including office use and laboratory use, all related to
Tenant-Turbo's business, ("PERMITTED USE").
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Section 6.02 COMPLIANCE WITH LAWS.Tenant-Turbo shall at all times
comply with all applicable building, zoning and land use, environmental
protection, sanitary and safety laws, rules and regulations and other
governmental statutes, orders, rules or regulations as may be applicable to the
Tenant-Turbo's use thereof and, furthermore, Tenant-Turbo shall not dump, flush,
or in any way introduce any hazardous substances or any other toxic substances
into the septic, sewage or other waste disposal system serving the Leased
Premises, nor generate, store or dispose of hazardous substances in or on the
Leased Premises or dispose of hazardous substances from the Leased Premises to
any other location without advising Landlord-TDYT in writing and complying in
all respects with any and all laws including, without limitation, the Resource
Conservation and Recovery Act of 1976, as amended, 42 U.S.C. ss.6901 et seq. and
the Connecticut General Statutes, CGSA ss.22a-452a, as amended (the "Superlien
Act"); and shall notify Landlord-TDYT of any incident which would require the
filing of a notice under any applicable environmental law. "Hazardous
substances" as used in this paragraph shall mean "hazardous substances" as
defined in the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended, 42 U.S.C. Section 6901 and regulations adopted pursuant
to said Act. Tenant-Turbo shall indemnify Landlord-TDYT from and against any
costs, expenses, suits, claims, damages, and reasonable attorney's fees relating
in manner to the use, storage and/or existence of any hazardous materials on the
Leased Premises.
Section 6.03 NUISANCE.Tenant-Turbo shall not perform any act or allow
any act or practice which may injure the Leased Premises or any other part of
the Leased Premises or the Property, or cause offensive odors or discharges or
loud noise or constitute a nuisance or menace or any threat of health to the
neighborhood, or be detrimental to the operation, reputation, or appearance of
the Leased Premises or the Property.
Section 6.04 EXCESSIVE LOAD.This Section is not applicable.
Section 6.05 MAINTENANCE AND REPAIR.
(a) TENANT-TURBO'S REPAIRS AND MAINTENANCE. Tenant-Turbo shall
maintain and repair the Leased Premises and keep the same in good condition,
free from trash or obstruction and in at least as good condition and repair
(reasonable wear and tear and casualty or taking loss excepted) as it was on the
Term Commencement Date. Tenant-Turbo shall be responsible for any and all minor
repairs and/or maintenance to the Leased Premises and any and all repairs and/or
maintenance to the Property and the Leased Premises caused by an act or omission
by Tenant-Turbo or Tenant-Turbo's agents or employees. For purposes of this
Section 6.05(1), the term "minor repair" shall be defined as any repair that
costs equal to or less than $20,000.00. Tenant-Turbo shall also be responsible,
without limitation, for the following: (a) Removal of all trash from the Leased
Premises; and (b) Landlord-TDYT shall take all steps necessary for rodent
control; Tenant-Turbo shall use, if necessary, Terminex or other service of like
or better quality to provide ongoing rodent control.
(b) STRUCTURAL AND MAJOR REPAIRS AND MAINTENANCE. Tenant-Turbo
shall be solely responsible for any and all major repairs and maintenance of the
Leased Premises (including, but not limited to, the structural portions of the
building (including the roof), the plumbing, and electrical systems) not caused
by or due to an act or omission by Landlord-TDYT or its agents or employees.
Prior to Tenant-Turbo undertaking any structural and major repairs of the
Property
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exceeding $25,000 for any single item or repair or aggregate of repairs,
Tenant-Turbo and Landlord-TDYT shall agree upon a proportionate allocation of
the financial responsibility of such structural or major repair, the parties
intending that Tenant-Turbo's allocable share shall be equal to the percentage
derived from the following ratio, the numerator of which is the number of months
remaining in the Term and the denominator of which is the number of months of
the anticipated useful life of the structural or major repair item.
Landlord-TDYT's allocable share shall be equal to 100% less Tenant-Turbo's
allocable share. By way of example, if a new roof must be installed and there
are 12 months remaining in the Term and the anticipated useful life of the roof
is 240 months, Tenant-Turbo shall be responsible for 5% of the cost of such new
roof and Landlord-TDYT shall be responsible for 95% of the cost of such new
roof.
(c) HVAC REPAIRS AND REPLACEMENT. Tenant-Turbo shall be
responsible to maintain the HVAC units within the building located on the
Property.
(d) SINKING FUND. Tenant-Turbo shall pay to Landlord-TDYT
$_____ monthly for the first 60 months of this Lease into a trust account up to
a maximum balance of $_______. These monies shall be used by Landlord-TDYT to
pay for the maintenance and repairs required under this Section 6.05. All
repairs and maintenance required under Section 6.05 shall be paid for from the
trust account provided Landlord-TDYT submits verifiable third-party proposals or
work orders, or in the case of an emergency repair a verifiable invoice, to
Tenant-Turbo. Verification of payment and the third-party proposals, work orders
or invoices shall be promptly submitted to Tenant-Turbo. In the event the
repairs and maintenance required under Section 6.05 exceed the trust balance,
each shortfall shall be promptly paid by Tenant-Turbo. Upon the later of the
expiration of the term of this Lease or the expiration of the first extension of
this Lease, provided Tenant-Turbo is in good standing hereunder and there are no
outstanding work orders or obligations for repairs required under Section 6.05,
then Landlord-TDYT shall refund the then outstanding trust balance to
Tenant-Turbo.
Section 6.06 PROPERTY INSTALLED BY TENANT-TURBO.All of the furnishings,
fixtures, machinery, equipment, effects and property of every kind, nature and
description belonging to Tenant-Turbo and to any persons claiming by, through or
under Tenant-Turbo which, during the term of this Lease or any occupancy of the
Leased Premises by Tenant-Turbo or anyone claiming under Tenant-Turbo, may be on
the Leased Premises, shall be at the sole risk and hazard of Tenant-Turbo.
Section 6.07 Tenant-Turbo shall have the right to place signage on the
building in a location (and size) to be mutually agreed upon by the
Landlord-TDYT and Tenant-Turbo. Tenant-Turbo shall not place any signage on the
Building until approval has first been granted by the Landlord-TDYT (which
approval shall not be unreasonably withheld or delayed), and until after all
necessary local and state permits and approvals have been obtained by the
Tenant-Turbo, at Tenant-Turbo's sole cost and expense. All signage must comply
with all state and Town of Windsor regulations pertaining to signage.
Section 6.08 ESTOPPEL CERTIFICATE.Upon not less than fifteen (15)
business days' prior written notice by Landlord-TDYT or Tenant-Turbo, the other
party shall execute, acknowledge
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and deliver to the requesting party a statement in writing certifying that this
Lease is unmodified and in full force and effect and that except as stated
therein the other party has no knowledge of any defenses, offsets or
counterclaims against the Tenant-Turbo's obligations to pay the Fixed Rent and
additional rent and any other charges and to perform its other covenants under
this Lease (or, if there have been any modifications that the same is in full
force and effect as modified and stating the modifications and, if there are any
defenses, offsets or counterclaims, setting them forth in reasonable detail),
the dates to which the Yearly Fixed Rent and additional rent and other charges
have been paid and a statement that the requesting party is not in default
hereunder (or if in default, the nature of such default, in reasonable detail).
Any such statement delivered pursuant to this Section may be relied upon by any
third party, or any prospective assignee of any such mortgage.
ARTICLE VII - INSURANCE
Section 7.01 INSURANCE BY TENANT-TURBO.Tenant-Turbo agrees to maintain
in full force from the date of commencement of this Lease and throughout the
term hereof (i) a policy of Fire and Casualty Insurance covering Tenant-Turbo's
personal property and items within the Leased Premises (including all
improvements and alterations thereto), Tenant-Turbo's trade fixtures, equipment
and inventory, in amounts not less than one hundred percent (100%) of the full
insurable replacement value thereof; and (ii) a policy of Comprehensive General
Liability insurance with the broadest coverage which is available. The minimum
limits of such Comprehensive General Liability insurance shall be Five Million
Dollars ($5,000,000.00) per occurrence combined for Bodily Injury Liability
(including death) and Property Damage Liability. Tenant-Turbo shall also
maintain such additional insurance as Landlord-TDYT may reasonably require.
Tenant-Turbo further agrees to maintain a Worker's Compensation and Employer's
Liability Insurance policy with statutory limits.
Section 7.02 LANDLORD-AS ADDITIONAL INSURED.Tenant-Turbo agrees that
Landlord-TDYT (and any mortgagees of the Property or such other persons as are
in privity of estate with Landlord-TDYT as it may indicate from time to time)
shall be named as additional insureds on all such policies. A duplicate copy of
a certificate with respect to each such policy will be furnished to the
Landlord-TDYT. All such policies will be issued by present insurance carrier or
other responsible and reputable companies reasonably satisfactory to the
Landlord-TDYT, and authorized to transact business in the State of Connecticut.
All policies of insurance required to be maintained by Tenant-Turbo hereunder
shall not be subject to cancellation except upon thirty (30) days prior written
notice to Landlord-TDYT and any other such party of interest designated by
Landlord-TDYT.
Section 7.03 INSURANCE TAKEN OUT BY LANDLORD-TDYT.Landlord-TDYT shall
take out and maintain throughout the Term of this lease the following insurance:
(a) Comprehensive liability insurance for the Property of the
same nature and type as described in Section 7.01, above (but which
shall not be duplicative of the insurance described therein - excess
coverage not being deemed duplicative for the purpose hereof), with
such policy limited as Landlord-TDYT may consider appropriate;
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(b) All risk fire and casualty insurance on a replacement
value, agreed amount basis, together with rental loss coverage and, if
Landlord-TDYT so elects, flood coverage to the extent the same is
available, insuring the Building and its rental value; and
(c) To the extent readily available in the domestic insurance
market, insurance against loss or damage from sprinklers and from
leakage or explosions or cracking of boilers, pipes carrying steam or
water, or both, pressure vessels or similar apparatus, in the so-called
"broad form", in such amounts as Landlord-TDYT may consider
appropriate, and insurance against such other hazards and in such
amounts as may from time to time be required by any bank, insurance
company or other lending institution holding a first mortgage on the
Building.
Landlord-TDYT shall have no obligation to insure Tenant-Turbo's
personal property or chattels, including without limitation, Tenant-Turbo's
trade fixtures, equipment and inventory.
ARTICLE VIII - LANDLORD-TDYT'S ACCESS
Landlord-TDYT and its duly authorized agents shall have the right
during regular business hours and upon reasonable prior written notice to enter
upon the Leased Premises for the purpose of performing any work, inspection or
repair, provided that the right of access under this Section shall be immediate
upon prior telephone notice if any emergency is deemed to exist by the
Landlord-TDYT. Landlord-TDYT shall also have the right, after giving prior
notice to the Tenant-Turbo, to make access available during regular business
hours and upon reasonable notice to the Tenant-Turbo to existing or bona fide
prospective mortgagees, purchasers, or landlords of the Leased Premises
(however, with respect to landlords, only during the last nine (9) months of the
lease term).
Landlord-TDYT shall at all times have and retain a key with which to
unlock all doors in the Leased Premises, excluding Tenant-Turbo vaults, safes,
and areas of the Leased Premises designated by Tenant-Turbo as being high
security areas, to which areas Tenant-Turbo will provide access to
Landlord-TDYT, as needed, upon reasonable notice from Landlord-TDYT to
Tenant-Turbo. Landlord-TDYT, or Landlord-TDYT's representatives, may enter the
Leased Premises during normal working hours only with a Tenant-Turbo escort;
however, for so long as Landlord-TDYT holds an equity interest in Tenant-Turbo
in excess of either twenty (20%) percent or valued in excess of $1 million, then
neither an escort nor notice shall be required. Notice must be given to
Tenant-Turbo in advance, except as otherwise provided herein, for Landlord-TDYT,
or Landlord-TDYT's representatives, to enter high security areas, as designated
by Tenant-Turbo, of the Leased Premises in order that required security
preparations can be completed in advance.
ARTICLE IX - SURRENDER OF LEASED PREMISES
Tenant-Turbo shall deliver up and surrender to Landlord-TDYT possession
of the Leased Premises including all fixtures permanently attached to the Leased
Premises during the term hereof (except Tenant-Turbo's trade fixtures), upon the
termination of this Lease, in as good condition and repair as the same were in
at the beginning of the term of this Lease, reasonable wear and tear and damage
by fire, casualty or loss by taking alone excepted. Upon
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such delivery and surrender of possession Tenant-Turbo shall remove from the
Leased Premises all personal property of Tenant-Turbo, as provided herein. At
Landlord-TDYT's option, any property not so removed shall be deemed abandoned
and may be removed and disposed of by Landlord-TDYT in such manner as
Landlord-TDYT shall determine and Tenant-Turbo shall pay Landlord-TDYT the
entire reasonable cost and expense incurred by it in effecting such removal and
disposition and in making any incidental repairs to the Leased Premises and for
use and occupancy during the period after the expiration of the Term and prior
to Tenant-Turbo's performance of its obligations under this Article.
Tenant-Turbo shall further indemnify Landlord-TDYT against all loss, cost and
damage resulting from Tenant-Turbo's failure and delay in surrendering the
Leased Premises as herein provided, and for any and all costs incurred by
Landlord-TDYT to remove any or Tenant-Turbo's personal items or property from
the Leased Premises.
ARTICLE X - CASUALTY, EMINENT DOMAIN, ETC.
Section 10.01 RENT ABATEMENT.. If the Leased Premises shall be damaged
by fire or casualty, the rent and the charges payable by Tenant-Turbo hereunder
shall xxxxx or be reduced proportionately for the period beginning with the date
of such damage in which, by reason of such damage, there is substantial
interference with the operation of Tenant-Turbo's use of the Leased Premises,
having regard to the extent to which Tenant-Turbo be required to discontinue
Tenant-Turbo's use of the Leased Premises, but such abatement or reduction shall
end when Landlord-TDYT shall have restored the Leased Premises (exclusive of any
of Tenant-Turbo's fixtures, furnishings, equipment and the like) to
substantially the condition in which the Leased Premises were in prior to such
damage. If the damage to the Leased Premises is not restored within 120 days of
such damage, then Tenant-Turbo shall have the option to terminate the Lease.
Notwithstanding the above, if the Leased Premises are deemed by the Tenant-Turbo
to be damaged in excess of twenty-five (25%) of the value of the Leased
Premises, then, by written notice to the Landlord-TDYT, the Tenant-Turbo shall
have the right to terminate this Lease without prejudice, provided Tenant-Turbo
is current on all Rent, Additional Rent, or other costs or charges due under
this Lease.
Section 10.02 ASSIGNMENT OF RIGHTS TO THE LANDLORD-TDYT.Landlord-TDYT
shall have and hereby reserves and accepts, and Tenant-Turbo hereby grants and
assigns to Landlord-TDYT, all rights to recover for damages to the Leased
Premises, the Property, and the leasehold interest hereby created (other than
Tenant-Turbo's insurance policies), and to compensation accrued or hereafter to
accrue by reason of such taking, damage or destruction, as aforesaid, and by way
of confirming the foregoing, Tenant-Turbo hereby grants and assigns, and
covenants with Landlord-TDYT to grant and assign to Landlord-TDYT all rights to
such damages or compensation. Nothing contained herein shall be construed to
prevent Tenant-Turbo from making an insurance claim upon insurance maintained by
Tenant-Turbo for the value of any of Tenant-Turbo's trade fixtures or other
personal property owned by Tenant-Turbo damaged by any fire or other casualty,
or to prevent Tenant-Turbo from prosecuting in any condemnation proceedings a
claim for the value of any Tenant-Turbo's trade fixtures installed in the Leased
Premises by Tenant-Turbo at Tenant-Turbo's expense and for relocation expenses
and the unamortized costs of Tenant-Turbo improvements to the building and any
net income loss of business, provided that such action shall not affect the
amount of compensation otherwise recoverable by Landlord-TDYT from the taking
authority.
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Section 10.03 LEASE/ASSIGNMENT.Tenant-Turbo shall not have any right to
lease the Leased Premises or any portion of the Leased Premises and,
furthermore, Tenant-Turbo shall not have any right to assign this Lease, without
the prior written consent of Landlord-TDYT, which consent shall not be
unreasonably withheld or delayed. If the rent and other sums and consideration
received by Tenant-Turbo on account of any such sublease or assignment exceed
the then applicable Yearly Fixed Rent allocable to the Leased Premises or to the
space subject to the sublease, as the case may be, Tenant-Turbo shall pay to
Landlord-TDYT, as additional rent hereunder, all of such excess, monthly as
received by Tenant-Turbo, less Tenant-Turbo's reasonable expenses incurred in
respect of such assignment or sublease, including brokerage commissions to a
licensed third party real estate broker, advertising and reasonable attorney's
fees, and the reasonable costs of repairs or fit-up or alterations to the Leased
Premises for such assignee or Landlord-TDYT.
ARTICLE XI - EVENTS OF DEFAULT
Section 11.01 EVENTS OF DEFAULT.If any of the following events occur,
it is hereby defined as and declared to be and to constitute an "Event of
Default" hereunder:
Section 11.02 FAILURE TO PAY.Failure to make any payment of rent or
additional rent when said payment is due hereunder.
Section 11.03 FAILURE TO COMPLY WITH COVENANTS.Failure of Tenant-Turbo
to perform or observe any covenant, agreement or condition on its part contained
in this Lease, which failure shall have continued for a period of ten (10) days
after written notice given by Landlord-TDYT, specifying the failure and
requiring the same to be remedied; unless, however, such condition cannot
reasonably be cured within said ten (10) day period and provided Tenant-Turbo
uses or is using all diligent efforts to cure said defect or condition.
Section 11.04 SUSPENSION OF BUSINESS.Tenant-Turbo shall abandon the
Leased Premises for a period of greater than 30 days, while in default.
Section 11.05 INSOLVENCY.Any act by, against, or relating to the
Tenant-Turbo, or its property or assets, which act constitutes the application
for, consent to, or sufferance of the appointment of a receiver, trustee, or
other person, pursuant to court action or otherwise, over all, or any part of
the Tenant-Turbo's property, and such appointment is not dismissed within ninety
(90) days after it is begun; the granting of any trust mortgage or execution of
an assignment for the benefit of the creditors of the Tenant-Turbo, or the
occurrence of any other voluntary or involuntary liquidation or extension of
debt against agreement for the Tenant-Turbo; adjudication of bankruptcy or
insolvency relative to the Tenant-Turbo, where such proceeding is not dismissed
within ninety (90) days after it is begun; the entry of an order for relief or
similar order with respect to the Tenant-Turbo in any proceeding pursuant to the
Bankruptcy Reform Act of 1978 (commonly referred to as the Bankruptcy Code) or
any other federal bankruptcy law; the filing of any complaint, application, or
petition by or against the Tenant-Turbo initiating any matter in which the
Tenant-Turbo is or may be granted relief from the debts of the Tenant-Turbo
pursuant to the Bankruptcy Code or any other insolvency statute or procedure;
the offering by or entering into by the Tenant-Turbo of any composition,
extension or any other arrangement seeking relief or extension for the debts of
the Tenant-Turbo, generally, or the initiation of any
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other judicial or non-judicial proceeding or agreement by, against, or including
the Tenant-Turbo which seeks or intends to accomplish a reorganization or
arrangement with creditors.
Section 11.06 WRIT OF ATTACHMENT; EXECUTION.Tenant-Turbo shall suffer
any writ of attachment or execution or any similar process to be issued or
levied against the Leased Premises or all or a substantial part of its property,
which writ or process is not discharged, released, stayed, bonded or vacated
within forty-five (45) days after its entry, issue or levy.
Section 11.07 TRANSFER OF OWNERSHIP.There occurs any breach by
Tenant-Turbo of the terms of Article XIII hereof.
ARTICLE XII - LANDLORD-TDYT'S REMEDIES ON DEFAULT
Section 12.01 REMEDIES.Whenever any Event of Default under Article XI
of this Lease shall have happened any one or more of the following remedial
steps may be taken:
12.01.1 ACTION UNDER LAW OR EQUITY.Subject to applicable law,
Landlord-TDYT may take whatever action at law or in equity as may
appear necessary or desirable to collect all rent and other payments
then due and thereafter to become due, or to enforce performance and
observance of any obligation, agreement or covenant of Tenant-Turbo
under this Lease.
12.01.2 POSSESSION; SUBLEASE.Subject to applicable law and
upon prior notice to Tenant-Turbo, Landlord-TDYT may re-enter and take
possession of the Leased Premises without terminating this Lease, and
sublease the Leased Premises for the account of Tenant-Turbo, using
reasonable best efforts to mitigate its damages.
12.01.3 TERMINATION OF LEASE.Subject to applicable law,
Landlord-TDYT may terminate the Lease, exclude Tenant-Turbo from
possession of the Leased Premises and in such event Landlord-TDYT shall
use its best efforts to lease the Leased Premises to another for the
account of Landlord-TDYT, but such obligation shall not be treated as
requiring Landlord-TDYT to favor the Leased Premises over any other
space which it may have available for leasing.
12.01.4 COLLECTION OF RENTS.Tenant-Turbo shall be liable for
and shall pay, on the days originally fixed herein for payment, any and
all rent and other amounts due under the terms of the Lease as if the
Lease had not been terminated or an Event of Default had not occurred,
regardless of whether the Landlord-TDYT has sublet or relet the Leased
Premises, less credit from any proceeds to Landlord-TDYT from any new
Tenant-Turbo, it being understood, however, that Landlord-TDYT shall
only be required to use reasonable best efforts to mitigate damages.
12.01.5 ALTERATIONS AND REPAIRS.Tenant-Turbo shall have the
right from time to time during the Term of this Lease, at
Tenant-Turbo's sole expense and without Landlord-TDYT's consent, to
make non-structural alterations to the Leased Premises. All alterations
permitted hereunder shall be performed in a good and workmanlike
manner, and in full compliance with all applicable laws. Tenant-Turbo
shall not permit any mechanics' or other liens to be placed upon the
Leased Premises during the Term of
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this Lease caused by or resulting from any work performed, materials or
supplies furnished by or at the request of Tenant-Turbo. In the case of
the filing of any such lien, Tenant-Turbo shall cause the same to be
discharged of record within sixty (60) days after Tenant-Turbo is
notified that such lien has been filed.
12.01.6 LIQUIDATED DAMAGE.Tenant-Turbotec or its legal
representatives shall pay to the Landlord-TDYT, as liquidated damages
for the failure of Tenant-Turbo to observe and perform Tenant-Turbo's
covenants herein contained, any deficiency between the rent hereby
reserved and the net amount, if any, of the rents collected on account
of any lease or leases of the Leased Premises for each month of the
period which would otherwise have constituted the balance of the term
of this Lease. The failure or refusal of Landlord-TDYT to relet the
Leased Premises or any part or parts thereof shall not release or
affect Tenant-Turbotec's liability for damages. Landlord-TDYT, at its
option, may make such alterations, repairs or replacements and
decorations on the Leased Premises that the Landlord-TDYT, in its sole
judgment, considers advisable and necessary for the purposes of
reletting the Leased Premises. The making of such alterations or
decorations shall not operate or be construed to release Tenant-Turbo
from liability hereunder. Landlord-TDYT shall, in no event, be liable
for failure to relet the Leased Premises or, if the Leased Premises are
relet, for failure to collect the rent thereof under such reletting.
Section 12.02 REMEDIES XXXXXXXXXX.Xx remedy herein conferred upon or
reserved to Landlord-TDYT by this Lease is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Lease or now or
hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any Event of Default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often as may be deemed
expedient.
Section 12.03 LANDLORD-TDYT'S RIGHT TO CURE DEFAULT.Landlord-TDYT may,
but shall not be obligated to, cure, at any time, following ten (10) days' prior
notice to Tenant-Turbo, except in cases of emergency when no notice shall be
required, any default by Tenant-Turbo under this Lease; and whenever
Landlord-TDYT so elects, all reasonable costs and expenses incurred by
Landlord-TDYT, including reasonable attorneys' fees, in curing an Event of
Default shall be paid by Tenant-Turbo to Landlord-TDYT as Additional Rent on
demand, together with interest thereon at the rate provided in Section 4.06 from
the date of payment by Landlord-TDYT to the date of payment by Tenant-Turbo.
Notwithstanding the foregoing, in the event of an emergency Landlord-TDYT agrees
to use reasonable efforts to notify Tenant-Turbo promptly.
Section 12.04 COST OF COLLECTION.If any event of default provided for
in Article XI should occur and Landlord-TDYT should employ attorneys or incur
other reasonable expenses for the collection of the rent and additional rent
payments or any other sums due hereunder or the enforcement or performance or
observance of any obligation or agreement on the part of the Tenant-Turbo herein
contained, Tenant-Turbo agrees that it will on demand therefore reimburse the
Landlord-TDYT for reasonable attorneys' fees and such other expenses so
incurred.
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Section 12.05 WAIVERS.If any agreement contained herein should be
breached by any party and thereafter waived by another party, such waiver shall
be limited to the particular breach so waived and shall not be deemed to waive
any other breach hereunder.
ARTICLE XIII - ASSIGNMENT AND SUBLEASING
Section 13.01 ASSIGNMENT AND XXXXXXXXXX.Xx stated previously,
Tenant-Turbo shall not have the right to assign this Lease, or sublet the whole
or any part of the Leased Premises, without the prior written consent of
Landlord-TDYT, which shall not be unreasonably withheld or delayed.
However, consent to a sublease by any entity owning at least ninety
(90%) percent of Tenant-Turbo is hereby granted, provided ninety (90) days
advance written notice is given to Landlord-TDYT containing (a) the name and
address of the proposed subtenant, (b) a current financial statement of the
proposed subtenant, and provided, (c) a sublease agreement acceptable to
Landlord-TDYT has been duly executed. Any such sublease shall not constitute a
substitution of tenants and shall not release any obligation of Tenant-Turbo
hereunder.
Section 13.02 LIMITATION ON CONSENT TO SUBLEASE.Any consent given by
Landlord-TDYT to any assignment or subletting, or acquiescence by the
Landlord-TDYT to any assignment or subletting without its consent:
(a) shall not release Tenant-Turbo from any responsibility for
the performance of all of the terms and provisions of this Lease and
Tenant-Turbo shall remain responsible for such performance;
(b) shall not be construed as a waiver of the duty of
Tenant-Turbo or its legal representatives, successors or assigns to obtain
consent to any other subletting or assignment; and
(c) shall not be construed as to modify or limit Landlord-TDYT
rights under this Article.
Section 13.03 EXCESS RENT.If the rent and other sums and consideration
received by Tenant-Turbo on account of any such sublease or assignment exceed
the then applicable Yearly Fixed Rent allocable to the Leased Premises or to the
space subject to the sublease, as the case may be, Tenant-Turbo shall pay to
Landlord-TDYT, as additional rent hereunder, all of such excess, monthly as
received by Tenant-Turbo, less Tenant-Turbo's reasonable expenses incurred in
respect of such assignment or sublease, including brokerage commissions to a
licensed third party real estate broker, advertising and reasonable attorney's
fees, and the reasonable costs of repairs or fit-up or alterations to the Leased
Premises for such assignee or Landlord-TDYT.
ARTICLE XIV - QUIET ENJOYMENT
Subject to the performance by Tenant-Turbo of the terms, covenants and
conditions of this Lease on the part of Tenant-Turbo to be kept and performed,
Landlord-TDYT warrants, covenants and represents that Tenant-Turbo shall have
the quiet and peaceable use, occupancy, possession and enjoyment of the Leased
Premises for the purpose demised, without any
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hindrance or disturbance whatsoever throughout the term hereof, subject,
however, to the provisions of this Lease.
ARTICLE XV - SUBORDINATION OF LEASE
This Lease shall be subject and subordinate at all times to the lien
and operation of any mortgage now or hereafter granted or placed by
Landlord-TDYT's bank on the Leased Premises or the Property and to all renewals,
modifications, replacements and extensions thereof, without the necessity of any
further instrument or act on the part of Tenant-Turbo to effectuate such
subordination. Tenant-Turbo agrees that at the option of any mortgagee in
possession this Lease shall remain in full force and effect and Tenant-Turbo
shall attorn to any mortgagee in possession or the purchaser thereof as
Landlord-TDYT under this Lease. Tenant-Turbo shall make, execute, acknowledge
and deliver any and all instruments deemed necessary by any such mortgagee or
security holder to accomplish such subordination upon demand, provided that such
mortgagee or security holder agrees not to disturb Tenant-Turbo's enjoyment of
the Leased Premises should Tenant-Turbo not be in default of this Lease.
Landlord-TDYT shall use best efforts to furnish Tenant-Turbo with an agreement
by any mortgagee of the Leased Premises not to disturb Tenant-Turbo's tenancy if
Landlord-TDYT is in compliance with the terms and conditions of this Lease.
ARTICLE XVI - WAIVER OF SUBROGATION
Notwithstanding anything set forth in this Lease to the contrary,
Landlord-TDYT and Tenant-Turbo do hereby waive any and all right of recovery,
claim, action or cause of action against the other, their respective agents,
officers and employees for any loss or damage that may occur to the Leased
Premises or any addition or improvements thereto, or any contents therein, by
reason of fire, the elements or any other cause which is insured against under
the terms of the standard fire and extended coverage insurance policy or
policies, with vandalism, malicious mischief and all-risk coverage, building and
contents and rent and business interruption insurance, or other insurance in
effect from time to time required to be carried by the Landlord-TDYT and
Tenant-Turbo, or for which Landlord-TDYT or Tenant-Turbo may be reimbursed as a
result of insurance coverage affecting any loss suffered by either party hereto,
regardless of cause or origin, including the negligence of Landlord-TDYT or
Tenant-Turbo, or their respective agents, officers and employees. In addition,
all insurance policies carried by either party covering the Leased Premises
including, but not limited to, contents, fire and casualty insurance, shall
expressly waive any right on the part of the insurer against the other party,
provided that insurance including such waiver is commercially available, for
damage to or destruction of the Leased Premises or contents therein resulting
from the acts, omissions or negligence of the other party. If either party is
unable to obtain such a waiver, this Article XVI shall be of no force or effect.
ARTICLE XVII - INDEMNIFICATION
Section 17.01 INDEMNIFICATION BY TENANT-TURBO.(a) During the term of
this Lease and for six months thereafter, Tenant-Turbo shall indemnify
Landlord-TDYT and save Landlord-TDYT harmless from and against any and all
claims, actions, damages, liability and expenses: (i) in connection with any
loss, damage or injury to persons or property occurring in the Leased
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Premises unless caused by the negligence or willful misconduct of Landlord-TDYT,
its employees, agents or contractors, or Landlord-TDYT's failure to perform any
of its obligations under this Lease; or (ii) occasioned to the extent of any
negligent act or omission of Tenant-Turbo, Tenant-Turbo's agents, contractors,
invitees, customers or employees; or (iii) occasioned by any violation by
Landlord-TDYT of any agreement, covenant or condition of this Lease; or (iv) in
connection with any liability under or lien imposed pursuant to the Superlien
Act by reason of any act or action or failure to act by the Tenant-Turbo or any
of the Tenant-Turbo's agents, contractors, invitees, customers or employees; or
(v) from all loss, cost, liability, damage, and expense, including, without
limitation, reasonable attorneys' fees and the cost of litigation arising under
Hazardous Waste Laws due to any act or omission of Tenant-Turbo, including
Tenant-Turbo's agents, employees or invitees. In case Landlord-TDYT shall,
without fault on its part, be made a party to any litigation commenced by or
against Tenant-Turbo, then Tenant-Turbo shall protect and hold Landlord-TDYT
harmless and shall pay all costs, expenses and reasonable attorneys' fees
incurred or paid by Landlord-TDYT in connection with such litigation.
Section 17.02 LIMITATION OF LIABILITY OF LANDLORD-TDYT.Tenant-Turbo
agrees that Landlord-TDYT shall not be responsible or liable to Tenant-Turbo or
those claiming by, through, or under Tenant-Turbo, or its or their property,
from damage resulting from the breaking, bursting, stopping, or leaking of
electric wires or cables, water, gas, sewer, or steam pipes, from roof leaks,
and the like, unless due to Landlord-TDYT's negligence or willful act.
Section 17.03 INDEMNIFICATION BY LANDLORD-TDYT.Landlord-TDYT shall
indemnify Tenant-Turbo and save Tenant-Turbo harmless from and against any and
all claims, actions, damages, liability and expenses of whatever nature (i) in
connection with loss, damage or injury to persons or property occurring on the
Property and not within the Leased Premises, unless caused by the negligence or
willful misconduct of Tenant-Turbo, its employees, agents or contractors, or
Tenant-Turbo's failure to perform any of its obligations under this Lease; or
(ii) occasioned to the extent of any negligent act or omission of Tenant-Turbo,
Tenant-Turbo's agents, contractors, invitees, customers or employees. In case
Tenant-Turbo shall, without fault on its part, be made a party to any litigation
commenced by or against Landlord-TDYT in violation of the terms of this Section
17.03, then Landlord-TDYT shall protect and hold Tenant-Turbo harmless and shall
pay all costs, expenses and reasonable attorneys' fees incurred or paid by
Tenant-Turbo in connection with such litigation.
ARTICLE XVIII - MISCELLANEOUS
Section 18.01 XXXXXXX.Xx waiver by either party of any of the terms,
covenants, provisions, conditions, rules and regulations required by this Lease,
and no waiver of any legal or equitable relief or remedy shall be implied by the
failure of either party to assert any of its rights, or to declare any
forfeiture or for any other reason, and no waiver of any of said terms,
provisions, covenants, rules and regulations shall be valid unless it shall be
in writing signed by both parties hereto.
Section 18.02 NOTICE OF LEASE.Tenant-Turbo agrees that it will not
record this Lease. The parties agree that either party may record a notice of
lease.
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Section 18.03 NOTICES.All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given three (3) days
after the date when mailed by registered or certified mail, return receipt
requested, postage prepaid, or one (1) day after the date when sent by reputable
overnight courier providing proof of delivery, addressed as follows:
To Landlord-TDYT: Thermodynetics
000 Xxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Office of the President
To Tenant-Turbo: Turbotec Products, Inc.
000 Xxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Office of the President
With a copy to:
or to such other address as may be specified from time to time, in writing,
given to the other party in accordance with the terms of this Section.
Section 18.04 BIND AND INURE; LIMITATION OF LANDLORD-TDYT'S
LIABILITIES.The obligations of this Lease shall run with the land, and this
Lease shall be binding upon and inure to the benefit of the parties hereto and
their respective successors. No individual partner, trustee, stockholder,
member, officer, director, employee or beneficiaries of Landlord-TDYT shall be
personally liable under this Lease and Tenant-Turbo shall look solely to
Landlord-TDYT's interest in the Building, and upon any rents, issues and profits
generated by the Building after the issuance of a final, non-appealable judgment
against the Landlord-TDYT in favor of the Tenant-Turbo, in pursuit of its
remedies upon an event of default hereunder, and the general assets of the
individual partners, trustees, stockholders, members, officers, directors,
employees or beneficiaries of Landlord-TDYT shall not be subject to levy
execution or other enforcement procedure for the satisfaction of the remedies of
Tenant-Turbo.
Section 18.05 LANDLORD-TDYT'S DEFAULT.Landlord-TDYT shall not be deemed
to be in default in the performance of any of its obligations hereunder unless
it shall fail to perform such obligations and such failure shall continue for a
period of 20 days after written notice from Tenant-Turbo or such additional time
as is reasonably required to commence the correction of, and thereafter correct,
any such default after notice has been given by Tenant-Turbo to Landlord-TDYT
specifying the nature of Landlord-TDYT's alleged default. Tenant-Turbo shall
have no right to terminate this Lease for any default by Landlord-TDYT hereunder
and no right, for any such default, to offset or counterclaim against any rent
due hereunder. Landlord-TDYT's liability for maintenance and repair shall always
be limited to the cost of making such repair or accomplishing such maintenance
and repair. If no action is taken by the Landlord-TDYT to
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cure any defect or default hereunder, and if such defect or default continues
for a period of thirty (30) days after written notice is received from the
Tenant-Turbo, then the Tenant-Turbo shall have the right to cure such defect or
default and to obtain reasonable reimbursement from the Landlord-TDYT for any
costs or expenses that are attributable to the Landlord-TDYT in accordance with
this Lease.
Section 18.06 BROKERAGE.Landlord-TDYT shall be responsible for the
payment of all brokerage services to in connection with this Lease, it being
acknowledged by both parties hereto that the sole broker involved herewith is
Xxxxxxx Commercial Group. Tenant-Turbo shall indemnify Landlord-TDYT from any
brokerage commission claimed by any other party other than the broker listed
above.
Section 18.07 SEVERABILITY.If any clause, sentence, paragraph or part
of this Lease shall, for any reason, be finally adjudged by any court of
competent jurisdiction to be unconstitutional or invalid, such judgment shall
not affect, impair or invalidate the remainder of this Lease but shall be
confined in its operation to the clause, sentence, paragraph or any part thereof
directly involved in the controversy in which such judgment has been rendered.
The unconstitutionality, invalidity or ineffectiveness of any one or more
provisions or covenants contained in this Lease shall not relieve Tenant-Turbo
from liability to make the payments of rental provided herein.
Section 18.08 ACCEPTANCE OF LESSER XXXXXXXX.Xx payment by Tenant-Turbo
or acceptance by Landlord-TDYT of a lesser amount than shall be due from
Tenant-Turbo to Landlord-TDYT shall be treated otherwise than as a payment on
account. The acceptance of a check by Landlord-TDYT for a lesser amount with any
endorsement or statement thereon, or upon any letter accompanying such check,
that any such lesser amount is payment in full, shall be of no effect, and
Landlord-TDYT may accept such check without prejudice to any other rights or
remedies Landlord-TDYT may have against Tenant-Turbo.
Section 18.09 LEASE NOT PARTNERSHIP.Landlord-TDYT does not, in any way
or for any purpose, become a partner of Tenant-Turbo in the conduct of
Tenant-Turbo's business, or otherwise, or joint venturer, or a member of a joint
enterprise with Tenant-Turbo by virtue of this Lease.
Section 18.10 CAPTIONS.The captions or headings in this Lease are for
convenience only and in no way define, limit or describe the scope or intent of
any provision of this Lease.
Section 18.11 CONNECTICUT LAW.This Lease and all rights and obligations
hereunder, including matters of construction, validity and performance, shall be
governed by the laws of the Commonwealth of Connecticut. Each party submits
itself to the jurisdiction of the Courts of said Commonwealth for all purposes
with respect to this Lease.
Section 18.12 EXCUSABLE XXXXXX.Xx the event either party hereto shall
be delayed or hindered in or prevented from the performance of any act required
under this Lease by reason of adverse weather conditions, strikes, lockouts,
labor troubles, inability to procure materials, failure of power, restrictive
governmental law or regulations, riots, insurrection, war or other reason of a
like nature not the fault of the party delayed in performing work or doing acts
required under the terms of this Lease, then performance of such act shall be
excused for the
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period of the delay, and the period for the performance of any such delay. The
provisions of this Article shall not operate to excuse Tenant-Turbo from prompt
payment of rent or any other payment required by the terms of this Lease.
IN WITNESS WHEREOF, Landlord-TDYT, being hereunto authorized, has caused this
Lease to be executed and delivered in its name and Tenant-Turbo, being hereunto
authorized, has caused this Lease to be executed and delivered in its name and
behalf and its seal to be hereunto affixed by its officers thereunto duly
authorized, all as of the date first above written.
ATTEST: LANDLORD-TDYT:
THERMODYNETICS, INC.
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BY:________________________
----------------------------- Xxxxxx X. Xxxxxx
President
ATTEST: TENANT-TURBO:
TURBOTEC PRODUCTS, INC.
-----------------------------
BY:________________________
----------------------------- Xxxxxx X. Xxxxxxxxx
President
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